[Puppy Helmet] [Property I Outline] [Professor Ortiz] [Spring 2008] 1

I) GENERAL
A) Definition
1) Property is a tangible or intangible resource that can belong to someone
2) Legally, it’s the relationship between persons and resources
B) Bundle of Rights
1) Right of Possession
(a) Eg. transferable with leases
2) Right to Use
(a) Eg. Easements
3) Right to Disposition
(a) Eg. Can be devised in a will. Not all property can do this
4) Right to Exclusion
(a) Biggest Right! Whats the use of property if you cannot exclude others from taking it.
(i) Limitations
 The right to exclude people from your property does not mean you have a right to exclude people
coming to see people you have living on your property. [Access to migrant workers case]
 Common carriers cannot exclude person by discriminating in who they transport
(ii) Right to destroy
 For nonliving property you can pretty much destroy it at will
 For living property (eg. Animals) you can be restricted by public policy
 After your dead
 Courts do not like to follow instructions to destroy property you own after you die. Its
wasteful and public policy likes not wasting perfectly good property.

C) Demsetz (maybe one multiple choice question)

1) Tragedy of the commons
(a) Overuse of a resource by communal land owners because the cost of use is diluted among many owners
and avarice drives men to exploit the resource before it is used up by others.
2) Anticommons
(a) an area in which multiple rights to exclude people from the use of an area are in place (IE wildlife
preserve, etc)
3) Demsetz’s solution
(a) When land is held in common, it pretty much gets misused, so the solution is private property because
then people will internalize costs and not seek a quick gain at the expense of the community.
II) ACQUISITION OF PROPERTY WITHOUT PURCHASE
A) Acquisition by Discovery
1) First in Time
(a) Idea that the first to possess has the best right of claim to land.
2) Rule of Discovery
(a) Idea that the first civilized nation to claim undiscovered lands
(i) Aboriginal Peoples
 Not recognized as people.
 Granted a right to occupancy that can be extinguished by PURCHASE or AGREEMENT
3) Labor on the Land
(a) Adoption of Locke’s idea that adding labor to a thing makes it your property. Indigenous people that
merely lived on the land had no claim because they weren’t using the land for a purpose.
(b) Ownership depends on the value of the thing created
(c) Where both labor and materials are added, ownership is in the person owning the principle material
(d) Where only labor is added, the owner of the raw materials is given title, unless fairness dictates otherwise
(e) If the laborer is a thief or is otherwise not an innocent improver, then the laborer will never gain title.
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 4) Indian Sales of Land
(a) Sales of land by Indians are only valid if the sale was to the United States government.
5) Land (IE subterranean fossils)
(a) Subject to real property restrictions remains under restrictions even after being severed from the rest of
the land and becoming personal private property. Found dinosaurs are real property.
B) Acquisition by Capture
1) Relativity Of Title
(a) whoever is higher on the chain of ownership will retain title
2) Ferae Naturae – animals not domesticated
(a) Rule of Capture - Trapping, killing, or mortally wounding will constitute certain control which is
necessary to ownership.
(i) Pierson v Post
 Guy hunts a fox all day and some jerk comes out of nowhere and shoots it. The jerk has
ownership because he acquired the fox through the rule of capture
(b) Rule of Sportsmen / Acquisition Through Pursuit - must have prey within their reach or have a
reasonable prospect of taking the prey and have intent to convert the prey to your own use.
(i) Custom can allow the acquisition through pursuit
 Glen v. Rich
 If you bomb-harpooned a whale you got to keep it even though you couldn’t actually capture
the thing. Custom allowed this form of acquisition because the stupid whale would sink.
(c) Whaling Vocabulary
(i) Fast Fish / Loose Fish
 The term for the rule of capture as applied to whales. “Fast” meant that the whale was fastened to the boat
(ii) Iron in the Whale
 Whaling custom of claiming ownership by sticking a harpoon in a whale. Basically the rule of
sportsman applied to whales. It reduces the chances of whaling free for all.
(iii) Salvage Fee
 the initial harpooner and the finder would split the value of the blubbery beast
(d) Ratione Sole
(i) Constructive Capture (What Ratione Sole Really Means)
 You have the right to animals on your land, but you do not really own them.
 You have a right to kill/capture that animal within governmental regulation while its on your land .
(ii) Trespassers and Ratione Sole
 A trespasser won’t be granted title to animals he kills on owner’s land (because the owner has
constructive possession).
 Malicious Interference with Trade
 Its not capturing the animals on your property but it has the same effect and the party missing
out because of interference is entitled to compensation
a. "Harming a competitor by producing superior products may be permitted, while shooting
him may not"
b.Keeble v. Hickeringill
i. Dude has a nice duck netting system set up on his pond but some jerk comes by and
scares them away every morning. Malicious Interference.
3) Animals You Are Keeping On Your Land On Purpose
(a) Animus Revertendi (habit of return)
(i) If an animal shows the tendency to return the owner does not lose a property interest in the animal
when it leaves the owner’s possession.
(ii) A habit of return can show domestication. Domesticated animals are not subject to rule of capture.
(b) Escape
(i) If a wild animal escapes, the owner loses his property rights based on possession and the animal is
again subject to the rule of capture. It has to be a wild animal.

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 (c) Rule of increase
(i) Whomever owns the mother owns the mother’s offspring. (alterable with contract)
(d) Exotic Animal
(i) If the animal is out of place (like a panda in Texas) it is obviously not a typical Ferae Naturae and
you cannot constructively assert ownership of it when it wanders on your land.
(e) HYPO:
(i) The owner of blackacre feeds a doe for several years. She develops a habit of return. The doe gets
knocked up and wanders onto blueacre next door and gives birth to Bambie. Blueacre owner shoots
Bambie. Blueacre owner is arguably liable to Blackacre owner because the doe had been
domesticated and the rule of increase make Blackacre owner the owner of Bambie.
(ii) Little XiuXiu the panda is caged up on Blackacre and Blueacre owner comes over and steals XiuXiu
away. XiuXiu then makes a heroic escape from blueacre and makes it all the way to Greenacre
before Greenacre owner shoots XiuXiu. Blueacre owner files suit against Greenacre owner.
Blueacre owner has a higher stake in the relativity of title so the claim might succeed if XiuXiu
hadn’t escaped. Escape implies a lack of domestication if there is no habit of return. But Blackacre
owner has the highest title because the animal was stolen from his property. Also, little XiuXiu is
obviously an exotic animal that belongs to somebody and is more of a lost property animal.
4) Ferae Naturae Natural Resources (p. 37)
(a) If a fossil fuel is of a transient nature (moving under the Earth), then whoever takes it from under their
own land will have the right to it.
(i) This rule may not apply to re-injected fossil fuels according to the guy whose outline I am basing
this outline off of; but I think it does. I think it is subject to the rule of capture after you inject back
into the ground and it escapes by oozing over to your neighbor’s property. It escaped so its wild. Its
not like it developed a habit of return…its oil.

C) Acquisition by Creation
1) Quasi-property
(a) An owner may not hold property rights against the public, but may maintain property rights against
specific individuals (competitors).
(b) News can be a quasi property
(i) There is no right to the news itself because it is general knowledge, but writing about the news
makes a literary work that is property. An intellectual property is useless if it can’t be protected
2) Common Law Invention Protection
(a) You own the physical stuff you create, but others can copy it at will as long as there is not a recognized
common law right or statute to the contrary.
(b) The rule is that there is ownership in the actual chattel, but no ownership rights in the design.
3) Types
(a) Patents, Copyrights and Trademarks.
(i) You do not have to distinguish these for the exam
(ii) You do need to know that modern law recognizes that ownership of the intellectual property rights
gives you the exclusive use of that right.
(b) Trademarks
(i) Any bad faith (for profit) use of another’s trademark in a domain name is prohibited under the
ACPA and the domain can be transferred or cancelled.
(ii) Its got to be a use for profit. You can even use a rivals trademark in ads as long as they are not misleading.
4) Body Parts
(a) You have no property rights in your own body and cannot sell your organs. You can sell severable stuff
like hair and plasma though.
(b) You can’t recover money for your disgusting hairy cell cultures when a doctor uses them to make millions .

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 5) Conversion
(a) Wrongful of exercise of property rights of the personal property of another (you cannot convert real
property).
D) Acquisition by Find
1) Lost Property
(a) Unintentional dispossession / involuntary separation
(b) A finder of lost property has the highest claim to all except the true owner (and prior possessors under
relativity of title. (AKA finders/keepers.) Subject still to the next rule.
2) General rule
(a) Land owners own everything attached to or under their soil, unless the land owner hasn’t taken
possession of the land.
3) Mislaid property
(a) If someone voluntarily placed, but accidentally left something that they obviously didn’t want to
abandon
(b) The property should be left with the shopkeeper/landowner and eventually the landowner gets to keep it
if not claimed. Landowner has higher relativity of title. The finder is out of luck.
4) Abandoned Property
(a) Original Owner has given up rights to the chattel and those rights have not transferred to anyone new. It
has to be pretty obvious that there was an intent to abandon the junk.
(b) Generally belongs to the finder
(i) Exceptions
 The finder is a trespasser whose trespass is more than trivial (so property belongs to landowner)
 The finder is an agent of another (in which case the property belongs to the principle)
5) Treasure Trove
(a) Gold/Treasure/etc. that has been hidden in the earth or some other private place for such a length of time
that the owner is likely unknown or dead.
(i) English Rule
 Treasure Trove goes to the crown if it is hidden. If its not hidden its treated as abandoned.
(ii) US Rule
 Differs by jurisdictional statute. Generally subject to the rules of lost, mislaid, abandoned
property.
(iii) Shipwrecks
 The wreck belongs to the owner of the ship as long as the owner has not relinquished title. (This
can last over a 100 years)
 IF Title abandoned
 Belongs to the owner of the land the wreck is attached to
 Treasure hunters are entitled to a salvage fee, but these are subject to state laws.
E) Acquisition by Gift
1) Gift Inter Vivos
(a) gift between the living, during their lives.
(i) Must have:
 Donative intent
 Delivery to donee
 Donee must accept (usually implied in gifts of value)
 After these things are fulfilled, the gift is irrevocable.
2) Gift Causa Mortis
(a) Same basic 3 requirements as a gift inter vivos, plus
(i) Donor must have a disorder that makes death imminent or be in deathly peril
(ii) Donor must actually die from disorder or peril (or gift is invalid)
(b) Notes:

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 (i) Gifts causa mortis don’t need to be actually delivered prior to death, the donee must simply have
given it away prior to death.
(c) Different From
(i) Testamentary Disposition
 essentially a verbal will that necessitates witnesses (5 for roman law but differs by jurisdiction)
3) Delivery of the Gift
(a) Actual delivery – physical transfer.
(i) If the donee already has corporeal possession of the gift, redelivery is not necessary.
(b) Constructive delivery
(i) giving something that makes use of the property possible. IE a key.
(a) Symbolic delivery
(i) often takes the form of a writing like a deed. Old school seisen used a clump of dirt.
4) Notes on Gifts:
(a) Giving a safe gives title to things inside it (because safes are for containing things)
(b) Giving a bureau doesn’t pass title to contents (because bureaus have other uses)
(c) General Rule: if it can be handed over (in delivery) then it must be, to be an adequate delivery.
F) Bailments
1) Definition
(a) Delivery of goods or personal property to the rightful possession of another (the bailee) without loss of
title by the true owner (the bailor) and usually for a specific purpose.
2) Voluntary Bailment
(a) Requires
(i) Delivery with intent to control
 Bailee must have custody and control.
(ii) Acceptance
 The bailee must have accepted the relationship for a bailment situation to have been created
(must be aware of specific items in bailment).
(iii) Express or implied contract over disposition of the property.
(b) Conversion
(i) IF D converts bailment while it is in the possession of Bailee, then D owes DAS to Bailee at trial and
the Bailor will have to sue the Bailee for recovery from Bailee
3) Involuntary Bailment
(a) When personal property has been left by the true owner in the possession of another (e.g., mislaid
property). The law creates an obligation for the finding party to hold the property of another.
(b) Conversion
(i) If involuntary bailment is converted by D, then D owes DAS to involuntary bailee at trial and the
same amount of DAS later to the involuntary bailor

III) THE SYSTEM OF ESTATES: POSSESSORY ESTATES

A) Fee Simples in General
1) Characteristics
(a) Conveyable, Devisable, Inheritable
2) General Rules
(a) Every estate except FSA must be followed by a future interest
(b) Every conveyance must eventually end up in someone’s hands as a FSA
(c) Used to require the right of seisen where you handed over some dirt and beat the crap out of a kid.
3) Some Estate Terms
(a) Transferable – if an owner can convey interest in property while alive.
(b) Devisable – if an owner can convey interest in property through a will upon owner’s death.
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 (c) Inheritable – if an owner can inherit property that has not been assigned in a will.
(d) Per Stirpes Inheritance
(i) “By the stocks” transfer of inheritance rights
(ii)If one of A’s 3 children dies and leaves 2 kids, then the 2 kids will get their dad’s share of the
inheritance when A dies. The 2 kids get the goods by right of representation.
(e) Decedent – dead person
(f) Testate – they died with a will
(g) Testator - the person who died with a will
(h) Devise – a gift of land in a will
(i) Devisee/beneficiary – a person who got land in a will
(j) Bequest – a gift of personal property in a will
(k) Feoffment – the transfer of land
(l) Livery of seisin – the ceremony associated with the transfer of right to a freehold estate at common law.
Hand over dirt, kick the crap out of a kid.
(m) Subinfuedation – the practice of allows sub-lords to use land you had a possessory interest in exchange
for some consideration (feudal times).
(n) Tenants in demesne – bottom level of the subinfeudation chain (possessory interests). (have
possession/seisin)
(o) Tenure in socage – relationship between lord and land possessor (exchange of incidents for land use)
(p) Incidents – payments for land use other than cash (IE homage and fealty, emergency financial help,
liability for relatives upon death, etc.)
4) Heir System
(a) Basics
(i) Heirs are persons who survive the intestate (lacking will) decedent who have a have a right of
succession to real property
(ii) You do not have heirs until you are dead. You are not an heir until someone else dies.

(b) Intestate Succession Chart

(c) Primogeniture
(i)Eldest son takes over property for inheritance
Favored by rich folks
(ii)
(iii) I don’t care if the eldest daughter has a son that’s older than the youngest son of the intestate. It’s
the property of the eldest son of the dead guy, not a grandkid.
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 (d) Utlimageniture
(i) Youngest son takes over property
(ii) Favored by poor folks because it keeps the land in the family longer
(e) Coparceny
(i) If all you got is daughters to inherit the land by intestate succession they take it in equal shares
simultaneously in a system called coparceny. I think this word is funny…you probably don’t care.

THE OBLIGATORY POSSESSSORY ESTATE CHART

The following chart is from Professor Ortiz’s Class website

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 B) Fee Simple Absolute (FSA)
(a) Words of purchase – “To X” (same for all possessory estates)
(b) Words of Limitation:
(i) PRE-1536 - “and his heirs”
(ii) POST-1536 “to X”
(c) Future Interests: None
(d) Notes: - Modern Default estate (Old default was life estate)
C) Defeasible Estates
1) Fee Simple Determinable (FSD)
(a) Words of Limitation: “so long as, while, during”
(b) Future Interests: Possibility of Reverter
(c) Notes:
(i) Realize this is an immediate reversion upon occurrence of event stated and that if you don’t take
possession the dude sitting on the land might be building a case for adverse possession
(ii) Note the words of limitation for FSDs are all functions of time.
2) Fee Simple Subject to Condition Subsequent (FSSCS)
(a) Words of Limitation: “But if, provided that, however”
(b) Future Interests: Grantor – Right of Entry (ROE)
(c) FSSCSs are favored by courts over FSDs in ambiguous situations because courts dislike automatic
forfeiture.
3) Transfer of POR and ROE
(a) At common law, defeasible future interests can be inheritable or released but were not conveyable
during life, not devisable (only could be inherited). The rationale behind this was that a person could
acquire an interests that may never come to fruition.
(b) Some jurisdictions in modern law still hold that defeasible future interests are not conveyable but the
modern trend is to allow it.
(c) Release
(i) You can release your claim in Future Interest to the current holder of possessory interest. Then the
possessor has a larger interest.
4) Distinguish Defeasible Fees v Covenants
(a) Covenants = only a promise a specific act will or will not occur.

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 (i) If conditions for defeasible fees occur the title can transfer but if a covenant is broken the grantor can
only sue for an injunction or damages, not future interest.
5) Fee Simple Subject to an Executory Limitation (FSSEL)
(a) Words of Limitation: Same as FSA, FSD, FSSCS, Fee Tail, Life Estate, Term of Years
(b) Future Interests: 3rd Party – Executory Interest
(c) Note - FSSELs didn’t exist until 1536.
D) Fee Tails (FT)
1) Words of Limitation: “and the heirs of his body”
2) Future Interests: Grantor – Reversion, 3rd Party – Remainder
3) Notes:
(a) Disentail – to kill a fee tail by granting a deed in FSA to another.
(i) Disentailing was difficult at common law, but now you just have to print up a deed to give it to
someone in FSA and have them give it back to you.
 Still can’t disentail by merely conveying the property to yourself.
(b) Could be conveyed at common law (different from POR and ROEs). Couldn’t be devised or inherited
by definition.
(c) In common law, a fee tail was a series of life estates such that so you could do with your LE whaterver
you wanted, but you couldn’t cut your first son out of his LE.
E) Term of Years (TY)
1) Words of Limitation: State the first and last days of grant
2) Future Interests: Grantor – Reversion, 3rd Party – Remainder

F) Life Estates (LE)

1) Words of Limitation: “for life”
2) Future Interests: Grantor – Reversion, 3rd Party – Remainder
3) Notes:
(a) LEs were the default until FSAs became the default years later.
(b) Could be conveyed at common law (different from POR and ROEs). Couldn’t be devised or inherited
by definition.
4) Life Estate Pur Autre Vie (LE PAV) – If you convey your LE to X, then X holds a LE for the duration of
your life called a LE pav.
G) Restraints on Alienability
1) Basic Rule
(a) You can put whatever limitations you wish on the use of the land but you can’t unreasonably prohibit
someone from conveying property.
2) Restraints on alienability are invalid for policy reasons.
(a) Property that has a restriction on alienation is:
(i) Unmarketable

(ii) perpetuates the concentration of wealth

(iii) discourages improvements of land

(iv) prevents creditors from reaching the land

3) A court will stricken the restraint in a contract and allow the rest of the contract to stand.
4) 3 Types of restraints on alienability
(b) Disabling Restraint – states that all attempts to pass title are null.
(c) Forfeiture Restraint – if grantee attempts to transfer title, the land is forfeited to another.
(d) Promissory Restraint – grantee promises not to alienate the land at the threat of civil remedies
(i) Promissory restraints are usually considered valid
5) Restraints on a life estate:

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 (a) No absolute restraints, but forfeiture is OK.
H) Protecting Your Future Interest
1) Waste (it will be on the test)
(a) Definition
(i) The holder of the future interest may seek damages for waste if there is an unreasonable interference
with the future interest holder’s itnerest
(b) Types of Waste
(i) Affirmative Waste
 arises from voluntary acts (e.g., burning down the barn, intentional)
(ii) Permissive Waste
 arises from a failure to act (e.g., barn falls into disrepair, negligence
(iii) Ameliorative Waste
 Arise from voluntary changes that increase the value of property (Usually not actionable in US).
 Example – Remaindermen freaking love the idea of getting a farm one day but the heartless
possessory estate guy builds a factory. The value of the land increased but the remaindermen see
this as ameliorative waste.
2) Open mines doctrine
(a) If the mines open were before life estate was created, then life tenant can mine; if the mines are closed,
then life tenant cannot mine. This protects future interests so there is still stuff to mine later.
IV) THE SYSTEM OF ESTATES: FUTURE INTERESTS
A) Future Interests (FI) retained by the Grantor
1) Reversion (Rv)
(a) Reversion is the interest held by the conveying party that will become possessory at the end of the lesser
conveyed estate
(b) Transferable, divisible, and inheritable at common law.
2) Possibility of Reverter (POR) (after FSD)
(a) Not Transferable, divisible, and inheritable at common law. Modern jurisdictions differ on allowing it.
3) Right of Entry (ROE) (after FSSCS)
(a) Not Transferable, divisible, and inheritable at common law. Modern jurisdictions differ on allowing it.
B) FI created in the Grantee
1) Remainders (RM)
(a) In General
(i) A future interest that waits politely until termination of the preceding estate, at which time the
remainder moves into possession if it is then vested.

(b) Vested Remainders (VRm).

(i) Three Requirements
 Person holding remainder must be born
 Person holding remainder must be ascertainable
 IE “then to whoever is the president of the US” is not a vested remainder, for that person is
not ascertainable
 No express condition precedent
 There can be no condition that has to be satisfied prior to remainderman taking possession.
(ii) Types of Vested Remainders
 Indefeasibly Vested Remainder
 A vested remainder that will become possessory, without question. Standard VRm.
 Note from other outline I can’t verify: “,and then to B for life,” is a VRm despite the fact
that it may never become posessory if B dies prior to his interest becoming posessory
 Vested Remainder Subject to Divestment (VRmStoD)
 A remainder that is vested but is not necessarily going to become possessory. The possibility
of divestment is presented in a clause following the VRm verbiage.

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  VRmStoD’s are subject to divestment during the prior estate – FSSEL are subject to
dispossession during the possessory estate.
 The condition subsequent in a VRmStoD must be explicit, not implied
 Example: “To A for life, then to B, but if C graduates law school, to C.”
a. B has a VRmStoD
 Vested Remainder Subject to Open (VRmStoO)
 A remainder that is vested but is subject to partial divestment by another member of the same
class. Classes taking possession simultaneously take it as tenants in common.
 Example: To A for life then to the children of B (B has known child C)
 C has VRmStoO because B could pop out more kids and diminish C’s share.
(c) Contingent Remainders (CRm)
(i) Future Interest given to
 An unascertained person (or)
 Is subject to a condition precedent
(ii) CRm’s are ALWAYS Followed by a Reversion in Grantor
(iii) Alternative Contingent Remainders
 Contingent Remainders that are incompatible with each other. Only one of the CRms can vest.
The others are out of luck.
 Like all CRm’s, these are followed by a Rv in grantor.
(iv) Rule in Purefoy’s Case
 If possible, always construe a limitation as a CRm, not an EI (as EI’s jump forward and that just
pisses people off)
2) Executory Interests (EI)
(a) EIs are rude and will take possession as soon as the condition occurs.
(b) NOTES:
(i) Executory Interests weren’t recognized until 1536.
(ii) Not transferable at common law.
(iii) EIs follow FSSEL, VRmStoD, and LE Defeasibles (LED’s not studied here)
(c) Shifting Executory Interest
(i) The EI takes possession from a party other than the original conveyor.
(d) Springing Executory Interest
(i) The EI takes possession from the original conveyor. IE when there is a gap between the previous
estate and the EI.
C) Trusts (aka “USE”) [she says these WILL BE ON THE TEST]
1) In General
(a) Trusts are where a 3rd party holds title to something for others’ enjoyment..
(b) Way I remember this junk
(i) I am TRUSTING you to hold this land so I can USE it.
(c) Purposes of Uses
(i) To avoid taxes
(ii) To avoid the harshness of primogeniture since there was no EI before 1536
2) Three Old School ways to create a Use
(a) Feoffenment
(i) Used to look out for younger sons in the age of primogeniture. An anchor party was given the legal
interest but equitable interest was held in the younger sons.
(ii) E.G.- “to X and his heirs, to hold for the use of A and his heirs, but if A inherits Greenacres, then to
the use of B and his heirs.”.
(b) Bargain and Sale Deed
(i) Grantor bargains and sells use of blackacre to “X and his heirs” but Grantor retains legal title. X
could enforce his right to the land through equitable remedy in court on a Contract action.
(ii) This is a tricky way to create a conveyance that is enforceable but not taxable

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 (c) Covenant to Stand Seised
(i) Grantor promises to stand seised in favor of his daughter, X.
(ii) It a secret covenant that is enforceable in a court of equity
(iii) Eg. O promises Greenacre for use of X and her heirs when X marries Y.
3) Statute of Uses (1536) –
(a) Ended the whole Trust/Use system nonsense because the King got pissed at people avoiding taxes
(i) Took the legal title from the feofee (trustee) and gave it to the cestui que use (the beneficiary).
(ii) This would just cut the “to X and his heirs for the use of” off of a conveyance, leaving the land in the
hands of the equitable owner.
(b) Statute of Uses teamed up with the Statute of Wills to end the practice of primogeniture
(c) The livery of seisen was eventually taken out by the Statute of Frauds.
D) Rules Furthering Marketability
1) Destructibility of Contingent Remainders
(a) How it works:
(i) If a contingent remainder in land
(ii) Does not vest at or before the natural or artificial termination of the proceeding freehold estate
(iii) Then the contingent remainder is destroyed, and
(iv) Seisen moves on the next vested estate
(b) Remember, this rule applies to contingent remainders, NOT Executory interests. Also remember how
this rule can be effected by the Rule in Purefoy’s Case
(i) Rule in Purefoy’s Case = If possible, always construe a limitation as a CRm, not an EI
2) Merger Doctrine
(a) If a person owns a LE followed and the next vested fee simple estate, then the two merge to create a
mega-estate (killing off any CRm that is between the two). A Vested Remainder can stop a merger like
a hand between two colliding beer mugs.
(i) Merger Exception
 If a LE and the next vested estate are created simultaneously by the same conveyor, then
interests do not Merge at the same time. Merger does not apply because the will of the conveyor
was for there to be separate conveyances.
 But if interests are thereafter conveyed to another, the contingent remainder is destroyed.
 Doesn’t apply to the rule in Shelley’s case.
3) The Rule in Shelley’s Case
(a) If a single instrument creates a LE in X followed by a FSA or FT in X’s heirs, then the Rm in X’s heirs
becomes a Rm in X (then look to merger).
(i) Note: This must say to X’s heirs, not his kids, not xyz. It must be his heirs or Shelley’s Case won’t
apply.
(ii) If someone buys an Rm and conveys it to X’s heirs, then Shelley’s case doesn’t apply – that isn’t one
deed/conveyance.
(iii) The rule in Shelley’s Case only applies to remainders and the intent of the grantor is unimportant.
4) Doctrine of Worthier Title
(a) How it works
(i) Inter Vivos conveyance from Owner “O”
(ii) “to X for life, then to O’s heirs”
(iii) Remainder in O’s heirs is void, leaving the reversion in O.
5) Rule Against Perpetuities (RAP)
(a) What Might Happen RAP (WMH)
(i) Will a CRm, EI or VRmStoO vest or fail within 21 years of some person currently in being’s death?
If not necessarily, the conveyance is void. The scenario you create can be completely improbable,
but, if in some wild scenario, a conveyance could fail to vest within 21 years after everyone’s
death…the deal is off.
(ii) Create, Kill and Count – make new babies, kill everyone in existence and find out if the conveyance
might still be valid and non-possessory
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  If you can’t create a new person to meet the condition the conveyance is valid.
 You can’t kill charities
(iii) Purchase option under the What Might Happen Test
 A purchase option is treated like an EI and can be destroyed by RAP if it is possible the option
might not get exercised within 21 years
(b) Wait and See Test
(i) Just wait and see if the interest actually vests or fails within the common law 21 year period. (within
21 years of the death of everyone named within the conveyance). If it did not vest its time to strike it
(ii) Purchase option and Wait and See
 Keep purchase option open for 21 years and then close the option if not used
(c) Uniform Statutory Rule Against Perpetuities (USRAP)
(i) If an interest passes the What might happen RAP test, it is valid
(ii) Interest is valid it would, at its creation, it would necessarily vest or fail within 90 years.
(iii) Wait for 90 years to see if either of the above actually occurs.
(iv) Courts will reform void interests
(v) Abolishes application or RAP to options and commercial transactions
V) THE SYSTEM OF ESTATES: CO-OWNERSHIP AND MARITAL INTERESTS
A) Tenancy in Common (TC)
1) Basic tenets:
(a) Separate but undivided interests
(b) Interests are descendible, devisable and conveyable
(c) No right of survivorship
(d) Unity of Possession
(i) each tenant has the right to possession of the entire land, even though holding only part of the full
interest.
(ii) IE if O conveys to A&B, then A can raise his cows on the entire land.
2) Presumption for tenancy in common
(a) in modern law a court will construe a questionable situation to be a tenancy in common over a joint
tenancy (this is opposite of traditional common law).
B) Joint Tenancy (JT)
1) Basic Tenets
(a) Separate but undivided interests.
(b) Survivorship – A deceased joint tenant’s share of the land will go to their surviving tenant(s).
(c) Four Unities must be present: (Time, Title, Interest, Possession)
(i) Time – interests must be acquired at the same time
(ii) Title – the same title must create all tenancies (no intestate succession could create a joint tenancy as
there was no title)
(iii) Interest – equal, undivided shares with identical interests in the land. You can’t have a FSA and
FSD together in JT because that would not be an identical interst.
 (but some jurisdictions will allow tenants to hold different amount of interest)
(iv) Possession – at creation, all tenants must have the right to possession (this can change after creation)
2) Ending a Joint Tenancy
(a) If a joint tenant conveys his interest, then the new party will be a tenant in common with the old
tenant(s). If there are only two parties the JT is gone. A JT cannot be conveyed intact.
(b) If a single party out of many joint tenants conveys his interest, then the original joint tenants will remain
joint tenants with each other (as they still have the 4 unities) and the new tenant will be their tenant in
common.

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 3) Common Law Presumption
(a) at common law, if there was question of tenant in common or joint tenancy, the courts would presume
joint tenancy. This has since changed to presume tenancy in common. .
4) Unilateral ending of a joint tenancy
(a) A joint tenant can convey their interest to themselves to destroy the joint tenancy and create a tenancy in
common. This is against old law that needed a conveyance through a fictional 3 rd party “straw man” to
end such a tenancy.
5) Judicial Partitions can destroy a joint tenancy.

6) Tricky attempt to make an un-breakable joint tenancy

(a) T devises to A&B for their joint lives, with the remainder to the survivor. This is not a joint tenancy as
it didn’t specify explicitly, but creates concurrent LEs with a CRm held by the survivor and an Rv held
by the conveyor.
7) Uniform Simultaneous Death Act
(a) If all joint tenants were to die at the same exact time, then the land is split among estates.
8) Mortgage’s in joint tenancies
(a) Lien theory (majority of jurisdiction)
(i) A mortgage is but a lien on the interest in the land. As no title has passed, there is no destruction of
the joint tenancy.
(b) Title theory (minority of jurisdiction, traditional view)
(i) the mortgaging of an interest in a joint tenancy passes title and destroys the joint tenancy
9) Joint Tenancy Bank Accounts
(a) Banks may state that they only recognized a particular type of account, but courts will look to the intent
of the parties to determine what type of account was created. There are 3 types of JT bank accounts:
(i) True Joint Tenancy
 Both parties enjoy all deposits and rights of survivorship
(ii) POD (payable on death) accounts
 You can’t mess with the other guys money in the account while he is alive, but both parties have
a right of survivorship to the total mass of cash
(b) Convenience Account
nd
(i) the only reason the 2 party is on the account is just to pay the primary person’s bills. No right of
survivorship.
C) Tenancy by the Entirety
1) Basic Tenets
(a) Between Husband and Wife Only
(b) Right of Survivorship
(c) 5 Unities (4 present in a joint tenancy plus marriage) – time, title, interest, possession and marriage
2) Only recognized in common law marital property states.
3) Divorce
(a) as a divorce will destroy one of the 5 unities (marriage), then the tenancy by the entirety will (usually)
convert to a tenancy in common.
(i) Some jurisdictions will convert to a joint tenancy.
(ii) Legal separation will not destroy the unity of marriage.
4) Sales of tenancies by the entirety

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 (a) A tenancy by the entirety cannot be sold (in whole or in part) except with consent of both parties.

D) Relations amongst tenants

1) Partitions –
(a) Majority Rule
(i) a partition by sale (as opposed to a physical partition) will be favored if more money could be raised
by selling the property as a whole (instead of in small parcels).
(b) Minority Rule
(i) a partition by sale will be granted only if the moving party can show 2 things:
 Physical partitioning is impracticable/inequitable due to qualities of the land.
 The interests of the parties was served better by the sale than physical partition.
2) Ouster
(a) Locking the other guy out
(i) The liability of one cotenant to pay rent to the other cotenants because of denying the other cotenants
the right of entry
(b) Monopolizing the place is not ouster
(i) In absence of an agreement to pay rent or ouster of a cotenant, a cotenant in possession of property
will not be liable to for use and occupation of the whole of the property.
(ii) Rental liability may also be created if a tenant simply agrees to pay.
3) Rent
(a) a joint tenant/tenant in common can rent his share of the land so long as the 3 rd party renting the land
does not attempt to keep the other tenant off the land.\

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 (b) Based on Actual Rental receipts, not fair market value
(c) Leases cannot be canceled by the other cotenants during the life of the lessor (due making the lease)
(d) If the leasee is a jerk and ousts the nonleasing cotenants then the cotenants are entitled to the Fair
Market Value share of the rent from lessee.

4) Accountings
(a) Its an action you can bring in court to get your just due
(i) The court will look at the books between the tenants and determine who owes what.
5) Costs and Benefits between co-tenants
(a) cotenants are obligated to share benefits (business, rental, etc) between themselves.
(b) There is a right of contribution between cotenants for taxes, mortgage payments, etc. This is because
danger of tax foreclosure effects everyone.
(i) There is an exception. If there is only one cotenant in possession of the land he cannot force the
others to help pay taxes.
(c) Necessary repairs will create a credit during an accounting.
(d) Improvements to the land will not be credited for or accounted for, but the court will consider the
improvements in making physical partition or distribution of funds from a judicial sale.
6) Cotenant Fiduciary Relationships
(a) fiduciary relationships create an obligation to treat joint tenants in good faith
(i) Cotenants are fiduciaries only if:
 Family (some jurisdictions)
(ii) Shifty Foreclosure buyout
 If a there is a foreclosure on the land owned by the co-tenants and one of the cotenants buys up
the whole of the land at the foreclosure sale the Purchasing cotenant was being shifty and finding
a way to buy everyone else out in a way that does not conform with good faith
(iii) Adverse Possession of Cotenants
 You can’t have adverse possession of a cotenant you are related to.
E) Marital Interests
1) Common Law Marital Property during marriage
(a) General rules
(i) Husband and wife will maintain separate property during marriage; whatever you bring in, you keep.
(ii) Married women’s property act
 gave the woman the right to control her own property. Traditionally, all property went
immediately into the man’s name. This would preclude a woman’s debtors from being able to
reach anything (as she couldn’t really run up a debt without owning collateral).
 Coverture
 the idea that a woman is under the protection of the man, and was not legally a person.
2) Marital Creditors
(a) Group I – (doesn’t follow married wonan’s property act))
(i) Common Law Jurisdictions - The husband’s creditors could reach his portion of a Tenancy by the
entirety (TE), but the woman would retain a right of survivorship over the marital property. The
wife’s property couldn’t be attacked here without the husband’s consent, as she really didn’t hold
any property. IE if the creditor obtains a judgment against the husband, he would get a defeasible
estate which could be defeated by the wife outliving the husband.
(b) Group II
(i) Common Law Jurisdictions with a Married Woman’s Property Act – Creditors can reach either
spouse’s portion of a TE, but the other party would maintain a right of survivorship.
(c) Group III
(i) No creditor can reach the tenancy by the entirety without consent from both spouses.
(d) Group IV

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 (i) Creditors can reach the debtor spouses right of survivorship in a tenancy by the entirety, but they
cannot attack their current posessory interest.
(e) Lis Pendens
(i) a claim that the court may allow a creditor to reserve the right to bring against a debtor should he
gain complete interest in a tenancy by the entirety through survivorship.

3) Common Law Marital Property during divorce

(a) Real Property
(i) At divorce real property held as a tenancy in common or a joint tenancy will remain so. Tenancy by
the entirety will become a tenancy in common.
(b) Equitable Property Division at divorce–
(i) Only necessary in separate property jurisdictions because in communal they split it down the middle.
(ii) Equitable division
 all property is divided by equitable principles of whoever brought the property into the marriage.
Tended to leave wives destitute. .
(iii) Equitable division of marital property
 all the property accrued by either spouse during marriage will be equitably divided.
(c) Collegiate degrees –
(i) A degree cannot be divided as property gained during the marriage, but it may be grounds for
alimony. (A minority would argue that the earning power of that degree was an investment and thus,
the future earnings from that degree should be marital property)
(d) Compensatory Spousal Payments (Alimony / Maintenance)
(i) There are 5 factors to consider when determining loss from divorce that requires compensation
 Loss of higher living standard
 Loss of earning capacity during marriage b/c of unequal share of child care
 Loss of earning capacity during marriage because of care for disabled third party in fulfillment of
a moral obligation
 Loss incurred by either party to get his fair return on investment in other party’s earning capacity
 An unfairly disproportionate disparity between the spouses in the respective abilities to recover
their pre-marital living standards after dissolution of a short marriage
(ii) Alimony can be rehabilitative to put you on your feet or special needs based if divorce will have a
special burden on you (like taking care of a disabled kid, or you are disabled)
4) Common Law Marital Property at death
(a) Personal Property
(i) A surviving wife would take 1/3 of personal property if there were surviving issue and ½ if there
was no surviving issue (she should get more because there were no kids to share with)
(ii) A surviving husband would take everything.
(b) Real Property
(i) Dower and curtsey only exist in common law property states.
 Dower
 a surviving wife would be able to take a LE in 1/3 of all lands that the husband had held in
FSA during marriage and was inheritable at the time of the husband’s death.
 Curtsey
 The husband was able to take a LE in ½ of all the land the wife was seized in during
marriage (and was inheritable) so long as there was live issue born to the couple.
(ii) Elective Forced Share
 In modern common law jurisdictions, a state may have a statute that allows the widow(er) to get
between ½ and 1/3 of their dead spouse’s property at their death. You can use this elective
forced share if there is will that you think screws you over.
5) Community Property System

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 (a) The System:
(i) Separates property into two types: Community property and Separate property
(ii) Pretty much exists wherever there was a Spanish influence…and freak states.
(b) Community property
(i) The earnings during marriage and the rents, profits and fruits of those earnings is considered
community property (generally).
(c) Separate Property
(i) Property acquired before marriage
(ii) Property acquired during marriage by gift, devise, descent
 If you make income off of separate property that can be community property in TX, Other states
differ on whether it is still separate or not.
(d) Management
(i) In community property jurisdictions, each spouse can act as the manager of the property and is
subject to a fiduciary duty to the other. In some instances (IE running a business) a single spouse
will have the sole management duty.
(e) Land bought with communal property
(i) Land bought with communal funds will be purchased as a FSA in communal property (it cannot be
purchased as a joint tenancy, as that would be separate property). The parties are free to transmute
the nature of their communal or separate property, but at the purchase of goods with communal
funds, the property is communal.
(f) Disposition of Community Property at Death
(i) Testate
 Each spouse can dispose of ALL of the community property. This includes all of the spouses
share of the community property.
(ii) Intestate
 At intestate’s death, the community property goes to the surviving spouse with the separate
property being split between spouse and kids.
(g) Community Property at Divorce
(i) Default Rule
 50-50 split down the middle of all community property.
(ii) Equitable Distribution
 TX does this. Start with 50-50 default and then look into other factors

6) Mixing of Communal and Separate Property

(a) Inception of Right
The party that started the purchase will keep title, but the community may be owed any money put in
(i)
after marriage.
(b) Time of Vesting
(i) If the final payment was made by the community, then the community owns the property.
(c) Pro Rate Apportionment
(i) The community owns whatever portion of the funds it put in and the individual owns whatever
portion it put in.
7) Tax Benefit of Marriage at Death
(a) If A & B buy house while married at 100K and B dies when house worth 300K, and A sells house later
for 325K – the taxable income to A is only 25K (as opposed to 225K). The tax value stopped at the time
of the other spouse’s death.
8) Determining the character of the property
(a) Personal Property
(i) Is separate if the couple lives in a separate jurisdiction at purchase, and communal if the couple lives
in a communal jurisdiction at purchase.
(b) Real property
[Puppy Helmet] [Property I Outline] [Professor Ortiz] [Spring 2008] 19
 (i) separate/communal, it just depends on where the property is.
(c) At death
(i) Personal property held by a spouse will be distributed according to the state of domicile at the time
of death.
 IE dower and curtsey may be present to protect a spouse from being completely cut out of the
other spouse dies holding all the personalty, but that protection may not be present if the couple
moves to a communal property state.
(ii) Real property is distributed according to the law of the location of the property.
9) Common Law Marriage
(a) if a couple is living together and they display themselves as married, then they have the same rights as
married couples (not all states are cool with common law marriage)
(b) Courts will generally not recognize agreements created between two unmarried people sharing property,
this includes domestic partners.

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VI) LEASEHOLDS: THE LAW OF LANDLORD AND TENANT
A) The Leasehold Estates
1) Term of Years, Periodic Tenancy, Tenancy at will (Tenancy in sufferance)
B) Term of Years
1) Lasts for a fixed amount of time
(a) Limits
(i) In common law the number of years could be unlimited
(ii) In USA, many states place a limit on the number of years so you can’t have really long duration
 Eg. 51 years for Agriculture Land, 99 years for urban land
(iii) A term of years can be cut short by an event if it is conveyed that way
2) Death of Landlord

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 (a) Death of lessor has no effect on a term of years. It still plays out.
3) Termination & Notice
(a) When the termination year date comes about, there is no need for notice of termination, its over.
C) Periodic Tenancy
1) Duration
(a) The period of some duration that continues until succeeding periods until either the landlord or tenant
gives notice of termination.
2) Death of Landlord
(a) Death of lessor has no effect on a periodic tenancy. It doesn’t stop the current tenancy that’s running.
3) Termination & Notice
(a) Common Law
(i) A ½ year notice is required to terminate a year to year periodic tenancy or any term longer than six
months.
 Max period of notice required is 6 months
(ii) For periods less than half a year, the period of notice must be equal to the length of the tenancy.
D) Tenancy at Will
1) Basics
(a) A tenancy that can be terminated by either party at any time. If one party has the right to termination at
any time, courts will infer that both do.
2) Death of Either Party
(a) Death of either party will end this tenancy
3) Notice of Termination
(a) While either party can destroy this tenancy at any time, modern statutes usually require 30 day notice of
termination.
(b) Attempted assignment will terminate the lease.
(c) If there is a periodic payment of rent, then the lease is a periodic tenancy, not a tenancy at will.
E) Tenancy in Sufferance
1) Not a true leasehold estate
2) Holdover
(a) a tenant that refuses to vacate the premises at the end of the rental term.
3) Landlord with a holdover tenant has 2 choices:
(a) Evict – start legal eviction proceedings and collect any damages.
(i) If a landlord attempts eviction (treats the tenant as a trespassory), but then accepts rent for a month,
the tenant will be treated as a month to month tenant regardless of the term of the original lease
(because the extension of the original lease was done after the landlord treated him like a
trespassory)
(b) Consent – The landlord can consent (implied or express) and create a new tenancy.
4) Duration
(a) Usually, for a period >1 year (prior), then the new created tenancy is for one year in a periodic tenancy.
(Alternatively, some jurisdictions will create a period for whatever each rental payment was to cover.)

5) Holdover who refuses to allow a new tenant to take possession

(a) American Rule
(i) The landlord can be lazy. The landlord only has obligation to grant the new tenant legal right to
possession. The new tenant is obligated to seek ejectment and damages from the holdover through
legal process.
(b) English rule
(i) Responsible Landlord. The landlord is responsible for delivery of the actual land and may be liable
to the new tenant for damages (IE end of lease, rental of the part of the land the tenant can inhabit, or
withholding of rent payment from lessee.)
F) Subleases and Assignments
1) Majority (common law) Rule –

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 (a) Sublease
(i) A sublet is created when a party gives away less than his entire interest in a piece of land that he is
renting (the sub-lettor could have withheld just a right of reentry, etc.).
(b) Assignment
(i) An assignment is created if he is giving away his entire interest.
2) Minority (modern law) Rule
(a) Look to the intent of the parties in creation. The use of the words sublet/assignment may not be totally
conclusive.
(i) IE granting away a lease for the entire term less one day will probably be an assignment despite
withholding 1 day of the term.
3) Definitions:
(a) Privity of Estate
(i) Privity of estate is created between 2 parties when their posessory interests will run concurrently.
(b) Privity of Contract
(i) When there is an actual contract between parties, then they will have a right to sue under it.
(c) Terms of assignment/sublease
(i) the terms of a sublet are not necessarily the same as the original lease, as the sub-lessee has not
agreed to those terms in his contract.
4) Assignment
(a) The land owner will be able to sue (for unpaid rent) either the assignor or assignee. He has a privity of
contract with the assignor and a privity of estate with the assignee (as the assignee will deliver the land
directly to the owner).
(i) In an assignment, the owner can sue either party.
5) Sublease
(a) The land owner can only sue the sub-letter, not the sub-lessee. This is because the land owner has
privity of contract and estate with the sub-letter, but neither with the sub-lessee (the sub-lessee never
contracted with the owner and will return the land to the sub-letter).
(i) A owner can bring an ejectment suit against a trespassing sub-lessee, but he can’t sue for damages.
(b) Contractual obligation
(i) if the sub-lessee contracts with the original lessee and the owner to assume the payments, then the
owner has privity of contract and can sue.

6) Owner’s Rights to Reject Assignee

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 (a) Contract
(i) The following two rules only apply when the k specifies there will not be an assignment without
consent of the landlord
(b) Majority (common law) Rule
(i) the owner has the unlimited right to reject any assignee.
(c) Minority (modern trend) Rule
(i) Lessor may withhold consent for assignment only when the lessor has a commercially reasonable
objection to the assignment
 Reasonableness is a question of fact. Factors Include:
 Financial responsibility of assignee
 Suitability of use of landlord’s property for the assignee
 Legality of proposed use
 Any need for alterations to the premises
 Nature of the occupancy
 Denying consent on personal taste, sensibilities, or conveniences are not reasonable
G) Tenant Who Defaults
1) Self Help and Repossession
(a) Common Law (majority) Rule
(i) A landlord can retake the land via self help if:
 1. The owner has a valid legal claim to the land
 Eg. Tenant is a holdover or breaches lease w/ a re-entry clause
 2. He can retake it without disturbing the peace
(b) Modern (minority) Rule
(i) A landlord must resort to legal pathways to evict a tenant.
 Locking a tenant out is always not peaceful
(ii) Summary proceedings
 Quick and efficient means to evict a person through legal proceedings. An alternative to self
help.
2) Duty to Mitigate
(a) Modern (minority/contract) Rule
(i) The landlord is responsible for taking actions to re-let a unit that has been defaulted on with the same
vigor that he would attempt to re-let any unit. The unit must be treated the exact same as any other
empty unit. The landlord is in privity to the information and thus, he should have to prove attempts
at mitigation.
 Reasonable efforts at mitigation can be proven through showing property or placing ads.
(ii) Surrender
 once a tenant surrender’s the unit, he is no longer liable for rent, but is liable for damages
incurred due to the breach (subject to mitigation by the landowner)
(b) Traditional (majority/property) Rule
(i) there is no duty to mitigate as the renter owns a posessory interest in that land for the designated
term of years.
3) Damages Due to Breach
(a) Lower subsequent rental value
(i) the breaching tenant may be liable for subsequent lower rent received in mitigation for the duration
of the breached lease.
(b) Reverse Mitigation
(i) per statute, if a landlord is able to get a greater rental value after breach, then the additional funds
coming in may further mitigate the damages owed by a breaching tenant

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 H) Landlord Duties
1) Quiet Enjoyment
(a) the landlord is obligated to allow the tenant the quiet enjoyment of the land.
(b) Common Law
(i) Only if the landlord actually evicted you from the land could you end a lease for breach of warranty
of quiet enjoyment.
 Here the tenant actually had to leave the apartment to consider the lease breached.
 In common law, the landlord’s promise to keep the unit up and your promise to pay rent were
independent of each other.
(c) Modern Law
(i) Breach of a warranty of quiet enjoyment can create a constructive eviction.
(ii) Constructive Eviction
 any act or omission (physical or constructive interference) by the landlord or his actors which
render the premises substantially unsuitable for the use of the lease or the quiet use of the
premises. After a constructive eviction, you just move out and stop paying rent. There must be a
substantial interference (though it needn’t be permanent).
2) Illegal Lease Doctrine
(a) If the landlord had actual or constructive knowledge of violation of health code at the lease signing, then
the tenant doesn’t have to pay rent. If the tenant chooses to stay, then they are a tenant at sufferance and
will pay the reasonable rental value (not the agreed to price). The tenant in this case can’t be evicted.
3) Implied Warranty of Habitability (Residential Units)
(a) The implied warranty of habitability guarantees that the premises are safe, clean and fit for human
habitation (applicable to essential facilities throughout the lease)
(i) Applies to latent and patent defects
(b) This warranty cannot be waived
(c) The tenant must give the landlord notice and ample time to correct the problem.
(d) A tenant invoking the implied warrant of habitability doesn’t have to leave the unit, he just has to pay
reasonable rental value.
(i) A tenant can collect for consequential damages as well (discomfort, noise, etc) as well as punitive
damages (for willful, wanton acts)
(e) This warranty may apply to commercial leases as well.
(f) Distinguish:
(i) Quiet enjoyment meant that the landlord couldn’t affirmatively interfere with the tenant, but under
an implied warranty of inhabitability, the landlord must proactively keep the unit in a inhabitable
state.
4) Common Law Landlord’s duties
(a) Originally, the landlord was only liable for negligent breach of a duty (he had to keep up with defects he
knew of)
(b) There was no obligation to keep the place inhabitable except in short term, furnished apartments.
(c) Landlords must upkeep common areas in a rental area.
(d) The landlord must abstain from fraudulent representations of the unit.
(e) The landlord must stop immoral activities (in some jurisdictions)
(f) The landlord must do repairs that he said he would.
(g) Thee landlord was under no liability for patent dangers.
5) Retaliatory Eviction
(a) Generally, a landlord can’t evict someone in retaliation.
(b) This may be furthered by statute that holds a presumption of retaliation if eviction within 3-6 months of
a good faith complaint. (a minority will allow retaliatory eviction with concessions towards finding a
new apartment)
6) Tort Liability
(a) Tort liability may accrue against a landlord under either a negligence cause of action or a general
implied warranty of inhabitability.
[Puppy Helmet] [Property I Outline] [Professor Ortiz] [Spring 2008] 25
 7) Tenant’s Duties
(a) The tenant can’t commit affirmative or permissive waste.
(b) Pay rent (traditionally you still have to pay rent if the building burns down if you were renting a piece of
land as opposed to a apartment unit (with no land attached)).
(c) Repairs – a tenant may be obligated to make some minor repairs, but not much (more common in a
commercial lease).
(d) The tenant can’t make such vital changes as to affect the appearance, purpose, etc of the unit.

[Puppy Helmet] [Property I Outline] [Professor Ortiz] [Spring 2008] 26