Property I

Birdsong

I. First Possession
A. Acquisition by Discovery
Doctrine of Discovery: The discoverer of previously “unknown” lands obtains
exclusive right to extinguish Indian title (Indian right to occupancy) and to transfer title.
It is exclusive as against all other European nations. Indian title of occupancy could be
extinguished by purchase or by conquest.
■“unknown” lands-In principle, only a res nullius (“a thing or territory
belonging to no one”) or terra nullius (“a hitherto unknown territory”) can be
discovered.
■Johnson v. M’Intosh-Absolute title cannot be given to Indians b/c it would be
too destabilizing to established system of property rights.
■Locke’s Labor Theory-reasons that the Indian’s occupancy of their aboriginal
lands did not involve adequate amount of “labor” to perfect a “property interest in
the soil. Property interest in those properties one has mixed labor into.
■Occupancy Theory-the principle of first in time, first in right. This has been
argued to be a weak justification for ownership b/c it allows the simple act of
claiming landas one’s own as sufficient to create ownership rights.

B. Acquisition by Capture
Rule of Capture: A person acquires a property interest in a wild animal (ferae naturea,
fugitive resource) when the animal’s natural liberty is reduced to possession by capture,
by moral wounding, or by bringing them into certain control (domesticated animal).
Mere pursuit is not sufficient to confer ownership. It is sufficient if you have done all
that is possible to take possession under the circumstances.
Constructive possession: based in the common law notion of ratione soli. Land
owners are regarded as the prior possessors of ferae naturae on their land until the
animals take off. (Keeble v. Hickergill)
◙ Or fugitive resources removed through drilling.
◙ If you have done all that is possible to take possession under the
circumstances, you have possession. (Ghen v. Rich)
Certain Control:
Domesticated Animal Factors Test:
●Have a habit of return
●Marking them
●Indigenous species to the area

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 Policy:
■Predictable standard limits litigation and confrontation (Pierson v.
Post and Ghen v. Rich)
■Custom and practice can be sufficient to become legal but they do not
create legal requirement. (Ghen upholds, Pierson does not.)
■ Commerce: P mortally wounded a whale (his business), but was unable
to secure the whale to his ship due to its size; bomb lance was marker
(indicative of first possession); D found whale and took possession of it.
Court held that the whale was P’s possession. Court looked to customary
practice of the whaling business (usage); economics of promoting the
whaling business (beneficial to society). (Ghen v. Rich, Keeble v.
Hickeringill-franchise was the duck pond)
Theories:
■Formalist-a theory where the courts look to previous authority to see
how best to create certainty, social order, clarity, and predictability.
(Thompkins in Pierson v. Post is a formalist)
■Functionalist/Instrumentalist-where a goal is put in priority and cases
are decided on a basis of how best to reach that goal. The focus is on a
rule that achieves the most social value. (Livingston from Pierson v. Post
fails to take into account innovation spurred by contending approach, as
does the justice in Ghen v Rich)

C. Acquisition by Creation
Creation: In general, you have ownership rights of what you create or invent. Protection
of creation is based upon a balance of the goals of encouraging creativity and innovation
vs. protecting against monopolistic power.
Policy considerations:
●Imitation has a balancing test element on public interest (cheaper goods
and increased competition) vs. creator’s interest (encouraging innovation)
■Cheaper goods and competition (Smith v. Chanel Inc.)
■ INS was stealing news info from AP; court held that there was a
quasi-property right in the news for the purposes of the parties’
business; INS’ behavior constituted unfair competition. (INS v.
AP)
■ Imitation of purely functional creation should be allowed in the
interest of innovation and lower prices. (Cheney Bros. v. Doris Silk
Corp.)
■Doctrine of misappropriation: Have created by substantial
investment has created an intangible thing of valve not protected
and Defenant takes advantage an action will lie.
●Novel, useful, and non-obvious processes or products =
nonfunctional/aesthetic
●Doctrine of Accession: The ownership of a thing, whether it be real or
personal, movable or immovable, carries with it the right to all that the

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 thing produces, and to all that becomes united to it, either naturally or
artificially; this is called the right of accession.
●Moore v. Regents of the University of California (plaintiff cannot
invoke the right to accession b/c he didn’t have property interest in
raw materials, his former cells).
Property in One’s Person/Persona
■Moore v. Regents of the University of California-It is immoral to have
property interests in one’s own body because it commodifies the body.
Legislature should determine it.

D. Right To Exclude
The right to exclude-is not absolute; it can be extinguished when public necessity or
private necessity justifies it. (This tracts w/ the right to destroy).
Private interest:
■Private economic expediency is not enough to reduce someone’s
right to exclude. Jacque v. Steenberg Homes, Inc. (P did not want
D on his land, but D went across with mobile home anyway. Court
held that D was liable for trespass and awarded damages.)
■Private necessity stemming from health, welfare, dignity, and
constitutional protections might extinguish right to exclude. (State
v. Shack, Venetian)
Public Interest:
■Public interest to allow the exercise of constitutional protections
can outweigh one’s right to exclude.
●Public forum, (Venetian)
■Legislative acts can be evidence of public interest
■Public opinion might be sufficient alone (old trees, rare bats)

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II. Subsequent Possession
A. Acquisition by Find
“The title of the finder is good as against the whole world but the owner” (Armory)
Factors to consider:
1) Subsequent finders-The first finder has better right to each subsequent finder.
2) Character of found property:
■Mislaid- Owner voluntarily places the item, intending to retain
ownership (McAvoy v. Medina).
■Lost-Owner unintentionally and involuntarily parts with an item.
■Abandoned-Voluntarily left, but no intent to reclaim (drug money).
3) Location and circumstance of the find:
■Public place-If property found in public space it goes to the finder.
(Bridges v. Hawkesworth, finding property on floor of public part of shop)
■Private place-owners control everything.
■Embedded in the land-Everything embedded in the land belongs to the
owner of the land (Elwes v. Briggs Gas Co., archaic boat dug up)
4) Right of the finder to be in the location of the find
■Employees-Employees hired by their employer find property for their
employer, not for themselves (South Staffordshire Water Co. v. Sharman;
pool cleaners)
●Can’t be a trespasser.
5) Treasure trove-If buried gold was found belonged to the King of England.
Not adopted in U.S.
Finder’s Theories
Bailment-established when someone has possession with no claim of title. The
bailor gives his car to a bailee at a car garage for storage. That is a bailment. The
true owner of the found item has an involuntary bailment with the finder.
Constructive Trust- when the finders finds and takes possession of property it
creates a constructive trust. The finder is holding the property in trust for the true
owner.
Winkfield Rule-Once a wrongdoer pays a bailee for taking an item, it absolves
him of all future payments. The Bailor (True owner) cannot collect from a
wrongdoer who has paid the bailee.
■This rule has been criticized, some jurisdictions allow the TO to decide
b/n the chattel itself, or payment. Cross-claims are then filed to make
everyone whole again.
Policy:
■Possession-those with possession should hold title b/c it is easy for court’s to
solve the issue.
■Facilitating return to True Owner

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 ■Upholding expectations of the party
■Marketability, the most efficient use of the property.
■Promoting Honesty amongst finders (Hannah v. Peel)

B. Adverse Possession
Adverse possession-The actual, exclusive, and continuous possession by claimant that is open and notorious and adverse or hostile to owner
under a claim of title/right for the required period of time.
Elements:
1) Possession of claimant Actual, Exclusive, and Continuous
●Notice aspect – physical marker that the statute of limitation has started
2) Open and Notorious
●Notice -this is crucial for fairness so the owner has the ability to know of an adverse possession.
●Minor encroachment (below 3 ft.) along a border is not considered putting owner on notice by “actual
knowledge”.
3) Adverse or hostile to owner
●Serves the purpose of having the owners interest protected to invite people into their property and not have
them adversely possess
●A licensee or invitee who an owner invites to use land does not give them the right to adversely possess
4) Under claim of title/right
Claim of title: state of mind whether they think they own it
Color of title: good faith reliance on description that turns out later to be incorrect
3 theories of claim of title (state of mind):
i) The Connecticut Doctrine-No intent necessary, no mental state to satisfy claim of title. The act
itself; entry and possession is the crucial element. Don’t have to claim openly.
ii) Good faith - “I own this” claim of title only given to those who mistakenly and in good faith
think they own it.
iii) The Maine Doctrine (bad faith) - “I intend to own this” you will own it once the statute runs.
Rewards premeditated and predesigned hostility - intentional wrong doer. Disfavors honest mistaken
entrant
5) For the required period of time
●Once the statute of limitations has completely run it does not matter if someone disclaims the property (Van
Valkenburgh v Lutz, the dissent said Lutz’s disclaimer should not have counted against him).
Policy:
■Promote Economic Efficiency-utilitarian notion that by making things marketable and transferable it promotes economic
efficiency.
■Sleeper theory - Promotion of “active” ownership, punishes lazy owners
Promotion of clear titles
○Decreases litigation and disputes
■Labor theory/earning theory-rewarding those who use the land in the most productive manner.
Boundary Doctrines:
■Agreed boundaries - Long standing verbal agreements b/n neighbors can be held as binding.
■Acquiescence doctrine-Long standing boundary markers that are placed for a shorter amount of time then the statutory
limitations can be found to provide evidence of agreed boundaries (fence)
■Estoppel -if A makes a representation or engages in conduct that tends to indicate a common boundary line to B and as a
result B changes their position in reliance on the conduct of A; A cannot then challenge the representation of the boundary
line.
Tacking:
●Spatial tacking- can attach a small amount of land on to a larger section.
●Temporal tacking: joining of consecutive periods of adverse possession is permitted if the successive occupants are in
privity (each having a legally recognized interest, deed, mutual connection in the land). Can’t just oust someone else
illegally, or angrily, as this would eliminate privity.
Innocent/mistaken improvers
■It is a balancing test for the hardship each will be forced to endure. If the test is found in favor of the improver then they
win a title or easement and must pay the damages.

Adverse Possession of Chattels

III. Possessory Estates

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1. Overview: The guiding principle of real property law in the U.S. is the free alienability
of land. That is, the guarantee that the present owners of land will be reasonably free to
sell or alter land and will thereby have the ability and incentive to put the land to its
economically most productive use. Free Alienability is accomplished by a legal
preference for land passing in fee simple; that is, by passing the land without restricting
its future use. Thus, land is not forever bound up in one family. Each transferee must
individually decide whether to sell the land or pass it on to the next generation.

2. Feudalism: this is the system in which the lord granted the tenant permission to be on
the land in exchange for services such as military or food economic or religious service.
Typically the land went to the son because he best knew how to carry on the
responsibilities of the father. Over the years this became a right called primogeniture.
This was eventually formalized by parliament into what is called Statute de Donis 1285.
a. Quia Emptores: (a statute) Eliminated the feudal system by prohibiting the layering
system it depended on. A tenant could transfer his interest in land to another tenant
even without the lord’s permission. However, the Tenant could not grant the land to
others and become a lord himself.
b. Since Feudal times land has evolved to dependence on individual obligations. Thus
it is the exchange of things rather than the relationship of person that is now of
primary economic importance.
c. Land is a medium or object of exchange today.

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3. Intestacy:
a. If a person dies intestate (without a will) the decedent’s real property descends to his
or her heirs.
b. Issue (equal to descendants that is children and grandchildren, etc.)
c. Collaterals = if the decedent leaves no ancestors or descendants than anyone related
by blood are collateral kin. If there are no parents and no kids than the decedents,
brothers and sisters usually take in all jurisdictions.
d. Escheat: If there is no one to inherit the property than it is escheats to the state.

4. Estates
a. An estate is the type of right or title a person has in land or real property. The main
characteristic is the right to possession.
b. Non estates include easements, covenants, profits, and licenses.

5. Four Present Possessory Estates

a. Three freehold with seisin:
i. Fee Simple
ii. Fee Tail: The magic words are to A and heirs of her body. Typically illegal
and there is often a state statute that dictates what should be done in the event of
a fee tail.
iii. Life Estate
b. One non freehold estate without seisin:
i. Leasehold
c. Seisin: the right to possession of land accompanied by particular responsibilities
such as the payment of taxes.

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6. Fee Simple
a. Also called fee simple absolute
b. Magic Words
i. None needed now to A
ii. Will also see as “to A and his heirs, successors, and assigns”
iii. Used to need “to A and his heirs”
c. Alienability: The principle of free alienability is so strong that in the law today there
is a presumption that when there is a transfer of rights in real property, a transferor
intends to transfer all of his interest in the land to the transferee, absent a clear
indication to the contrary. Therefore, ambiguity in the transferring document will be
construed as an intent to transfer the entirety of an estate. White v. Brown
i. Facts: Jessie Lide passed the house to white to live in for the and not to be
sold..my house is not to be sold.
ii. Analysis: this is done to promote the free alienability of property. The founders
feared a landed aristocracy concentrating wealth in the hands of few as had been
the case in England for many years so they took steps such as this to make sure
that was not the case.
i. Land use- A restriction on alienation of property should always be rejected however,
there is a distinction btwn a restriction of alienation and a restriction on land use. If
possible only strike the restriction on alienation while allowing the later. (Mountain
Brow Lodge v. Toscano, struck a restriction on alienation while upholding intent of
conveyer to restrict land use only for the use and benefit of the lodge = okay/ in the
event of a sale or transfer then revert=not okay b/c restricts alienation.)
ii. Most "use restrictions" are valid and enforceable unless they also have the
practical effect of affecting marketability adversely by unreasonably limiting the class
of persons to whom it may be alienated. (Falls city. - in limiting the use of the
property by the railroad to use as its "divisional headquarters only", the city, in
practical effect, completely restricted alienation of the land to other grantees. Thus
even though the conditional restriction of use is couched in terms of the use of the
property, it unreasonably affects the marketability of the land adversely by
completely restricting alienation.)
iii. Intent - ascertain the intent of the grantor from words used and the surrounding
circumstances.
d.
e. Policy for the free Alienation of Property
i. Restraints make the property unmarketable and thus unavailable for its most
economically valuable use.
ii. Restraints perpetuate the concentration of wealth by not allowing the land
owner to sell the land and spend the money
iii. Restraints act as a disincentive for improvement on land as the owners are not
likely to spend money to improve and increase the value of the land that they
cannot sell.

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iv. Creditors are less likely to borrow against and take a security interest in land if
they cannot hold absolute title in the land.

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7. Methods of transferring less than all rights in land:
a. While primongeniture and fee tail will never be enforceable, not every transfer of
interest in real property must be the transfer of a fee simple. Certain lesser restraints
on alienation are honored in deference to a person’s ability to do as she or he pleases
with his property Mountain Brow Lodge v. Toscano
i. Blackletter rule: the use of land may be restricted in a conveyance.
ii. Analysis: When the competing property goals of free alienation of land come
into conflict with the goal of allowing a person to do what they want with their
land and restrict the use of his land through a conveyance, the courts will often
weigh the two policy goals and choose that which yields the most equitable
result.

b. Life Estate: A life estate means that the grantee may hold and use the property for
his or her life after which the property goes to another person.
i. Life Estate gave grantors a limited ability to control inheritance.
ii. Magic Words: “To A for life”

c. Leaseholds:
i. Leases are not strictly interests in real property but were historically regarded
as a personal property interest in the lessee.
ii. As a result, in the lease the landlord continues to hold all of the interest of
ownership. Landlord is ultimately responsible for the taxes and assessments on
the land.

d. Trust:
i. Core of trust is the separation of legal and equitable title.
ii. The trustee manages the property for the benefit of the beneficiaries who have
legal right of beneficial enjoyment of the property
iii. The Trustee is a fiduciary and thus subject to stringent duties in managing trust
property
a. They can not benefit personally
iv. Trusts can be created to make them inalienable. (spendthrift trusts)

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B. Defeasible Estates
Defeasible estate-The name for the category of estates that could end early by the
happening of a particular event.

1) Determinable estate: (automatic) The added limitation is described by using

words of temporal limitation:
○“until” ○“so long as”
○“while” ○“during”
The limiting words are placed before the first punctuation mark, the punctuation
mark signaling the end of the description of O’s estate:
“O to A and her heirs until B graduates from college,│then to O.”
Determinable estates therefore end automatically.
■Possibility of reverter applies.
2) Estate subject to a Condition Subsequent: (interrupt) The limitation is
phrased like an afterthought or a condition that allows the grantor to cut short an
estate previously granted. It uses words of express condition:
○“but if” ○“provided that”
○“on condition that” ○“however”
The limitation is placed after the punctuation mark signaling the end of the
description of A’s estate.
“O to A and his heirs,│provided that A does not get a divorce.”
Estate subject to a condition subsequent ends only if and when O enforces the
right to retake possession.
■Right of Entry applies.

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C. Future Interests
1. Reversion
■Reversion-A future interest retained by the grantor and following an estate that
will end naturally (fee tails, life estates, and terms of years). Waits patiently
(grantor waits patiently for the possessory estate to reach its natural end). When
•Where two future interests held by a grantor go with the larger. When a
grantor has both a reversion and a (possibility of reverter or right of entry)
the whole interest will be referred to as a reversion.

■Possibility of Reverter-The grantor’s future interest following a determinable

estate.
“O to A until B reaches 30, then back to O”
The future interest that is speculative.

■Right of Entry-A future interest retained by the grantor and following an estate
subject to a condition susequent. If a grantor exercises this right (following
“condition subsequent”), the grantor can retake the land. If the grantor does
nothing, possession remains in A.

•Majority rule: these future interests are transferable inter vivos.

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2. Remainder
■Remainder-A future interest given to a grantee and following an estate that will
end naturally. Remainders follow fee tail estates, life estates, and terms of years:
“O to A for life, then to B.”
A future interest created when a grantor conveys an inherently limited possessory
estate and in the same conveyance conveys the future interest to a second grantee.
■Ascertained-The holder of a future interest is ascertained if that person is alive
(born) and identified. (The heirs of a living person are not ascertained. Neither is
that person’s widow, widower or devisees).
•If only one ascertained person from a group than it is subject to open.

■Condition Precedent-A condition (other than the termination of the prior

estate) that must happen before a future interest-holder can take possession.
1) Is set out within the description of a particular estate, and
2) Must be satisfied before that estate can become possessory.
“O to A for life, then to B if B survives A.”
“O to A for life, then to B if B has reached 21.”

■Contingent Remainder-A remainder that has one or both of the following

characteristics:
1. It is given to an unascertained person; and
2. It contains a condition precedent.
“O to A for life, then to B if B survives A.”
•If the conveyance mentions an unborn or unascertained entity then it is
contingent as well.

■Vested remainder-It is certain to become possessory

1. A remainder that is given to an ascertained person, and
a) If only one ascertained person from group then it is open
2. It is not subject to a condition precedent other than the natural
termination of the preceding estate.
O to A for life, then to B.

■Class Gifts-A remainder conveyed to a class is considered vested if one of the

remainder-holders is ascertained.
Example: “to my grandchildren”
If more grandchildren come after the signing of the will they are
considered to be conveyed as well as the grandchildren that existed
while the will was written.

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■Alternative Contingent Remainder-Contingent remainders are “alternative”
when they each follow the same estate and when their conditions precedent are
the opposite of each other, so that the vesting of one precludes the vesting of the
other.
“O to A for life, then to B if B has graduated from college, but if B has not
graduated from college, then to C.”
Example: ■B’s contingent remainder
A’s possessory estate——— ↕
■C’s contingent remainder
∙C’s interest is an alternative to B’s interest, not chronological

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3. Executory Interest
■Executory Interest-a future interest in a transferee (grantee) that must, in order
to become possessory:
i. Divest or cut short some interest in another grantee (shifting executory
interest), or
ii. Divest the grantor in the future (springing executory interest).
Examples:
O to A while A serves in military, then to B. -Determinable
O to A & her heirs; however if B marries, then to B. -Condition S.
•B’s interest: B has an executory interest in fee simple absolute.
•Where two future interests held by a second grantee go with the larger:
“O to A for life or until A divorces, then to B”
•B has a remainder, but in theory also an executory interest (b/c
A’s life estate is determinable). B/c remainder is the larger of the 2
future interests, we will call B’s interest simply a remainder.

■Subject to an Executory Limitation-When the future interest was retained by

the grantor, we described it as “subject to condition subsequent.” When the next
interest is in a second grantee, it is called subject to an executory limitation.
•Appears after comma
•Words of expressed condition:
○“But if” ○“On Condition That”
○“Provided that” ○“However”

■Determinable estates-That are held by a second grantee are still called

Determinable estates.

■Vested remainder subject to divestment-A remainder that is vested but could

later be divested before it ever becomes possessory.
“O to A for life,│ then to B, │but if B does not survive A, then to C”
•B’s remainder is vested b/c there is no condition precedent
continued w/in the language creating B’s interest. However, if B
dies before A, B’s remainder will be divested.
•If the condition had been contained w/in the language creating B’s
interest (“then to B if B survives A”), B’s interest would be subject
to a condition precedent and then be a contingent remainder (not a
vested remainder subject to divestment).
•When a vested remainder is burdened by an executory interest that could prevent
the vested remainder from becoming possessory, we can describe that vested
remainder as subject to divestment.

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 ■Subject to Open-An estate given to a class of persons where one or more of
those persons is already ascertained, but others could be added:
“O to A (who is alive and has one child, B), then to A’s children”
•The future interest held by B (in his capacity as A’s child) is subject to open b/c
A could have more children.
•If A dies then the class is closed (b/c A can’t have more kids).

■Vested Remainder Subject to Open-When remainder is vested in a class of

people that might expand.

4. Waste:
■The holder of a present possessory interest in land is prohibited from committing waste
meaning that he may not use the land in a way that unreasonably diminishes its value to
the future interest holder.
■Affirmative Waste:
•The present interest holder may not actively participate in activities that diminish
the value of the land.
■Passive Waste
•The present interest holder also has the duty to take reasonable steps to prevent a
deterioration in the value of the land.
Ex. When O gives A property, while maintain a future interest in
reversion, and A allows the property to be adversely possessed O has
recourse against A under the law of passive waste.

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Rule Against Perpetuities
•The purpose is to invalidate interests that might vest too far into the future. We don’t
want the hand of the dead reaching out into the future and limiting property use.
•The Rule of perpetuities is to ensure the productive use and development of property by
its current beneficial owners by simplifying ownership, facilitating exchange and freeing
property from unknown or embarrassing impediments to alienability. Metropolitan Trasp.
Autho. v. Bruken Realty corp.
■Deciding how long an interest might remain contingent:
•The question is whether there is any possibility that it might not vest or close
within the time period.
•Don’t try to save it. The test is if you conceive of any possible scenario in which
the interest might still be contingent or open after the time period expires.
■A future interest is void the moment it is created if:
1) It is in a grantee (a remainder of an executory interest)
2) It is either contingent (given to an unascertained taker or subject to condition
precedent or both) or subject to open; and
3) It might still exist and still be contingent or subject to open longer than 21
years after the death of the last person alive (life in being) at the time of the
conveyance.
•Life in being-everyone alive in the will at the time of the conveyance.
•Validating Life-Someone whose life proves that the interest will either
fail or vest and close within the permitted time period.
■Application to commercial options:
•RAP should apply to commercial entities when the same policy
implications of the alienation of property are incurred ie… people don’t
develop the land, it can’t be borrowed against, etc. (see above)
(Symphony Space)
•However the history of RAP is to prevent the controlling party of a
family and not a commercial interest and because of this the time period of
21 years makes no sense in the commercial arena. and
•Fundamentally cannot use a life in being in the commercial context. A
strict 21 year time span is inherently unfair for commercial entities.
■Vulnerable Interests (3 kinds)
•Contingent Remainder
•Vested remainder subject to open
-Class gifts
•Executory Interests
-Springing/Shifting

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■Step by Step application of RAP
1) Draw vertical lines to separate the different interests. Then identify the state
of the title according to the conveyance.
2) Future interest in grantee? Always below the line.
3) Check to see if they are vested and closed
4) Write the factual developments that apply to any conveyance that is either
vested or closed
5) Circle all the lives in being (the people alive at the time of the conveyance.
6) Does someone you circled prove to you that the interest is certain to either vest
and close or fail within that time?
7) If there is a violation strike the whole interest (all the words btwn the vertical
lines) now revise your classification.
8) Look to see if there is another and repeat steps.

■RAP danger signs:

1. The condition is not personal to someone
2. There is an identified age or time period of more than 21 years.
3. An interest is given to a generation after the next generation (grandchildren)
4. A conveyance requires that a holder survive someone who is merely described
rather than named
5. An identified event that would normally happen well within 21 year, but might
not
6. The holder won’t be identified until the death of someone merely described
rather than named.

CONTINUED NEXT PAGE

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Exemptions:
■The charitable exemption
•If both the possessory estate and the vulnerable future interests are given to
charitable organizations then it does not apply
■Reforming invalid interests
•Actual Intent-In some jurisdictions the courts will reform a will to best comply
with the intent of the grantor.
•Immediate Reformation and Severability-Ask or force court to reform a
disposition in a way that avoids any perpetuity violation while effectuating the
transferor’s intent as nearly as possible.
■Statutory modifications
•Statutory Repairs-enactment of statutes that were designed to avoid purely
technical violations by altering common law conventions in certain specific
circumstances.
-Assume the creator intended an estate to be valid and intended it to end
within 21 years.
•Wait and see-Some states enacted statutes to wait and see if property vests or
not, instead of simply saying its void due to a possibility.
•USRAP-uniform statutory rule against perpetuities extends the time period for
90 years and then waits till that point to see if it actually did vest (used in 24
states)
■Saving Clause
•Notwithstanding any other provision in the conveyance, in interest still
contingent or open will terminate or close at a particular time. A time w/in the 21
years of a particular life in being.
■Remedy of Rescission
•when mutual mistake of parties is evident, the contract of sale should be
rescinded and made void. Discretionary.

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IV. Concurrent Interests
1. Overview: Discusses the legal relationship between two or more people who arrange to own a
piece of property. Known as a co-ownership because they have rights of possession at the same
time.
A) Tenancy in Common: Have separate, equal, and undivided interest in the property;
the interest of each is descendible and maybe conveyed by deed or will. No
survivorship rights. Each tenant owns an undivided share of the whole.
B) Joint Tenancy: Separate but undivided interest in the property whose interest is not
descendible. There are survivorship rights. There is an avoidance of Probate through
the survivorship right (no outside administration of the property need occur). Four
unities are required.
1) Time – the interest of each joint tenant must be acquired/vest at the same
time.
2) Title – all joint tenants must acquire title by the same instrument or by a joint
adverse possession. Cannot arise by intestate succession, or other act of law.
3) Interest – All must have equal, undivided shares, and identical shares
measured by duration.
4) Possession – each must have a right of possession of the whole, however a
joint tenant can voluntarily give exclusive possession to the other joint
tenant(s).
◙Can be destroyed: any one joint tenant can convert to a tenancy in common
by conveying his interest to a third party. (destroys time, title unities)
•CL: joint tenancies were the default when ambiguous language was present. In
America Tenancies in common are default. Unless expressly said to be a joint
tenancy;
-“To A & B as joint tenants with the right of survivorship”
C) Tenancy by the entirety: same 4 unities plus Marriage. Allows the surviving the
spouse to take possession of the property when one dies.
•Neither husband nor wife, acting alone, has the right to judicial partition of the
property held as tenants by the entirety.
•Neither husband nor wife can defeat right to survivorship by conveying a part
of their share to a third party.
•Majority rule is that creditors cannot reach into the property of the tenancy of
the entirety when pursuing a just one spouse b/c it interferes with the right of
survivorship. Swada v. Endo (Swadas were injured by Endo and tried to collect
from one spouse, the court ruled that the Swadas could not have access to
value of the Endo’s home as compensation for their injuries).
•Minority allows creditors to access spouses portion of the tenancy in the
entirety.
•IRS only creditor that can reach one spouse in a tenancy by the entirety.
•Married woman’s act: took husband’s CL right to destroy Ten. In Entir.

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Severances of Tenancies:
Severance of Joint Tenancies
◙Straw men - A joint tenant may unilaterally sever a joint tenancy without the use of an
intermediating third party (strawman) by conveying his or her property interest to
himself or herself. Riddle v. Harmon (California) (Majority rule)
•Wife wanted to destroy a joint tenancy, so she transferred her interest in a
joint tenancy to herself in order to create a tenancy in common and devise that
interest in her will.
•The old laws of feoffment (branch/clump) required that a 3d party strawman
acquire her interests then transfer it back to her in order to destroy a joint
tenancy.
•The Court held that when intent to sever a joint tenancy is clearly expressed, a
person does not require the use of a strawman to sever the joint tenancy.
Policy:
◙Intent-The explicit intent of the wife to destroy a joint tenancy should
outweigh an anachronistic formality of a transfer to a strawman.
◙Notice-The other joint tenant is not notified under the old or modern law;
however, a feoffment (transfer to a strawman) creates the potential for notice.
•Woman w/ handwritten will destroying joint tenancy locked away in
dresser drawer; husband dies, she fraudulently accepts right of
survivorship over the whole.
•W/ a strawman, this could be avoided by a witness coming forward.

◙Liens – The majority of jurisdictions hold that a lien will not sever joint tenancies. A
surviving joint tenant can take the interest of a deceased joint tenant without having it
encumbered by a mortgage or other lien upon that interest Harms v. Sprague (brother
took out mortgage on his share of the joint tenancy without other joint tenant’s notice.
Court viewed mortgage as a lien as opposed to a title transfer)
Mortgage title theory: In early case law and common law a mortgage was a
conveyance of a legal estate, vesting title in the mortgagee.
Mortgage Lien Theory: Modern trend to view a mortgage as a lien.

21
Relations Among Concurrent Owners
Partition
•Partition by Sale: A court ordered division of land held by joint tenants or
tenants in common by which the land is sold and the proceeds are divided among
the tenants according to the size of their interests in the land.
•Partition in Kind: A court ordered, physical division of land held by joint
tenants or tenants in common by which each tenant’s interest is converted into a
parcel taken from the whole and each tenant then takes exclusive possession of
their share of the land in fee simple.
◦Preference: in common law the courts preferred to partition by kind,
while modern courts provide lip service to attempting to partition in kind
the majority of courts predominantly partition by sale.
◦If co-owners cannot agree on a division of property or of proceeds from
its sale, partition is required.
-“a sale of one’s property without his consent is an extreme
exercise of power warranted only in clear cases” Delfino
•A partition by sale should only be ordered if the physical attributes of the land
in question are such that a partition in kind is impracticable or inequitable and
the interests of the owners would be promoted by a partition by sale. Delfino v.
Vealencis Connecticut Supreme Court( only two cotentants and still extremely
difficult)
◦Generally courts find a partition by sale more equitable because it is not
only simpler to institute but more likely to promote fair resolution.
•Owelty: The difference which is paid or secured by one coparcener to another,
for the purpose of equalizing a partition.
◦Vealencis had to pay the Delfinos for the future impact of their garbage
company on the proposed subdivision.

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Sharing Benefits and Burdens of Co-ownership
•Rent of Cotenant: In the absence of an agreement to pay rent, a cotenant in exclusive
possession is not liable to his or her cotenants for the value of his or her use and
occupation of the property unless there is ouster of a cotenant. (ouster is non occupying
cotenants are refused the use or enjoyment of the property by occupying co-tenant)
Spiller v. Mackereth Alabama S.C.
◦Ouster: the actual turning out or keeping excluded, the party entitled to
possession of an y real property corporeal (body, not spiritual). Used to define
two distinct fact situations: (1) the beginning fo the running of the statute of
limitations for adverse possession, and (2) the liability of an occupying cotenant
for rent to other cotenants.
-Door Locks: the locking of the doors in Spiller was done to protect the
properly inside rather than prevent the entrance by the cotenants.
◦Majority: “Simply requesting the occupying cotenant to vacate is not sufficient
b/c the occupying cotenant holds title to the whole and may rightfully occupy the
whole unless the other cotenants asserts their possessory rights”. There must be
evidence that the other is trying to assert their possessory rights and are excluded
from doing so.
◦Minority: There is liability for rents on a continued occupancy after a demand to
vacate or pay rent coupled with a refusal. Spiller
◦Policy: Some jurisdictions take the view that a cotenant in exclusive possession
must pay rent to the other cotenants out of possession even when no ouster is
established. This view may seem more fair to cotenants out of possession. When
a cotenant occupies the property in question, it is essentially kept off the market
and thus potential rent from a perspective renter is lost. However the majority
rule would seem to encourage the constructive use of the property as opposed to
leaving it vacant and possibly unimproved until a new renter occupies the land.

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Marital Property
◙English system (Common Law)
•Husband and wife owned property separately.
•Ownership is given to the spouse who acquires property
•Pressure to reform has changed many of these systems to more resemble
community property systems
◙Continental system (community property)
•Husband and wife are a marital partnership and should share their marital
property.
•Only exists in a few states.
◙American Common Law
•To hold all their property in separate ownership. Or to hold it as tenancy
in the entireity

◙ American Community Property :

•To hold property acquired from earnings as community property and
inherited property as separate property (Nevada follows this system)
1) Separate Property -Property owned before marriage or
acquired by gift, devise, or bequest. Inherent/Reasonable growth
of investment/enterprise remains separate. (Rudy example, Jewelry
store)
2) Marital Property-All property acquired during marriage that is
not separate.
•Earnings of each spouse during the marriage are equally
pooled and distributed.
◦Thought is that both parties contribute equally to
the success of the marriage and should therefore
benefit equally to it
•Includes earnings during marriage: rents, profits, and fruits
of earnings, Growth of investment/enterprise as a result of
labor is community (think Rudy’s example, jewelry store)
3) Conveyances- Neither spouse acting alone can convey his or
her undivided one half share of community property, except to the
other spouse. No unilateral partition.
4) No survivorship- can devise one half by will.
5) Creditors-If husband and wife are equal managers of the
property than creditors of either spouse can reach the property. In
most community property states liability to creditors follows
management and control.
6) Fiduciary Duty-Those who manage the community property
have a duty to act in good faith when exercising authority, but
good judgment is not necessary.
•W.C. Fields gave gifts to lady-friends (bad faith)
•Spouses not consulted during gifting can void gifts, or get
½ portion of gifts back.

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 7) Equitable distribution-Each common law states follow
equitable distribution following a divorce

◙Universal community property

•To hold all their property from whatever source as community property

Termination of Marriage by Divorce:

■Common law:
•Property held by tenancy by the entirety was converted into a tenancy in
common and all other property remained in the same separate form.
•Largely ignored the contribution of women in the marriage (labor).

■Equitable distribution:
•Replaced the common law notion of property after a divorce.
•Property is properly divided by the court, in its discretion, on equitable
principles:
◦Wife’s role during marriage ◦Who takes care of kids
◦Husband’s role ◦Breadwinner
◦Adultery(blame)
•Many equitable division statutes authorize a court to divide all property
owned by the spouses as opposed to the division of only martial property
(acquisitions of property only during the marriage)c

■Alimony-The thought that marriage requires a lifelong obligation of the husband

to support the wife after divorce has been discarded in modern divorce legislation.

■"Rehabilitative alimony" - Alimony is largely viewed today as support for a

limited period of time until the spouse can enter the job market and become self-
sufficient.

■Equal Division-The American Law Institute supports a middle road between

equitable division and equal division (marital property is split down the middle,
equally).

CONTINUIED ON NEXT PAGE

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 ■Educational Degrees-How to split during a divorce
Majority Standards:
•No Alimony-Some states hold that an educational degree is not property
therefore is not subject to division upon divorce. In re Marriage of
Graham Colorado S.C.
◙Intellectual Achievement NOT property b/c:
◦No exchange value
◦No objective transferable value on an open market
◦It is personal to the holder
◦Terminates on death of the holder and is not inheritable
◦Can’t be assigned, sold, transferred, conveyed, or pledged
◦Can’t be acquired by the mere expenditure of money
•Reimbursement Alimony- The alimony should cover all financial
contributions toward the former spouse’s education including household
expenses, educational costs, school travel expenses, and any other
contributions used by the supported spouse in obtaining his/her degree or
license. Mahoney v. Mahoney
Minority Standard:
•N.Y. Standard-(only NY) makes the career potential earnings of
the spouse marital property and divisible.
Policy Rationale-Reimbursement unfair b/c an
education degree is like a down-payment on a
house, with a return anticipated. Therefore, the
earning potential is comparable to the increased
value of a home.

Common law Marriage: everything is separate property.

Upon Divorce: property remains in the hands of the owner.
Dower: 1/3 life estate of man’s property upon death of husband
Courtesy: a life estate in the wife’s property upon death of wife

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Mixing Community Property with Separate Property
■Migrating Couples-Once the property has been initially characterized the
ownership does not change when the party change their domicile.
•Once separate property always separate when moving b/n states, and vice
versa.
•“Stepped-up Basis”-The considerable Community Property Tax benefit.
◦Common Law states will recognize property bought with
community earnings as a community property and allow the
spouses to enjoy the tax benefit.

“If an H puts a 1/3 down payment on a home w/ separate property, and then pays 2/3rds
of the mortgage with community earnings, what is the state of the property?”

■Inception of Right-The character of the property is determined at the time the

contract of conveyance was executed (when signed). The community is entitled
only to a return of the payments it made. In this case 2/3rds of the initial payment
—NOT the value of the house upon dissolution of the marriage.

■Pro Rata Apportionment-Look at % of contribution and split value

appropriately. (If house gained in value H and W would split % of the value).

■Time of Vesting-Title does not pass until all installments are paid; therefore,
house is 100% community property.

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V. Landlord – Tenant
1. Overview: A leasehold is a right to possession of land by the permission of another. Other things
such as contracts give the right to use but not to possess while freehold estates are possessory
interests which the owner holds absolutely with the permission of no one while leaseholds are at
the permission of the landlord.

2. The Lease
a. It matters whether something is classified as a lease because leases give rise to the
landlord tenant relationship. These relationships carry with it certain rights and remedies
that other relationships do not entail.
b. The lease is a hybrid of property law and contract law principles. (conveyance and a
contract). Over time, one has been in ascendance, and currently contract law principles
are favored. Conveyance = transfers possessory right in land creating property rights. Lease also creates promises
such as tenant to pay rent and covenant of quiet enjoyment and if that is interfered with he will be held to have
constructively failed to deliver possession to the tenant. Additionally the LL has the duty to make the property habitable
called the implied warranty of habitability and if he fails to do so the tenant is excused from paying rent. Additionally, if a
tenant abandons the property then the LL has the duty to mitigate and make the best effort to re-let the land so that
damages do not unnecessarily accrue. These are examples of the contractual obligations of the leasehold relationship.
c. Privity of estate: Mutual obligation btwn 2 people as a landlord & tenant.
d. Privity of contract: contractual obligation

3. The Leasehold Estates

a. Term of years
i. Specified duration for a fixed period or fixed by formula. At CL was unlimited
duration however, the modern law requires some reasonably long term (99 yrs.
Max)
ii. No of termination is required it is clear from outset when the lease will terminate
iii. Not affected by the death of one party
iv. L to T for one year
v. L to T for one year or until L sooner terminates
1. Term of years, determinable - A unilateral power to terminate a lease can
be engrafted on a term of years or periodic tenancy.
b. The Periodic Tenancy
i. A lease for a period of some fixed duration that continues for succeeding periods
until either the landlord or tenant gives notice of termination.
1. Ex. L to T from month to month
ii. If no notice then continues for another term, (under modern conventions if the
term is longer than a year it is automatically reduced to a year).
iii. Not affected by the death of one party
iv. Timing:
1. CL one full period’s notice was required. The tenancy must end on the
last day of the period. Exception- A year to year only requires a six
month notice because 6 months is the max amount of notice that a LL
can require. If decide to terminate month to month(mar 20 th notice then
termination on April 30th).

28
 2. Modern: many states have shortened this length of notice required to
terminate ie…exactly 30 days after notice, even if it falls in the middle of
the month.
v. L to T at an annual rental of $24,000 payable $2,000 per month on the first of
each month.
1. Could be a periodic tenancy from month to month
a. The time period of payment seems to indicate a month to month
periodic tendency
2. Could be a periodic tenancy from year to year
a. The “annual rate” language indicates a year to year lease
vi. L to T from year to year or until L sooner terminates
1. Term of years, determinable - A unilateral power to terminate a lease can
be engrafted on a periodic tenancy or term of years.

c. The Tenancy at Will:

i. A tenancy of no fixed duration, it endures so long as both landlord and tenant
desire. Can be destroyed at the will of either party even if the lease only
explicitly states one party.
ii. Ends when one of the parties terminates it or one of the parties dies.
iii. Modern: statutes require a period of notice – 30 days- or a time equal to the
interval btwn rent payments, in order for a party to terminate a tenancy at will.
iv. L to T as long as T desires
1. Tenancy at will, or
2. Life estate for the life of T

d. Holdover Tenancy or Tenancy at sufferance

i. Occurs when a tenant wrongfully stays in possession of land after his lease
expired.
ii. CL offers LL two option
1. Eviction (plus damages)
2. Consent (express or implied) to the creation of a new tenancy
a. Once a landlord elects to either treat a holdover as a trespasser or
to hold him to a new term he may not change his mind. Crechale
& Polles, Inc. v. Smith
iii. Modern: statutes have created an ability of the landlord to double the rent in a
holdover tenancy as an economic incentive to get tenant out or compensate LL
for the risk of the holdover tenancy extension.
iv. Few states treat a hold over tenancy as a tenancy at will.

“Once a LL elects to treat a tenant as a trespasser and refuses to extend the lease on a month to month
basis, but fails to pursue his remedy to eject the tenant, and accepts monthly checks for rent due, he in
effect agrees to an extension of the lease on a month to month basis.” Crechale & Polles, Inc. v. Smith

29
Federal anti Discrimination statute
There are federal and state anti-discrimination statutes that prevent selecting tenants on a
discriminatory basis.
FHA – applies only to a single family home if that person owns three such single
family homes, if the landlord leases only one home then discrimination is
allowed. Discrimination practices cannot be manifested in print or other forms of
advertising.

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ASSIGNMENTS AND SUBLEASES

1. Assignments = arises when the lessee transfers his entire interest under the lease to a
third party tenant.
a. Partial assignment = I convey 2,000 of my 5,000 feet of property to you for the
rest of my term.
2. Sublease = arises when a lessee transfers less than his entire interest under a third party
a. Original tenants retain a reversion. (time, rights)
b. Partial Sublease = I convey 2,000 feet of my 5,000 feet to you for three of the
five years of the lease term.
3. Differences
a. Privity of contract = exists in T2 (sublease or assignee) between landlord and
original tenant.
b. Privity of Estate = exists between landlord and assignee in an assignment but not
in an estate between landlord and sublessee (intermediary still exists).

Construing subleases or assignments:

Assignment: Gives all rights to asignee
Sublease: retain some reversionary right in T1 (lessor).
CL: If there is a transfer of anything less then an entire interest then it is a sublease.
Strictly construed the instrument to determine whether the transferor either gives all
rights or retains a reversionary interest, regardless of form or intent.
-“If the instrument purports to transfer the lessee’s estate for the entire remainder
of his term it is an assignment regardless of its form or the parties intention.
Conversely if the instrument purports to transfer the lessee’s estate for less than
the entire term – even a day less – it is a sublease, regardless of its form or of the
parties’ intention.” Ernst v. Conditt (go cart race track) citing Jaber v. Miller
Modern: Less common but it considers the intention of the parties. Terms of sublease
and assignments are not conclusive rather merely persuasive.
-“The cardinal rule to be followed in this state in construing deeds and other
written instruments is to ascertain the intention of the parties.” Ernst v. Conditt
citing City of Nashville v. Lawrence.
-read the instrument of transfer in the light of the surrounding circumstances.
Ernst v. Conditt

31
Consent of sublease or assignment:
Approval clause: a clause stating that the lease cannot be assigned by a lessee(T1)
without the prior consent of lessor(L).
•CL (minority): Where a lease contains an approval cause, the lessor may
arbitrarily refuse to approve a proposed assignee no matter how suitable the
assignee appears to be and no matter how unreasonable the lessor’s objection
•Modern (majority): Where a lease provides for assignment only with the prior
consent of the lessor (approval clause) consent can be withheld only where the
lessor has a commercially reasonable objection to the assignment.
The original lessee remains laible to the lessor as surety even if the lessor
consents to the assignment and the assignee expressly assumes the obligations of
the lease.
Standards of good faith & commercial reasonability, factors:
(1) Financial responsibility of proposed assignee (length of lease)
(2) Suitability of the use for the particular property
(3) Legality of the proposed use
(4) Need for alteration of the premises
(5) Nature of the occupancy ie…office, factory, brothel
•Policy (modern): Stems from 2nd restatement of property.
If lease is viewed as a conveyance then the same policy against restraint
on the alienation of property can be applied and if viewed as a contract
then a contract’s inherent demand for good faith and fair dealing would
provide support.
•Kendall v. Pestana – Lessee trys to transfer to plaintiff, Lessor Defendant tried to use approval
clause to gain more money than was in original lease, and when he couldn’t he arbitrarily denied
proposed assignment. (Guy wanted to sublease but needed the permission of the LL and the
landlord refused his consent unless there was an increase in the rent. LL contends that he may
arbitrarily refuse consent.)
•Should the rule apply to residential leases? Weigh the similarities between commercial and
residential properties. Maybe we believed more strongly between businesses in the contract
provision of the lease. The contract should be protected. In residential setting we may be more
inclined to courts rewriting the lease because it has a different set of interests.
•Overall marketability: commercially reasonable is to save your interest in one property but not
in your overall marketability. Ie..preventing a sublease or assignment to force T1 to stay in the
property so T2 is forced to rent another available similar space owned by L therefore L renting
two spaces instead of one. (not allowed b/c the commercial interest must be individual to the
specific property, not surrounding property). However, if the T2 was an abortion clinic this puts
this rule into a bind b/c a moral reason might outweigh an economic one.

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TERMINATION AND ABANDONMENT OF PROPERTY

Landlord Eviction of Tenant in Default

Eviction Options – Tenants who defaults but remains

•Reasons for eviction = holdover tenant, having pets, failing to pay the rent,
being to rowdy, or any other violation of the contract.
•Self-Help = takes place when landlord evicts without resort to judicial process.
•At no time is the landlord authorized to use excessive force to regain possession
of leased premises, a few states still allow reasonable force but not many.
◦CL: A landlord may rightfully use self-help to retake leased premises
from a tenant in possession without incurring liability for wrongful
eviction provided:
a. the LL is legally entitled to possession, such as where a tenant,
holds over after the lease term or where a tenant breaches a lease
containing a re-entry clause, and
b. the landlord’s means of re-entry are peaceable.

◦Modern: Self-help is never available to dispossess a tenant, who is in

possession and has not abandoned or voluntarily surrendered the premises.
The landlord must use the summary proceedings, developed to streamline
ejectment (sometimes still take a long time) b/c
a. Self-help always creates a potential for a violent breach of the
peace
Policy: forcing an actual breach of the peace as the CL does
would only encourage tenants to try to fight or set up a public
display.

•If landlord has no right to repossess than he could be subject to liability

for trespass and disturbing the peace. Landlord would have right to
repossession if the tenant breached his covenant in some manner.

•Berg v. Wiley: The landlord used self help once, which lead to a breach
of the peace, and when the LL changed the locks the court found it
nonetheless a breach of the peace. The landlord has wrongful use of self
help because the tenant has not abandoned the property under the law as
she was still paying rent. There was no clear evidence that there was
abandonment.

33
Tenant who defaults and abandons
CL: LL does not have duty to mitigate damages, and can hold tenant liable for all rent
due for the lease. (restatement of property supports)
Modern (contract): there is a duty to mitigate damages. This is the overwhelming
majority rule. The landlord must show effort to mitigate damages in order to collect the
rental amount, tenant may have been liable for. Sommer v. Kridel
Can mitigate by: must treat the apartment as one of his/her stock apartments.
There is no need to give the apartment special attention rather just standard
attention given to any similar vacant property. There must be reasonable
diligence in attempting to re-let the premises.
Reasonable efforts: (burden on LL to prove)
•LL offered or showed the property to any prospective tenants or
•Advertised in local newspapers.
•Tenant can rebut he offered suitable tenants that he
abandoned/refused to allow

a. Surrender = transfers the lease back to the landlord with the landlord accepting the
transfer.
i. Some states require to be in writing but not all
ii. If landlord accepts, no further rent or obligations are required of the T
iii. Surrender by operation of law = if a court finds that there is no writing
agreement indicating a surrender but the landlord is acting so, inconsistent with
the tenants continuing obligations under the lease, a court will find surrender by
operation of law.

b. Abandonment = Just leaves the lease with or without notification against the wishes of
the L. L has one of 3 or 4 options.
i. L may treat the lease as continuing and sue for the rent
ii. Treat the lease and continuing and relet the premises for the tenants account
and reserve the right to sue the tenant for any unpaid balance of the rent.
iii. L can accept surrender of the lease and relet on L own account
iv. L can treat the abandonment as an anticipatory repudiation, suing the tenant
for either
1. Damages = the difference between the reasonable rental value of the
unexpired term and the present value of future rent
2. Unpaid future rent = the difference between the contract rent and the
amount received from a new tenant both damages and future unpaid
rent being recoverable in one judicial proceeding.
v. Option four is not generally accepted in most states

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Landlords Duties; Tenants Rights and Remedies

1. Disputes between landlord and Tenant regarding the condition of the property arise in
essentially two ways.
a. Tenant may wish to vacate the property or to stay and pay less or no rent.
b. Tenant or invitee of tenant might be injured by allegedly defective premises and
claim damages against LL in tort.

2. Overview
a. If a landlord interferes with a tenant’s right to quiet enjoyment of the premises,
which constitutes a constructive eviction, the tenant may vacate the premises and
terminate the lease Reste Realty Corp. v. Cooper
b. If a landlord breaches the implied warranty of habitability, the tenant may
withhold rent or cancel the lease depending on the jurisdiction.

3. Landlord’s Remedies: can use security deposits to try to recoup or mitigate financial
impact.

4. Caveat Lessee (Traditional Approach) “buyer beware”= No enforceable covenants other

than expressed in a lease. Agreement to pay rent is a covenant whereas a promise to
repair is independent of the lease. No duty for landlord to repair any problems.
a. Exceptions to Caveat Lessee
i. Short term furnished premises exception
ii. Duty to disclose latent defects
iii. Duty to maintain common areas
iv. Duty of LL to undertake carefully any repairs LL promises or volunteers
to make.
v. Duty to abstain for fraudulent misrepresentation about the conditions of
the premises
vi. Some jurisdictions: Duty to abate immoral conduct and other nuisances
that occur on property owned by LL if they affect the leased premises.

35
 5. Constructive Eviction : the condition was intolerable and so substantially deprived
Lessee as to the use of the premises as to constitute eviction. When the T’s possession
of the premises is disturbed by a landlord and as a result the premises are rendered
unfit for habitation, in whole or in substantial part, the tenant may elect to vacate
after giving the landlord notice of the disturbance and a reasonable opportunity to
cure. If the breach constitutes constructive eviction then the T is relieved of any liability
for future rent and entitled (presumably) to recover damages – to compensate both for
losses realized while in possession and for losses resulting from a higher rent for
equivalent replacement premises.
i. Example would be the landlords failure to control noise and lewd conduct
in the halls of an apartment.
ii. Failure is to maintain = when LL fails to maintain basic services such as
heat, water, ect. This may serve as the basis for a constructive eviction.
iii. Paramount title = LL rents to someone on june 30 and then someone else
on july 30. The june 30 guy would have paramount title and this would
breach quiet enjoyment right of july 30 guy constructively evicting him.
Someone who has superior title and is kicking tenant out.

b. Elements of Constructive Eviction

i. Intentional (actual or inferred) acts of the LL that breach a duty owed to
the T.
1. Landlord must be made aware of problem and then fail to act.
ii. Acts are the cause of substantial interference with the T’s enjoyment of the
premises or render it unfit for the purposes for which it was leased
iii. The T vacates the premises
iv. Within a reasonable time after the LL actions.
v. The tenant satisfying these elements is constructively evicted and is
relieved of paying rent

Partial Constructive Eviction = T has not vacated. Only a portion of the premises uninhabitable
while the balance remains habitable. In most jurisdictions this does not relieve the T of Rent
obligations.

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6. Quiet Enjoyment
a. Landlord and tenant enter into lease, LL promises that neither she nor anyone else
will interfere with the tenants lawful possession. This is implied in all leases.
i. Interference must be substantial and must be attributed to LL.
b. Must give notice and reasonable opportunity to cure.
c. Can be breached through actual or constructive eviction.
i. Breached when a LL has the duty to do or not do something such as
provide heat or water as stated in the contract or to provide essential
services or habitable premises and fails to do so.
ii. Total Actual eviction is the exclusion of the T from the premises such as
locking the T out. The duty to pay rent ends upon eviction and the T may
sue for damages.
1. Partial Actual eviction occurs when the T is excluded from part of
the property or part of the property is renovated and made into a
common area. T is denied use of a portion of the property crucial
to the use of the whole.
a. Rationale = the Landlord conveyed the exclusive use of the
demised premises to the tenant for the term and may not
evict the tenant from any portion of the premises during the
term.
b. Options for T = T may provide LL with notice and
reasonable time to restore the premises to the tenant, if this
is not done then the T may vacate. Generally T does not
have to pay rent even if he stays on. (Restatement rejects,
stating that % of rent of used premises must still be paid).
2. Particular constructive eviction: occurs when the T is excluded
from part of the property constructively.
a. In most jurisdictions, the T remains responsible for their
obligation of rent.
The doctrine of constructive eviction is the LL’s breach of the covenant
of quiet enjoyment.
Landlord promises that the tenant shall have quiet and peaceful
possession of the premises for the term, as against the landlord, any
person holding through the landlord or any person with a title superior or
paramount to the LL.

d. Under breach of covenant of quiet enjoyment tenant can either vacate or stay and
sue for damages. If the T stays
i. If T chooses to vacate under the doctrine of constructive eviction then you
could be held liable for damages if a court finds that a constructive
eviction did not exist.
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 e. As long as the landlord takes reasonable steps then there are some things we don’t
hold LL liable for.

Hypo: Client comes and says that someone is being noisy and they want to vacate, what should
landlord do. Does landlord have the duty to make the other person be quiet. Not necessarily, it is not
clear whether or not the landlord has the duty to stop them. Or someone smokes next door to you and
you sue under theory of quiet enjoyment. LL has obligation to stop that other tenant from smoking.
Can LL evict for smoking. Should LL evict for smoking.

Hypo #2 What if there is life estate in Larry and he leases to T and then larry dies and the remainder
goes to Ron, Ron evicts tenant. Can the T do anything. Possibly because this would be an interference
with possession and you could claim that interferes with quiet enjoyment by eviction of paramount title.

Hypo #3: what if LL knew that the T wanted to operate a gas station and the LL knew that a prior
business deal would prevent this then the T has an action under the breach of quiet enjoyment because
the LL has effectively interfered with the use or enjoyment of property.

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Implied Warranty of Habitability
◙Implied Warranty of Habitability-An adequate std. of habitability has to be met and a
breach occurs when the leased premises are uninhabitable in the eyes of a reasonable
person (air-conditioning in Death Valley v. Alaska).
◙Duty
■These standards are typically generated from building and housing
codes of that jurisdiction and a violation results in a breach.
•Reasonable Standard of habitability: Where the building or
housing codes don’t address a certain problem then the LL may
still be in violation of the warranty. If the defect on the
premises makes it uninhabitable or unfit in the view of a
reasonable person then it may be a breach.
■Applies only to conditions that make the premises physically
habitable.
•Heat, hot water, plumbing, safe kitchen appliances and safe
and sound structural conditions are included.
■Does not apply to luxury items.
•Does not apply for aesthetic things such as the walls needing
repainting.
•Loud noise or something like a virus or radon on an adjacent
property do not fall under this purview unless it affects the
physical condition of the property.
■Duty of L to mitigate: Functions the same a tort negligence.
◙Breach
◙Notice
◙Reasonable Steps by LL
◙Damages
■LL cannot contract out of Implied Warranty of Habitability.
■Violation of Housing Code Provisions are compelling but not conclusive.
■A good handful of states have yet to adopt IWH.
■The warranty does not apply to commercial leases and sometimes, on occasion
(not always), on these types of residential leases:
◦Single-Family Residences (On occasion)
◦Agricultural Leases
◦Long-term Leases
◦Casual Leases by Non-merchant LLs (Like Law Professor goes
on sabbatical and rents out to someone)
◙Damages-The Tenant can seek these damages.
1) Rescission of Contract :
•Dissolution of the Lease
2) Reformation of Contract:
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 •Can be determined by percentage.
•Jurisdictions vary on determination.
3) Seek Damages:
•As a Defense-W/hold rent till the LL makes good on repair, or until the
LL sues you for failure to pay rent, the T presents IWH defense.
◦Court can decide to partially or totally reduce rent depending on
degree of the breach (some courts require an escrow account,
others do not)
•Affirmative Cause of Action-Pay rent, remain in possession, and sue
later for reimbursement and damages (Hilder v. St. Peter).
•Repair & Deduct-W/hold amount for the repair that you had done.
•Terminate and Sue-T can terminate the lease and sue for damages
•Retroactive Pursuance-IWH can be pursued retroactively, can w/hold
future rent and seek damages for the amount previously paid.
•Punitive Damages-T can seek punitives. A willful and wanton
fraudulent breach may be shown by conduct manifesting personal ill-will
or carried out under circumstances of insult or oppression, or even by
conduct manifesting a reckless or wanton disregard of one’s rights (Hilder
v. St. Peter)

Scope of IWH:
a. These standards are typically generated from building and housing codes of that
jurisdiction and a violation results in a breach.
i. Reasonable Standard of habitability: Where the building or housing codes
don’t address a certain problem then the LL may still be in violation of the
warranty. If the defect on the premises makes it uninhabitable or unfit in the
view of a reasonable person then it may be a breach.
b. Applies only to conditions that make the premises physically habitable.
i. Heat, hot water, plumbing, safe kitchen appliances and safe and sound
structural conditions are included.
c. Does not apply to luxury items.
i. Does not apply for aesthetic things such as the walls need repainting.
ii. Loud noise or something like a virus or radon on an adjacent property do not fall
under this purview unless it affects the physical condition of the property.

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Implied Warranty of Habitability:

2. Rationale for IWH:

a. This policy arose out of the difficulty of the T being faced with the choice of either
leaving to avail himself of the rent obligation or staying but having to continue to pay
rent under the Constructive Eviction doctrine and C.Q.E. The need for a way for the T to
avail or abate himself of the rent and at the same time stay arose in poorer
neighborhoods with poorer people who could not afford to move or had no where else
to go. This desire coincided with the court’s recognition that the fastest way to get the
LL attention in fixing a problem of poor condition is to reduce his cash flow. This led the
to the implied warranty of habitability.
b. Additionally = many T bargain for and expect the structures thereon to be suitable for
habitation. Most treat their rented premises as a bundle of services and have the
expectation that those services will be provided.

3. Definition = IWH requires that rental premises be offered and maintained in a physical
condition that provides safe, decent, and habitable housing for tenants.
a. Residential housing = IWH applies only to residential housing in most jurisdictions.
b. IWH is warranty and covenant
i. Warranty (representation of fact) in that residential premises are safe, clean and
fit for habitation upon moving in
ii. Covenant (contractual promise) in that LL will repair and maintain the property
so that it remains in that same condition throughout the lease.
c. Implied: Implied whether or not it is stated in the lease.
i. Cannot negate or contract out of IWH in leases in most jurisdictions

4. Scope of IWH:
a. These standards are typically generated from building and housing codes of that
jurisdiction and a violation results in a breach.
i. Reasonable Standard of habitability: Where the building or housing codes
don’t address a certain problem then the LL may still be in violation of the
warranty. If the defect on the premises makes it uninhabitable or unfit in the
view of a reasonable person then it may be a breach.
b. Applies only to conditions that make the premises physically habitable.
i. Heat, hot water, plumbing, safe kitchen appliances and safe and sound
structural conditions are included.
c. Does not apply to luxury items.
i. Does not apply for aesthetic things such as the walls need repainting.
ii. Loud noise or something like a virus or radon on an adjacent property do not fall
under this purview unless it affects the physical condition of the property.

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5. Policy Question = how should the law evaluate between safety and quality of life concerns of
poor tenants in poor communities with the concerns of those individuals who might be affected
by broad screening and exclusionary policies.
a. This would cause the LL to exclude many people he otherwise would not because he is
afraid they will cause trouble under this broad policy.
b. It puts community in a bind because the exclusions are too broad and many people
won’t have a place to live.
c. What happens when the tenant signs a tenancy at will and then complains and is
thrown out.
i. Court may decide that the IWH applies and convert the contract to a periodic
tenancy and then uses that to offer some protections.

6. Breach of IWH:
a. Look to housing codes plus general standards of habitability.
b. T must give notice of defect and LL must have notice of defective condition
c. Defect must be substantial
i. Consider the its violation relating to the housing code, its effect on the T’s
health and safety, the length of time it has existed and its seriousness.
d. LL must be given reasonable time to fix the defect and not done so.

7. Remedies:
a. Hypo: What if T is in Nov. but suffers through Sep and Oct. without air conditioning
then complains to the LL. Is the LL liable and is there a claim under Implied Warranty of
Habitability.
i. First look as housing codes to see if there are air conditioning requirement and
examine the lease to see if that is contracted to be provided for.
ii. IF not than look at the doctrine IWH and then decide whether air conditioning is
central to the habitability of the premises. How do you test whether this is a
breach.
iii. May want to withhold rent for a month or two because this is best way to get
landlords attention. or sue for damages and then you don’t have to risk being
evicted by not paying rent. This is more conservative legal advice. Also look at
how this might affect the T credit and then make a choice as to how to advise
them.
b. Termination = stop paying rent and abandon the premises
c. Rent withholding = this is the prototypical remedy, and this is to kick the LL into action.
Perhaps we could pay rent in escro by paying to the court and then we the problem is
fixed they will pay the LL.
i. When withholding the rent the T should:
1. Give the landlord notice of the breach and an opportunity to fix
2. Reasonable time for the LL to repair

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 3. A notice of rent withholdment and establishment of an escrow account
where the money will be held.
4. Deposit the rent withheld into the escrow account
ii. This remedy method amounts to a sub for a suit of damages and shifts the
burden on the LL to bring suit.
d. Rent Abatement = Court may reduce the rent obligation according to the defect.
Reduce the rent owed to LL by the value of the D.
e. Specific Performance = Tell the LL to fix the problem.
f. Repair and Deduct = Repair the underlying issue and then deduct from that the rent
i. This is the fastest most efficient way to do this. LL may complain that you spent
to much though or they may say that aren’t going to pay or the T doesn’t have
the money up front to pay for the repairs. You have to pay this out of pocket
g. Damages = T may request damages for earlier or ongoing conditions for the amount of
the damages. Some value for the lack of air conditioning. If there is damages because
you have to move out then you could sue for damages under relocation costs, emotional
distress, putative damages, and the costs that you have to pay under increased rent.

8. Damage Measures
a. Difference between contract rent and fair rental value of premises in unrepaired state
or;
b. The difference between fair rental value of premises if they had been habitable or
premises in unrepaired state.
c. Diminution in value – percentage reduction in rent based on defect.
d. The first two formulas work if the premises began in good conditions then fell into
disrepair. Otherwise, the contract rent of housing in disrepair at the beginning of the
lease is likely to be the same as the fair rental value of housing in disrepair whne the
IWH is raised.
e. Emotional and putative damages are available as well suggesting that there are tort
aspects sometimes to the IWH, see below.

9. LL Tort Liability:
a. Three ways to resolve tort liability
i. Negligence general duty of care standard
ii. Common law exceptions to caveat Lessee
iii. Strict Liability
iv. Foreseeability = for Tort look at whether it was foreseeable and whether the LL
did anything to prevent it.
b. This creates tension between the right of people to live in habitable premises and the
costs that impose so that people cant afford housing.

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Illegal lease doctrine:

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