Property, Kieff
Fall 2011
Property Outline
I.
General Notes
Show what you know.
Be clear. Use boring sentence structure and clear, simple choice of words.
Use IRAC as a model, but don't necessarily follow it religiously. I and R can be one sentence
total. Must have a conclusion (not important which way you go), and it must be supported by A.
Note and address a plurality of issues when discussing the I/R. Discuss as many issues as
possible.
II.
Who owns this Property?
A.
Original Acquisition
1.
First Possession
Requires: (1) intent, (2) notice, and (3) diligence (i.e., having and putting to use
that which is in your possession).
Custom may play a role. Labor by itself is insufficient. Encourages racing.
Applies most often when the asset is previously unowned (e.g., wild animal).
2.
Discovery
A right to possess something. Of those who claimed/found the property, who had
a right to do so?
Relativity of Title: Finder of lost item has a claim of ownership superior to
everyone but the true owner. Between two finders, the first finder wins.
Trespasser/Converter has subordinate claim to Finder and true owner. Between
two trespassers/converters, the one with first possession wins.
Jus Tertii: Claim that true owner is absent or not a party is not a valid defense.
Rationale Soli: Finder of animal has superior claim of ownership to owner to
land (except for bees).
Trover: Common law action to recover value of personal property that has been
wrongfully disposed of by another person.
3.
Creation
Refers mostly to Intellectual Property.
Hot News Rule: limited right to news at newest moment.
Right of Publicity: property right to likeness, things that mimic voice or
appearance.
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Patentability: requires (1) novelty and (2) non-obviousness. Independent
origination is not a defense.
Copyrightability: requires creative expression (e.g., none for white pages).
4.
Accession
Refers to bundle of doctrines in which one person adds to the property of another
either by labor or labor and new materials.
In Accession, a piece of property is transferred to another via Liability. In
Confusion, both parties have a property right enforced by Liability (what?).
Doctrine of Accession: Court awards ownership of one thing to the owner of the
most prominent thing in the field of view (e.g., owner of forest owns fox, owner
of cow owns calf).
Labor Added: Court awards ownership of final product to the owner of the raw
materials unless the improver’s efforts are in good faith and have sufficiently
increased their value. If so, improver compensates the original owner for the
value of the raw materials.
Ad Coelum: Ownership of the soil extends to the sky and to the depths. Lots of
problems with this approach.
Accretion: Land that is added to an owner’s land becomes his property. Generally
applies to small amounts added over time.
Avulsion: Where a river, for example, serves as the boundary between properties,
the geographic location of the original riverbed remains a fixed, permanent
boundary even if the river changes course. Generally applies where the river
abruptly and dramatically changes course.
Fixtures: Items that are attached to real property are considered part of that
property. Requirements:
a. Actual annexation to the realty (e.g., not just a picture frame on a wall).
b. Application/use of item in relation to what it’s connected to (e.g., water
heater).
c. Intent. May be inferred from circumstances surrounding the transaction
rather than from the owner’s subjective intent.
Owner of land owns anything attached to the land (superior claim to finder) but
not item lying on the land (inferior claim to finder).
5.
Adverse possession
Possessor lays claim to another’s property without ownership. After period of
years (statute of limitations), court awards ownership to the possessor (Note:
Adverse Possessor gets the same type of ownership that original owner had).
Requires:
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1.
2.
3.
4.
5.
Actual physical occupation.
Exclusive control (trespass alone insufficient).
Possession is open and notorious.
Possession is continuous.
Adverse (i.e., without permission).
Tacking: periods of possession by different people may be added together to
reach the statute of limitations. The stronger the connection between possessors
(e.g., privity), the stronger the argument for tacking.
Time of Conversion Rule: statute of limitations begins at time of possession/
conversion.
Demand Rule: statute of limitations begins when true owner demands return of
property.
Color of Title: a minority of courts will consider the good/bad faith of the
Adverse Possessor.
B.
Title Searches and Recording Acts
Nemo Dat: You cannot give away what you do not have. Cannot obtain good title from a
thief. Trace back ownership through chain of title to act of original acquisition.
Exception: where purchase is made in good faith, then courts generally find purchaser has
good title regardless of how seller acquired it (burden may be on purchaser to show good
faith).

Void Title: acquired by theft. No power to transfer to good faith purchaser.

Voidable Title: transfer of title is voluntary on the part of the transferor, but not
necessarily good title (e.g., acquired by purchaser claiming to be someone else,
acquired by bad check, acquired through fraud). Power to transfer to good faith
purchaser.
1.
Title Searches
Search back through chain of title as far as possible, or at least 30–40 years. Then
work back up through grantor index (coming forward in time). They should match
up to ensure all is in order. Look carefully at the period between transfer and
recording, because that's where the mischief happens. Make sure the transferee is
the person who is recording first.
Registration: transfer is validated at the time of transfer (resolves disputes ex
ante). Rarely used.
Recordation: transfer is simply recorded (allows for disputes to be resolved ex
post). Generates constructive notice to all subsequent purchasers.
Recording Acts:

Race: First to record wins.
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
Notice: a subsequent good faith purchaser for value will win unless he has
notice. Preserves good faith purchaser rule.

Race-Notice: purchaser for value will only win if she has no notice and
records first.
2.
Limits of Title Searches
Title search won’t find the following items:

Mechanic’s Lien against an automobile.

Wild Deeds, deeds that are recorded but cannot be located in the
transferor’s chain of title.

Transfer of title due to Adverse Possession.
III. Rights of Owner
A.
Right to Exclude
Generally, an owner of property has the right to exclude others from its use (but see
Governance, Liability).
Actions inconsistent with non-owners may be sufficient for criminal conversion (e.g.,
shoplifters).
Self-Help: Generally, Self-Help is OK to prevent entry or trespass against personal
property unless doing so results in the possibility of violence.
1.
Exceptions to Right to Exclude
Human values: e.g., social aid.
Necessity: Duty to allow acts of necessity in order to preserve human life.
Public Accommodation: Common carriers and innkeepers are subject to general
duty of nondiscrimination among customers, unless there is a very good reason
(?).
Anti-discrimination: the Government may not enforce discrimination (14th
Amendment). Does not apply to private actions unless they can be considered
public or quasi-public.
Custom: e.g., hunting on private land is OK unless the owner has posted
B.
License
Power to permit someone else top access property (a promise not to exclude). Note: leads
to cause of action for promissory estoppels, not a property right.
Revocable unless supported by a contract making it irrevocable. Treat like in personam,
contracts. License may not have injunctive remedy.
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C.
Fall 2011
Bailment
Owner (bailor) temporarily transfers custody of his property to another (bailee).
Duty of care:
 Slight diligence if bailment is for the sole benefit of the bailor.
 Bailee is responsible for slight neglect if bailment is for his sole benefit.
 Bailee is responsible for ordinary neglect if the bailment is reciprocally beneficial.
Strict liability for bailee’s misdelivery, even if involuntary bailee.
Involuntary Bailee: a bailee who has no contractual relationship with the bailor.
D.
Abandonment
Owner transfers possession to no one in particular and does not want it back. Notice is
important. (Intent + Overt Act)
Cannot abandon real property, even if it is a negative value asset.
E.
Destruction (limited)
An owner may have a right to destroy his own property, but courts generally will not
enforce a will calling for destruction of deceased’s property.
F.
Transfer
Right to transfer is a fundamental attribute of owner sovereignty. Must be an exchange or
a gift.
Delivery: transfer of a gift requires some physical transfer (delivery). Delivery of a
substitute will suffice (e.g., title, keys to property, etc.), but need more than just intent.
Restraint on Alienation: generally not enforceable (e.g., O transfers Blackacre to A on
condition that A never transfer it). Partial restraint may be enforceable only if it
reasonable.
Statute of Frauds: transfer of property right in land must be in writing and signed by one
or more parties (exception for short-term leases).
1.
Wills
Must be (1) in writing and (2) witnessed by at least one disinterested 3rd party
who signs before a notary.
Holographic Will: handwritten.
Gift Causa Mortis: exception to required formality of a will. Limited to transfer
of mad on deathbed and to items present (e.g., wristwatch).
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IV. Values Subject to Ownership
A.
Moral Rights
Courts may recognize non-traditional rights to preserve morality, prevent
commoditization of cultural items, etc.
Right of Attribution: right to have art that you created labeled as such. In rem right for
art.
Right of Integrity: right of artist not to have his art defaced, changed, destroyed, etc.
B.
Personhood
Property right in people is not open to question (slavery). Property right in parts of people
is open to question. Concern about commodification.

Next of kin may have a property right in body parts for the purpose of due
process.

No property right in cells for the purpose of compensatory damages.
C.
Inherently Public Property
Waterways, roads, air, etc.
Public Trust Doctrine: Property (e.g., land) held in trust by the Givernemnt is for the
people of the state, and the trust cannot be alienated or transferred.

V.
Exception: state may transfer trust lands if selling small parcels and if doing so
benefits public. Why? It may be that legislators cannot be trusted to always act in
the best interest of the public because of their own self interests (e.g., for reelection).
Types of Ownership
A.
Freehold Interests
See Freehold Interests Chart.
Conservation of Estates: Where an owner grants a fee simple, all the pieces must add up
to a fee simple.
Open Class: a class with a future interest where the class may growor change before the
interest transfers (e.g., in “To X and her children…” the children are an open class until
X dies).
Numerus Clausus: the catalog of estates is finite and closed, though legislatures are free
to create new forms.
Per Stirpes: divide estate into fractions and grant each fraction to a class/heir.
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Per Capita: divide estate by heir
Fee Tail: property goes not just to heirs but to specific type of heirs (e.g., “To A and her
issues…” or “To A and her maternal heirs…”). Generally disallowed.
B.
Leases
Three types (fourth is rare):




Periodic Tenancy (e.g., month to month) (Note: common law tradition of
requiring 6 months to terminate an agricultural lease).
Fixed-Term (e.g., for X years).
Tenancy At-Will (i.e., until one party decides to terminate).
Life Tenancy. For life. Usual protections don’t apply.
Leases may run with the land in some circumstances (see Covenants).
Under old model (Paradine), tenant has a duty to pay independent of possession. Under
modern view, material breach (i.e., does it touch the essence of the deal?) of lease terms
frees tenant from duty to pay. Tenant then has option to:



Get out.
Stay in possession and sue for damages measured by lost profits from exclusivity.
Rescind and sue for damages.
Tenancy at Sufferance: individual, who was once in rightful possession of property,
holds over after this right has ended.
Covenant of Quiet Enjoyment: landlord promises not to interfere with tenant’s
possession of land during term of lease (implied in law).
Implied Warranty of Habitability: breach of IWH (e.g., housing code violations)
remedied by (1) withholding rent until corrected (2) specific performance, (3) damages
(e.g., value of lease in compliance with IWH minus value in current condition), (4) setoff against rent liability, (5) rescission of lease by tenant.
1.
Constructive Eviction
Not physical eviction. Refers to circumstances unremedied by landlord that
effectively prevent enjoyment/use of lease property. Three-part test:



2.
Landlord has the power to remedy the situation (may look to terms of
lease).
The conflict was foreseeable.
The landlord fails to control the problem.
Surrender
Overt act of surrender (e.g., vacates and stops rent payments) and overt act of
acceptance (e.g., landlord leases the property to a new tenant) mutually releases
landlord and tenant from further leases obligations. Duty to mitigate damages.
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3.
Transfer of Lease
Intent of parties at time of formation determines whether transfer of lease of a
sublease or assignment.
Sublease: prime tenant carves out a sublease from the prime lease. Each party
deals with the party immediately below (i.e., landlords with prime tenant, prime
tenant with subtenant). No privity between landlord and subtenant unless
contractual relationship.
Assignment: Prime tenant transfers lease to first assignee (i.e., first assignee fills
the shoes of the prime tenant and deals directly with the landlord). Privity
between landlord and first assignee. In commercial leases that require landlord’s
consent for assignment, landlord may withhold consent only if he has a
commercially reasonable objection.
C.
Co-Ops and Condos
Governed by Associations. Rules restricting use are generally OK if not unreasonable
(not arbitrary, burden doesn’t outweigh benefits, and not against public policy). Courts
generally presumes reasonableness if part of a contract. Associations also have ability to
kick people out for legitimate reasons.
Condominium: each individual occupant owns his/her unit individually.
Co-Op: tenants own shares of corporation that has title to the building. Corporation then
leases individual units to the tenant-shareholders.
D.
Trusts
Separate legal entity that own stuff.
1.
Spend-Thrift Trust
Assets of the trust cannot be reached by individual creditors of beneficiaries. A
beneficiary cannot transfer payments so that they are made directly from the trust
to creditors (i.e., assets cannot be assigned). Generally used to provide financial
support for people who are less capable of managing their financial affairs.
2.
Principal-Agency Relationship
Agent manages property for Principal. Agent owes Principal a duty of care (defer
largely to Board of Directors), and duty of loyalty. Court will intervene if duty of
loyalty is breached. Also, where there is self-dealing on the part of the trustee, the
ct will necessarily find a breach of trustee's duty without regard to whether the
breach was in good faith.
3.
Changed Circumstance
Courts will change terms of a trust if fulfillment of specific intention frustrates the
general intent.
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E.
Fall 2011
Corporations
Artificial entity that owns property in its name as if it were a person. Shields shareholders
from claims of creditors.
Shareholders own the corporation, which owns title to various assets, and elect a Board of
Directors, which appoints managers to manage/control property.
Officers of a corporation are subject to duty of loyalty.
F.
Waste
If owner has less than a fee simple interest, then he is limited in what material changes he
can make to the property.
Permissive Waste: failure to maintain property.
Ameliorative Waste: material change that improves the value of property.
G.
Rule Against Perpetuities
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.
H.

Must know who the ultimate owner is no later than 21 years after death of
someone (anyone) alive at the creation of the interest.

If any clause fails RAP, then strike it and any dependent clauses.

If contingent remainder, vesting means ascertaining who the taker is and the
satisfaction of all conditions precedent.

If executory interest, vesting involves the taking of possession (cutting short of
prior interest occurs) or conversion of executory interest into a vested remainder.

If remainder subject to open class, it means the closing of the class (i.e., the
parents are dead).
Co-Ownership
1.
Joint Tenancy
Co-tenants have right of survivorship (i.e., if one tenant dies, that interest will get
absorbed into the interests of the other tenants). Requires:




Unity of time (interests created at the same time) (Note: if one joint tenant
sells/transfers interest, the joint tenancy is destroyed).
Unity of title (created through the same instrument, not an act of law).
Unity of interest.
Unity of possession (each co-tenant has a right to possess the whole).
“To A and B as joint tenants with right of survivorship, and not as tenants in
common…”
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2.
Tenancy in Common
Co-tenants do not have right of survivorship (if one dies, interest passes to his
heirs). Can have different types of interest.
“To A and B…”
3.
Ouster
Exclusion of a co-tenant by another co-tenant.
4.
Partition
Each co-tenant has the right to terminate co-tenancy at will.
Partition in Kind: each co-tenant gets a respective portion of the property itself.
Partition by Sale: property is sold, proceeds divided among co-tenant.
Owelty: payment to correct imbalance in partition in kind.
Duty to Account: co-tenants have no duty to compensate other co-tenants for use
of the property. Exception for cases of ouster.
5.
Marital Interests
Tenancy by the Entirety: Right of survivorship. Goes further than joint tenancies
because both spouses must be consulted before transfers can be made.
Community Property: Presumption of 50/50 split. Exceptions for interests
acquired before marriage. Many states have a Forced Share Rule (even if there is
a will), which allows the spouse to elect whether to force the state to give that
spouse a share of the estate.
Common Law States: For separate title, management follows title (e.g., A’s
property is owned and managed by A, B does the same). Concurrent property,
acquired during the marriage, is managed together. If no will, then surviving
spouse generally takes all of deceased’s property. Forced share statutes guarantee
a share to the surviving spouse.
Divorce: Many common law states follow an equitable division approach (allthings-considered analysis) that varies considerably state to state.
Alimony/maintenance: provides support for the dependent spouse (may consider
hardship, dependence, as well as comparative fault).
VI. Interference with Property
A.
Intentional Trespass
Requires intrusion but does not require harm. Reasonableness of the trespass is irrelevant.
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B.
Fall 2011
Repeated Trespass
Injunction is generally an appropriate remedy (reduces the cost of repeat litigation).
Punitive damages generally are not appropriate (not effective at stopping behavior).
C.
Trespass to chattels
Use of another’s property resulting in harm.
D.
Building Encroachments
Two approaches:
A. Pile: May be treated as repeated trespass once the encroachment is identified, in
which case P is entitled to equitable relief (i.e., may tear it down).
B. Golden Press: If bad faith encroachment, then injunction is appropriate. If in
good faith, then consider both:
a. motivation behind the encroachment.
b. good/bad faith of property owner.
E.
Mistaken Improvement
Land is made better (value increased) mistakenly, in good faith. Generally, Liability Rule
applies because Property Rule incentivizes mistakes. Self-help is not an option.
F.
Nuisance
Significant and unreasonable interference with use and enjoyment of property. Balance
the harm against the value of the activity (reasonableness analysis).
Factors that may distinguish Nuisance from Trespass:
G.

Whether action giving rise to intrusion initiated on the property or outside of it.

Whether the harm was direct or indirect.

Whether the invasion was tangible or intangible.

Whether intrusion deprives P of possession or use & enjoyment.
Easements
Contract in which an owner agrees to waive his/her right to exclude certain kinds of
intrusions by another. Always run with the land. Must be in writing (statute of frauds).
(Note: be able to determine which type(s) of easement is supported by the fact pattern.)
1.
Explicit Easements
Created by writing.
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2.
Easement of Necessity
Created when an owner severs a landlocked portion of a parcel. Must have been
common ownership of the parcels before severance. Owner of landlocked parcel
can't access a public road.
3.
Easement by Implication
Requires separation of title (i.e., not a single bundle or parcel) and use before
separation that continued long enough & was obvious enough to show the use was
intended to be permanent. Continued use is necessary to beneficial enjoyment of
land.
4.
Prescriptive Easement
Must show use of the property has been open, notorious, continuous, and adverse
for a defined period of time (same period of time as for adverse possession). Must
be a definite and certain line of travel. The extent to which the easement is granted
will reflect the extent that the use is continuous (e.g., if use is only on Mondays to
go to school, easement will be only on Mondays to go to school). Like adverse
possession without exclusivity requirement. Like adverse possession, can get
tacking.
5.
Equitable Easement
Permission (license) to use property (so unlike prescriptive easement), reasonable
or reasonably foreseeable detrimental reliance (e.g., making physical
improvements to property), and fairness (i.e., equity).
Doctrine of Laches: must object in a timely manner.
H.
Covenants
Generally involve the right to insist on the use or nonuse of land. Prescribe a system of
governance rules. May be either affirmative or negative (unlike easements, which are
almost always affirmative).
Inquiry Notice: notice that would be apparent under duty to ask questions.
Constructive Notice: i.e., recorded.
Common Plan: like an addendum common to all deeds in a given area.
1.
Termination of Covenants
Changed Circumstances: Things have changes since original promise such that
enforcing it would benefit nobody within the common plan (class). If so, then
covenant no longer enforced. Very narrow. Applies primarily to instances of
strategic holdouts.
Abandonment of Covenant: Covenant is habitually and substantially unenforced
(i.e., abandoned by everyone who benefits). If so, then covenant no longer
enforced.
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I.
Fall 2011
Zoning
Regulation of land use. Must have a rational basis and promote the general welfare.
Cannot have other motivations.
Euclidian: Restricts use of individual parcels to those permitted in their zone.
Cumulative: Allows use of property in compliance with zoned use or any use that is less
intensive.
VII. Forbearance
To what extent should the Government forbear from undermining owners' expectations with
what they can & cannot do with their property?
Eminent Domain
A.
Government may force a transfer of privately owned property if the transfer is for public
use (i.e., any use with some public interest rationale, Kelo; but a pretext of public benefit
is unacceptable) and pays the original owner just compensation (the i, the highest and
best use of the land other than the use proposed by the Government, i.e., Fair Market
Value).
B.
Regulatory Takings
Two ways to think of regulatory takings:

Expansive View: as insurance against Government actions. Government writes a
check when it miscalculates balance of harm and benefit.

Limited View: If Government action falls under police power (stopping people
from doing bad things to people & property), then the action is not a taking (i.e.,
no compensation is required). If Government action does not fall under police
power, then it is not a taking (i.e., Government must compensate property owner).
See Regulatory Takings Chart.
1.
Ad Hoc Tests
Diminution in value
Reciprocity of advantage
Need to protect the public (from nuisance)
2.
Categorical Tests
(physical occupation, deprivation of all economic benefit)
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VIII. Theory & Miscellaneous Concepts
Liability:
Someone may take or destroy property if he is willing to pay the owner an
objectively determined value (e.g., compensatory damages).
Property:
Property does not transfer without owner’s consent. Includes injunctions and
deterrent (rather than compensatory) damages.
Inalienability: Transfer of certain kinds of property (e.g., human organs) is prohibited.
Governance: Courts find that particular uses of the property are prohibited or permitted.
Opposite of Exclusion.
Rent-seeking: Gain-seeking behavior, generally with pejorative connotations (e.g., shifting value
to self without creating any value).
Coase:
Externalities are defined by interaction between parties; i.e., they are inherently
reciprocal. Therefore, we may achieve efficiency by encouraging parties to
negotiate. Favors efficiency over fairness.
Clean Hands: Questionable/bad action by P may be a bar to relief.
Injunction:
Applicable when there is inadequate remedy at law. Examples include Repeated
Trespass, Trespass by Multiple Parties, and Trespass involving Subjective Value.
Open Access: No one has a right to exclude others, open to all (Tragedy of the Commons).
Problems with racing, disincentivizes investment.
Pre-emption: A way to give ownership to unowned land under a grab-first-pay-later scheme.
Hometsead: Stake a claim and then go live on it (inverse of pre-emption).
Locke:
Person mixing labor/doing work deserves ownership.
Hegel:
person who values the land the most/ has utilized the land deserves it.
Utilitarian:
Efficiency.
Dead Hand: Don’t want assets to get tied up too far into the future.
Entity Prop.: Entity property devices permit the management of entity resources to be separated
from their use and enjoyment.
IX. Selected Cases
Jacque v Steenberg Homes. D transports cargo across P’s land. Trespass, Right to Exclude.
Hinman v Pacific Air. Can plane fly over P’s land? Right to Exclude, Ad Coelum.
Hendricks v Stalnaker. Neighbor 1 wants to build a well, and Neighbor 2 wants to build a septic
tank. Can't be w/in 100 ft of each other. Neighbor 1 built well near only space where Neighbor 2
could build tank. Nuisance, Governance.
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Baker v Howard County Hunt. Hunt club repeatedly trespassed on P's land, hurting his chickens
and annoying him. P wants injunction. Repeated Trespass.
Producers Lumber v Olney. D thought it owned land, but P owned it. D constructed building in
good faith, then realized P owned it. Negotiations. D demolished building w/o P's knowledge/
consent. Mistaken Improvement.
Pierson v Post. Pierson took the fox that Post was hunting. First Possession.
Ghen v Rich. Whale hunter sues to recover value of whale. Local custom is that person who kills
the whale has first possession / ownership. Finder of washed-up whale notifies killer, gets
finder's fee. First Possession.
Keeble v Hickergall. Interfering w/duck harvest. First Possession.
Popov v Hyashi. P & D both have legitimate claim to pop fly baseball. First Possession.
Eads v Brazelton. Brazelton intended to salvage a boat, set up a buoy, but left. Eads moved in
and claimed it. First Possession.
Johnson v M’Intosh. Native Americans were granted right only to occupy land, not to transfer
title. Discovery.
Int. News v AP. INS used AP’s bulletins as a source for news stories. Hot News Rule.
Midler v Ford. Ford’s advertising agency used a Bette Midler “sound alike.” Right of Publicity.
Trenton Indus. v. A.E. Peterson Mfg. Claim for patent infringement of improvement in high
chairs. Patentability.
Weatherby v Green. Who owns the wood? Original owner or improver, who chopped it up into
marketable firewood? Accession, Labor Added.
Edwards v Sims. Cave under Sims’s land, Edwards made it a tourist site, entrance on his land.
Ad Coelum.
Nebraska v Iowa. Dispute over boundary between 2 states. Accretion, Avulsion.
Strain v Green. D sells home to P and takes mirrors, chandelier, and water tank when he moves
out. Fixtures.
Howard v Kunto. Descriptions in deeds didn’t fit land deed holders were occupying. Adverse
Possession, Tacking.
Armory v Delamirie: Boy finds jewel and brings it to shop for appraisal. Appraiser refuses to
give it back. Relativity of Title, Jus Tertii.
US v Corrow. Sale and resale of Navajo headdresses. Moral Rights.
Moakley v Eastwick. Artist sues to prevent the destruction of a mural on property bought by a
new church. Moral Rights.
Newman v. Sathyavaglaswaram. Parents of dead kid sue State when they take the kid's organs
and harvest his organs and give them to someone who need a transplant. Personhood.
Hecht v Superior Court. Is sperm, donated by a deceased person, treated by trusts and estates
court as property? Personhood.
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Fall 2011
Moore v. Regents of Cali. Conversion of cells. Personhood.
Illinois Central Railroad Co. v. Illinois. IL gave RR access to harbor and took it away, RR
claims rights in property. Public Rights.
State v Shack. Defendants entered private property to aid migrant workers working/living there,
refused to depart at demand of owner. Exception to Right to Exclude.
Intel v Hamidi. Former employee, Hamidi, sends emails to Intel’s employees over its comp.
system. Trespass to Chattels.
Ploof v Putnam. P, family sailing in storm, moor to D’s dock, dock’s owner unmoors boat.
Necessity.
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Property, Kieff
Fall 2011
Freehold Interests Chart
Interest
Fee simple absolute
Duration
Followed By
indefinite
N/A
Language
“To A…”
“To A and her heirs…”
Life estate
Interest comes to an end with
death of the named person
Reversion
(interest reverts back to grantor)
Remainder
“To A for life…”
“To A for life, then to OG…”
“To A for life, then to B…”
(interest goes to someone other than
the original grantor)
Defeasible fee
 Fee simple determinable
Like fee simple interest
except that it may end on the
happening of a named
contingency
“To A so long as A remains married,
then to OG…”
Automatically ends upon
happening of a named event,
reverts to grantor
Possibility of reverter
 Fee simple subject to a
condition subsequent
Upon happening of a named
event, can be ended by
action of the grantor or
grantor’s successor
Right of entry
“To A, but if A divorces, then OG has
right to re-enter and take…”
 Fee simple subject to
executor limitation
Defeasible fee followed by
interest reserved to someone
other than grantor (3rd party)
Executory interest
“To A so long as A remains married,
then to B…”
(last clause may be implied)
17
Property, Kieff
Fall 2011
Covenants Chart
Type
Equitable Servitude
Relief
Equity
(specific performance,
injunction)
Real Covenant
Damages
3rd Restatement
Equity or Damages
Requirements to Run
For Burden of Promise to Run
For Benefit of Promise to Run
(i.e., burden to land/landowner)
(i.e., benefit to land/landowner)
1. Intent for burden to run (by language or
context).
2. Notice.
3. Covenant touches and concerns land.
1. Intent for benefit to run (by language or
context).
2. Covenant touches and concerns land.
1. Intent for burden to run (by language or
context).
2. Horizontal privity.
3. Vertical privity.
4. Covenant touches and concerns land.
Generally, presumption that promises run.
1. Intent for benefit to run (by language or
context).
2. Vertical privity.
3. Covenant touches and concerns land.
Vertical Privity: successor acquires part of or entire interest of original promisor.
Horizontal Privity: generally, landlord-tenant relationship. Also called Privity of Estate. Privity between grantor and grantee.
Touch and Concern: If the promise makes sense enforced against new parties (i.e., not specific to previous parties), then touches and
concerns land. Includes promises that regulate externalities.

Does promise physically impact the land? If so, it touches and concerns land.

Does promise alter the default package of right? If so, it touches and concerns land.
A covenant to pay money is generally in personam and does not run.
18
Property, Kieff
Fall 2011
Regulatory Takings Chart
Case
Type of Test
Factors
Loretto
Categorical
Physical occupation
Lucas
Categorical
Deprivation of all economically beneficial & productive
use of the property
Penn. Coal
Ad Hoc
Result
1. Diminution in value (consider harm in proportion to
value).
2. Need to protect the public (i.e., nuisance).
If physical occupation, then taking (prima facie
trespass).
If action deprives owner of all economically
beneficial & productive use of the property, then it
is a taking, unless the action is in response to
nuisance, in which case the action falls under
police power.
Weigh them. Here, taking because regulation
negated entire value of P’s contract and there
were other ways to protect the public.
3. Reciprocity of advantage.
Penn. Central
Ad Hoc
1. Diminution in value (in terms of whole parcel, not just
portion in dispute).
2. Whether regulation interferes with primary
expectations of investors.
3. Nature of Government action, especially whether it has
intruded directly on property or just regulated its use.
4. …and consider Penn Coal factors, but not necessarily
all.
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Weigh them. Here, no taking because property
could still be used a train station (factors 1 and 2).