1. Right to Transfer

2. Right to Exclude

3. Right to Use

4. Right to Destroy

Free Alienation of Property

Cases - 

Land from Indians -- MacIntosh

Cells -- Moore v. Regents

Exclusion of other from property

Cases

Mobile Home -- Steenberg

Gov. Officials can come onto property -- Shack

The right to use property as he wishes - as long as it doesn't injure another person. 

Spite Fence Doctrine -- Sundowner & Prah

The law rarely intervenes -- except when the property has substantial value to society. 

Cases -- Will told to destroy the house -- didn't allow (Eyerman)

1. Actual Possession

2. Exclusive Possession

3. Open and Notorious

4. Adverse and Hostile

5. Continous

6. For the statutory period

7. (Some States) - Pay Taxes

Usually -- intend to use as the landowner, and is detrimental to the true owner. Others -- have to know that you aren't the true owner, but still intend to become the true owner. 

Hostility is implied -- lock and fence (Tioga Coal)

Intent to hold against owner -- Church -- (Fulkerson) -- Majority, church was better owners - don't accept bad faith arguments. 

Path to House and Garden -- Van Valkenburg -- Obtained an Easement -- no longer adverse or hostile. 

No Significant Gaps in holding the land. 

Tacking -- (Kunto) -- Summer Occupancy is OK, 10 Years successive occupants OK.

1. Lost

2. Mislaid

3. Abandoned

4. Treasure Trove

5. Attached to Land 

Personal Property Unintentionally or accidentally parted with. 

Finder Gets it (unless an employee)

Gets Good title as against the whole world except the true owner. 

Cases -- Jewel - Chimney Sweep - Armorie

Lying on the floor is lost (Bridges) -- Envelope on Floor of Shop -- gave to shopowner for three years to find true owner then claimed it. Finder wins.

Owner wasn't in control -- never had control, finder gets it. (Hannah)

Personal Property intentionally set down and then forgotten. 

Owner of premises gets it (Best chance of finding real owner). 

Good title as against the whole world except the true owner.

Money in the wing -- (Lindler Aviation)

Lost Pocketbook (McAvoy)

Personal Property that the true owner intends to abandon and actually abandons. 

Finder Gets it. 

Good title as against the whole world. 

Cases -- 1. Manure (Haslem)

2. Baseball (Popov v. Hyashi)

3. Lindler Aviation? If drug money, probably abandoned.

Gold, Silver, Coins, Currency, and sometimes jewels -- purposely concealed a LONG time ago (antiquity). 

Owner? Depends on the State -- Either state gets it, or the finder, or the state doesn't recognize treasure trove and it must be analyzed under a different category. 

Good title as against the whole world. 

Personal Property that gets so embedded in or otherwise attached to the land that it is considered part of the realty. 

Landowner Gets it. 

Good Title as against the whole world except the true owner or good title.

Cases -- Pre-historic boat (Brigg Gas)

Manure on land, but not on streets (Haslem)

1. Inter Vivos Gifts

2. Testamentary Gifts

3. Conditional Gift

4. Gift Causa Mortis

Intent -- The donor must intend to make an immediate transfer of property. 

Delivery -- The property must be delivered to the donee, so that the donor parts with dominion and control. (Actual, Constructive, Symbolic)

Acceptance -- The donee must accept the property -- although acceptance of a valuable item is usually presumed. 

Gruen -- Giving Klimt painting to son. Symbolic Delivery -- Court wanted to adhere to father's wishes. 

Intent -- Gift only to take place after the donor's death

Usually has to be executed through a will.

The will does not take effect until death. No property rights are given until then -- allows testator to change the will until death. 

Same as Inter Vivos + Condition that must be fulfilled before the gift becomes effective. Gift is not irrevocable until that condition is met. 

Engagement Ring (Albinger) -- Ring not Conditional -- gift was complete on the delivery.

Same as Inter Vivos + Donor in apprehension of imminent death from a particular cause and dies from that cause -- revocable until that point. 

Case -- Jewelry, going into surgery (Brind).

1. Copyright

2. Patent

3. Trademark

1. Original (not copied and minimal creativity)

2. Work of Authorship

3. Fixation (physical form)

4. Copyright is Automatic

Case -- Fiest -- Cannot copyright facts -- can copyright compilation of facts.

Fair Use -- 

1. Purpose and Character of Use

2. Nature of Copyrighted Work

3. Substantiality of the portion used in relation to the copyrighted work as a whole. 

4. Effect on the potential market for or value of the copyrighted work. 

Cases -- Nixon Pardon -- Ford's Memoir (Harper & Row)

If not directly copied, it doesn't matter how similar they are (Bee Gees)

1. Patentable Subject Matter (Process, Machine, Manufacture, or composition of matter - no concepts, algorithms, or principles)

2. Utiltiy (Has to be a useful invention)

3. Novelty (Only new inventions can be patented)

4. Nonobviousness (hardest -- Skill in the art, not obvious, relative commercial success)

5. Enablement (must describe the invention in such detail as to enable any person skilled in the art to make and use the same).

Cases -- Chakrabarty -- Human made Micro-Organism is patentable subject matter.

Every element is either:

1. Literally infringed

2. Doctrine of Equivalents

Case -- Super Soakers (Larami)

1. Word, name, symbol, or device. 

2. Given the right to exclude in a certain geographical area. 

Incentive to provide quality goods. 

Prevent consumers from being scammed. 

Case -- Trademarking Colors is OK - (Qualitex)

Infringement or Dilution

Relevance to original and misleading. 

Dilution - Noncommercial use, comparative advertising, news reporting. 

Barbie -- not commercial use. 

1. Fee Simple Absolute

2. Life Estate

3. Fee Simple Determinable

4. Fee Simple Subject to a Condition Subsequent

5. Fee Simple on an Executory Limitation

6. Fee Tail

"To A and His heirs" -- Modern "To A"

Best Estate -- 

Alienable

Inheritable

Devisable

"To A for life"

Future Interest Left Over

Per Autre Vie -- "To A for the life of B"

Case - Tear the Barn Down - Types of Waste. Tenant can make changes as long as they improve the value of the property (Wood). 

"To A for life, then to B and B's heirs."

Future Interest that Grantor has given to a different party after someone else's life estate.

"So long as," "While," "Until," "During"

O retains a Possibility of Reverter -- Happens Automatically. 

"Provided That," "but if," "On Condition That"

Right of Reentry or Power of Termination -- Grantor must affirmatively act to get property back (quiet title Action)

(Marenholz) -- Son gave Future interest away -- whether or not this was OK depended on whether he has a reverter or right of re-entry. If Possibility of Reverter -- should have just retaken the property and sold it. 

Not Automatic -- Must be done by Quiet Title. Have a right to re-enter if the condition is broken for which the fee simple was conditioned by.

Right of Re-entry does not last forever (Tennis Park).

Same words of limitation used in FS. Cond. Sub. and FS. Det. -- however -- Future interest held by transferee, not transferor. 

"To B and heirs so long as it is used as a farm, then to C."

1. Reversion

2. Possibility of Reverter

3. Right of Entry

1. Indefeasibly Vested Remainder

2. Vested Remainder Subject to Divestment

3. Vested Remainder Subject to Open

4. Contingent Remainder

5. Executory Interest

1. Is there a future interest?

2. Is the future interest a remainder?

-- Interest in a grantee?

-- Same Conveyance?

-- Natural Expiration?

3. Is it vested or contingent?

 -- Vested if Born, Ascertainable, No Condition Precedent

1. Shelley's Case

2. Doctrine of Worthier Title

3. Doctrine of Destructibility of Contingent Remainders

4. Rule of Perpetuities (RAP)

"To A for life and then to A and his heirs" => "To A and his heirs."

Where A is given a life estate, but his heirs are given the remainder, shelley's case converts the contingent remainder in the heirs into a vested remainder in A. A now holds a FSA.

"To G for life, then to O's heirs." => "To G for life, then to O and O's heirs."

Applies when A conveyance creates a remainder or executory interest in the grantor's heirs.

1. Becomes impossible for the contingent remainder to vest.

2. The present possessory estate ends before the contingent remainder vests.

3. The present possessory estate is forfeited before the contingent remainder vests.

4. The contingent remainder is destroyed through the doctrine of merger.

"To A for life, then to B and her heirs if B graduates from law school."

While A is still alive, B dies during undergrad. Contingent remainder is destroyed.

A has life estate and O has a reversion in FSA.

"To A for life, then to B and her heirs if B graduates from law school."

A dies while B is still in undergrad. 

Contingent remainder destroyed. 

O has a FSA

"To A for life, then to B and her heirs if B graduates from law school."

A is convicted for using the property as a meth lab while B is in undergrad. 

Cont. Remainder is destroyed. 

O should have an FSA -- but gov. is bad at passing property on. 

"To A for life, then to B and her heirs if B graduates from law school."

The O conveys his future interest "to A and A's heirs."

This destroys the cont. remainder and makes it "To A and A's heirs - getting rid of any interest B may have.

1. Does RAP apply to any of the interests you've just classified? 

- Only applies to Cont. Remainders, Exec. Interests, and Vested Remainders subject to open.

2. Has RAP been violated?

- No interest is valid unless it must vest, if at all, within a life in being plus 21 years.

- Is there anyway, 21 years after the last relevant person dies, that we STILL might not know whether the interest is going to vest or not?

3. If violated -- cross out backwards until the void interest is gone AND it still makes sense.

- O conveys "to A so long as no alcohol is served on the property, then to B and her heirs."

1. Tenancy in Common

2. Joint Tenancy

3. Tenancy in the Entireties

Presumed Concurrent Estate in Common Law

Undivided Interest = Simultaneous Right to Possession

Separate Interest = Independant handling of each share

Interests can be Unequal

Undivided Interest

Separate Interest

Right of Survivorship = Automatic acquisition when co-tenant dies

Right of Severance = Can sever this interest from the joint tenancy (can simply sell their interest to sever). Severance creates a Tenancy in Common

1. Time - Get interest at the same time.

2. Title - Get interest through the same instrument

3. Interest - Identical Interests

4. Possession - Undivided right to possess the property.

Marriage equals Single Unit

Right of Survivorship

NO right of Severance

TBTE is severed if any of the Unities is broken.

Case - (Guy) - Diploma is not marital property - however, reimbursement alimony might be allowed.

1. Time

2. Title

3. Interest

4. Possession

5. Marriage (Divorce Severs)

1. Purchase Contract

2. Closing

3. Title Protection

1. Title Examined

2. Physical Inspection of Property

3. Buyer obtains or finalizes financing

4. Escrow Opened

5. Documents Prepared

1. Statute of Frauds

2. Marketable Title

3. Equitable Title

4. Seller's duty to Disclose

1. Essential Terms

2. Writing

3. Signature

Cases - Oral Contract not enough (Hickey)

Equitable Estoppel - reasonable reliance, significant injury to a party.

Unmarketable if:

1. Seller's property interest is less than the one purported to sell. 

2. Seller's title is subject to an encumbrance; or

3. There is reasonable doubt about either 1 or 2. 

Cases - Unmarketable title if the title exposes the party holding it to the hazard of litigation (Lohmeyer).

Risk of Loss

Become the Equitable owner once the contract is signed.

This is asking who bears the risk during the executory period.

1. Risk of loss on the vendee (Majority)

2. Risk of loss on the seller (Minority)

3. Risk of loss - whoever is in possession (Sure Fine).

Caveat Emptor (Buyer Beware)

Required to disclose defects known about that:

1. Materially effect the value of the property and

2. Are not known to or readily discoverable by a buyer.

Cases -- Ghost House (Stambovsky)

Differences in bargaining power and acces to information create duties to disclose (Strawn). 

1. Execution of the Deed

2. Delivery of the Deed

3. Escrow

4. Mortgages

Grantor must manifest an intention to immediately transfer title to the grantee. 

Cases - (Rosengrant) - Takes to Bank - tries to give deed and "make it legal." Envelope still had his name on it, probably means it was revocable.

(Vasquez) - Gave to Attorney - intended to relinquish all dominion and control = delivery.

Foreclosure - Lender may sell the property and use the sales proceed to pay off the loan. 

Cases - Farmers in a bind - Foreclosed - Sale must be commercially reasonable (Wansley).

1. Title Covenants

2. Title Opinion & Record Search

3. Title Insurance

General Warranty Deed - Warrants against ALL property defects.

Specialty Warranty Deed - Grantor warrants against property defects that arose after he got title. 

Quitclaim deed - Grantor warrants Nothing about title.

1. Present Covenants - Breached when deed is conveyed. 

- Grantor owns the estate he is selling.

- Right to Convey the property

- No encumbrances.

2. Future Covenants - breached after closing. 

- Grantor will protect from adverse claims.

- Protection against someone with better title.

1. Tract Index

2. Grantor Grantee Index

3. Constructing a Chain of Title.

1. Start with a Grantee Index - Yearly index

2. Current Seller - to Seller's Grantor

3. Look for your seller's name

4. Go back until you hit a Government (State or Fed, or different country depending where you are). 

5. Then go through the Grantor Index - did they do something when they owner the property? Easements or deeds - what did they give away when they sold it?

Cases - Improperly indexed deed can still provide notice (Luthi)

1. Race - 1st to record gains priority. 

2. Notice - Subsequent bona fide purchaser gains priority

3. Race-Notice - Subsequent bona fide purchaser who records first gains property.

1. Express Easement

2. Implied Easement by pre-existing use

3. Easement by necessity

4. Prescriptive Easement

5. Easement by Estoppel/Irrevocable License

Consciously created by deed. (Granted or Reserved)

Case - (Millbrook Hunt) - Knew what he was getting into - not just a license. Implied intent to reserve a permanent right to hunt - thus easement.

1. Severance of title to land held in common ownership;

2. An existing apparent and continuous use of one parcel for the benefit of another at the time of severance; and

3. Reasonable necessity for that use.

Case - Sewer - still apparent that there was a sewer system and there was a reasonable necessity for that use. (Van Sandt).

1. Severance of title to land held in common ownership;

2. Strict necessity for the easement at the time of severance.

Case - Just because it is accessible by water, doesn't mean they shouldn't get an easement to drive to their land (Berge v. Vermont).

(Easement by Adverse Possession)

1. Open and Notorious

2. Adverse and Hostile

3. Continuous

4. For the Statutory Period

Case - Golf Course and Property - knew of the use and made no protest against it (Bel Air Country Club).

1. A landowner allows another to use his land, thus creating a license;

2. The licensee relies in good faith on the license, usually by making physical improvements or by incurring significant costs; and

3. The licensor knows or reasonably should expect such reliance will occur. 

Case - Kienzle - 

1. Dominant vs. Servient - Benefitted vs. Burdened.

2. Appurtenant vs. In Gross Easement - Benefits the land vs. Benefits the person.

3. Affirmative vs. Negative - Gives rights vs. takes certain rights away.

Manner to be used

Frequency

Intensity

1. Abandonment

2. Release

3. Reverse Prescription

4. Condemnation by government of servient land

5. Estoppel

6. Misuse leading to Forfeiture

1. Real Covenants

2. Equitable Servitudes

3. Common Interest Communities

1. Homeowner's Association

2. CC&Rs

3. Assessments

4. Ownership Rights

Cases - Restriction of cats and dogs was rational - (Nahrstedt v. Condo Project)

Wood Shingles - hadn't previously enforced, so they cannot start enforcing now - Abandoned? (Fink)

Alcohol restriction upheld (Vernon Township)

FSA in Unit

Undivided interest in the common area

Membership interest in the Association.

1. Maintain the common area of the CIC;

2. Enforce the CC&Rs;

3. Adopt and enforce rules to supplement the CC&Rs;

4. Collect assessments from the unit owners; and

5. Take such other actions as are necessary to administer the CIC.

Cases - Board has authority to close ski-resort (Eastman)

Wouldn't take the garbage out - HOA cannot micromanage (Dept. of VA).

1. Intentional

2. Nontresspassory

3. Unreasonable

4. Substantial Interference

5. Use and Enjoyment of land

Cases - Boomer - Injunction allowed because of dirt, smoke and vibration. 

Gravity of Harm - 

- Extent of harm

Character of Harm

Social Value

Suitability of the particular use or enjoyment invaded to the character of the locality

Burden on the person harmed of avoiding the harm

Case - Greves - Wood-burning stove - rotten smell - gravity of harm elements - 

1. Zoning

2. Non-conforming Uses

3. Variances

4. Special Exceptions

Zoning is a valid exercise of Police Power as long as there is a Rational Basis for it - not clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare. Overcomes Due process and equal protection claims. 

(Euclid). 

Amendments to to the Original Zoning Ordinances - can screw up the comprhensive plan and lead to bribery. 

(Smith v. Little Rock) - Rezoning in order to prevent a Wendy's from moving in across from a stadium was arbitrary and capricious.

Singles out a small parcel of land for different treatment

Primarily for the benefit of the private owner, rather than the public. 

In a manner inconsistent with the general plan for the community. 

1. Information relating to the structure located on the property;

2. Nature of the use;

3. Location of the property in relation to surrounding uses;

4. Description of the character of and uses in the surrounding neighborhood;

5. Cost of the property and improvement to the property;

6. Benefit to the public by requiring the termination of the non-conforming use;

7. Burden on the property owner by requiring the termination of the non-conforming use;

8. The length of time the use has been in existence and the length of time the use has been non-conforming.

Case - AVR - two years to leave. 

1. Fair Market Value or Replacement Cost

2. Return on Investment

AVR - got their return on investment.

1. Unique Physical Circumstances or Conditions

2. No Possibility that the property can be developed

3. Unnecessary Hardship not created by the applicant

4. Variance will not alter the essential character of the neighborhood

5. Minimum Variance that will afford relief.

Case - Detwiler - Variances allowed where it is necessary to enable a reasonable use of the property. Hardship only self-inflicted when landowner pays high price assuming that he will get a variance to justify the price.

A special exception is a use that is permitted in the zone if certain conditions specified in the zoning orinance are met. 

Case - Walmart - Visual Effect on the city and area - Failed to show that their store would conform with the standards imposed by the zoning ordinance.

1. Aesthetic Regulation -

Ladue Cases - Conventional Architecture - Regulation allowed. Sign Ordinance not allowed. 

2. Family Zoning - 

Can't have grandkids in home - unconstitutional - Moore v. East Cleveland

Rational Basis Test - Whether the ordinance is rationally related to a legitimate governemental interest. Don't want to live next to a party house. Ames.

Purpose

Scope

Powers and duties of the state as trustee

Cases -

1. Audubon - Mono Lake - Public trust protects navigable waters from harm. Must reconsider allocation.

2. Deep Ripping for Orchards - Clean Water Act - Ranch v. U.S. Army.

3. CERCLA - Toxic Waste - Everyone can be on the hook - delivery, possessors, owners, everyone. (Monsanto)

4. Endangered Species - "Harm" - OK to regulate (Babbitt)

5. Car Pollutants - Mass. v. EPA

Constitution has two restrictions on E.D. -- 

1. Government may take property only for "public use"

2. The private owner must receive "just compensation."

Don't care about the Means Test - As long as the legislature rationally could have believed that the Act would promote its objective. Act concerned a legitimate public purpose - (Hawaii Housing)

Pfizer Park - Economic Development is Public Use - Kelo

"Too Far" Test - Diminuition-in-value test - Financial impact on the regulation - Penn. Coal

"Balancing Test" -  Penn. Central

- Economic impact of the regulation on the claimant

- Extent to which the regulation has interfered with distinct investment-backed expectations.

- Characterof Government Action (Catchall Phrase)

1. Permanent Physcial Occupation of Land

2. Loss of all economically beneficial or productive use of land, unless justified by background principles of property or nuisance law. 

3. Exaction that has no essential nexus to a legitimate state interest or lacks rough proportionality to the impacts of the particular project.