prop

property law derives from

a social compact which finds its form in the mandate of the sovereign

who determines the property interests to be protected

The sovereign government

Two levels of property interests

sovereign:
hold title to public property and resources that benefit the commons, regulate to protect the commons

individual:
Member of the public (default, equal), indicvdually held (not equal)

4 basic rights of property owners

1.) right to transfer
2.) right to use
3.) right to exclude
4.) right to destory

Property law is a combination of

rights and responsibilities

Property law is encumbered by

the laws of nature

What is a license?

Permission to use property without possessing it.

What is an easement?

Right to use someone else's property for specific purpose.

What is a profit a prendre?

Right to take resources from someone else's property.

What is an express view easement?

Right to maintain view over someone else's property.

What is a split mineral estate?

Separate ownership of surface and subsurface rights.

What is a conservation easement?

Limitation on development to preserve natural resources.

What is a leasehold?

Tenant's right to occupy property for a specified time.

What is a right of first refusal?

Option to buy property before it is offered to others.

What is a future interest following life estate?

Ownership rights after life estate ends.

What are tenants in common?

Multiple owners with undivided interest in property.

What is a mortgage?

Loan secured by property.

Medieval Catholic Law and native peoples

Discovery Doctrine:
used to disempower native peoples; manifest in crusades

Law of Nature to worship only one God:
native people in violation

Marshall Trilogy

3 cases regarding indian law: indian tribes are under federal law, not state

Johnson v. McIntosh (have to know)

Cherokee Nation v. Georgia

Worchester v. Georgia

Johnson v. McIntosh (1823)

-Indians were "merely occupants" deemed incapable of transferring the absolute title to others.
-Only had the right to occupy.
- est. indian title
- EU nations can only get thru treaties or discovery
- fed gov has the exclusive right to buy indian land

Plenary Power Doctrine

- cong::indian affairs as states::its citizens
- cong can limit, mod, or eleiminate powers tribes have

aborigional title

- indian right of occupancy
\--- use + occupy the land, but dont own it (Johnson v. Mcintosh)

federal right of discovery

- right to extinguish native occupancy by purchase or conquest
- can only sell to the US
- inaliable: can only transfer w the permission of the gov
- forced to give up land, but some returned (reservations)

Interpreting indian treaties

- as natives would have understood @ the time
- ambiguities in favor of the natives
- rights reserved by the tribes, not granted by the gov

access

- like an easment
- in PNW: usual + accustomed finishing sites (US v. Washington)

U.S. v. Washington (1974)

- habitat protection
- indian treaties guarentee continued existance of salmon to fufill basic needs of the tribe
- affirmative obligation to protect salmon habitat

Roman origins of the PTD

common to human kind: air, nabigable water, sea

PTD is explicit or implied?

- implied part of the const framwork, gov holds rights for public

PTD principles

- gov: trustee of crutial natural resources (res of trust)
- present + future citizens: beneficiary owners of the resroiuces
- always part of PTD: navigable water, streambed, fish+wildlife
\--- sometimes: beaches, ground water, airm wetlands
- resources of public concern

jus privatum

private title

jus publicum

public title

PTD: Fudutiarcy obligations of a trustee

- protection
- no ailientation
- can't manage for the primary benefit of a private party

3 contexts of the PTD

1.) transfer
2.) management
3.) access/takings

Illinois central Railroad v. illinois

- high water mark
- gov limited
- est. PTD

Lake MI Fed v. US

- courts can scrutinize legi that affects the PTD

Juliana v. United States

- individuals;; govt violated their constitutional rights to a "climate system capable of sustaining human life"
district court concluded plaintiffs had standing to sue, under claim for infringement of 5th amendment due process

- govt argued the plaintiffs lack standing to pursue their constitutional claims (needed to have a concrete and particularized injury, that is caused by challenged conduct, and is likely redressable by a favorable judicial decision)

conclusion:
- compelling case, however they decided the plaintiff's case must be made to the political branches, not the courts

PTD overlap w/ private ownership

- where land is alinetated, public retains trust easment below high water mark (not a taking)
- matthews + Stevens

Matthews v. Bay Head

- beach access \= reasonably necisaary
a.) location in relation to foreshore
b.) availability of publically owned land
c.) nature + extent of use by public
d.) usage by owner
(loan)

Stevens v. city of canon beach

- OR beaches \= doctrine of custom
- scalia dissent to reject of review: some parcels are outside of custom

elements of a PTD claim

1.) what is the trust asset?
2.) who are the trustees?
3.) who are the beneficiaries?
4.) what is the fiduciary obligation?
5.) remedies?

Pierson v. Post (1805)

- fox hunting
- natural/wild animals are aquired thru occupancy
- person who captures gets it, not who spent more time
- rule of capture: exends to wild things (oil, water, animals) when the law doesnt understand what happened
- wild if: 1.) indipendent to the appropriate 2.) depriving liberty 3.) bringing it within certain control

Adverse Possesion elements / damages / how to bring

1.) Actual possession
2.) open/notorious
3.) exclusive
4.) hostile
5.) continuous

- can get: perscriptive easments or color of title (written, all rights to property, even if only AP part of it) or claim of title (not writtwn, legal right of ownership, only what was AP)

-some states: good v bad faith

- to bring: 1.) ejectment (owner wants AP off) or 2.) quiet title (uncertain over title- brought by AP or owner)

real property

rights in land + things attached (buildings, trees)

personal property

rights in movable items (chairs, pens)

Two ways easments can arise

1.) express: barganing, in a deed or other formal requirment
2.) implied: court imposes because of unfiarness or becuase it was intended

profit a prendre

right to take things of profit (crops, minerals, etc)

negative easments

- prevent from doing something
- have to be statutorily authorized

affirmative easments

to do something on another's property

reserves (easments)

A reserves an easment over B's prop

conveyed easment

selling an easment

Appurtenant Easement

- benefits property
- can be subdivided
- sticks to the land

In gross easment

- does not benefit the land
- right to cross
- not attached
- can be subdivided if the owner did not reserve rights (apporttioned)

Appurtenant v. In gross

- look at the intent \==\> is is ambiguous? would it be useful apart from owener? \==\> Y: likely in gross ( can't sever appurtenant from the land- the owner can't take w her)

dominant

holds benefit of the easment

servient

holds propety upon which the easment lies

Green v. Lupo rule

- servient may impose reaonable restraint so long as they don't unreasonably interfere w/ the dom owners use

Cox Rule

when owner of an eadment can improve the easment:
1.) reasonably calculated to promote purpose
2.) doesnt create an undo burden

Express easments

- can be negotatied as a grant (A grants to B to cross) or by reservation (A sells to B, but reserves right to cross)
- 2 types:
1.) in gross: benefits person
2.) appurtenant: benefits land

- elements:
1.) writing
2.) notice
3.) intent

When is an apportioment subdividable?

- appurtenant: generally, always;; A sells to B, D divides into 50, all 50 get the benefit/burden
- in gross: depends , if the grantor reserved rights in the trench \= non exclusive easment \==\> can't be apportioned;; if grantor gave exclusive easment to company and reserves no rights, then free to divide

perscriptive easment elements

- same as AP w/ a few changes
1.) Use
2.) Hostile
3.) Open/notorious
4.) Exclusive (usually dropped)
5.) Continuous

- some states add 6.) acquiescance (failure to give persmission or file trespass)

- scope: percsion is not required, general outline consistent w/ use thru the prescriptive period

Easments by prior use elements

1.) two parcels owned by a common grantor
2.) part is used for the benefit of another part- apparent obvious continuuous
3.) after partition, use remained reasonably necissary or convenient or beenficial for the dom (the more obvious the use, the more lax the necessity requitement is)

Easments by estoppel

- license from owner to cross that ripens into an easment - exception to statute of frauds requirement
- elements:
1.) permission
2.) forseeable they would substantially change their postion in reasonable reliance
3.) did change position
4.) injustice avoided

- some courts also require fraud

easments by necessity

- owner conveys part of the parcel, the other part is land locked (no access to public road)
- courts imply easment that arises at the time of the converyence that lies dormand until needed
- elements
1.) both were formally one
2.) Dom became land locked

lateral support

- upsloaps entitiles to lateral support by downsloap
- strict liability
- downsloap resp for maintaining retainer wall (if there is one)

constructive trusts

- similar to estoppel
- used to create fiduciary relationship w/ respect to to the [smth] parcel
- exception to statute of frauds requirement
- when a title has been obtained by fraud it is not OK for the holder to retain the beneficial interest

scope of easments

- when size is defines, you can't just expand
- dom can's create an undo burden on the serv, but can use for any reason w/i scope of reasonable use

terminating easments

- own terms
-agreement (in writing)
- abandonment
- AP
- frustration of purpose
- marketable title acts (requires owner to occasional record property interests)
- condemnation
- estoppel
- merger
-misuse
-release (in writing)

(camera of mama)

conservation easments

- legislative
- can be granted by gift, sale, or bargain
- perpetual unless stated otherwise
- when it transfers to land trust
- transfers no more than land owner can give (if there is already and easment, the land trust tkes the CE subject to that burden)

Common Law accession

when someone works to fundementally change another's property, he gets title to the final product

Spite fence

a.) only use is harm b.) purpose is to harm neighbor

Private nuicance

- substantial + unreasonable
- interferes w/ anothers quiet enjoyment
- sunlight \= maybe;; air + light \= not really

Public Nuisance

- unreasonable w/ a right common to the gen public (safety, aesthetic, morals)
- some states: only the attorney gen can bring claim
- others: anyone can, but needs actual harm

Anticipatory nuisance

- must clearly appear a nuisance will result from the act

2 or more w/ nuisance

substantial factor test

remedies for nuisance

damages, injunctions, purchased injunction

State v. Shack (1971)

- migrant workers
- cant isolate in any respect significant to worker's well-being

nominal damages

- may support punitive damages for intended trespass
- property rights are hollow if the state doesnt back them

Public policy limits on the right to exclude

Negligence (reasonable?)
Nuisance (substantial + unreasonable interference with use and enjoyment of property)
Trespass (intrusion)

Trespass

-right to exclude
-unprivileged intentional (voulentary) intrusion

Defenses to tresspass

1.) with consent
2.) necessity
3.) public policy
mistaken entry is not a defense
state v. shack

Diffused Water

1.) Common enemy rule: owner who channels, not liable for redirected water (absolute freedom to direct off)
2.) civil law doctrine aka natrual flow: SL for directing flow to neighbor, liable for harm
3.) reasonable use test (dom in most states): amount of harm, foreeability of harm, purpose, social utility, etc.

Types of common ownerships

-tenancy in common
-joint tenancy
-tenancy in entirety (for exclusively married people, not all states have this)
-community property
-condominiums
-Cooperatives

Tenancy in Common (TIC)

-no matter how small the interest everyone has the right to posses the whole thing
-tennant dies \==\> heir or devisee (no right of suvivorship 2 other tennants)
- no severance

Tenancy by Entirety

- only in some states
- only for married ppl
- prop can only b split in divorce

Joint Tenancies

-everyone has the right to posses entire (like TIC)
-right of suvivorship (ROS)

-Formalities of creation: the 4 utities (must all be the same) 1.) time 2.) title (same instrument, not all sepreate deeds) 3.) interest (\= undivided interest, NOT like TIC) 4.) right to possesion
(tit p)

-severance only in JT: only by conveying to another person, reamining still ahve JT the severing becomes TC, severance eliminates ROS

JT severence

- if to an outside party, severse relationsiup as co tennant
- whomever took the interest becomes TIC

Partition, TIC + JT

- want to splity prop \= court seeking partition

- court will either partition the
(1) property physically (partition in kind ) or
(2) force a sale and divide the proceeds (partition by sale) — only if: in kind not practical, in kind will cause subs injury, or prop wirth "materially less"

Expenses owed by co owner

- maintenance + insurance
- dispute \= take action for accounting, court
- No duty to share cost of major improvements (but basic repairs yes) — at sale, co-t who paid can keep ++ value

TIC + JT ambigiouties

- language ambiguous \= TIC
- Does it meet the four unities?

JT and death

severed JT?
- Y: person takinf lease steps into the shoes of the leasor, TIC
- N: lease ends????

Leasing rights of JT + TIC

- each T has the right to lease their interest
- w/o consent of others
- Lessee gets full possession (though not exclusive)
- Other T may join the lease for payment but they give up their possession rights
- Lease survives death of TIC (bc no surviorship)
- Courts divided on whether lease severs joint tenancy
\--- Severs: lease transforms the JT into a TIC, lease survives the death of the lessor JT
\--- does not sever: JT stays in tact, and the death of the lessor JT ends the lease

Mortgages TIC + JT

- Most states: mortgage-holder (usually bank) is a lien holder, and does not sever a JT.
- some states: title theory— severs JT: then the JT turns into a TIC and the mortgage lasts after the death

Family LLC

- Easier to pass along ownership (doesn't require complicated fractional interests)
- Can est rules and management for the corporation including no non-family owners

Ouster

- Physical ouster: forcibly keeping the other out (changed locks)
- Constructive ouster: impracticable for both to stay (marital: sep but not div, owned by both- impractical for both to lice 2gether;; no practical way- too small for ex, may find impracticle)
- No adverse possession claim unless ouster by affirmative act
- proportionate rent is owed by the person living on the property to the person ousted

An Accounting

Judicial remedy to sort through the finances of the respective co-owners (and trusts too)

Land lord's future interest

reversion

Leases are a hybrid of ?

1.) property covenants (that inherently attach to the leasehold)

2.) contractual promises

Types of Residential leases

(1) Tenancy for Years (specific, doesnt have 2 be years)
(2) Periodic Tenancy (renews auto, month 2 month)
(3) Tenancy at Will (can end w/o notice)
(4) Tenancy at Sufferance (hold over tennant)

Fair Housing Act

prohibited discrimination in renting or selling houses

Statute of Frauds - leases

- leases for more than one year be in writing
- one year or less is valid with oral agreement