The Law Dictionary

Your Free Online Legal Dictionary • Featuring Black’s Law Dictionary, 2nd Ed.

Property Law (Keyed to Dukeminier)




  1. Property rights: are instruments of society; they convey
    the right to benefit or harm oneself or others and they specify how
    persons may be benefited or harmed. They were developed to
    internalize externalities when the cost of internalization is less
    than the gains produced. [Bundle of sticks]

    1. Externalities-the misuse or misallocation of
      property; when property used in another way would be more
      beneficial to society as a whole.
    2. Forms of ownership
      1. Communal-a right that can be exercised by
        all members of the community (sidewalk)
      2. Private-implies that the community
        recognizes the right of the owner to exclude others
        from exercising the owner’s private rights
      3. State-implies that the state may exclude
        anyone from the use of a right as long as the state
        follows accepted political procedures for
        determining who may not use state-owned
    3. Public Policy on Property Law
      1. Property law regards relationships b/w people
        not just person and property.
      2. Property rights are relative (first in
      3. Goal of property law is certainty.
  1. First Possession: Acquisition by Discovery
    1. Johnson v. M’Intosh

Facts: P sues to eject U.S. land grant owner from land he purchased
from Indians.

Issue—Who had legal right to the land?

Holding-U.S. government inherited its title to the land from
England’s discovery of the land. Indians had aboriginal title – the right
to occupy the land but not title to the land, “mere occupancy.” Classified
as “domestic dependent nations” in Cherokee v. Georgia. This case
sets precedent that U.S. government has the only right to convey land (and
this ability was retroactive in that all land “possessed” by Indians was
taken). This precedent is important because it legitimized the power of the
U.S., and it established a standard for organization of land.

  1. First in time: the first person who takes possession
    of a thing owns it
  2. Discovery: entails the sighting or finding of unknown
    or uncharted territory
  3. Conquest: the taking of possession of enemy territory
    through force
  4. Occupancy theory: person who first captures and puts
    it to reasonable use
  5. Property and Power: property confers and rests upon
  6. Labor Theory and John Locke: when land is mixed w/
    man’s labor, it becomes his property and excludes the common
    right of other men
  1. Acquisition by Capture

First person to take physical possession of a wild animal through
(1)physically capturing it, (2)mortally wounding it, or (3)depriving it of
its natural liberty, has property rights in that animal.

  1. “Mere pursuit” does not constitute possession.
    1. Ancient legal scholars determine that capture
      and mortal wounding constitutes possession.
      DISSENT said a reasonable prospect constitutes
  2. Peace and order will be preserved if a very clear rule is
    established (reduce litigation and shape people’s behavior).
    DISSENT pushed for an instrumental outcome – to encourage
    socially useful behavior (killing the awful beasts).
  3. Ratione Soli (“right of soil”)- The landowner
    would have the primary right to capture and it protected the
    owner’s land from trespassing. At the time the fox left a
    landowner’s land, the fox was no longer that owner’s property.
    Since the fox was not on someone’s land, it was subject to the
    right of capture.

    1. Animous revertendi-For animals that
      have the intent to return, then the rule is that it
      remains yours even though it has left your land.
      Problem: How is a hunter to know what is in an animals
    2. Rule of increase-The person who owns
      the parent, owns the offspring.
  1. Pierson v. Post

Facts  Π (Post) hunted fox with dogs and a
horse, through the wild. Δ (Pierson), knowing the fox was hunted,
killed it and took possession. Δ eventually wins the fox.

Issue  Whether Π, by pursuit and intent to possess,
took possession

Rule  An entity can only become property
through occupancy. Pursuit alone cannot grant occupancy or right to
the property.

Reasoning – By only pursuing the fox, Π had not deprived the
fox of its “natural right” to liberty. The fact that the fox could still
get away; he hadn’t demonstratably removed it from the realm of “ferae

Notes – the dissent wanted this argument to go before
arbitration instead of a court, by having the regulators of the industry’s
rules apply.

  1. Ghen v. Rich

Facts – Π (Ghen) shot (bomb-lanced) and instantly killed a
whale with a bomb-lance. Days later when the whale washed ashore, Δ bought,
at auction, the remains from Ellis, some joe who found the dead carcass.
Finding out that his kill had been sold, Π brought suit.

Issue – Whether Π took the necessary steps towards possession
to sustain a claim for conversion

Rule – Ownership requires physical possession, except where
the normal means of possession cannot practically be applied. In such cases
taking those steps to appropriation customary to the trade will be
sufficient for possession.

Reasoning – In an industry such as whaling, the nature of the
hunt is such that to effectively capture a whale, one can only hope to
initially kill the whale and hope that its remains will rise for tow or be
washed ashore. By killing the whale with the intention of possessing it, Π
effectively established a future claim to the whale. Δ seeing that it had
been mortally wounded should have known it wasn’t his to sell.

  1. Keeble v. Hickeringill

Facts – Π built a decoy pond for catching wild fowl, which he
sold for profit. Δ, spitefully, tried to scare the wild fowl away
effectively hurting Π. Π sues Δ for conversion.

Issue – Whether Δ’s malicious interference with Π’s
opportunity to catch the wild fowl is a cause for action.

Rule – Where one maliciously hinders another in his pursuit
of possession, he will be held liable.

Reasoning – He who at his own expense performs a trade, and
furnishes the market place for his livelihood, should be awarded
encouragement for so doing, for he provides a valuable service to the

Ratione Soli – an owner of land has possession (constructive) of
wild animals and nature while they are on that land.

Tortious Interference – the malicious imposition on someone else’s business
will impose liability.

Animus revertendi – (the intention of returning) Where an animal is
domesticated that it will return to ones property, then that person has a
property interest in that animal.

Rule of Increase – if A has animal which has offspring, the offspring
belong to A.

Rule of Capture and Other Fugitive Resources

  1. Oil and Gas—follows the rules of ferae naturae unless
    legislation looks to reduce excess drilling.
  2. Water—household use has prominence over artificial use;
    groundwater governed by English rule of absolute ownership.
  3. Externalities—costs associated with usage of property (esp.
    in communal property).
  1. Acquisition by Creation

Property in One’s Ideas and Expressions: Intro. to Intellectual

  1. International News Service v. Associated

Facts – The INS was taking news reports produced by AP and
pirating by copying news from bulletin boards and from early editions of
complainant’s newspapers and selling this, either bodily or after rewriting
it to Δ’s customers (also was bribing to gain stories, but this was allowed
injunction by District Court)

Issue – Whether there is any property in news once released,
such that would support an injunction.

Rule – The news is quasiproperty
irrespective of the rights of either as against the public, but with merit
against competing reporting. [Note-quasi property doesn’t make any
sense-either you have rights, or you don’t]

Reasoning – The news itself isn’t property (knowledge).
How it is presented (the story, video footage) is protected. INS was
engaging in unfair business practices (similar to a tortious interference),
which gives rise to the injunction.

  1. Cheney Brothers v. Doris Silk Corp.

Facts – Π, a corporation, manufactures silk patterns, which Δ
copied one of the designs, undercutting Π’s price.

Issue – Whether the patterns designed by Π may be protected
by law

Rule – a man’s property is limited to the chattels which
embody his invention. Others may imitate these at their pleasure

Reasoning – If designs are protected, the court wouldn’t be
able to stop there. Processes, machines, and secrets would have equal

  1. Smith v. Chanel, Inc.

Facts – Δ’s perfume claimed in advertisements to be the
equivalent of the more expensive Chanel No. 5.

Issue – Whether Chanel could exclude Δ from using the same
scent and so advertise

Rule – Without a patent, others are free and
encouraged to copy

Reasoning – A large expenditure doesn’t create legally
protectable rights without a patent. The “free ride” taken by Δ serves an
important public interest by offerning comparable goods at lower

  1. Right to Include/Exclude
    1. Include-right to give or sell to another;
    2. Exclude-law of trespass protects the right to
      exclude. Laws of conversion protect exclusion from

      1. Jacque v. Steenberg Homes,

Facts – Δ had to deliver a mobile home and the easiest route
was across Π’s land. Despite adamant refusal, Δ plowed a path through their
property. Π sued for trespass

Issue – Whether Π’s right to exclude supports punitive
damages where nominal damages are awarded.

Rule – Private landowner’s right to exclude others from
his/her land is one of the most essential sticks in the bundle of rights
that are commonly characterized as property.

Reasoning – The right to exclude people from one’s property
has no value unless protected by the state (where nominal awards don’t
constitute state protection).

  1. State v. Shack

Facts – Δ entered Π’s farm (unauthorized) to aid migrant
farmworkers employed and housed there. Δ were convicted of trespassing to
which they appealed.

Issue – Whether the Π’s right to exclude may stand between
the migrant workers who live on his land and those who they would wish to
be on the property

Rule – A man’s right in his property isn’t absolute. It was a
maxim of common law that one should so use his property as not to injure
the rights of others.

Reasoning – The migrant worker must be allowed to receive
visitors of his own choice, so long as there is no behavior hurtful to

*Note-These two cases present two legal rules and a unique
set of facts. As a laywer, have to determine which side of the line a case
falls on…either no right to exclude (State v. Shack) or absolute right to
exclude (Jacque)

  1. Acquisition by Find
    Lost Misplaced Abandoned
    1) unintentionally 1) voluntarily placed
    in a particular place,
    1) intentionally
    2) involuntarily
    parted with it through neglect or inadvertence, and
    2) intending o retain
    2) voluntarily
    3) does not know where
    it is
    3) but the failing to
    reclaim it or forgets where it is
    Lost property:
    finder IS entitled to possession against everyone
    except the true owner. See exceptions on page
     a finder of property acquires NO rights
    in mislaid property.
     the finder IS entitled to keep abandoned
    1. Abandoned—Owner has discarded or
      voluntarily forsaken with the intention of
      terminating his ownership, but without vesting ownership in
      any other person. FINDER has right to it against all other
      claim except the true owner.
    2. Lost Property—Property which the owner has
      involuntarily and unintentionally parted with
      through neglect, carelessness, or inadvertence and does not
      know the whereabouts. FINDER of property has right to it
      against all other claims except the original (true)

      1. Armory v. Delamirie

Facts – Π being a chimney sweeper’s boy found a jewel and
carried it to Δ’s shop to figure out what it was. He gave it to apprentice
who weighed it, removed the stone, and gave back the empty socket after
three pence was refused.

Issue – When one finds something, do they have rights to that
property (including the right to exclude it from others)?

Rule – The title of the finder is good as against the whole
world but the true owner…

Reasoning – Because the jewel isn’t recoverable, the most
valuable jewel it could be, will be given in the amount of damages.

Theft– the rule of prior possession is said to be explicitly invoked
only in support of honest claimants.

Trover (British version of conversion) is a common law action
for money damages resulting from the Δ’s conversion of the

Replevin a lawsuit to obtain return of the good, not

Bailment is the rightful possession of goods by one person (bailee)
who isn’t the owner. Imposes a standard of minimal care (an ordinary
negligence standard of reasonable care under the circumstances)

  • Voluntary Bailment = Me→Pawn Shop→You
    • the true owner cannot go after the current possessor,
      only the prior possessor.
  • Involuntary Bailment = TO→Sweep(P1)→Jeweler (P2)
    • If the true owner can attempt to recover the item from
      both the current and prior possessor.
  1. Hannah v. Peel

Facts – Freehold Estate was conveyed to Δ (Peel) who never
occupied the house. It was used for quartering soldiers. Π (Hannah) while
being quartered there, found a brooch which was not known of by the Δ.

Issue – Whether the owner of a house possesses all objects
within that house even if that owner has never resided in that house.

Rule – A man possesses everything which is attached to or
under his land, but does not necessarily possess a thing which is lying
unattached on the surface of his land even though the thing is not
possessed by someone else.

Holding – Judgment for Π.

Reasoning – Since he was never physically in possession of
the premises at any time, the brooch was never his since he had no prior
possession. He had no knowledge of it until it was brought to his attention
by the finder. Since the brooch was “lost” the finder has the superior
claim to title.

Animus Possidendi – Possession with knowledge and intent to hold for
ones own benefit.

Mislaid—That which the owner has intentionally set down in a place
where he can again resort to it, and then forgets where he put it. The
OWNER OF THE PREMISES (locus in quo) has the duty to safeguard
the property
 for the true owner. The owner of the property has a right
over the finder to property.

  1. McAvoy v. Medina

Facts – Π (customer in Δ’s (barber) shop) found a pocket book
which was lying on a table. He informed the Δ who came over, counted the
money, and retained the pocket-book at Π’s request in hopes of finding the
true owner. After advertising no one claimed the pocket book, so Π made
three demands for the money which directly to this cause of action.

Issue – Whether Π may invoke the property right of a finder
since the true owner never claimed his lost property.

Rule – The finder of lost property has a valid claim to the
same against all the world except the true owner, with the place found,
generally, creates no exception, but property intentionally placed by an
owner who subsequently forgets to take it before leaving isn’t lost, it is
instead misplaced which gives the finder no right to ownership

Reasoning – Where the true owner placed the pocket-book on a
table and forgot remove it before leaving, a rule which better supports the
true owner’s interest in the property is needed. Π acquired no original
right to the property, and the Δ’s acts in receiving and holding the
property in the manner he did does not create any.

Treasure Trove—A category exclusively for gold or silver coin,
plate, bullion, and sometimes its paper money equivalents, found concealed
in the earth or in a house or other private place. (It carries with it the
thought of antiquity-at common law, it went to the king.) PROPERTY OWNER
has right above all finders.

Embedded—Personal property which has become a part of the natural
earth, such as pottery, the sunken wreck of a steamship, or a rotted-away
sack of gold-bearing quartz rock or partially buried in the ground. The
PROPERTY OWNER has possessory right to it.


  1. Acquisition by Adverse Possession

Theory : The taking of land which one doesn’t own (promotes taking
care of land, protects the interests of those who have become attached to
it). It requires that one maintains


  1. Actual entry giving exclusive possession
  2. Open and notorious
  3. Adverse, under a claim of right (adverse = adverse to the
    interests of the true owner)
  4. Continuous for the required period (elements 1-3 have to
    have been done for the full time period, i.e acting like a true
    owner for the timeframe)

*Note-In Idaho, a fifth element is required. Taxes. Idaho
requires this rule because if someone pays taxes on the land, the true
owner will conceivably be put on notice when they are notified by the IRS.
This rule is more common in western states that have large swaths of
private land because open entry would be more likely to go unnoticed.

  1. Three views of Adverse Possession

Claim of right/Intent interpreted in three ways:

  1. Good faith
  2. Aggressive trespass
  3. Irrelevant [this is preferred/correct way]
  1. Van Valkenburgh v. Lutz

Facts – (Yonkers Adverse Possession Driveway) The
Lutz’s bought at auction two wooded lots in Yonkers (1912), and built a
driveway on another lot along with a garden, a chicken coop, and stored
some junk. Van Valkenburgh, a feuding neighbor, bought the land at
foreclosure (1947) and fenced off the property, blocking what the Lutz’s
claimed to have a prescriptive right (right to use, without claiming
ownership) to as his only access to his property (1948). He then claims
Adverse Possession (1950). Trial court awarded Lutz the right away, and the
Appellate court upheld the decision. Van Valkenburgh appeals to this

Issue – Whether there is evidence showing that the premises
were cultivated or improved sufficiently to satisfy a claim to adverse

Rule – To acquire title to real property by adverse
possession it must be shown by clear and convincing proof that there was an
“actual” occupation under a claim of title by cultivating or improving the

  1. Color of Title and Constructive Adverse Possession
  1. Color of Title – a deed or other instrument of conveyance
    that purports (but fails) to convey title to the land
    described in it. Advantages:
  1. Makes it easier to satisfy the elements of adverse
  2. Constructive possession (get all the land in the title, not just
    what was occupied/possessed)
  1. Law of Prescription – Statute of Limitations for Adverse
  2. Quieting Title – an action to resolve title against
    adverse claims
  3. Mistaken Improvers – Courts used to order mistaken
    improvers to remove their property. Now: decide if property owner
    was irrevocably damaged, if not, usually force a conveyance. (See
    case below)
  1. Manillo v. Gorski

Facts – (Stairwell encroaching on neighbors property)
Gorski built an outside stairwell connected to his mom (Δ’s) house, which
encroached on the property of Mannillo by some 15 inches. Δ states that she
has title to said land by adverse possession, while Π asserts that the
requisite hostile nature is lacking

Issue – Whether an entry and continuance of possession under
the mistaken belief that the possessor has title to the lands involved,
exhibits the requisite openness necessary for a successful adverse
possession claim.

Rule – Intent is irrelevant to a claim of adverse possession
(Connecticut Doctrine). Where the encroachment is not sufficiently
open (hidden), the owner will NOT be presumed to know of its existence.
Where a boundary encroachment is shown to be executed in bad faith, the
encroacher may be forced to remove it regardless of the cost entailed.

Reasoning – Allowing adverse possession of a tiny portion of
a property puts an undue burden of constant surveying of land by the true
owner, while it may put undue hardship on the adverse possessor who under
an innocent belief of title put in extensive work on home improvement.

The Maine Doctrine – states that an intention to claim the
 not embraced in title is a necessary element of adverse
possession. Largely abandoned by courts.

The Connecticut Doctrine – Motives are of no importance in
determining whether an adverse possession claim has been made. Instead the
very nature of the act is an assertion of one’s own title and the denial of
the title of all others (protects those who mistakenly take land).

  1. Mechanics of Adverse Possession
    1. Howard v. Kunto

Facts – (Summer home built on wrong lot) Prior owner’s
deed to Δ’s property described a neighboring lot to the one the house was
built on. Δ (The Kuntos) took possession of the disputed property under a
deed from a family who procured the lot from the original prior owner. The
neighboring Howards (Π) desiring to convey half of their land had their
land surveyed. This survey indicated the error, and revealed that the
Kunto’s house lay on the Howard’s land. Action was brought to quiet title
in the Howards, and the court upheld this action stating that the Δs failed
to prove their continuous possession sufficient to tack onto the adverse
possession of the preceding owners. The Kuntos appeal.

Issue – (1) Is the continuous requirement of adverse
possession defeated by only summer occupancy? (2) Can receiving title from
one who successfully completed adverse possession succeed in creating
adverse possession in he/she who received it?

Rule – (1) Requisite possession requires possession and
dominion conforming to ordinary conduct of owners in general
holdings, managings, and caring for property (2) No rule exists, but if
extra land may be “tacked” on, there is no reason that tacking on cannot be
completed from previously completed “adverse possession” conveyors.

Reasoning – It is not good for policy to make all landowners
have to have a survey done whenever buying property.

  1. Privity—The mutual or successive relationship to the same
    rights of property, by which a “tacking” claim may be successfully
  2. Tacking—the summation of an interest in a property by
    successive relationship to the same rights of property (adverse
    possession cases may use it when a statute of limitations is either
    partially fulfilled by one and then voluntarily surrendered to
    another who in turn completes the statute of limitations
    requirements to achieve actual adverse possession, or where one
    fulfills the adverse possession requirement and then transfers the
    property to another who in turn receives full ownership rights from
    the first)
  1. O →A→B→?

A trespasses against O in 2000, and then B subsequently takes possession
from A in 2007, who owns it in 2010?

  • If there was privity between A and B, B owns it in 2010.
  1. O →A→B→A→?

A has possession in 2000, but B forcibly takes the property in 2007, but
then A regains possession six months later, by what year will A adversely

  • 2010.5
  1. Disabilities

The statute of limitation is extended if specified disabilities (age of
minority, of unsound mind, or imprisoned) are present.

  1. Disability must exist at time of adverse
  2. Cannot tack disabilities.
  3. Disabilities end with death.
  1. Adverse Possession Against the Government

Can’t do it.

  1. Adverse Possession of Chattels

Def: Implies all of the elements of adverse possession except open and
notorious, since chattels are not likely to be open and notorious like
property, the discovery rule is usually applied. There is nothing to put
the true owner on notice.

  1. O’Keefe v. Snyder
    1. Discovery Rule-the statute of limitations
      does not start to run until the injured party discovers
      or should have discovered through reasonable diligence
      (due diligence), the facts that cause the cause of
    2. The purpose of this rule is to mitigate harsh
      results of the statute of limitations.
    3. The discovery rule shifts the burden of proof on the
      true owner. They have an obligation to not sleep on
      their rights.
    4. Due diligence includes taking all reasonable
      measures available to the owner.
    5. Void Title-if the true owner has never
      intended to give title away it is void. Good faith
      purchaser can’t get a void title.
    6. Voidable Title-title which may be voided by
      true owner, good title—title was meant to be passed on,
      it is voidable and you can only get damages. Good faith
      purchaser can get a clean title for a voidable
  1. Acquisition by Gift
    1. Intent to make a gift—may be shown by oral

      1. Intent can be express or implied by what is said
        and done.
    2. Delivery of gift—must be shown by objective
      acts-shows intent to give and helps prevent fraud.
      Generally, actual delivery is required.

      1. Actual—if an object can be handed over,
        it must be actually delivered.
      2. Constructive—if an object cannot be
        delivered because it is impractical (too large or
        heavy) or it is inaccessible, constructive delivery
        is allowed. Generally, it is handing over a key or
        some object that will open access to the subject
        matter of the gift.
      3. Symbolic—delivery is handing over
        something symbolic of the property given. Normally,
        it is a written instrument declaring a gift of the
        subject matter.
    3. Acceptance.
    4. Types of gifts:
      1. Inter vivos—gifts between the
      2. Causa Mortis—gifts made in
        contemplation of the donor’s eminent death (i.e. on

        1. Requires one witness.
        2. If donor lives, the gift is revoked.
        3. If donee already has possession of item,
          it must be redelivered to be a valid
        4. Substitutes for a will.
    5. Newman v. Bost

Facts – Intestate of D allegedly gave P all his furniture and
property in his dwelling as a gift in preparation of death. He gave P his
private keys and pointed at the bureau, the clock, and other articles of
furniture in the house by pointing in the direction of various rooms.

Issue – Was giving the keys only a constructive delivery of
items the keys open or a more symbolic delivery—giving everything in

Holding  Court ruled it was only constructive
delivery as the items could not be manually delivered, and P was entitled
to things the keys opened, but not what was inside those items—those items
would have to be physically delivered).

Rule – Two things are necessary to make a gift: intention and

  1. Gruen v. Gruen

Facts  Father wanted to give his son painting so he
wrote letter expressing that intent. However, he wanted his son to have the
painting after he died because he wanted to keep it for the duration of his

Issue – Whether a valid inter vivos gift of a chattel may be
made where the donor has reserved a life estate in the chattel and the
donee never has had physical possession of it before the donor’s death.

Rule – The delivery necessary to consummate a gift must be as
perfect as the nature of the property and the circumstances and
surroundings of the parties will reasonably permit.


  1. Intro and Historical Background: The Fee Simple; Fee

A. History-Up from Feudalism

  1. Estates started in 1066 with William the
  2. He divided up the land to Lords and Tenants
  1. Tenure:
    1. Feudal hierarchy: pyramid scheme w/ the King
      at the top

      1. Land held by those below; owed duties to
        those above
    2. Freehold tenure: tenure of free men
      1. As close to ownership as holders of the
      2. Developed into our concept of ownership of
    3. Non-Freehold tenure: tenure of peasant work
      land (surf/villein)

      1. Akin to renting. Possession of land & in
        possession they owed duty to those who had
        freehold tenure.
      2. Feudal incidents where a lot like property
  2. Vocabulary:

    1. Heirs:

      1. if a person dies intestate (without a will) the
        decedent’s real property descends to his heirs.
        Heirs are persons who survive the decedent and are
        designated as intestate successors under the
        state’s statute of descent.

      2. A living person has no heirs (yet).

    2. Issue:

      1. Definition: lineal descendants; offspring.

      2. It does not refer to children only but also
        includes further descendents.

      3. If the descendent leaves issue (lineal descendents)
        they take to the exclusion of all other

      4. If any child of the decedent dies before the
        decedent leaving children who survive the decedent,
        such child’s share goes to his or her children by
        right of representation (per stirpes, “by
        the stocks”)

    3. Ancestors:

      1. By statute, parents usually take as heirs if the
        decedent leaves no issue.

    4. Collaterals:

      1. all persons related by blood to the decedent who
        are neither descendants nor ancestors are
        collateral kin. This includes brothers, sisters,
        nephews, nieces, uncles, aunts, and cousins.

      2. If a decedent leaves no spouse, no issue, and no
        parents, the decedent’s brothers and sisters (and
        their descendants by representation) take in all

    5. Escheat:

      1. If a person died intestate without any heirs, the
        person’s real property is escheated to the overlord
        in feudal times.

      2. Now, such property escheats to the state where the
        property is located.

    6. Heritability: Concept of someone who owns land can
      give the land to heirs when they die; ownership can be in

    7. Alienability: Right of owner to separate himself
      from the land and give it to another while they are

    8. Descendable = can be given away without a will.
      Intestate = without a will

    9. Devisable = to give away in a will

    10. Numerus Clausus  Must give away land in a
      legally recognized way (owner can not make up his own
      estate and interest i.e. to A and the heirs on her mothers
      side would turn into a fee simple absolute).

    11. Holographic wills – hand-written wills

    12. Seisin – possession. Used to connote that the people
      with freehold estates had something greater than those with
      leasehold estates.

  3. Creation of Estates
    1. Words of limitation – describe what type of estate is
    2. Words of purchase – identify person in whom estate is
    3. Ex. To A and his heirs
      1. To A – words of purchase
      2. And heirs– words of limitation
  4. General Types of Estates

Freehold v. Non-Freehold

Freehold = full ownership of the property for a period of

  1. Fee Simple
  2. Fee Tail
  3. Life Estate

Non-Freehold Estates (leases)

  1. Term of Years

  2. Periodic Estate

  3. At Will

  1. Fee Simple Absolute

    1. “to A and his heirs” – lasts longer than life. “To
      Heirs” no longer needed- as this is the default estate.
      It is assumed the testator or owner was trying to give
      away as large an estate as he himself had.
    2. Exclusive right to possession, use, and enjoyment
      without condition or limitations.
    3. Freely transferred, given by will or through
    4. Perpetual duration.
    5. No restraints on alienation
    6. The estate will pass to a succession of heirs. If
      there are no heirs, the estate escheats to the
  2. The Fee Tail
    1. An estate in land that passes from one generation to
      the next only in one family line; has a restraint of
    2. Can be specified: fee tail male, female, etc.
    3. Always followed by a future interest – reversion or
    4. “A and the heirs of her body”
    5. Generally looked at as a FSA now. Fee tail = largely
      unrecognized or enforced.
  1. The Life Estate
  1. At early common law- “To A.” Modern language – “To A for
  2. Factors
    1. Finite duration
    2. Right to exclusive possession, use, and enjoyment
      for life.
    3. Right to alienation of the land – many interests can
      be created out of it, but it ends at the death of the
      life tenant.
    4. The life tenant may not be reimbursed for
      improvements beyond general care. Similarly, there is
      no duty to insure the premises.
    5. The grantor of a life estate can control who takes
      the property at the life tenant’s death. [i.e. “To A
      for life, then to B.”]
    6. A life tenant cannot sell a fee simple to someone
      unless all other persons having an interest in the
      property consent or unless a court of equity orders
      sale and reinvestment of the proceeds.
    7. Obligation not to “waste”:
    8. Life estate pur autre vie: Life
      interest measured by the life of another


    1. O conveys to A for life.
      1. Example: “to A for life.” This gives the
        property to A for life, and then back to the
        grantor upon A’s death (a reversion).
    2. To A for the life of B = life estate pur autre
  1. Valuation of a life estate

is a present value calculation. If the home is worth 100,000 and the life
expectancy table says you have 10 more years to live then the present value
is N = 10 years, I = 6 % (average ror), pmnt = 6000/year, PV = about 45,000
or 45% of current value. Remainder is 55%.

White v. Brown

  • Facts — Testatrix dies with will stating for P to have
    her home to live in and “not to be sold.”
  • Issue – This is a life estate if life estate then there
    must be an implicit reversion (to whom and how???) or it is a fee
    simple with a restraint on alienation
  • Rule – absolute restraints upon alienation are void, it
    is just a fee simple.
  • In ambiguous cases, courts
    1. try to carry out the intent of intestate – look
      to language of instrument in light of surrounding
    2. presume a fee simple over a life
    3. Dis-favor partial intestacies.

Baker v. Weedon

  • Facts — Weedon and Anna worked the farm together (W
    married A when she was 17). Told Anna to remarry when he died, she
    did. Weedon’s will left everything to Anna and her children (if she
    had any). If she dies w/o kids, all go to his grandchildren. He
    left nothing to his children.
  • Issue – Anna has life estate. W’s grandchildren have
    contingent remainder (contingent upon fact that she has no
    kids…if there were no contingency and just passed from Anna to the
    grandkids, it would be a vested remainder).
  • Rule – Court must look at what is in the “best
    interests of both parties”
  1. Defeasible Estates
  1. Defeasible Fees –

Simple Defeasible – May last forever like a fee simple absolute BUT it may
also end if a certain event happens in the future.

  1. Three types of defeasible fees
    1. Fee simple determinable
      1. O to A, so long as X
      2. If transferred the condition remains
      3. automatically ends and reverts if condition
      4. Possibility of Reverter, is the remaining future
      5. SOL for Adverse possession starts to run when
        the condition happens.
      6. Language used – Words of limitation
        1. “so long as”
        2. “while used for”
        3. “until”
        4. “during”
        5. Words that merely state a motive, like
          school purposes” merely create a fee simple
    2. Fee simple subject to condition subsequent
      1. O to A, but if X, the grantor has the right to
        reenter and retake
      2. Does not terminate automatically
      3. Allows owner to cut short or divest the owner if
        the event happens by exercising his “right of
      4. Statute of Limitations begins upon the stated
        event or within a reasonable time thereafter.
      5. Language used
        1. but if
        2. provided that
        3. on the condition that
        4. however
    3. Fee Simple Subject to Executory Interest
      1. Executory interest
      2. Automatic

Mahrenholz v. County Board of School Trustees

  • Facts — Hutton wrote deed “This land to be used for
    school purposes only; otherwise to revert to Grantors herein” to
    give property to School Dist. Same year conveyed their reversionary
    interest to Jacqmain, conveyed to P later. (all of these are
    ). Harry = only legal heir. (Harry gets reversionary
    1977 HH conveyed any possibility of reverter or right of entry to
    P. Later in 1977 HH disclaimed any interest he had in the land to
    the School Bd. By 1973 land used for storage (not school?).
  • Issue – If Harry had right of re-entry for condition
    , he can’t be the owner until he legally re-entered the
    land. Since he took no steps to re-enter, he only maintained the
    right of re-entry and that can’t be conveyed by sale.
  • If Harry had possibility of reverter in the property,
    then he automatically owned the property as soon as it ceased to be
    used for school purposes. Therefore the P could have acquired an
    interest in the school grounds if Harry inherited a possibility of
  • Rule – Court interprets “only” to have a time duration
    and “otherwise to revert” to mean immediate reversion – together
    the 2 ambiguous pieces imply a Fee simple determinable.
    Remands to determine what the effect of H’s double conveyance and
    also notes that storage still = school purposes.

Mountain Brow Lodge v. Toscano

  • Facts — a) required only one fraternal group to use b)
    prohibited sale. Court allows 1st, disallows
    2nd b/c restraint on alienability.
  • Rule – Intent of grantor will form FS Condition
    . “No formal language is necessary to create a fee
    subject to a condition subsequent as long as the intent of the
    grantor is clear.” Court uses extrinsic evidence to find that
    grantor made deed with love and affection of lodge.

Ink v. City of Canton

  • Facts – State took park land for a highway from the city,
    land had been given condition on the use as a park. How much is the
    land worth to the city as a park and how much is the possibility of
    a reverter worth? The city gets the fair market value of the land
    as a park and the heirs of the reverter get the remainder.
  • Issue – Valuation of a Possibility of Reverter
  • Rule – Is the future interest of a grantor in a
    determinable fee extinguished when the property in question is
    appropriated by eminent domain? No. Especially in a case like this
    where the grantee did not pay for his determinable fee, it would be
    unjust to allow the grantee to retain the eminent domain award
    outright. P will retain a possibility of reverter in the eminent
    domain award should the grant condition cease to be met. P are
    entitled to that portion of the award which represents the value of
    the possibility of reverter held by them.

Waste – A should not be able to use the property in a manner that
unreasonably interferes with the expectation of B (the one who has the

Types of Waste:

  1. Affirmative: life tenant acts affirmatively to damage
    land permanently

    1. Voluntary waste – Ex: cutting down trees
  2. Permissive: life tenant fails to act reasonably to
    protect the deterioration of the land

    1. Involuntary waste – Ex: failure to fix a leaky
  3. Ameliorative: life tenant acts affirmatively to
    change the principal use of the land and increased the value of
    the land

actions that are creating waste preceded the life tenant’s interest, they
may be continued.

  • For example, mining a property is acceptable as long as it
    was being mined prior to the grant.

3 Obligations not to Waste:

  • forbids any action that diminishes the value of the
  • possessor is required to act fairly and reasonably in
    maintaining the property. This includes paying the current
    taxes and charges and preventing deterioration.
  • possessor cannot use the property any more than is required
    to maintain it.


  • Injunctions
  • Accounting – collection of the value.
  • Forfeiture (used very sparingly)

Crux: One interest holder should not be able to use the property in
a way that unreasonably interferes w/ the expectations of the other


***When you have present and future interests in land, and external
circumstances change so that the current use of land has become
unproductive, the court can order a sale of the land in order to preserve
all the interest in the land.

  • Courts weigh balance according to respective strengths in
     the parties have in the land
  • The longer a person has an interest
  • The more certain the interest the person has in the land: more
    likely to internalize externalities and protect land
  1. Future Interests; Trusts

Future Interest: The right to the enjoyment of property at a future

  1. A future interest is not a mere expectancy, like the hope of
    a child to inherit from a parent. It gives legal rights to its
    owner. It is a presently existing property interest, protected
    by the court as such.

6 possible future interests

3 in transferor

  1. Reversion
  2. Possibility of reverter
  3. Right of reentry

3 in transferee

  1. Vested remainder
  2. Contingent remainder
  3. Executory interest
  1. Reversion = The interest left over when the owner gives
    less than the estate that he has and does not provide for who is to
    take the property when the lesser estate expires.

    1. The interest remaining in the grantor who transfers a
      vested estate of a lesser quantity than that of the vested
      estate which he has
    2. Examples
      1. Example: “O to A for life.” O has a reversion in
        the property.
      2. Example: “to A for life, then to B and his heirs
        if B survives A.” O still has a reversion interest
        here of some degree. B has a contingent remainder
        in fee simple absolute.
    3. A reversion is transferable during life and descendible
      and devisable at death.
    4. A reversion always follows a contingent remainder. This
      is because the condition precedent may not happen, and in
      the event it does not, O gets his reversion.
    5. A reversion is not a remainder because it is not
      received by anyone other than the transferor. Remainders
      are for the transferees.
    6. Note: There is no such thing as a “possibility of
      reversion.” Or reversionary interest just reversion!
  2. Possibility of Reverter
    1. Correlating present interest – Fee Simple
    2. Interest remaining in grantor created using durational
    3. “to Hartford School Board so long as used for school
  3. Right of Entry
  1. Correlating present interest – Fee Simple on Condition
  2. Interest remaining grantor created using conditional
  3. “to Hartford School Board, but if it ceases to use the land for
    school purposes, O has the right to re-enter and retake the
  1. Vested Remainder
    1. Any future interest in favor of a transferee that can
      become a present possessory interest immediately upon (but
      no sooner then) the natural expiration of all prior
      interests simultaneously created and cannot divest or cut
      short any interest other than an interest in the
    2. A present interest of future possession – “To A for
      life, then to B and his heirs.”

      1. Must have:
        1. a known or ascertainable person
        2. not subject to a condition precedent
        3. Occurs at natural expiration of estate;
          certain to become possessory.
        4. Can be transferred, willed, and
        5. If Remainder created in a class of
          persons; (A’s issue) is vested if at least
          one member of the class is ascertained and
          there is no condition precedent
      2. If another interest follows a vested remainder
        in fee simple, it is an executory interest.
    3. Sub-Categories of Vested Remainders:
      1. Indefeasibly Vested –
        1. the remainder is certain of becoming
          possessory in the future and cannot be
          divested. It is free of precedent
      2. Vested Remainder Subject to Partial
        Divestment (Open)

        1. The holder of the remainder is a class
          of people, which may expand. For example,
          it may go to the children, but not all the
          children are born yet.
      3. Vested Remainder Subject to Divestment

        1. If vested remainder is subject to being
          divested by the occurrence of a condition
          subsequent or there is an inherent
          limitation of the remainder. O conveys “to
          A for life, then to B, but if B fails to
          build a house by 2010, to C.”
  2. Contingent Remainder
    1. Must have:
      1. an unascertainable person and/or
      2. subject to a condition precedent.- condition
        precedent must first occur before we know whether
        it will become possessory
    2. Example:
      1. “O to A for life, then to the heirs of B.” – the
        heirs of B are not known until B dies, so B’s heirs
        have a contingent remainder.
      2. “to A for life, and if B survives A, then to B
        and her heirs.” There is a condition precedent to B
        taking the property – he has to outlive A.
    3. Alternate Contingent Remainders: when there are
      two contingent remainders and the vesting of one will mean
      the other will not vest.

      1. Example:
        1. “To A for life, then to A’s surviving
          children, but if A has no surviving
          children, then to B and his heirs.”
    4. May be transferred during life, devised, or
  3. Executory Interest – can only divest vested interests
    1. Defenitionn: a future interest in a transferee, which
      must, in order to become possessory –

      1. Cut short or divest some interest in another
        transferee (shifting) or
      2. Divest the transferor in the future
    2. Example: O conveys the property “to A for life, then to
      B if B gives A a proper funeral.”

      1. B has an executory interest because B must act
        by divesting O through giving A a proper funeral.
        This is a “springing” executory interest because it
        divests the transferor.
    3. Must either . . .
      1. divest or cut short an interest in another
        transferee – shifting
      2. divest or cut short the transferor in the
        future – springing
    4. All executory interests are contingent remainders
      because there is a condition precedent.
    5. Mesne Profits: recover a reasonable rental value.
      If during an automatic divestment, A doesn’t leave right
      away, O can sue for “rent” or the time on land.

    6. Additional Examples
      1. “O to A for life, then to B if B gives A a
        proper funeral.” – B has an executory interest
        because he must act to divest O. O will be divested
        in this case if B gives A a proper funeral.
      2. “O to A for life, then, one day after A’s death,
        to the heirs of A.” – Creates a springing executory
        interest in those who will be A’s heirs.
      3. “O to A and his heirs five years from the date
        of this deed.” – A owns a springing executory
      4. “O to A and his heirs, but if A marries X, to B
        and his heirs.” – B owns a shifting executory
      5. “O to A for life, then to B in fee, but if B or
        his successors sell liquor on the premises, then to
        C in fee. – A has a life estate. B has a vested
        remainder in fee subject to an executory
        limitation. C has a shifting executory interest in
    7. An executory interest is a future interest in a
      transferee that can take effect only by divesting
      another interest. The difference between taking
      possession as soon as the prior estate ends and divesting
      the prior estate is the essential difference between a
      remainder and an executory interest.

General Future Interest Rules:

  • An executory interest must follow a vested remainder. It can
    never follow a contingent remainder.

contingent remainder must follow another contingent remainder.

  1. Destructibility of Contingent Remainders

Rule Against Perpetuities (intended to destroy contingent future

a. “No interest is good unless it must vest, if at all, not later than
twenty-one years after some life in being at the creation of the

i. If a grant fails the Rule Against Perpetuities then the contingency is
void at the outset (even if it is very likely to vest within the required

b. When do we apply the Rule?

i. Consider the interest when the grant is made:

1. At the time of conveyance (for inter vivos transfers), OR

2. At death (for a will)

ii. Ask what might happen don’t worry about what does happen

c. Age doesn’t matter when considering RAP

i. Any living female is capable of having children

1. Fertile octogenarian & precocious toddler

d. Interests covered by RAP*

i. Contingent remainders

ii. Executory interests

iii. Class gifts

1. Vested remainders subject to open (the class is open)

Approach to RAP

1. Identify interest subject to rule*

2. Identify when interest will vest (or when it will fail to vest)

3. **Identify everyone associated with that vesting event (they might not
all be alive)**

4. Determine if any of them are currently alive

5. Must the vesting (or failing) even occur within 21 years of that
person’s death

a. If person’s death has no effect on whether the gift vests or fails to
vest, there is no reason to consider that person

b. When does the interest vest?

i. Contingent remainders – when condition precedent occurs and/or the
person is ascertained

ii. Executory interests – when the limitation (or condition subsequent)

iii. Class gifts – when all people in class die

c. If individuals directly connected to vesting event are not yet
alive AND the gift does not contain a specific 21-year (or less) limitation
it most certainly fails the RAP

i. “to A for life, then to the first child of A to land on the moon”

ii. “to A for life, then to the first child of A to reach 21 years of age”

d. Who are lives in being? (Potential Validating Lives)

i. Someone specifically mentioned in the conveyance who is alive at the
time of the conveyance (either inter vivos or will)

ii. Someone not specifically mentioned, but who is necessarily a part of
the conveyance, who is alive at the time of conveyance

e. Charity-to-Charity Exception (public policy consideration)

i. If both gifts are to charity then RAP isn’t applied

E.g. “to the Moscow School District so long as it is used for school
purposes, otherwise to the Latah County Conservancy.”

a. This gift violates the RAP but we’ll allow it

  1. Common Law Concurrent Interests


  1. Tenancy in Common: basic form of co-ownership
    1. Presumed in ambiguous cases – it is presumptive
    2. No magic words necessary to create tenancy in common
    3. Tenants in common own a separate but
      undivided interest in a piece of
    4. Freely alienable, descendible, and transferable
      (no survivorship rights)
    5. Only need unity of possession
    6. ExIf Blackacre is given to A&B. A
      devises property through will to E&F

      1. A & B are tenants in common
      2. E, F, & B would be tenants in common, with
        E&F having a quarter share a piece.
  2. Joint Tenancy:
    1. Two differences of form:
      1. Must have unity of the following: If
        one of the unities is severed, so is the
         Tenants are made tenants in
        . (Best way to do this is to unilaterally
        sell off interest in land – title is broken)

        1. Time: joint tenancy must be
          created at the same time
        2. Title: have to receive interests
          by the same document/title
        3. Interest: ownership stake has to
          be equal, identical, and undivided
        4. Possession: each tenant must have
          the right of possession to the whole
      2. Magic words:
        1. to A and B as joint tenants and
          not tenants in common
          .” – something
          less than this might not count
        2. to A and B as right of
          .” – To A and B
          “jointly” will not cut it
    2. ***Key distinguishing featureRight of
       – If A dies his share goes to B, if B
       her share goes to A.
    3. Unity is not broken if there is a divorce.
    4. Example: To A, B, and C as joint tenants.
      Subsequently A conveys his interest to D. Then B dies
      intestate, leaving H as his heir. What is the state of the

      1. A, B and C have 1/3 undivided interest in FSA as
      2. D 1/3 undivided interest in FSA as tenant in
        common with A and B

        1. A and B remain JTROS as with each
      3. B’s 1/3 interest dissolves and C now has 2/3
        undivided interest in FSA as tenant in common as
        with D
  3. Tenancy by the Entirety:
    1. Exists in about half the states
    2. Only created b/w husband & wife: Exact same
      requirements as joint tenancy except there is a fifth unity
      – unity of marriage
    3. Divorce leads to tenants in common
    4. Neither spouse can lease property w/o other’s
    5. Neither husband nor wife can sever their interest and
      thus defeat survivorship by a conveyance
       of an
      ownership interest to a third party
       – both spouses must
      consent to the sale

Riddle v. Harmon

Facts– P sought to enforce a joint tenancy right of
survivorship against D, the executrix of his wife’s estate, after the wife
had deeded her ½ joint tenancy interest in the Riddle property to herself
in order to sever and terminate P’s right to succeed to the whole.

Issue– Can a joint tenant unilaterally terminate a joint
tenancy without the use of a strawman?

Rule– A joint tenancy may be terminated by the conveyance
by one joint tenant of his interest in the joint tenancy property to

Harms v. Sprague:

Facts– Π and brother, John, took title to land as joint
tenants. John gave mortgage on interest in joint property for piece of
property Sprague was buying. Harms died, and Sprague was devisee of his
entire estate.

Issue– Does a mortgage on interest terminate a joint
tenancy (does it convey a title) and does the lien survive the death of a
joint tenant?

Rule: A mortgage on a joint tenant’s interest does
not survive the mortgagor.

One requirement for a joint tenancy is unity in title. If a mortgage
constituted a change in title (this is how it was in the common law), it
would destroy this unity. However, this state recognizes that a mortgage
will not constitute a change of title until foreclosure plus the running of
any redemption period (this is the modern lien theory of a
mortgage). Since a mortgage does not sever a joint tenancy, the entire
estate of the decedent joint tenant passes to the survivor. This effects a
nullification of any liens thereon. For this reason, D’s interest was
extinguished upon John’s death.

Rule: Where a joint tenant gives a mortgage on his
interest in joint property, that mortgage is treated as a cause of action,
and thus at death it is extinguished along w/ decedent’s interest.


REMEDIES for Tenants in Common & Joint Tenants:

  1. Partition: Any joint tenant or tenant in common can ask
    for partition of property; ends the cotenancy in one of two ways
    (equitable action):

    1. Partition in kind: draw a line – left half to one
      tenant, right half to the other

      1. Favored by the courts; tenants have emotional
        attachment to their lands
      2. Problem arises when parts of the same property
        are more valuable that other parts of the same
        property. Who gets which part?
    2. Partition by sale: sell the whole thing and give
      proceeds of sale to two parties

      1. Easier for the courts because they don’t have to
        value the property; the market values the
  2. Tenancy by Entirety: No right to partition – divorce
    would end marriage and two tenants by entirety would become tenants
    in common
  3. Dissolution by Partition (Delfino v.

    1. Partition is the division of a tenancy in common or a
      joint tenancy. It can be accomplished either by
      partition in kind, which is dividing the land
      according to percent of ownership (for a TC, or by ½’s for
      JT’s) or through partition by sale, where the
      property is sold and then the assets are divided according
      to the ownership %. Courts tend to favor partition by kind
      rather than sale. Note that concurrent owners can terminate
      a JT or T/C by voluntary agreement, and partition is only
      used when they cannot decide.
    2. General Rule – partition in kind. The exceptions are
      when it is not feasible or it would prejudice their
      interests. Then we use partition by sale. But, there is
      actually a bias toward partition by sale
    3. Partition by sale should be ordered only when two
      conditions are satisfied:

      1. the physical attributes of the land are such
        that partition in kind is impracticable or
      2. the interests of the owners would be better
        promoted by a partition by sale. (In order to
        analyze this, the consequences of a partition in
        kind must be compared with those of a partition by
    4. What if only one cotenant wants it partitioned?
      1. The court will use partition in kind if
        possible, otherwise it is up to their discretion
        what to do.
      2. What about if O conveys property to A for life
        with a remainder to B and his heirs. If A and B
        cannot agree on the management of the property, can
        A sue for partition?

        1. No – they do not have a concurrent
  4. Ouster – Sharing the Benefits and Burdens of

    1. When concurrent owners enter into an agreement
      concerning their rights and duties, contract law applies.
      But, when a problem arises that is not discussed in any
      agreement, there is a need for independent property rules
      to determine how the benefits and burdens of ownership are
      to be shared by co-owners.
    2. General Rule – one concurrent owner does not owe any
      value to another owner for the exclusive use of the
      property. But, when one owner precludes the use of the
      other, this is an infringement on the injured cotenant and
      he can seek relief, such as by partition. This exclusion of
      one party is called an “ouster.”

      1. The burden rests on the other cotenants to prove
        that they have been ousted.
      2. Just asking for rent is not enough. There must
        be exclusion of the other cotenant.
      3. If one person is running a lucrative business on
        the property, he is obligated to owe the other a
        portion of the profits or rents. The net profits or
        rents have to be shared with the other
      4. Repairs and Improvements – the tenant that makes
        the repairs/improvements bears the risk and gets
        the increased value of the repairs. You can’t stick
        the non-occupying party with the costs if he does
        not voluntarily agree to it, but he also can’t get
        the increased value if he does not pay his
      5. Accounting for Benefits, Recovering Costs
        (Improver to property is entitled to the value
        raised in the property, not the costs of the
  5. Accounting for Benefits, Recovering Costs
    1. Rents and Profits
      1. A cotenant who collects from third parties rents
        and other payments arising from the co-owned land
        must account to cotenants for the amounts
    2. Taxes, mortgage payments, and other carrying charges
      1. Cotenant paying more than his share has a right
        to contribution from the other cotenants, at least
        up to the amount of the value of their share in the
    3. Repairs and improvements
      1. Necessary repairs – cotenant has no right
        to contribution in the absence of an agreement;
        however, cotenant does have a credit in case of
      2. Improvements – cotenant has no right to
        contribution in the absence of an agreement and no
        credit is given in the event of a partition

        1. Improver retains value of improvement in
          partition by sale and conversely also bears
          downside risk of improvements
        2. If partition in kind, payments called
          owelty are made to improver by
          cotenants to offset the difference in
          increased value.

Delfino v. Vealencis:

Facts– Π and Δ were tenants in common. Δ was only one who lived
on the property, and she maintained a garbage and waste removal on one part
of it. Π’s want to develop property into 45 residential building lots.

Issue– Which partition should the court use, in kind or by

Rule– Partition sales are employed only where partition in kind
is unworkable.


  • Partition in kind – a separation of undivided interests in land
    so that the parties may possess their interests separately.
  • Partition sale – a court-ordered sale of property held in joint
    tenancy, as a cotenant or in tenancy by the entirety, if the
    property is incapable of being divided; the income is distributed
    in proportion to the parties’ interests in the sold property.
  • A sale should be ordered if it is in the best interest of both
    of the parties and if a physical partition would result in unequal
    shares or is physically impractical. Originally the CL only allowed
    partition sale in emergency conditions.
  • A sale may be ordered if it appears to the satisfaction of the
    court that the value of the share of each cotenant, in case of
    partition, would be materially less than his share of the money
    equivalent that could probably be obtained for the whole. A sale is
    justified if it appears that the value of the land when divided
    into parcels is substantially less than its value when owned by one
  • Although it is usually said, as in Delfino v. Vealencis, that
    partition in kind is preferred, the modern trend is to decree a
    sale in partition actions in a majority of cases, either b/c the
    parties all wish it or b/c the courts think the sale is the fairest
    way to resolve the conflict.
  • if co-owners cannot agree on a division of the property or the
    proceeds of its sale, they must go to the equitable action of
    partition. Available to any joint tenant or tenant in common. Not
    available to tenants by the entirety.

Spiller (D) v. Mackereth

Facts– Spiller & Mackereth are tenants in common. Spiller
entered and used structure as a warehouse. Mackereth wrote a letter,
demanding Spiller vacate or pay half the rent. Spiller did neither, but did
put locks to protect his merchandise.

Rule: Co-tenant has the right to occupy the whole property.
Unless he denies entry to “aggrieved” party or agrees to pay rent there is
no claim.

  • As a general rule, a cotenant has the full right to use a
    premises and cannot be liable to cotenants for rent. The only
    exception to this occurs when there is an ouster. For there to be
    an ouster, a cotenant must physically bar the other cotenant from
    entry. Merely ignoring an order to partially vacate does not
    constitute ouster.
  • What would D need to show to prove ouster? Ouster by using the
    property or refusing to let the other person in
  • A few jurisdictions take the view that a cotenant in exclusive
    possession must pay rent to cotenants out of possession even in the
    absence of ouster.
  • Generally, cotenants are not fiduciaries with respect to each
    other. Each cotenant is expected to look after his or her interest.
    But the courts sometimes say they have fiduciary duties. Maybe if
    they are related.

    • A fiduciary duty is imposed most commonly in one of two
    • One cotenant buys in concurrently owned property at a
      mortgage foreclosure or tax sale and then asserts a
      superior title against cotenants. Courts normally make the
      buyer hold the superior title for the benefit of all the
      cotenants if they reimburse the buyer.
    • Where cotenants are kindred, courts often treat the
      cotenant in possession as a fiduciary, who can claim
      adverse possession only where his claim of sole ownership
      is so unequivocal and notorious as to put his cotenants on
      actual notice of a hostile claim.

Schwartzbaugh v. Sampson

Facts– Schwartzbaugh’s owned land as joint tenants w/
right of survivorship. Mr. Schwartzbaugh negotiated lease for small
fraction of land for a boxing pavilion. Π (wife) objected to lease and did
not put her name on them. Sampson erected boxing pavilion. Π received no
rent from that.

Issue– Can one joint tenant who has not joined in the
leases executed by her cotenant and another maintain an action to cancel
the leases where the lessee is in exclusive possession of the leased

Rule Joint tenants are free to alienate their
interests and have the right to possess the property as a whole. Joint
tenants are free to convey their interests.

  • In effect, lessee gets same rights as joint tenant
  • Joint tenant out of possession can maintain no action against a
    lessee that she couldn’t maintain against a lessor or cotenant
  • If Π is excluded from using the property, she can claim
    ouster, and collect rent
  • Neither partition-in-kind nor partition by sale work in this
    instance: court would divide land around the ring, and Sampson
    would buy back the sale
  • Accounting: Π can account for the rent and receive rental
    payments from her husband. However, this would not allow her to do
    anything on the leased land.

    • Accountant: A co-tenant who receives rental
      payment from a sub-tenant can be called to account by other
      tenants for proportional share of value
  • If husband dies, Π takes husband’s interest through right of


  1. Leaseholds

1. The Term of Years – An estate that lasts for some fixed period of time
or for a period computable by a formula that fixes calendar dates for
beginning and ending

a. A term must be for a fixed period, but it can be terminable earlier upon
some happening of some event or condition.

b. Because it’s for a fixed period of time, no notice of termination is
necessary to bring the estate to an end

2. The Periodic Tenancy – A lease for a period of some fixed duration that
continues for succeeding periods until either the landlord or tenant gives
notice of termination

a. E.g., month-to-month, year-to-year

b. If notice is not given the period is automatically extended for another

i. Under common law – half year’s notice required to terminate a
year-to-year tenancy

ii. Anything less than a year – notice of termination must be given equal
to length of the period (but not to exceed six months)

c. Notice must terminate the tenancy on the final day of the period NOT in
the middle of the tenancy

3. The Tenancy at Will – A tenancy of no fixed period that endures so long
as both landlord and tenant desire and ends when one party terminates it
(or at the death of one of the parties)

a. If lease provides that it can be terminated by one party, it is
necessarily at the will of the other as well if a tenancy at will
has been created

i. Modern statutes ordinarily require a period of notice

b. Garner v. Gerrish – Lease
said “tenant has the privilege of termination of this agreement at a
date of his own choice.” Landlord executrix tries to get tenant out
saying the lease created a tenancy at will.

i. Court rejects that a tenancy at will is created. The lease simply
granted a person right to tenant to terminate on date of his choosing

1. Otherwise, it would violate the intent of the parties

ii. A lease agreement that grants tenant the sole right to terminate
creates a “determinable life tenancy” for the tenant

4. The Tenancy at Sufferance: Holdovers

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

i. In this situation, landlord has 2 options:

1. Eviction (plus damages), OR

2. Consent (express or implied) to the creation of a new tenancy

b. Usually subject to same terms and conditions as those in original lease
unless parties agree otherwise

5. An arrangement that resembles a lease might nevertheless be held by the
courts to amount to something else, such as a license, of a life estate

a. Considerations include: intention of parties, number of restrictions on
use, exclusivity of possession, degree of control retained by granting
party, presence or absence of incidental services, et.

b. It matters whether or not an arrangement amounts to a lease

i. Leases give rise to the landlord-tenant relationship

1. Carries certain rights and duties and liabilities and remedies that do
not attach to other relationships

6. Notes

a. Conveyance Versus Contract

i. Both – lease transfers a possessory interest in land and also contain a
number of promises (covenants) such as a promise by the tenant to pay rent
or a promise by the landlord to provide utilities

ii. Courts commonly rely on contract principles to reshape the law of

b. The Statute of Frauds

i. American statutes provide that leases for more than one year must be in

ii. All but a few jurisdictions permit oral leases for a term less than a

c. Form leases and the question of “bargaining power”

i. A lease contemplates a continuing relationship between the landlord and
tenant and can be wordy, full of clauses to handle various

ii. Landlords typically use form leases – standardized documents
offered to all tenants on a take-it-or-leave-it basis, with no negotiation
over terms

1. In times of shortages of rental housing courts can respond by policing
lease terms on grounds of “unequal bargaining power”

XVIII. Unlawful Discrimination

1. Rules of Construction (Statutory Interpretation) – Stevens, J.

a. think Leg. Reg.

2. Selection of Tenants (Herein of Unlawful Discrimination)

a. Federal Fair Housing Act – U.S.C.A. §§3601-19, 3631

b. §3604. Discrimination in the Sale or Rental of Housing and Other
Prohibited Practices

i. Deny any person because of race, color, religion, sex, familial status,
or national origin

ii. Discriminate against any person in the terms, conditions, or privileges
of sale or rental of a dwelling because of race, color, religion, sex,
familial status, or national origin

iii. Refusal to permit, at the expense of the handicapped person,
reasonable modifications of existing premises

c. Proof of discriminatory impact or disparate treatment is sufficient

i. The defendant must then justify the action as one taken in pursuit of a
bona fide, compelling governmental purpose, with no less discriminatory
alternative available to achieve the goal,

ii. Or one taken pursuant to a rational and necessary business purpose

d. Amendments

i. Sex discrimination was added to Fair Housing Act in 1974

  1. Delivery of Possession: 1. Hannan v. Dusch
    – holdover tenants aren’t forcibly
    removed by defendant when plaintiff is ready to take possession of

Issue: Whether a landlord, who without any express covenant as to
delivery of possession leases property to a tenant, is required under the
law to oust trespassers and wrongdoers so as to have it open for entry by
the tenant at the beginning of the term

There is an implied covenant on the part of the landlord to assure to
the tenant the legal right of possession

i. At the beginning of the term there shall be no legal obstacle to the
tenant’s right of possession

Two irreconcilable rules:

English Rule: implies a covenant requiring the lessor to put the lessee in

The premises shall be open to entry by the tenant at the time fixed by the
lease for the beginning of his term

There is no duty that extends beyond the day when the lessee’s term

ii. American Rule: recognizes the lessee’s legal right to possession, but
implies no such duty upon the lessor as against wrongdoers

Remedy is against the holdover tenant – the landlord has not covenanted
against the wrongful acts of another

The court goes with the American Rule

i. There is no other instance in which a person is responsible for the
wrongdoings of another in which has neither participated nor concurred and
whose misdoings he cannot control

ii. The tenant has sufficient legal and equitable remedies available to
protect himself against the third party wrongfully in possession and a
greater incentive to use them than the landlord would have

XX. Subleases and Assignments:

1. Sublease versus Assignment

a. Sublease – grants the sublessee an interest in leased premises
less than his own (less than his term), with a reversionary interest
remaining with the lessee

i. Lessee (current tenant) still maintains privity of estate with lessor

1. Lessee maintains liability in case of sublessee’s default

b. Assignment – conveys the whole (entire remainder) term, leaving
no interest or reversionary interest in the estate, no right to

i. Lessee has no liability in case of sublessee’s default

ii. Lessee (current tenant) also no longer has privity of estate with the
lessor (landlord)

c. Ernst v Conditt – P approved
modification to a lease that allowed D to sublease premises and left lessee
(current lease-holder) personally liable. D ceased paying rent and P sued
to determine whether instrument was sublease or assignment.

i. Intention of parties governs characterization of instrument

1. Words used in instrument are not conclusive

d. Kendall v Ernst Pestana –
provision in commercial lease that lessee may not assign lease or
sublet premises without lessor’s prior written consent

i. Growing minority rule: where a lease provides for assignment only with
the prior consent of the lessor, such consent may be withheld only where
the lessor has a commercially reasonable objection to the

1. Denying consent solely on basis of personal taste, convenience or
sensibility is not commercially reasonable

ii. Lessor’s have a duty to mitigate damages upon the lessee’s abandonment
of the property by seeking a substitute lessee

XXI-Tenant in possession and who has abandoned possession

1. The Tenant in Possession

a. Berg v Wiley – sub-lessee
opened and operate restaurant on property; dispute arose over continued
remodeling with first procuring written permission

i. Landlord may rightfully use self-help to retake leased premises from a
tenant in possession without incurring liability for wrongful eviction
provided that:

1. The landlord is legally entitled to possession, and

2. The landlord’s means of reentry are reasonable and peaceable

ii. Tenant evicted by landlord may recover damages for wrongful eviction
where the landlord either:

1. Had no right to possession, or

2. Used forcible means to remove the tenant

iii. Growing trend (modern view): the potential for violent breach
of peace inheres in any situation where landlord attempts by his own means
to remove a tenant who is claiming possession adversely to the landlord

1. Judicial proceeding are the exclusive remedy by which a landlord
may remove a tenant claiming possession

2. The Tenant Who Has Abandoned Possession

a. Summer v Kridel – renter
(Kridel) was to be married, broken off, and is now without any income and
couldn’t pay rent to landlord

i. Landlord has obligation to make a reasonable effort to mitigate damages
where he seeks to recover rents due from defaulting tenant

1. Must treat the apartment in question as if it was one of his vacant

b. Notes and Questions

i. Surrender – a tenant’s offer to end a tenancy

1. Terminates lease when landlord accepts tenant’s offer

2. Extinguishes lessee’s liability for future rent

ii. Abandonment constitutes implied offer of surrender

iii. Common law rule (now minority): landlord has no duty to mitigate

iv. Security deposits – landlord is obliged to return to tenant upon
termination of lease

1. Deposit less any amounts necessary to compensate for any defaults by

v. Rent acceleration – upon tenant’s default all rent for entire term is
due and payable

XXII Landlord Duties

1. Landlord’s Duties – Tenant’s Rights and Remedies

a. Early common law – landlord’s were under no obligation to warrant the
“fitness” of the property

i. Tenant took premises “as is”

b. Quiet Enjoyment and Constructive Eviction

Reste Realty v Cooper– tenant’s office space flooded after rains due to
faulty driveway and never subsequently fixed

1. Covenant of Quiet Enjoyment is implied in a lease

2. If latent defect exists and is known to landlord at time of executing
lease they have duty to disclose

3. Constructive eviction – occurs when act by landlord renders premises
substantially unsuitable for the purposes for which they are leased or
seriously interferes with beneficial enjoyment of property

a. Right to claim constructive eviction will be lost if tenant does not
vacate premises within reasonable time

i. Reasonableness determined by facts and circumstances of particular

b. Landlord must have notice of defect and be given chance to cure

c. Tenant cannot consent to defect that makes property unsuitable

c. Implied Warranty of Habitability

Hilder v St. Peter  slumlord apartment with
substantial defects

1. Tenant can withhold rent, repair defects and deduct cost from rent
payments, seek rent already paid, and/or seek punitive damages (where
landlord’s behavior is wanton, willful or fraudulent)

2. Implied warranty of habitability – requires landlords to deliver and
maintain premises that are safe, clean and fit for human habilitation

a. Covers latent and patent defects in essential facilities of residential

i. Essential facilities – facilities vital to use of the premises for
residential purposes

3. Tenant cannot assume risk by acknowledging defect

a. Implied warranty of habitability cannot be waived by tenant nor signed
away in lease

4. To bring claim:

a. Tenant must give notice to landlord

b. Give landlord reasonable time to correct defect

ii. Notes

1. Many ways housing may become uninhabitable:

a. Continued loud noise
in apartment building

b. Failure of central air conditioning system

c. Bedbugs

d. Second-hand smoke

2. Tenant’s Duties – Landlord’s Rights and Remedies

a. Duty to not commit waste

i. Breached is tenant makes “such a change as to affect a vital and
substantial portion of the premises…

ii. As would change its characteristic appearance, the fundamental purpose
of the erection or the uses contemplated…

iii. Or a change of such nature as would affect the very realty itself…

1. Extraordinary in scope and effect, or unusual in expenditure”

XXIII. Servitudes and Easements:

1. Servitudes – private agreements creating an interest in land,
binding and benefiting the parties to the agreement and their

a. Easement

i. Easement appurtenant – gives right to make some specific use to
whomever owns a parcel of land that the easement benefits

1. Benefits easement owner in the use of land belonging to that

2. Courts construe in favor of this if the type of easement is unclear

3. Dominant tenement – easement attaches to and benefits the dominant

4. Servient tenement – easement is granted/enforced against servient

ii. Easement in gross – give right to make some specific use to some
person without regard to ownership of land. There is no dominant tenement
since it is connected to a person rather than a parcel.

  1. Benefits easement owner personally rather than in connection
    with the use of land which that person owns
  2. There is no dominant estate, only a servient state (no
    benefit to any land)
  3. May be alienable or inalienable

Five Types of Servitudes:

i. Easement – A is given the right to enter upon B’s land

ii. Profit – A is given the right to enter upon B’s land and
remove something attached to the land

iii. Negative easement – A is given the right to enforce a
restriction on the use of B’s land

iv. Real covenant/Equitable Servitude – A is given the right to
require B to perform some act on B’s land (depending on
remedy sought)

v. Equitable Servitude/Real Covenant – A is given the right to
require B to pay money for the upkeep of specified facilities
(depending on remedy sought)

2. Creation of Easements

a. Willard v. First Church of Christ, Scientist– former land owner sold land with agreement that adjacent
church be allowed to use unoccupied lot for parking (easement). P was
unaware of easement, which was not on deed and brought suit to quiet

i. Common law rule rejects conveyances that vests interest in third parties
(court abandons this rule)

ii. Courts primary objective in construing a conveyance is to give effect
to intent of the grantor deduced from “the four corners” of the

iii. Courts examine the injustice of refusing to give effect to the
grantor’s intent versus the result of failing to give effect to an
individual’s reliance on old common law

iv. Rule: A grantor may, in a deed to real property, reserve an interest in
that property for third parties

b. Notes

i. Reservation – a provision in a deed creating some new
servitude which did not exist before as an independent interest

1. E.g., O conveys Blackacre to A reserving a 20-foot-wide
easement of way along the south boundary of Blackacre. The easement did not
exist as an independent interest prior to the conveyance by O

ii. Exception – a provision in a deed that excludes from the grant
some preexisting servitude on the land

1. E.g., A conveys Blackacre to B, except for the easement
previously reserved by O

iii. Regrant theory – an easement “reserved” by the grantor was not
a reservation at all (which would be void), but a regrant of an
easement by the grantee to the grantor

1. Convey land, then regrant it back, but it worked like an easement

iv. License – oral or written permission given by the occupant of
land allowing the licensee to do some act that otherwise would be a

1. A license is revocable whereas an easement is not

3. Easement Created by Estoppel

a. Easement created by estoppel – if a licensor grants a license on
which the licensee reasonably relies on to make substantial improvement to
the property, equity requires that the licensor be estopped from revoking
the license.

b. License made irrevocable through estoppel continues to exist until the
reasonable expectations of the parties have been satisfied

c. Holbrook v. Taylor – P
permitted D to use roads across his land to access another property where D
is building a house. D widened road and graveled part of it to help use

i. No easement by prescription – no prior adverse use; use was with Ps

ii. Easement by estoppel – licensee reasonably relied on P’s permission,
and made improvements, so “ can’t revoke the license given

iii. Rule: An oral license is just as valid, binding, and irrevocable as a
deeded right of way

4. Easement Created by Implication

a. Quasi-easement – you can’t have an easement on your own property,
but you can make use of one part of your land for the benefit of another

b. Implied easement – arises where the prior use was or might have
been known of by the parties and it is reasonably necessary to the use of
land such that the parties can be assumed to have contemplated its

i. Elements necessary to establish an easement implied from prior use:

1. Common owner prior to division

2. Prior use must be reasonably necessary for the use and enjoyment of the
“quasi-dominant” estate

3. Prior use must be continuous, not sporadic

4. Parties must intend, at time of division, to continue the prior use

5. Prior use must be existing at the time of division

6. Prior use must be apparent, but doesn’t necessarily mean that it is

c. Van Sandt v. Royster – P
discovered his basement filled with sewage from D’s house. D had been
draining sewage across P’s land. P sued to stop this practice.

i. Prior owner of both lots had created a quasi-easement, so easement by
reservation implied from prior use had been validly created when she
conveyed title to each of the purchasers

ii. Rule: if dominant and servient tenement come into same ownership,
easement is extinguished, and will not be revived by the land being divided

iii. But new easement by implication may be created, if intended

5. Easement by Implied Necessity

a. Easement by Implied Necessity – where a common owner has divided
property in such a manner that an easement for access is necessary (if
you’re landlocked)

i. Only permitted for right of way – ingress & egress between
landlocked parcel & public road

ii. Common owner prior to division

1. An easement implied by necessity cannot burden property never owned by
the common grantor who created the problem

iii. Necessity must exist at the moment the property is
divided. No prior use is needed

b. Othen v. Rosier – Hill owned
a large parcel of land, which he divided up & sold. One of the parcels
was landlocked and acquired by Othen (P), who would cross Rosier’s (D) land
to reach a public road

i. When Hill had conveyed parcel to Rosier, he had owned other land that
was contiguous to Othen’s parcel and a public roadway. Othen had an
easement implied by necessity across some other property, but not

c. Easement by necessity lasts as long as the necessity exists; if
necessity is removed (by creating a new public road), the easement is

d. The servient estate owner is permitted to select a reasonably convenient
location for the easement because he can best minimize the damage to the
servient estate

6. Easement by Prescription

a. Easement by Prescription – adverse use for a sufficient period of
time can ripen into an easement by prescription

i. Required to establish prescriptive use: adverse use under a claim of
right that is open and notorious, and continuous for the prescriptive

1. Adverse – when owner objects, some courts say that owner must
effectively interrupt or stop the adverse use

a. A permissive use can become adverse if user does things that are
inconsistent with permission

2. To be open & notorious, the adverse use must be conducted so that
the use may be discovered by any reasonable inspection (not in secret or

3. Continuous use – use has to be consistent, not constant

4. Prescriptive period – same time period as adverse possession (20

ii. Exclusive use of the property (in Othen, not exclusive
because both landowners used the road, so it wasn’t an easement by

1. Exclusivity doesn’t require that only claimant made use of the land, but
that his claim doesn’t depend upon a like claim in others. So in most
states, can get this even if servient owner uses it too

b. Public prescriptive use – can be acquired by the public at

i. Owner must be put on notice that that adverse right is being claimed by
general public, not by individuals

c. Custom – beach front property owners own the dry sand part of the

i. Common law held that public acquired a customary right to use dry sand
part if that use has gone on so long

ii. To establish this customary right the public must prove immemorial
usage without interruption that is peaceable, reasonable, certain and
consistent with other customs

iii. Prescriptive easement of beaches not likely because courts presume the
use of beaches is at owner’s permission

iv. Implied Dedication – where the owner intends to dedicate his
property to public use. Evidence of intent is inferred from long-standing
public use and owner’s failure to halt the use

v. Public Trust Doctrine – beach access – state holds in public
 the beach from the water to high tide line (set sand area). This
is to enable the public use of tidal waters and lands

d. Matthews v. Bay Head Improvement Association– Dry sand beaches were owned by a non-profit that
restricted access of dry sand beaches to residents of Bay Head and their

i. Court ruled private beachfront landowners organized as a
“quasi-public” entity must give general public access to and use
of privately-owned dry sand areas as reasonably necessary

ii. Court said under public trust doctrine members of public must be
given “reasonable access ” to foreshore and be permitted to use
privately owned dry sand areas of beach when such use is “essential or
reasonably necessary” for enjoyment of the ocean

7. Assignability of Easements

a. Appurtenant – passes automatically with the dominant interest

b. Easement in gross (general rule) – not transferable unless it is
for commercial purposes

c. Miller v. Lutheran Conference & Camp
– Pocono grants to Frank
and heirs & assigns the exclusive right to fish and boat in the lake.
Frank granted Rufus ¼ interest in right to fish, boat and bathe in the
lake. Rufus dies and his estate granted licenses to Lutheran to boat, fish
and bathe in the lake. Frank sued to stop Lutheran from use of the lake

i. Since Frank never had bathing rights his conveyance of them was void

1. Court said bathing right acquired by prescriptive use, so there was an
easement in gross acquired

ii. If there were bathing rights, they were in gross, so neither divisible
nor alienable

1. Since this was a commercial easement, it was intended to be

2. But, even though they were transferable, they were not divisible

d. Recreation easements in gross are not assignable – intended to be
personal, and we don’t want to burden the servient land beyond the original
contemplation of the parties

e. Easement in gross is divisible when the creating instrument so indicates
or when the easement is exclusive (or it would create a burden on
servient estate)

8. Scope of Easements

a. To determine scope look at intention of parties creating the

b. Extension/Enlargement – an easement cannot be used for the
benefit of land that is not the dominant estate

c. Brown v. Voss – easement
existed between parcel A (servient) and parcel B (dominant). B subsequently
acquired another parcel of land and used the easement for both parcels of
land. There was no increase in burden to the servient estate by this

i. Rule: When and easement is created by an express grant, the extent of
the right acquired is to be determined from the terms of the grant properly
construed to give effect of the intention of the parties

ii. Grant gave easement to parcel B, not parcel C. Doesn’t matter that C is
now combined into same ownership with dominant estate: have to look at what
parties intended to agree on when easement was created

iii. Rule: An easement appurtenant to one parcel of land may not be
extended by the owner of the dominant estate to other parcels owned by him,
whether adjoining or distinct tracts, to which the easement is not

iv. Rule: Just because there is no added burden on the servient estate,
doesn’t mean that there’s no misuse of the easement. If an easement is
appurtenant to a particular parcel of land, any extension to other parcels
is a misuse

d. Notes, Questions and Problems

i. Easement owner can use servient estate as reasonable, even if changed
from original use because of normal development, but must be reasonable

ii. A private easement of way usually doesn’t permit the easement owner
v\to install on the easement utilities like electrical lines or sewer pipes
because such uses are not reasonably foreseeable by the parties – the
easement was created to give a way in and off the property.

iii. Location – the location of the easement, once fixed by the parties,
cannot be changed by the servient owner without permission of the dominant

1. Restatement – permissible for servient owner to change location, at his
expense, as long as it doesn’t lessen the utility of the easement, or
increase burdens on easement owner’s use and enjoyment, or frustrate
purpose for which easement was created.

iv. Scope of prescriptive easement – use not confined to the uses
made during prescriptive period. But, uses made must be consistent with the
general kind of use by which the easement was created and what servient
owner might reasonably expect

9. Termination of Easements

a. Easements are extinguished in a number of ways

i. Release – a waiver; generally it must be written to comply with
statute of frauds

ii. Expiration – expires by its terms if by grant e.g. stated period
of time or when purpose of easement has ceased

1. Necessity – easement by necessity expires when the necessity is

2. Purpose – purpose of easement expires (“so long as…”)

3. Estoppel – expires when licensee gets full value of expenditures
made in reliance on the license

iii. Merger – if dominant and servient estate merge (have same
owner), easement is extinguished

iv. Estoppel – if servient owner relies upon a statement or
representation by easement owner

v. Abandonment – if easement holder manifest a clear and unequivocal
intention to abandon the easement (Preseault)

1. Mere nonuse will not suffice

2. Abandonment is established by either (1) a present intent to relinquish
the easement or (2) a purpose inconsistent with its future existence

3. Can be abandonment if not used within a statutory period

4. Act of obtaining alternative means of access to the dominant parcel
could constitute an intent to abandon

vi. Condemnation – if the government exercises their eminent domain

vii. Prescription – if servient owner wrongfully and physically
prevents easement from being used for prescriptive period, the easement is

b. Preseault v. United States –
RR had a right of way easement on Ps property for its rail line. RR ceased
operations over that portion, & removed tracks. RR then entered into
agreement with U.S. for the lines to be used as a public trail. P sued
because government taking their property.

i. Since estate was acquired solely for RR’s needs it was an easement not a
fee tail

1. Intent was to grant an easement for RR lines and it was not reasonably
foreseeable that it would be used as a public trail

ii. There was also a different, not foreseeable, nature of use (scope of

1. i.e., private, RR v. public, non-commercial use

2. Also different degree and nature of burden on Ps land

iii. RR intended to abandon easement when they removed RR tracks;
there was no intent to revive use of easement

1. Mere nonuse will not suffice to prove abandonment

2. Abandonment is established by either:

(1) A present intent to relinquish the easement or

(2) A purpose inconsistent with its future existence

a. Can be abandonment if not used within a statutory period

b. Act of obtaining alternative means of access to the dominant parcel
could constitute an intent

10. Negative Easements

a. A negative easement is the right of the dominant owner to stop
the servient owner from doing something on the servient land

i. Common law (England) traditional negative easement – right to stop
neighbor from interfering with light, air, support of home (walls), and

ii. English courts don’t like creation of new negative easements so courts
decide no more than 4 traditional.

iii. Today negative easements are usually treated as equitable

b. American courts accepted the English restriction on creating new types
of easements

c. Sometimes a new easement is recognized as an equitable servitude

11. Conservation and Other Novel Easements

a. Conservation easement – developed to preserve historic or scenic
areas; prevents servient owner from building on the land except as
specified in the grant.

i. Statutes enacted in almost all states authorizing conservation

ii. Perpetual, transferable and can be in gross

iii. Owner will give the easement to a non-profit/ public/charitable
organization for free, and usually gets tax deductions

XXIV. Covenants Running with the Land; History

XXV. Termination of Covenants

Covenants, like easements, can be terminated in a number of ways. The
following reasons apply

  1. Merger
  2. Release
  3. Acquiescence
  4. Abandonment
  5. Unclean hands
  6. Laches
  7. Estoppel
  8. Express terms
  9. Prescription
  10. Condemnation
  11. Foreclosure/Bankruptcy
  12. Changed conditions
  13. After a reasonable time

Western Land v. Truskolaski

Facts: Subdivision of development outside of Reno, Nevada
contained covenants restricting subdivision to single family dwellings and
prohibited commercial development. These lots were subjected to the
covenants in 1941 but since substantial changes have occurred affecting the
character of the neighborhood since that time. D Homeowners brought suit to
enjoin appellant, Western Land Co., from constructing a shopping center on
land located within the subdivision.

Issue: Had the single-family character of the neighborhood been
adversely affected so that the object and purposes of the restrictions had
been thwarted, rendering them unenforceable?

Rule: “As long as the original purpose of the covenants can still
be accomplished and substantial benefit will inure to the restricted area
by their enforcement, the covenants stand even though the subject property
has a greater value if used for other purposes.”

Holding: Substantial evidence indicated the covenants continued
to have real and substantial value to the residents of the subdivision and
that there was not sufficient evidence that the object and purpose of the
restrictions was thwarted.

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This article contains general legal information but does not constitute professional legal advice for your particular situation. The Law Dictionary is not a law firm, and this page does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.