Property 彩蛋题：

Edited by Eden Zhang

1.Which university below will you most probably meet a wild pig?
The university of HongKong

2.Which one of the following is not the reason why we should not frighten away the
wild ducks?
A.salted duck eggs are delicious
B.Beijing duck is delicious
C. The society is better when we have ducks to eat

D. All of the above🙋🙋

3.Which one is the following can be Jersey fruit?

A.Tomato(symbol of quality) B. cranberries C peaches D blueberries( as big as a fist
from a 见面礼 during his intern for the congressman) E. All of above🙋🙋

4.What is the nickname of New jersey?

Garden state!

5.Where did i get married?

Hong Kong

6.What happen to the guy who called me at 5am in the morning ?

He got fired!

7. Basically what we’ve learned is the English land law with American characteristics,
kind of like socialism with Chinese characteristics

8.Which sport Norman likes most?

None! ( dislike soccer most)

9.Norman’s recommended which movie in class?

The Firm (Tom Cruise)

10. The characteristics of the Garfield

Fat , funny, a cat of a flower shop (Norman played with her when he got off work at
11:00 pm

11. Some of Norman’s favorite Chinese TV shows

我的博士老公 梁鸿名留校送礼
acceptance： generally acceptance
 Deliver: manual delivery
Intent to donate: 梁 has the intend to stay in the school but with the
consideration( did not intend whole ownership
要过好日子
常梅：大女儿 老公-梁守业
常兰：三女儿 老公-陈宇飞
常江：小儿子 老父留了一半钱给妻子拿给小儿子买房
He also take note while watching and learn Chinese from these shows (看过 13
次？
( Also think about legal questions)

12.Why is the wedding ring on the ring finger?

close to heart ( the right order : engagement ring outside and the weeding ring
inside)
Engagement ring: fancy, show off，big diamond
Wedding ring: always wear; change of rings in weddings (bridesmaid & the bast
man will bring the wedding ring )

13. Norman’s advice on domestic violence:

It is just the first of millions.

14.Norman 小时候在新泽西州在台湾商店买猪排，在香港商店买烧腊，在中国商
店买酱料（大陆商店最大，香港商店最小）

15. New England clan chowder is cream based, while Manhattan’s is based on Potato,

16. Seattle is famous for its coffee culture, New Jersey is famous for its shores.

17.Gambling is legal in NJ , it used be a low-tax state, so popular for company to

incorporate(eg.强生 JNJ(Johnson & Johnson), now the most famous state is Delaware
& Nevada

18. Nj’s immigrate history: many educated Chinese and Indian scientist .( 顺序：
Taiwan (first wave)—mainland,HK(second wave)

19.Missouri: famous for ribs, ravioli 意大利饺子🥟🥟, cake and Mark Twain
(Ribs in St.Louis 最大城市 Wet:sweeeeeeet ribs. Dry: with salt and garlic ）

20.Finders,keepers,losers,weepers.———not true

21.Neil Armstrong :
Recent news: he punched a guy (Conspiracy: someone who believe the moon is
all fake)
22. Sauerkraut balls
Missed Chinese food, the normal supermarket: no rice, only sushi rice 酸菜猪肚
(use sauerkraut tastes even better!)

23. It is best to say ID No./ Passport No./Birthdate———make it correct

陈民： Chen min for Pinyin; Chan Man for Cantonese

24.Happy hours: usually about 5-7pm, drinking event.

Promotion, drinks discounted and complimentary food ( chicken wings , mini- burgers)

25.Boys and girls? No! You are men and women!

New jersey(Norman's hometown). Northeast of US, near to NY

• Nickname: the garden state
• Cranberry blueberry tomato peach
• The other important aspect: science about agriculture
• popular place for cooperation
• Transportation: NY and DC
• Higher education
Massachusetts: New England clan chowder is cream based, while Manhattan’s is
potato based. - traditional barber shop • For men only • Hong kong, mandarin orient
hotel 东华酒店
- Iowa: High in living qualities. Corn. - Bearer security: avoid tax - Register security

barber shop:
social function: men get their haircut and chat and gossip. this authentic style barber
shop no longer exist in england.
in HK cube house (barber shop) 10minutes for each person. in salon 90 minutes, prof.
does not like head message when washing heads.
婚戒文化传统
man propose to woman and offer a gift-engagement ring. usually manual delivery.
acceptance valuable /put on the ring on finger
engagement: ring fancy, big diamond, women wear
wedding bend(ring): men and women both wear
need to have both two types of rings ready
have somebody licensed to carry the weddings. exchange wedding rings. priest ask do
u have ring prepared? 伴郎伴娘送上戒指
most american people wear wedding bend on their left hand 4th finger
女性怎么戴两个戒指？women wear wedding ring inside ---traditional reason: closer
to heart 脱下订婚戒指或直接两个一起戴
most women don't wear engagement ring all the time.
33 % of american 觉得女人求婚没问题
80%美国男人乐意接受女人求婚 court believe majority proposal are given by men.
1: descriptive and normative theories of property
2019年8月16日 下午 01:53

Question
A. Descriptive question: Describe something, what something is
B. Normative question: you ought to do something, what ought something be like

What is property? (Descriptive question)

1. Definition
A. Layman, non-lawyer: focus on thing/object itself(specific way).
B. Lawyer, judge, law professor:
a) the bundle/collection/group of rights (sticks) among people concerning
things and relational analysis.
b) Important theme in Property law: generally, people cannot use their property
in such a way that will injure others
c) Focusing on relationship that we have with objects/things
d) It is about the relationships you have, the government has, with respect to
the thing, it is not about the thing itself, it is just about relationship; rights
and duties you have to things
e) “A law of relationships, rights and duties that people have with respect to
certain things”
2. Different types of right
A. The right to transfer: transaction; donation
a) Limits on type of transfer: cannot sell kidneys
b) Limits on recipient of transfer: a salesperson cannot sell alcohol to teenagers
c) Limits on object of transfer: cannot sell guns in China
d) Limits on time of transfer: when going to the bank to take a loan, the bank
will look your credit and require collateral 担保物 (shares, stocks, house).
During the period of loan, you cannot transfer the house, but after you pay
off you loan, you can transfer the house at your own discretion.
B. The right to exclude
i. Limits(now): in most countries, airplanes are property to airlines, they
cannot exclude black people from taking their planes, because that is a
discrimination.
C. The right to use/possess
i. Limits: in modern society today, there are some legal limits to use your
property: You have a car, but you cannot drive it when you are drunk
ii. What's more, having the authority or right to use or control the use of
something does not necessarily establish property rights. I have right to use
books in school library, but I don't own those books
D. The right to destroy
E. Note: Maybe an owner of a property does not have all those rights at the same
time.
i. You have the rights to transfer, but you have no rights to use.
3. Types of property in common law
A. Public property -- Private property
i. Public property
ii. Private property: the property that owns by private person
B. Real property -- Personal property
 B. Real property -- Personal property
i. Real property: land, and things about land: house, trees, soil…
1) Property about land is the most important one: Much of the Anglo-
American common law property rules derived from historical rules
regarding real property, primarily agrarian (农业的) land.
ii. Personal property (things other than land) :
1) tangible personal property (chattel): something that can be touched
2) intangible personal property (trademark, IP, copyright, patent, stock..) :
something that cannot be touched or physically seen
4. Possession vs. Ownership
A. Possession: (control or dominion to an object)
i. Possession is 90% of the law.
ii. In US property law, when we are not sure who own something, it is better to
seek who possess this, who actually uses it.
iii. But sometimes possession does not 100% mean ownership (like dorm in
PKU where we live)
B. Ownership: have title of sth that is be recognized by government

Why should a legal system protect private property? (normative question)

○ Almost countries in this world, their legal systems now protect private property.
○ We have powers to ask the government to protect our private property.
○ Alternative to a private law system: Collective property law system (fair or unfair)
○ Justification/reasoning for protecting pp(property)
○ Why exploring reasons for justifying private property?
A. The concept of private property is immoral, why do we say that?
a) These sources in the world are limited, and most of they are no longer
renewable. If we design this system, or we protect private property, which
would result all resources are controlled by one person.
b) We are spending government resources (valuable resources) to protect one
person against everyone else in the world. If we have legal system which
says “yes”, the police/the courts to protect unworthy thing (e.g. one laptop),
which is not justified (from the perspective of the government, but from the
public’s view, it is justified).
B. What alternatives to a private property law system
a) (There is no property system at all.) (think about the labor in North Korea.)
b) everyone collects it, which means resources owned by the state/by people in
common, and usually some central government in urgency, which is in
charge distributing resources to people.
1. Utilitarianism theory: Maximize the aggregate (总计) welfare or
satisfaction/utility：
A. Anglo-American property law is strongly influenced by utilitarianism. For
example, Anglo-American property law doctrine generally rewards productive
use of land.
B. Law analysis: Maximization of social happiness (focus on the whole society)
a) To protect the private property, you will feel security.
b) Resources are scarce 缺乏的
c) Produce things. feel secure, nobody can take it away from you, your rights
are protected by the government. Then everyone wants to produce more,
then aggregate utility increases.
 then aggregate utility increases.
C. Economic analysis: avoidance of the tragedy of commons
a) People take too much out (more than what they need) from the commons,
then the common remorselessly generates tragedy. Take too much out of the
common: public park
b) Put too much in the common: pollution
D. Limitations to this theory: focus more on aggregate happiness rather than private
property:
a) e.g. take a rich guy's money and send it to ten poor men. Then one rich guy
is not happy, but the ten poor men are happy. This act can maximize the
aggregate happiness of the whole society, but it does not protect private
property
E. Legal institutions should be principally concerned with establishing and enforcing
property rights and fostering the voluntary exchange of goods and services
through contract.
2. Locke's/Lockean Labour theory：
He is using property as a tool to defend his limited property. (step by step to gain the
ownership to the thing)
A. Natural Law: God create others, humans have the right and the duty to preserve
our life. So humans have the right to survive.
B. At the beginning, every person has property in his or her own body, therefore we
own our hands and our labor. The labor of his body is properly/unquestionably
the property of the laborer
C. Labor + Objects ＝ personal property. Once the laborer removes out of the
state that Nature has provided and left it in, he has mixed his labor with it and
joined to it something that is his own, and thereby makes it his own property and
excludes the common right of other men.
D. Property is acquired through investment of labor and effort. Labor put a
distinction between one’s property and common.
E. This theory focus on individual, focus on first acquisition, but not talk about
secondary acquisition(e.g. Inherit something).
F. This theory now is used most in intellectual property
G. Limits to labor theory:
i. A person must leave as much as another can make use of does as good as
take nothing at all.
ii. Spoilage condition
1) a person shall avoid spoil of resources, so you cannot take too much. a
person may not claim ownership of so many natural resources that
some of them spoil before he is able to use them
2) As much as any one can make use of to any advantage of life before it
spoils; so much he may by his labour fix a Property in. Whatever is
beyond this, is more than his share, and belongs to others. Nothing was
made by God for Man to spoil or destroy.
H. Hypo:
a) if I see there is a land and this land is unknown, so for Locke, how could
make that become my own? - To plant it/cultivate it.
b) There are a lot of apple trees, and you can pick up apples to return your
home, can you take as many as you can?
1) Locke said no, there are some limitations, you have to make sure there
are good left to others.
 are good left to others.
c) A person builds a beautiful barn on the land and a beautiful farm, I plant one
road. So we can own them at the same time?
1) That person puts more labor (building a barn will take more time and it
is a harder work than building the roads). Locke did not say it, so it is
difficult for us to distinguish it.
d) There is a land and I want to make it my own, but I do not want to farm it,
but I still want to preserve it, how can I protect it?
1) Walking around/watching the land is a labor.
I. Questions: 打印材料后面跟了六个问题
3. Personhood theory: Intuitive 凭直觉的
A. Some objects are closely bound up with personhood because they are part of the
way we constitute ourselves as continuing personal entities in the world. Personal
dignity. (that thing can help you to develop yourself)
B. If such kind of object was lost, the possessor’s pain could not be relieved by the
object’s replacement.
C. To achieve proper self-development (to be a person), an individual needs some
control over resources in the external environment.
D. Hegel’s philosophy of Right
a) In Hegel’s conception, a person is merely an abstract unit of free will or
autonomy.
b) A person becomes a real self only by engaging in a property relationship
with something external. Such a relationship is the goal of the person.
c) Hegel: everybody has freedom to develop yourself.
d) A thing has no substantive end, but the person is entitled to place his or her
will on the thing. Thus the thing takes on the person’s will. That constitutes
mankind’s absolute right of appropriation over all things.
e) Property is the first embodiment of freedom and so is in itself a substantive
end. Person’s will is embodied in things. Ownership requires continuous
embodiment of the will.
f) Property is held by the unit to which one attributes autonomy.
E. Margaret Radin: Intuitive: an intuitive idea is based on a feeling rather than on
knowledge or facts.
F. Personal property & fungible property
a) Personal property: (irreplaceable)
b) Fungible property(replaceable): An object that is perfectly replaceable with
other goods of equal market value. So personal property should be more
protected.
c) Object-loss vs. Wealth-loss
d) All discrete units one owns and perceives as part of her continuing
environment are to some degree personal. Discrete 分离的 units are more
important than total assets.
G. Limitations
a) The interest of one person/one person’s freedom controls others in the whole
society.
1) The government take your home to build a hospital. Your home is a
personal property, so the hospital cannot be built, if the law protected
your rights, the whole society is affected?
b) It is very hard to draw a line between fungible property and personal
property.
 property.
H. Hypo:
a) rental control policy-make constraint on price-personal property.
b) For the landowner, the house is just about money. But for the tenant, the
house is home
4. Democracy / Civic republicanism theory and Limited government theory:
A. The idea of property should be defended, because private property helps promote
democracy and freedom in the society.
B. Personal security and personal independence from the government are guaranteed
in a system in which rights of ownership are protected through public institutions
a) If people have their own private property, people will live more self-
sufficient and independently without the interference of government.
C. With private property, the citizens come to the state as rightsholders instead of
supplicants or beggars
a) Personal property is good because it guarantees good citizen: If you have
property in a country, and your right on that property is protected by the
government, then in order to sustain such right and security from the
country, you will be a good citizen.
D. 这一部分结合课本来看
5. Protect first possession
A. First come, first serve: being there first somehow justifies ownership rights
B. The first possession approach offers a practical explanation for how unowned
things become property.
C. In a setting where resources were plentiful, but people were few, the first-in-time
approach describes how unowned things came to be owned. This first-in-time
concept has less relevance today because almost every tangible thing is already
owned by someone.
D. The first-in-time approach describes how property rights arose, but not why it
makes sense for society to recognize those rights.

Rawlsian "ideal contractarian": Theoretical questions regarding distribution of

property (resources)
1. John Rawls: "ideal contractarian" theory of distributive shares, he did not concern
about the justification of private property.
2. Veil of ignorance (we should mention people behind the veil of ignorance (you do not
know anything about your future, smarter you will be, richer you will be in the society,
you are completely ignorant)), how the most rational people choose the way to allocate
the resource. The resource should be allocated in the most benefiting the society way.
3. The resources and opportunities a person should have available should not depend
primarily on how fortunate he or she was in the natural lottery of talents and parents, or
in what group that person happens to be born.
4. People would agree that the distribution of "primary goods" (not only wealth, income,
and opportunities for work or leisure, but also "bases of respect") is to the maximal
advantage of a representative member of the least advantaged social class.
5. Origin of inequality: acquisition sedentary life
6. 无知之幕 (veil of ignorance) 和原初状态是约翰·夏仙义提出的概念，之后约翰·罗尔斯在
《正义论》中使用。 是一种对特定道德问题判断的方法，过程是做以下思想实验：设想在“原
初状态”下的一方，他们对自己所拥有的技能、品味、和地位于当社会的情况一概不知。而于
此状况下让他们对权力、地位、和社会资源通过一定的原则分配予诸人。比如说，一个假定的
奴隶制社会当中有50%的奴隶，于是做“无知之幕”思想实验的人们将会基于“进入这个社会
 奴隶制社会当中有50%的奴隶，于是做“无知之幕”思想实验的人们将会基于“进入这个社会
的50%的人将会是奴隶”来做出选择，而不会只去认为自己是自由民。正如罗尔斯写道「…这
一点保证了任何人都不会在选择原则时由于天然机会的结果或社会环境中的偶然事件而有利或
不利。」这个概念是为了在分配社会合作的原则正义与否时抹除一己之私，或是自我阶层的私
利而创造的。
7. 例如，在一个想像中的社会里，一个人知道自己是否聪明、富有或者出生在优等阶级。但一旦
被无知之幕挡住，这个人可能会出生在社会中的任意位置，这驱使人从社会最不幸的人的角度
来考虑问题和设计社会制度。
2: First Possession: Acquisition of property by discovery
2019年8月16日 下午 02:11

Johnson v. M'Intosh
1. Purpose of reading Johnson v. M'Intosh
(1) Foundational case in US property law; allows us to focus on the right of transfer in
the bundles of sticks
(2) Stands for the proposition in US property law that the US government is the
ultimate source of land title (while the title can be transferred completely to a third
party)
(3) It's a controversial case.
2. Note
(1) Discovery is a way to acquire property like unknown things, such as land.
(2) Chain of title
i. In US, if you purchase a land, frequently the US government will offer you
access to the chain of title to this land.
ii. A chain of title is the sequence of historical transfers of title to a property. The
"chain" runs from the present owner back to the original owner of the
property.
(3) An action of ejectment. 收回不动产的诉讼;
(4) “quiet title” :
i. An action to quiet title is a lawsuit brought in a court having jurisdiction over
property disputes, in order to establish a party's title to real property, or
personal property having a title, of against anyone and everyone, and thus
"quiet" any challenges or claims to the title.
3. Facts
(1) Plaintiff: Johnson; Defendant: M’Intosh；
(2) Johnson purchases two large pieces of land under conveyance from Indian tribes in
1773 and 1775. The land was in what would become Illinois, but at the time was not
part of the US. After the independent war, the Britain relinquished all claim to the
“propriety and territorial rights of the United States” and passed the right and
authority to the United States. Later, after the US 'acquired' Illinois, the defendant
M'Intosh obtained a deed for a land from the US Federal government.
(3) These two lands overlapped with each other. Johnson’s heirs tried to get M'Intosh
kicked off of their land (aka brought an action for ejectment).
(4) Technically speaking, Johnson is first in time in this land; M’Intosh subsequent
obtained the land.
4. History Procedure
(1) The Trial Court found for M'Intosh. Johnson's heir appealed.
i. The Trial Court found that (from a legal standpoint) the Indian tribe never
actually owned the land, so there was no way they could have sold it to
Johnson.
(2) The US Supreme Court affirmed.
5. Issue
(1) Do the Indian tribes have the power of conveying absolute title (exclusive title to
land) of their land to others?
6. Holding and Reasoning
(1) No
 (1) No
(2) Discovery/Conquer principle: “Discovery gave an exclusive right to extinguish the
Indian title of occupancy, either by purchase or by conquest.”
i. A European power gains radical title (also known as sovereignty) to the land it
discovers. This concept goes way back to Roman Law which essentially said
"to the victor goes the spoils" 战利品.
ii. As a corollary 推论, the discovering power gains the exclusive right to
extinguish the "right of occupancy" of the indigenous 土生土长的 occupants,
which otherwise survived the assumption of sovereignty.
a) Her Majesty initially have full title of such land(England discover); then title
are transferred to colonies of North America; after declaration of
Independence(1776,07,04) and revolutionary war, treaty of Paris was signed,
UK recognized USA as an independent country, and all land claimed by UK
through discovery was passed to USA government.
(3) The legal result is that the only Native American conveyances of land which
can create valid title are sales of land to the federal government
(1) Marshall opined that when they declared independence from Great Britain, the
United States government inherited the British right of preemption 先占 over
Native American lands.
(4) Native American own possession, not ownership
(1) Native Americans on those lands, retained the right of occupancy/possession
(like tenants in an apartment building), but are not the "owners" of the land.
(2) They don’t have the right to transfer.
(3) A right to exclude (grated from the 1763 proclamation: royal decree 法令 that
prohibited North American colonists from establishing settlements west of the
Proclamation line)
(4) The Native Americans are limited in their ability to sell their occupancy rights
(aka a restriction on alienability). So tribes could sell their limited rights of
occupancy only to the discovering European nation. They can't sell it to private
individuals.
7. Utilitarianism and Labor theory in reasoning
(1) Utilitarianism
a) Promote using of land
a) their lifestyle and personality (fierce savages, gain food from forest) are
quite different from white Europeans (agriculture, cultivate, e.x. Johnson
v. M'Intosh, P9). "To leave them in possession of their country, was to
leave the country a wilderness". Not productive use of land. Europeans
can maximize the utility on this land.
b) Without accepting discovery rule US government cannot function
a) The whole US property-system\ government\society is based on such
principle that American government owes the title of land, so it’s not so
wise to change it in order not to cause a chaos.(perspective of
utilitarianism)
b) If we recognize that native Americans own the title of land, there will be
chaos. the Federal government cannot effectively govern.
c) If Supreme court's opinion is not accepted by government and society,
Supreme court will lose its authority. Then Supreme court was quite
young, it just did not have such authority enough to force (or convince)
people follow its opinion, which is not welcomed
d) The supreme court need to respect the Virginia government
 d) The supreme court need to respect the Virginia government
(2) Labor theory
i. labour of native American is not sufficient enough to make land theirs
ii. Native Americans did not mix their labor to improve the land
8. Legal Positivism in Marshall’s opinion (vs. natural law rights)
(1) The nature law is of no importance but the US law matters
(2) Human law is superior to nature law even if it goes against nature ones
(3) Property exists only to the extent that it is recognized by the government.
(4) Marshall rejected natural law at first in his reasoning, and rather he is going to be
focusing on legal positivism, he is going to decide this case based on American law,
the principle of that law is not natural law.
i. “As the right of society, to prescribe 制定 those rules by which property may
be acquired and preserved is not, and cannot be drawn into question; as the
title to lands, especially, is and must be admitted to depend entirely on the law
of the nation in which they lie; it will be necessary, in pursuing this inquiry, to
examine, not singly those principles of abstract justice, which the Creator
of all things has impressed on the mind of his creature man, and which are
admitted to regulate, in a great degree, the rights of civilized nations, whose
perfect independence is acknowledged; but those principles also which our
own government has adopted in the particular case, and given us as the rule
for our decision.”
ii. Marshall wrote this paragraph because he is feeling bad for kicking out native
Americans from the ownership of the land.
1. What is law? Generally, two scopes of law, legal positivism and natural law.
2. Legal positivism:
A. Social fact——how the law came into being? If something has been
positively passed by legislature, government or authority, that thing
becomes law. That thing does not to be morally good to constitute law.
B. what is the source of that law?
3. Natural law:
A. Seeking resort to moral standards and guiding principles to see whether
something qualifies as laws. Only good laws are laws.
B. Those laws passed by the authority but going against natural standards or
fairness do not deserve to be called as laws. 恶法非法
C. Universal, unchanging, higher law, it is discovered by human race
D. e.g. some people disagree with gay marriage, one frequent argument from
them is it goes against natural law (disobey the principle “marriage should
be the combination between man and woman, and heterosexual marriage
can produce and they can have children, but same-sex marriage goes against
it.
9. 90% of property is determined by possession, while the remaining 10% is determined by
context (race/social/history/etc.), power (e.g. the power to give definition to 'possession'),
etc..
(1) Johnson v. M'Intosh is among the remaining 10%
(2) The concept of possession is always effected by power, economic, politic….
10. Significance of Johnson: occupancy theory and the principle of first-in-time——what are
the pros and cons of first-in-time as a standard for determining/allocating property rights?
a) Land ownership comes from the US government.
b) Pros: clear, simple, easy to understand
c) Cons: not entirely fair, injustice. (people who are first may be rich and enjoy more
 c) Cons: not entirely fair, injustice. (people who are first may be rich and enjoy more
resources
11. Further discussion, analysis and Hypos
(1) Suppose the US government invades and conquers Mars (ignore any treaties that
would disallow this). The US government discovers Martians roving all over the
planet like nomads. The US government also sets up a court system on Mars and
grants tracts of land to various US citizens. The Martians sue in the US District
Court for the Special Administrative Region of Mars to eject the US citizens. How
would the court rule under Johnson v. M'Intosh?
i. The judgment would be rendered for US citizens. Under Johnson v. M’intosh,
discovery or conquer of an unknown land vests right of ownership into
discoverers or conquerors. And NA only have right of occupancy but do not
have right to transfer.
ii. In this case, the US government invades and conquers Mars. Similarly, the
conqueror, US government have right of ownership. Since US citizens got
grants of the Martian land, they obtained ownership of the land.
(2) Suppose that you are attorney for the state of Delaware. You learn that a Native
American tribe sold and conveyed over 50,000 acres of tribal land to the state in
1805. Citing Johnson, the tribe now argues that the transaction was invalid and sues
to obtain title. How would you advise your client?
i. Native Americans do not have right to transfer. So the transaction was invalid.
The ownership of the land lies in US government.
3: First possession: acquisition by capture. Reading on Twen
2019年8月17日 上午 09:51

Pierson v. Post (1805)

1. It is a case of first-impression
A) In case of first impression, judges have more latitude or freedom to consider non-
law resources to reach decisions. In this case, the judge Thompson had recourse
to such as treaties, secondary authorities, well-known thinker s or scholars.
2. Facts
A) P(Post) was hunting a fox on wild, uninhabited land. He and his dogs were
hunting and pursuing the fox. Knowing that the fox was being hunted by P and
within his view, D (Pierson) killed the fox and carried it off.
3. Procedural posture
The lower courts decided for Post. Pierson sued out a certiorari.
4. Issue
A) Who has ownership of the fox? →
B) How you get ownership? →
C) Both parties agree that occupancy/possession constitutes ownership, so the
discussion has been narrowed to the simple question of what acts
constitute/amount to occupancy?
i. “It is admitted that a fox is an animal ferae naturae, and that property in
such animals is acquired by occupancy only.”
5. Rule
The mortal wounding of an animal or the trapping or intercepting 拦截 of wild
animals so as to deprive them of their natural liberty will constitute occupancy
A) The core test is whether natural liberty exists or not
B) This rule is applied only to wild animals
C) Raising domestic animal takes huge labor so domestic animals do not fall in
"capture" regime even if domestic animals run away.
D) A animal which will not return to a certain place is a wild one (if not, then the
animal is domestic
6. Majority opinions: case reversed. Pierson should have the fox
A) One authority holds that actual bodily seizure is not necessary to constitute
possession of wild animals. The mortal wounding of an animal or the trapping or
intercepting 拦截 of animals so as to deprive them of their natural liberty will
constitute occupancy.
B) Majority opinions: Simply pursuing does not constitute possession of wild
animals.
i. Post only shows pursuit but Pierson kills the fox. Mere pursuit is not
enough. Hence there was no occupancy or legal right vested in Post and the
fox became Pierson's property when he killed and carried it off.
C) “We are the more readily inclined to confine possession or occupancy of beasts
ferae naturae, within the limits prescribed by the learned authors above cited, for
the sake of certainty, and preserving peace and order in society. If the first
seeing, starting, or pursuing such animals, without having so wounded,
circumvented or ensnared 诱入陷阱 them, so as to deprive them of their natural
liberty, and subject them to the control of their pursuer, should afford the basis of
actions against others for intercepting and killing them, it would prove a fertile
source of quarrels and litigation.”
 source of quarrels and litigation.”
D) How does the majority justify their opinions?
i. Thinkers: all of them agree that pursuit alone vests no property or right in
the huntsman. The most important thing to remember regarding possession
of wild animals is that the law requires capture rather than pursuit.
ii. For the sake of certainty: if we say that mere pursuit is qualified to
constitute occupancy, it is not clear, it would be pretty difficult to determine
who is the actual occupant or how much amounts to having a reasonable
prospect of taking. Hard to ascertain reasonable prospect. It is quite
uncertain.
1) 对比 dissent opinion中的reasonable pursuit
iii. Preserve peace and order in society
iv. Diminish quarrels and litigation
1) Why would a clear rule reduce quarrels?
a) Clear rule: specific behavior is required.
b) Clear rule→no need to argue→no need to go to court(utilitarian)
7. Dissents: affirmed
A) Rule:
“property in animals farae naturae may be acquired without bodily touch or
manucaption, provided the pursuer be within reach, or have a reasonable
prospect of taking, what he has thus discovered with an intention of converting
to his own use.”
B) Custom/usage
i. The judge thinks it is inappropriate to submit the case to court. It is much
better to submit the case to the arbitration of sportsmen (hunters).
ii. Livingston used lots of Latin to make fun of the majority. It is argued that
hunters have their own way to do things and they have their own rules.
(develop social rules for hunting, they all know what rules should to apply.)
iii. “they would have had no difficulty in coming to a prompt and correct
conclusion”. “But the parties have referred the question to our judgment,
and we must dispose of it as well as we can.”
C) Promoting social good, encouraging hunting foxes.
i. A fox is a wild and noxious beast, and foxes are enemies of mankind. But if
we follow the Majority’s logic, a hunter has invested his labor into chasing
the fox, but another hunter, in sight of the pursuit, by chance killed the fox
and obtained the ownership of the fox. Under such circumstances, no
hunters would be willing to hunt foxes anymore.
D) Times change, law has to change too.
8. The similarities between the majority and dissent opinions.
A) The basic logic underlying both reasoning is utilitarianism. Both are
considering which rule will lead to more utility and social happiness. (the
influence of the whole society)
B) In terms of Tompkins, he put emphasis on certainty and social peace.
C) With regard to Livingston, he focuses on promoting activities to enhance social
goodness.
9. How to defend for Post? And for Pierson?
A) Post: according to Locke’s theory
a) the fox is unknown.
b) he is chasing the fox, with his hunts.
c) he purchased his dogs and trained them
 c) he purchased his dogs and trained them
d) the fox is very small creature and it cannot be easy to see, he made an great
effort to seek it.
B) Pierson:
a) he had killed and wounded the fox
b) he had carried fox to home(参考捡Apple)
c) he deprived the natural liberty of fox (the most important)
10. The virtues of certainty in property law
How did the majority opinion advance the goal of certainty? What are the advantages
and disadvantages of certainty in property law?
A) In human social life, we consider factors including facts and variables. Reduce
the variables I have to consider. For example, when you cross the road, what you
have to pay attention to is nothing but traffic lights, you don’t have to consider
the speed of the cars, the amount of vehicles and other variables. Considering the
dissent’s rule of reasonable prospect, if I’m a hunter, this rule does not help me
much because I have more variables. In contrast, the majority can advance the
goal of certainty because it reduces variables. What a hunter has to consider are
mortally wounding, trapping, intercepting and depriving the animal of liberty.
Basically five points.
B) Advantages of certainty:
i. One can anticipate the results of his or her actions. Certainty enables a
person to change their behaviors to follow the law. Since rules are clear, we
can predict what will happen if we do not follow the rules and thus we can
change our behaviors. Certainty makes us manage our behaviors and affairs
in a certain way.
ii. Government use law to regulate people's behaviors. Certainty makes
government's regulation more easily(, because people are more likely to
follow law)
iii. If laws are certainty, there will be no controversies between the parties,
then people don’t have to submit the case to court and there will be no
lawsuits. It can reduce the number of litigation. So social harmony and
peace can be promoted. 往往最终走上法庭的案子都是在法律的不清晰、不
明确之处。联系CP课上讲的case的选择效应
iv. Judges’ jobs can be easier. Legal system can be more efficient. The
chances that the court reaches a right decision will be higher. Judges will
rule more correctly. Public are more likely to trust legal system.
v. Economic reasons. If you know certain rules protect your interest in one
field than other fields, you will invest your capital in the latter, then the
economic gains can be maximized.
C) Disadvantages of certainty:
i. Inflexibility. Human beings are complicated people, like feelings,
emotions, equity, justices. Life is complicated and real social life needs
exceptions.
1) e.g. in criminal law, there are a lot of ''reasonable..''
ii. Certainty of law will leave judges pretty little space for interpreting laws.
Offering judges some discretion can correct some injustices, such as with
regard to interpretation of reasonableness, equity, negligence. Judges shall
not be considered as pure robots. Inflexibility may give rise to unfairness
and injustices. Accommodate situations. Sometimes, being unclear,
ambiguity has certain benefits.
 ambiguity has certain benefits.
11. Legal terms in Pierson
A) Ferae naturae
i. a wild nature. Animal ferae naturae are not subject of absolute ownership. A
qualified property in such animals might be acquired by taking or taming
them or while they are on one's estate. If such animal is either killed or
caught in a trap so that the capture is certain, the individual who traps or
mortally wounds it acquires a vested right to possession. The owner of land
has a qualified property in animals ferae naturae when, in consequence of
their inability and youth, they cannot go away. In common law, the owner
of an animal ferae naturae is strictly liable for damages caused by the
animal.
B) Ratione soli
i. Ratione soli or rationae soli is a Latin phrase meaning "according to the
soil" or "by reason of the ownership of the soil."[1] In property law, it is a
justification for assigning property rights to landowners over resources
found on their own land.[2] Traditionally, the doctrine of ratione soli
provides landowners "constructive possession of natural resources on, over,
and under the surface: cujus est solum, ejus est usque ad coelum ad
infernos."
C) Defendant in Error:
i. When a party requests review of a lower court decision, that party is
complaining about the errors below, and is called the plaintiff-in-error. The
other party will be the defendant-in-error, because that party is put in the
position of defending the rulings of the court below.
---------------------------------------------------------------
Ghen v. Rich (libel suit) (1881) custom
1. It is a case of custom
A) This case versus actual physical possession of the wild animal in Pierson
2. Facts
A) The Plaintiff, a fisherman, shot a fin-black whale with a bomb-lance (鲸身上的
标记) identifying the whale as his. The whale immediately sank to the bottom of
the ocean, but floated ashore three days later, 17 miles from where it was killed.
Community usage provides that a Finder of the whale notifies the owner and they
come and remove the whale. The owner provides a fee for the finder’s services.
This method is used because a whale swims very fast and cannot be taken by
harpoon and line. The Finder, instead of following custom, advertised and sold
the whale to the Defendant. Neither the Defendant, Rich, nor the Finder (Ellis)
knew Plaintiff had shot the whale, but they should have known because the
whale had been killed with a bomb-lance. Ghen discovered the fate of the whale
and initiated a libel action against Rich to recover the value of the whale.
B) Note: The custom and usage in the whaling industry in Cape Cod had been that
one who kills a whale using a specially marked bomb lance owns the whale. If
such a whale were found on a beach the finder would notify the killer and receive
a finder’s fee.
3. Issue
A) Whether title to a whale is acquired under reasonable local usage when only an
unequivocal 清楚的 mark of appropriation is possible?
B) Can the court look to custom and usage within an industry to determine the rule
 B) Can the court look to custom and usage within an industry to determine the rule
of law regarding the ownership of property?
4. Held
Yes.
5. Rule
A) Title to a wild animal is acquired when a hunter apprehends the beast in
accordance with custom.
6. Reasoning
A) The Plaintiff, by using an identifying bomb-lance, did everything practicable in
order to secure the whale.
B) Custom in this industry
i. The rule that the killer of a whale is the rightful owner has been recognized
and acquiesced in for many years and embraces an entire industry. (Since
this local custom allows the whaling business to remain viable, it should be
enforced)
ii. Since the custom is recognized for many years, the defendant should know
clearly that the whale belongs to someone else.
iii. This custom is of very limited application, and it does not disturb the
general understanding of mankind by the interposition of an arbitrary
exception
iv. Unless it is sustained, the whaling industry must necessarily cease, for no
person would engage in it if the fruits of his labor could be appropriated by
a chance finder.
v. We need to encourage the development of whaling industry(Whaling
business was very important back time then).
7. Which precedent was most important for the court in Ghen v. Rich? According
to this precedent, when should custom apply?
A) The court has recourse to the precedent of Swift v. Gifford.
B) When should custom apply?
a) The custom shall be applied with limited application.
b) The custom has been recognized and acquiesced in for an extended period of
time, and embraces an entire industry.
c) Unless such custom is sustained, the specific industry must necessarily cease.
For no person would engage in it if the fruits of his labor could be
appropriated by any chance finder.
d) does not distribute general or understanding of mankind / Have some
commonsense reasonable basis
C) In Bartlett v. Budd, the learned judge says: “A whale, being farae naturae, does
not become property until a firm possession has been established by the taker.
But when such possession has become firm and complete, the right of property is
clear, and has all the characteristics of property.” This case cited was decided
without reference to usage, upon the ground that the property had been acquired
by the first taker by actual possession and appropriation.
D) In Swift v. Gifford, Judge Lowell also said: “The rule of law invoked in this case
is one of very limited application. The whale fishery is the only branch of
industry of any importance in which it is likely to be much used, and if a usage is
found to prevail generally in that business, it will not be open to the objection
that it is likely to disturb the general understanding of mankind by the
interposition 介入 of an arbitrary 专横的 exception.”
8. What would the result be in Ghen v. Richifwe apply the rule from Pierson v.
 8. What would the result be in Ghen v. Richifwe apply the rule from Pierson v.
Post?
A) The judgment will be the same. Citing Pierson v. Post, mortally wounding,
trapping or intercepting so as to deprive the animal farae naturae of liberty
constitutes occupancy. (Rule: not actual seizure)
B) In light of the facts of this case, Ghen immediately killed the whale, and killing is
more definitive than mortally wounding in terms of depriving the whale of
natural liberty. Since the rule has been satisfied, Ghen has obtained the
occupancy of the whale.
9. Thinking more about the role of custom. Should custom have governed in Ghen
v. Rich? Pierson v. Post?
A) In our society, there are certain specialized industries, like hunting and whaling.
Ordinary laymen do not actually know such industries. But rule or custom cannot
account for every parcel of situation.
B) 上面已经说过，在什么情况下适用custom比较合适
10. Advantages of custom
A) Using custom is more efficient.
B) Since custom is recognized for many years, using custom will gain more public
support
C) Better more some specialized industries
11. Bad impact of the custom?
A) It may promote laziness. Because under such custom, it is pretty easy for whalers
to obtain the occupancy of the whale. Once I shoot it, I can go away and don’t
have to worry about the ownership of the whale.
B) Moreover, it may interfere with the interests of conservations. Because more and
more people will get the whale and it might lead to the extinction of whales.
C) And also people change, the society changes, morals change. So sometimes
customs might outdate and change.
--------------------------------------------------------------------------------------
Keeble v. Hickeringill
○ What about a custom which interferes with (rather than promoting) capture?
○ So, what instrumental end was the court trying to promote? What farther-reaching
goal was it trying to accomplish with its decision?

1. Facts
Keeble (P) placed duck decoys(圈套) and nets in a decoy pond on his land and sold
the captured ducks for profit. Hickeringill (D) fired guns near Keeble’s land merely to
frighten and drive away the ducks, not to capture them for himself. Keeble brought an
action in trespass on the case and was awarded 20 pounds. Hickeringill appealed.
2. Issue
Can a party recover against another for malicious interference with his ability to use
his land for pleasure and profit？
3. Holding and Rule
A) Yes. A party can recover against another for interfering maliciously with his
ability to use his land for pleasure and profit.
B) The lawful owner of any property holds the right to lawfully utilize his/her
property for profit of his/her trade or livelihood without hinderance or
interference from another party.
4. Reasoning
A) Keeble’s use of his property to capture ducks and sell them for profit was lawful.
 A) Keeble’s use of his property to capture ducks and sell them for profit was lawful.
Every man has the right to use his land for his pleasure and profit. An action lies
in all cases where a defendant commits malicious acts interfering with the
profession or livelihood of another.
i. However, if Hickeringill had set up decoys on his own property to capture
them for himself, no action would lie because he has as much liberty in the
use of his land as the plaintiff. (Precedent about the school)
ii. it's fine to make competition, but not about interfering with free trade
B) Even though the Plaintiff did not have title to the ducks, he was using his land in
accordance with the law. Since the Defendant intentionally frightened the ducks
off of the Plaintiff’s property and interfered with the Plaintiff’s lawful use of his
land, the Plaintiff was entitled to damages.
C) Keeble is running a business, which is profitable. It is a trade. Defendant has
interfered with the trade maliciously. It is important to furnish markets with
ducks and promote fair competition.(utilitarian)
D) Notes: This is a property law case, not a torts case. Keeble did not bring this
lawsuit to recover for the value of waterfowl he was unable to capture as a result
of Hickeringill’s actions. The judgment was compensation for Hickeringill’s
interference with the use of his real estate.
5. Discussion
A) Ducks are in plaintiff's land
a) Although the Plaintiff never had actual physical possession of the ducks, the
Plaintiff still had property rights in the ducks because they were on his
property. The Defendant maliciously interfered with the Plaintiff’s
livelihood.
b) Ratione soli or rationae soli is a Latin phrase meaning "according to the
soil" or "by reason of the ownership of the soil." In property law, it is a
justification for assigning property rights to landowners over resources
found on their own land. Traditionally, the doctrine of ratione soli provides
landowners "constructive possession of natural resources on, over, and
under the surface: cujus est solum, ejus est usque ad coelum ad infernos."
c) But the court did not use the Ratione soli argument. Ratione soli argument
have had little, if any, bearing on the final decision in Keeble. The court
focused on the theory of malicious interference with trade.
B) Abuse of right
a) if Hickeringill had set up decoys on his own property to capture them for
himself, no action would lie because he has as much liberty in the use of his
land as the plaintiff. (Precedent about the school)
b) Keeble raise a question: should an otherwise privileged act that causes harm
to another person be legally actionable if the actor's reason for action was to
cause harm?
c) The question involves the doctrine of abuse of right: an owner abuses her
property right when she exercises that right with the subjective intent of
harming someone 见打印材料P32
C) One hypo
a) Plaintiff owns the land where there are a lot of ducks. If even he don’t sell
those ducks for money, as the owner of the land, he still has constructive
possession of those ducks. If the defendant use guns to scare off some
ducks, the plaintiff can sue the defendant?
b) Professor Ho: yes. And I think it will be the same result. But the reasoning
 b) Professor Ho: yes. And I think it will be the same result. But the reasoning
will be Ratione soli.
D) Instrumental use of law
a) To achieve some goal, which is good for society
b) e.g. in Pierson case, one argument of the dissent opinion is to encourage fox
hunting. There, the judge use law as a tool to achieve a certain goal. This is
instrumental use of law.
c) 有一个协会叫做American Legal Realists(没有查到)
1) According to ALR, law is just a tool. Facing a case, justices already
have their own understanding and opinions, then, they use rules,
statutes and precedents to justify themselves, which means law is
subjective.
--------------------------------------------------------------------------------
Practice problems
解释hypo问题的时候，一定要从rule开始
❖ Suppose X is an avid hunter who tracks down a deer on a piece of open hunting land
during the hunting season. The deer is at very close range and just as X is about to
shoot it, another hunter, Y, appears and does so. Who gets the deer? (apply Pierson)
○ Assuming Y shoots the deer and mortally wound it, Y shall get the deer.
○ Under Pierson v. Post, mortally wounding, trapping or intercepting so as to
deprive the animal farae naturae constitute occupancy. In this case, X and Y are
hunting a deer on a piece of open hunting land. Thus, the deer is an animal farae
naturae. X merely pursues the deer, but mere pursuit does not qualify to
constitute occupancy. Assuming Y shoots the deer and mortally wound it, Y
shall get the deer.
❖ Same facts as #1 above, but Y is not a hunter but a fanatical animal lover who at the
last instant frightens the deer away. Does X have any recourse based on Pierson,
Keeble, and/or Ghen?
○ The best case to use here is Keeble (duck case).
○ Pierson (fox) case is irrelevant here because there is no mortal wounding,
trapping, or intercepting in this case.
○ Ghen case is irrelevant because there is no certain custom in this case.
○ Keeble case establishes that one cannot maliciously interfere with another
person’s lawful acquisition of property. In Keeble case, the defendant
intentionally shot away ducks. Similarly, in this case. Y frightens the deer away
which interfere with the hunter’s acts of hunting deer or establishing a trade.
○ However, there still exists some differences between this case and Keeble.
(1) Keeble owned the land, but X is hunting in an open land.
(2) X is an avid hunter. We can assume that he is not hunting for trade, but just
for fun. In Keeble case, the core argument is that one person cannot
maliciously interfere with another person's lawful trade. But in this hypo,
this is no trade.
(3) Time has changed. In Keeble, the court also cares about the duck business,
because we need duck as food, which means there are social benefits in
duck industry. But now Y’s action is for animal protection, it's about
conservation intent, where there are more social benefits than hunting
activity.
(4) The fundamental nature of the disputes are different. In Keeble case, the
defendant maliciously interfere with plaintiff's business, but in the hypo, Y
has no malicious attitude towards X. Y is just trying to save a deer, he don't
 has no malicious attitude towards X. Y is just trying to save a deer, he don't
aim to cause harm to X. (intention/goals of parties)
❖ Post shoots at a deer from a location 200 feet away; the shot grazes the deer's ear and
temporarily stuns it. Pierson immediately snatches 抢夺 the deer and puts it in a large
sack. Post arrives on the scene 1 minute later, while the deer is still stunned. Who gets
the deer? (apply Pierson)
○ Arguing for Post: Citing Pierson v. Post, occupancy will be satisfied through
mortal wounding, trapping or intercepting so as to deprive the animal of natural
liberty. Here, Post shot the deer and temporarily stuns it, although it does not
constitute mortal wounding, but it could be argued as a form of interception or
capture which deprived the deer of its natural liberty because the deer was
stunned and continued to be stunned, which meant the deer could not run around.
If something is stunned, it means that the animal stops there and its liberty has
been deprived.
○ Arguing for Pierson: Citing Pierson v. Post, occupancy will be satisfied through
mortal wounding, trapping or intercepting so as to deprive the animal of natural
liberty. It is true that Post shot the deer but it does not completely deprive the
deer of its natural liberty, since deer was only temporarily stunned. Post’s
behavior does not constitute a deprivation of natural liberty. Pierson’s action
truly deprived the deer of its natural liberty, because Pierson is the person who
captured and intercepted the deer because he puts the deer in a large sack.
○ Note: the answer for this case is not completely 100% certain, we can argue for
both sides. But probably Pierson got a stronger point here.
❖ Motivated by environmental concerns, Post nets a wild rabbit, paints "Property of
Post" on it, and then lets it go. Pierson shoots and kills the rabbit. Who gets the rabbit?
(apply Pierson)
○ Pierson gets the rabbit. The fact that Post lets the wild rabbit go means Post
abandons the property. Then the rabbit becomes a wild, unowned animal again.
○ Then the rule of Pierson applies again. Since Pierson shoots and kills the rabbit,
he deprives the rabbit of its liberty, more than mortally wounds it. So Pierson
gets the rabbit.
❖ Post's pig strays away from its pen onto unowned land. Pierson finds the pig, places a
rope around its neck, and leads it back to his own farm. Twenty days later, Post
discovers the pig on Pierson's farm. Who owns the pig? (apply Pierson)
○ Animus revertendi: a Latin phrase that means "With intention to return".
i. It can refer to an animal that is under the care of another, which
distinguishes it from an animal ferae naturae (wild beast). It is a type of
ownership right recognized by property law. 也就是说，如果动物知道回
家，知道自己有主人，那这就不是 ferae naturae
○ Pierson applies to capture of wild animals. Here, Post’s pig is a domesticated
animal. Pierson v. Post does not govern this case. Domesticated animal belongs
to the person who rear it. So Post owns the pig, because this is a domesticated
pig.
○ If the pig is pregnant, and has a little baby pig in Pierson's house, the baby pig is
still Post's pig.
○ 那这里，Post需不需要支付给Pierson钱，因为这段时间内，Post的猪吃了
Pierson的很多粮食？
▪ Professor Ho: if you are Post, you can give some money to Pierson to show
your gratitude, but you are not legally required to give Pierson money.
 your gratitude, but you are not legally required to give Pierson money.
▪ But if during the twenty days, the pig caused some damage to Pierson's
property, then Post is liable.
○ Why do we have a different rule for animus revertendi?
▪ Because domesticated animals have already been deprived of their natural
liberty.
▪ Social concerns: Because domesticating wild animals is good, because
human beings eat domesticated animals for living. Usually domesticated
animals are allowed to run free on a farm. If we apply Pierson to
domesticated animals, it will be no good for the industry. Farmer will be
compelled to build fences or big walls to prevent others from taking away
their animals. The social reason here is that we want to promote
domestication. We want to make sure that for people who tame animals,
their properties are protected. (utilitarian)
▪ Labor theory: famers already put a lot of labor in rearing the animals.

The first hypo

○ The key fact on Pierson case is that the wild animal was on an unowned land.
○ In property law, Ratione soli is a justification for assigning property rights to
landowners over resources found on their own land. Traditionally, the doctrine of
ratione soli provides landowners "constructive possession of natural resources
on, over, and under the surface: cujus est solum, ejus est usque ad coelum ad
infernos."
○ Constructive possession vs. actual possession.
▪ Constructive possession: Control or dominion over a property without
actual possession or custody of it. — Also termed effective possession.
▪ Actual possession: Physical occupancy or control over property
▪ Constructive possession > actual possession
○ The doctrine of ratione soli is connected with the doctrine of trespass. Trespass is
bad. Trespassing is something we do not want to promote. In order to discourage
trespass and protect one’s private property from trespass, many courts have
adopted the doctrine of ratione soli.
○ O>T>T1
○ T has no right against O based on ratione soli doctrine. O has constructive
possession of the wild animals on his own land.
○ T has a better title of wild animals than T1.
○ T has a better title of wild animals than T1.
○ Note: Under some circumstances, there are certain time limits for you to claim
your property. In most jurisdictions, self-help is not allowed since self-help often
lead to bad consequences. Under utilitarianism, violence shall be avoided. So
bringing a lawsuit to court is more recommended.
○ Self-help: An action undertaken by a person who has suffered injury from
another’s wrong to obtain redress without recourse to a court. O goes to land of T
and take the animal back. This kind of conduct is self-help

○ The second hypo: F wins. Since the deer is domesticated animal.

○

a. Arguing for D: unowned animal. Applying Pierson.

b. Arguing for P: Pierson case cannot be cited here in this case. P takes the foxes
out of their natural habitat. They are not wild to this region. D should have
inferred that it is a pretty unusual animal in this place so it should have belonged
to someone else. As P's lawyer, you could argue that my client already has put a
lot of labor in this fox. It’s more like a domesticated animal.
c. Answer is not clear. The court may think how unusual or special the animal is.
4: First Possession and Property Extended - Property Interests in One's
Persona and the Right of Publicity 15-25
2019年8月20日 下午 07:24

The right of publicity: generally

(1) Publicity rights (i.e. the right of publicity) = rights of individuals to control the
commercial use of their names, images
A. intangible personal property.
(2) Derived from state law (common law or statute), but also note the federal Lanham
Act (15 U.S.C. 1125)
(3) Protect of right of publicity is balance between protecting IP and encouraging
producing new ideas from "origin ideas"(innovation comes from imitation).
"Protection" is important, but not "over protection"
(4) Policy reasons in favor of publicity rights
A. Note: right of publicity protects everyone, not only celebrities.
B. Labor theory
i. Celebrities works hard (labor: act, commercial ads) to create their social
image.
C. Personhood:
i. One's image is a part of oneself.
D. Utilitarian theory:
i. Encourage celebrity continue on his own work and sell it!
ii. These celebrities are socially useful for ordinary humans and the whole
society. Entertainment. Help us distinguish products when going shopping
(if everyone could use celebrities' image, we won't know which product is
good). So protecting publicity rights encourages those people to engage in
socially useful activities.
(5) Policy reasons against publicity rights (or least for limiting absolute publicity rights)
A. Logically, all invention comes from imitation. Nothing is totally new.
B. Overprotection will stifle 扼杀 human creativity. People will be too afraid to use
it.
i. Tragedy of the anti-commons: underused; NOBODY WOULD USE IT.
ii. Eg: copyright. Textbooks are extremely expensive. Nobody is actually
using it.
iii. People cannot enjoy their intellectual life
C. Authors/celebrities/artists need publicity to gain fame and money
i. If publicity rights are overprotected, celebrities will lose a lot of chance to
appear in pubic. Once fewer and fewer people know them, them lose fame
and money.
D. the First Amendment of the U.S. Constitution ("Congress shall make no
law...abridging the freedom of speech, or of the press..."
i. Free speech concern. Free speech is very broad: including writing, drawing.
ii. The test is generally about "whether the defendant created something new".
An artistic transformation is under protection of First Amendment but a
literal depiction is not
iii. Tiger Wood case (ETW case): The court rejected Woods' right of publicity
claim because the painting was an artistic transformation, not a literal
depiction of his image. "we conclude that the effect of limiting the right of
publicity in this case is negligible and significantly outweighed by society's
 publicity in this case is negligible and significantly outweighed by society's
interest in freedom of artistic expression." (ETW Corporation (Plaintiff)
represents Tiger Woods)
iv. Zacchini v. Scripss-Howard Broadcasting Co.:Zacchini won. "Scripss-
Howard's constitutionally privileged free speech did not extend to
broadcasting Zacchini's entire performance without his permission. (p.
24e)
E. Note: indeed, approximately 1/2 of all U.S. states do not recognize the right of
publicity as a property right
(6) What about publicity rights post-mortem P24 Note (d)?
Controversial. Many US states do not protect publicity rights after death. The
reason why we want to protect publicity rights is that we want to encourage labor and
honor personhood. If the person is gone, such aims cannot be achieved so we don't
have to protect publicity rights post-mortem.
(7) Comparative Law: Publicity Rights in the PRC
The Qiaodan Case

White v. Samsung Electronics America, Inc.

Wheel of Fortune Co-Hosts, Vanna White (1957-) and Pat Sajak (1946-)

(1) Purpose of reading the case

A. highlights another method via which property rights can arise ——creation (vs.
Post v. Pierson acquisition)
B. In Pierson, the property rights may arise from first possession or capture…P25.
Note (g)
(2) Facts
Plaintiff, Vanna White, is a popular game hostess of “Wheel of Fortune” and has
gained popularity by marketing her image to various advertisers. White brings suit
against Samsung for an advertisement created by defendants for Samsung VCRs. The
ad depicted a robot, dressed in a wig, gown, and jewelry that resembled White’s hair
and dress. The robot posed next to a game board that closely resembled the Wheel of
Fortune game show set, in a stance that imitates Plaintiff’s signature pose on the game
show. Samsung has acknowledged that the ad is known as the “Vanna White” ad.
White claims infringement of several IP rights, claiming she did not consent to the
ads and was not paid for Defendant’s portrayal.
(3) Procedure
The district court granted summary judgment against White for each of her claims.
White appeals.
(4) Majority’s reasoning and decision (for P)
A. California Civil Code Section 3344
i. Section 3344 states that “any person who knowingly uses another’s name,
voice, signature, photograph, or likeness, in any manner, . . . for purposes
of advertising or selling (purpose restriction), . . . without such person’s
prior consent . . . shall be liable for any damages sustained by the person or
persons injured as a result thereof.”
ii. Midler v. Ford Motor Co. case defines likeness as visual image not a vocal
imitation.
iii. White claims Samsung used her “likeness” in violation of section 3344.
Defendant used a robot with mechanical features and not, for example, a
manikin molded to Plaintiff’s precise features.
 manikin molded to Plaintiff’s precise features.
iv. The 9th Circuit Court agrees with the district court that the robot at issue
was not Plaintiff’s “likeness” within the meaning of section 3344.
B. California Common Law Right of Publicity:
(1) The court says that the district court erred in granting summary judgment to
Samsung on White’s common law right of publicity claim.
(2) The court refers to Eastwood v. Superior Ct, which laid out 4 elements that
may be pleaded for the common law right of publicity claim:
1) defendant’s use of plaintiff’s identity;
2) appropriation of plaintiff’s name or likeness to defendant’s
advantage, commercially or otherwise
a) Note: “or otherwise” here still refers still to commercially
advantages, like selling products
3) lack of consent; and
4) resulting injury
a) Note: The injury can be both emotional or finical
(3) How is common law rule different from Section 3344?
1) The common law right of publicity is broader. It protects
identity.
2) Purpose restriction. Commercial or selling vs. commercially or
otherwise
(4) The district court granted summary judgment to Samsung under the belief
that White would not be able to satisfy the second element, regarding
“likeness.”
(5) However, the common law right of publicity is not so confined.
1) Scholar: Prosser believes that identity is broader than people thinks.
The right of publicity is not limited to the appropriation of name or
likeness – the common law right of publicity is not so confined.
Appropriation of identity is broader than people think. (note: Prosser
talks about right of privacy, but the court talks about right of publicity.
P18)
2) Analysis of Midler case: even though the defendants had not used
Midler’s name or likeness, they had violated Midler’s California
common law right of publicity since using a Midler sound-alike
constitutes appropriation part of her identity for commercial use.
3) Analysis of Carson v. Here’s Jonny Portable Toilets. Inc.: Court says
that if the celebrity’s image is commercially exploited, there is an
invasion to the right of publicity, regardless of whether “name or
likeness is used.” (this case comes from different jurisdiction)
C. RULE:
(1) The right of publicity does not require that appropriations of identity be
accomplished through particular means to be actionable, such as name or
likeness. It is not important how the defendant has appropriated the
plaintiff’s identity, but whether the defendant has done so.
(2) If means of appropriation is deemed as dispositive in the analysis of
publicity right, it equals to weakening or even eviscerating the right. “the
right would fail to protect those plaintiffs most in need of its protection.”
(3) In this case, it is possible that jury could have found that Samsung
appropriated White’s identity through its use of the robot in a blond wig,
 appropriated White’s identity through its use of the robot in a blond wig,
long dress, and noticeable jewelry.
注意多数意见中utilitarianism和labour theory的体现（P19 最后一段）
(5) Dissent - Judge Kozinski:
Dissent judge is a famous liberal judge
A. Overprotecting intellectual property is as harmful as under-protecting it.
(1) Overprotection stifles people’s creativity. The majority’s opinion has
created a new and much broader property right: a celebrity has an exclusive
right to anything that reminds the viewer of his or her identity. After all,
Samsung only used an inanimate object to evoke the celebrity’s image in
the public’s mind. Under the majority’s opinion, one might infringe upon
another person’s publicity right by simply mentioning his or her name.
(2) The majority’s opinion has broken the balance between the interests of the
celebrity and those of the public. Such balance has been more favorable to
the celebrity. Intellectual property rights aren’t free. They are imposed at
the expense of future creators and of the public at large.
B. Under the First Amendment
(1) People are entitled to free speech.
(2) Intellectual property law assures authors the right to their original
expression, but encourages others to build freely on the ideas that underlie
it. It is the means by which intellectual property law advances the progress
of science and art. Samsung’s ad did not simply copy White’s schtick, it
created something new. It is transformation of other’s image.

Hypotheticals
(1) A sells a video football game that features virtual players. The jersey number, height,
weight, hometown, and playing statistics for each virtual player are the same as a
currently-enrolled college player, but the name and the likeness of the actual player
are not used.
A. Arguing for players:
(1) Citing the majority opinion of White case, A’s behavior constitutes the
violation of actual players’ publicity rights. the common law right of
publicity does not require that appropriations of identity be accomplished
through particular means to be actionable, such as name or likeness.
(2) It is not important how the defendant has appropriated the plaintiff’s
identity, but whether the defendant has done so. In this case, even the name
and the likeness of the actual player are not used, the jersey number, height,
weight, hometown, and playing statistics can be linked to the identity of the
virtual player.
B. Arguing for A:
(1) The first Amendment protects people’s free speech right. Based on cases
like Tiger woods, A created a new video football game. Even if the game
may use some identity information of the actual players, it is a
transformation of other’s information.
(2) Considering social concerns, overprotection will stifle human’s creativity.
(3) This case is different from White case: in white case, you can tell directly
the robot is like White, but in my game, even if I use their information, but
I don't use their likeness and name, people will not directly match my game
to those players. Sometimes the team itself is more famous than each
individual player, I don't use the team's name.
 individual player, I don't use the team's name.
C. Note: does A violates the publicity right of individual players or the team as a
whole?

(2) B writes a book about the impact of Martin Luther King, Jr. on the civil rights
movement, which is sold to the public.
◊ Answer: no violation. Reason:
(1) Citing the Eastwood case, it laid out 4 elements that may be pleaded for the
common law right of publicity claim: 1) defendant’s use of plaintiff’s
identity; 2) Appropriation of plaintiff’s name or likeness to defendant’s
advantage, commercially or otherwise; (although the law says about
commercially or otherwise, but in practice, the court focuses on
commercial advantage and selling things, P19 上面); 3) lack of consent;
and 4) resulting injury.
1) (second element) In almost all cases, infringing upon one’s publicity
right requires somebody to appropriate a celebrity’s identity
commercially to sell things. Here, B does not use King’s name to sell
a product. B is using the name to better illustrate history. It is for
education. But if B designs a poster saying “King loves this book, buy
it”, that is another story. Writing a book itself does not qualifies as for
commercial advantage.
2) (fourth element) does this author cause injury to King? To King's
family?
a) if the person bend the truth about King, this may cause injury.
(2) Utilitarian: we will have no book about celebrities
◊ Martin Luther King's lawyer:
▪ Yes, this is violation. Defendant uses my client's name, sells the book for
commercial advantages, and uses my client's fame(because people who like
my client will but this book)
(3) C invents a new dance style which reminds some people of the way Elvis Presley
danced; C is paid to perform the dance on a television show.
A. Answer: no violation of publicity right. Reason:
(1) it is different from White case. Samsung intentionally attempts to use the
robot ad to evoke people of the celebrity. Here, C does not mean to evoke
such things (different goals), C is conducting an artist invention.
(2) Under the First Amendment, C has created something new and conducting
a transformation, so her right of free speech shall be protected. (example:
classic music, some Beethoven’s music evokes you of the Bach’s music
style)
(3) A dance is not a product, the law focused on selling products.
(4) Utilitarian: we will not have artistic invention.

When you do hypo, you need to try to apply/distinguish the precedents.

5: The Right to Exclude 48-50；58-67
2019年8月24日 下午 07:16

Introduction
1. We've already briefly discussed the right to exclude (or seen its operation) in other
contexts. White, Johnson, how did the right to exclude operate in those cases?
(1) White is entitled to publicity right, so White could exclude others from appropriating
her identity
(2) In Johnson case, M'Intosh has title to the land based on the patent of the US
government, so he can exclude Johnson from interfering with his right of possession
and ownership.
2. One opinion: the right of exclude is all of property law because it contains all other rights
3. Traditionally, under Anglo-American common law, the right to exclude on owned land
was viewed in an absolutist way (e.g., reading on Blackstone on p. 49)
(1) Blackstone: the right of property is "that sole and despotic dominion which one
man claims and exercises over the external things of the world, in total exclusion of
the right of any other individual in the universe"
4. Today the right to exclude is no longer absolute - it is subject to many exceptions (e.g.,
public policy, necessity, anti-discrimination laws)
(1) Real property right is not absolute; and "necessity, private or public, may justify
entry upon the lands of another". State v. Shack
5. The right to exclude on owned land is protected namely under trespass law
(1) trespass = unprivileged physical invasion of property possessed by another
(2) The Restatement of Torts reflects the predominant U.S. approach to trespass law
(3) Restatement (Second) of Torts (1965) §158. Liability for Intentional Intrusions on
Land:
A. One is subject to liability to another for trespass, irrespective of whether he
thereby causes harm to any legally protected interest of the other, if he
intentionally
• enters land in the possession of the other, or causes a thing or a third
person to do so, or
• remains on the land, or
• fails to remove from the land a thing which he is under a duty to remove.
(4) In this context, the defendant acts intentionally if he voluntarily enters onto the land.
It is not necessary that he had a subjective intent to trespass or that he otherwise
acted in bad faith.
A. Note: trespass in also a criminal concept. In criminal law, trespass needs act +
intent
(5) Trespass is a strict liability tort - if a defendant voluntarily enters land owned by
someone else, that defendant has committed a trespass (irrespective of his good faith)
unless some exception applies.
(6) An entry made under a privilege is not a trespass.
A. The most common privilege is consent: I enter your land with your content. No
trespass occurs.
B. A privilege also arise from necessity. Generally, non-owners must show:
1) faced two evils, choose the lesser evil;
2) acted to prevent imminent harm;
3) reasonably predicted a direct causal relationship between their act and the
harm averted 避免的;
 harm averted 避免的;
4) There is no legal alternative for one to solve the question
○ Animal lovers broke into labs to set the animals free; the attorney of them
defensed that there is necessity exception. No. No immediate danger such
as fire.)
(7) Examples
i. Suppose you rent an upstairs apartment from landlord A. Can A enter your
apartment when you're not there, to show it to someone who is thinking about
buying the apartment building?
○ No. A tenant has a right to possess and exclude landlord from entering the
apartment. However, if the contract signed by the two parties states that
the landlord has the right to show someone the apartment, then such act is
allowed.
ii. What if A enters your apartment during your absence to fix a broken pipe that
has exploded and is flooding water to downstairs units?
○ Not a trespass. A necessity exception.
iii. What if you walk across the apartment complex from the parking lot to your
apartment? Aren't you trespassing, because you don't own the apartment
complex (the landlord owns it)?
○ No trespass. Implied consent exception to trespass. Walk harmoniously
through the common area.
○
Jacque v. Steenberg Homes, Inc. (P50)
1. Facts:
(1) Steenberg sought permission from Jacque to cross his land to deliver a trailer.
Defendant would have otherwise had to move the trailer via a more difficult section
of road and use special equipment to negotiate the curves
(2) Plaintiff denied permission, and defendant ordered his employees to cross P’s land
anyway.
(3) Plaintiff sued for intentional trespass.
2. Issue
(1) May a nominal damage award for intentional trespass support a punitive damage
award?
3. Holding:
(1) Yes.
4. Decision:
(1) The court concluded that punitive damages may be awarded at the court’s discretion,
in order to preserve landowner’s rights to their property. Otherwise, allowing such
acts at only a nominal penalty would set a dangerous precedent. Society has an
interest in punishing and deterring intentional trespassers beyond that of protecting
the interests of the individual landowner.

State v. Shack: The right to exclude (P58)

New Jersey: NJ license plate; NJ's famous exports (cranberry, blueberry, tomatoes, peaches);
Migrants from FL, traveling to NJ to work as potato-pickers (1940)

1. Fact
(1) Defendants, an attorney and health service worker, entered on private property to aid
a migrant farmworker housed there. The owner-employer said he would allow
defendants to meet with the migrant workers they sought, but only in his presence in
 defendants to meet with the migrant workers they sought, but only in his presence in
his office. When defendants asserted they had a right to meet alone with the worker,
the owner summoned the police to remove them for trespass.
2. License
(1) So what "rights" did the migrant farm-workers have on Tedesco's land? (since they
walked on the land, crossed the land, etc.) - they have a license.
(2) License: permission to use/enter somebody else’s property.
a) License is temporary
b) The owner can take the license back anytime: I invite you to my house, you
have a license. But you say something stupid to my sister in my house, I ask
you out, which means I take the license back
c) No ownership interest. Lowest level of property interest.
3. Issue
(1) Do ownership rights in real property include the right to bar migrant laborers
working on the property from access to governmental services?
4. Holding:
(1) No trespass. Property rights do not include the right to bar access to
governmental services to migrant workers employed and living on the property.

First, the Court rejects two specific arguments made by Defendants, challenging the
application of the NJ trespass statute to their conduct (see p. 58 for a quote from the NJ
trespass statute)
D's Constitutional arguments
1. First Amendment
a. defendants argued that their First Amendment rights (and the rights of the migrant
workers) were violated, relying on Marsh v. Alabama.
b. Was the farm-worker camp in the Shack case comparable to a company-owned town
or shopping center? Why or why not? (p. 64-e)
c. In Marsh v. Alabama, “it was held that free speech was assured by the First
amendment in a company-owned town which was open to the public and was
indistinguishable from any other town except for the fact that the title to the property
was vested in a private corporation.” Like shopping center.
d. Defendants contended that the migrant camp was equivalent to a company town and
that they therefore had a First Amendment right to enter the property to aid the
laborers.
e. The court rejected Ds' argument and held that the camp was not analogous to a
company town because it was not held open to the public.
f. The character of the property is different. The company-owned town was held
open to the public, while the camp was not, it is purely private. Moreover, Tedesco’s
farm serves no clear public function. The company-owned town has hospitals,
schools, police station and etc., which was for public function.
a) Note: Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.
b) 本来first amendment只对政府有效，但是因为Marsh中it's town open to
public, it's like a public place.
2. Supremacy clause (Article VI, section 2)
a. Supremacy Clause: “This Constitution, and the laws of the United States which shall
be made in pursuance thereof; and all treaties made, or which shall be made, under
 be made in pursuance thereof; and all treaties made, or which shall be made, under
the authority of the United States, shall be the supreme law of the land; and the
judges in every state shall be bound thereby, anything in the Constitution or laws of
any State to the contrary notwithstanding.”
a) Supremacy: the status of federal laws and treaties is higher than that of states
laws. If any controversies arise, federal laws and treaties take precedence.
b. Defendants argue that the application of the trespass statute would defeat the purpose
of the federal statutes, under which SCOPE and CRLS are funded. Since federal laws
are supreme to state laws, the trespass law shall be refused.
c. Moreover, the constitutional right to counsel (Sixth Amendment) is supreme to the
trespass issues. In US, every citizen is entitled to a constitutional right to counsel (a
lawyer). Miranda law. Shack argues that he aims to offer legal advices to these
migrant workers.
d. New Jersey Court’s refuse to take so:
i. First, there is no precedents to support these arguments.
ii. Second, the court prefers not to decide this case on constitutional ground. If you
say our state law in unconstitutional, then it will be invalid. We have to make a
new law.
iii. We prefer to use our own state law, our New Jersey Law is sufficient to protect
these migrant workers and it is better, it gives them more protections. Because
US constitutional law only offers minimum protection to citizens. Instead,
many states laws render more protection to its citizens.
1) For example, the US Constitution provides that the government can seize
citizen’s land for public purposes. However, in Florida, the state law
severely limits government’s power to seize citizens’ land. It offers more
protection to land owners.
iv. So the constitutional supremacy argument failed.

D'S arguments based on Landlord-Tenant Law

1. Defendants argued the farm-workers should be treated as "tenants" and thus entitled to
receive visitors (implied consent) under well-settled principles of NJ landlord-tenant law.
a. "The accommodation between the right of the owner and the rights of “individuals
who are parties with him in consensual transactions relating to the use of the
property. Accordingly substantial alterations have been made as between a landlord
and his tenant"
2. But the court rejected this approach as “artificial and distorting”, because the situation
here is not landlord-tenant.
(1) Tenants tend to be full-time residents, but migrant farmers only stay there for a short
period of time and thus are merely temporary residents.
(2) The works did not pay. Their free use of the houses was a part of their job.

So, what's the Court's rationale then?

Utilitarian balancing and the Court's key test: Main argument
1. The two sentences in the Court's opinion which summarize the Court's utilitarian leanings
(1) "the quest is for a fair adjustment of the competing needs of the parties, in light of
the realities of the relationship between the migrant worker and the operator of the
housing facility"
A) Parties must accommodate the rights of the property owner and the interests of
the general public in his use of this property.
B) Property rights “cannot include dominion over the destiny of persons the owner
 B) Property rights “cannot include dominion over the destiny of persons the owner
permits to come upon the premises” whose “well-being must remain the
paramount concern of a system of law.”
C) This is especially true here with respect to migrant farmworkers, a highly
disadvantaged segment of society in need of assistance and largely unaware of
their rights and the availability of public and charitable services.
D) The property owner had no legitimate need for a right to deny the farmworkers
the opportunity to receive aid from groups seeking to assist him.
(2) “Property rights serve human values. They are recognized to that end, and are limited
by it.”
a) Property rights are not absolute, but limited—they are intended to serve human
values and accommodate conflicting individual and social interests.
b) The existence of property rights is not only for the benefits of the individual
owner, but also for the benefits of the whole society.
c) The employer may not however deny the worker his privacy or interfere with
his opportunity to live with dignity and to enjoy associations customary among
citizens.
d) "Title to real property cannot include dominion over the destiny of persons the
owner permits to come upon the premises. Their well-being must remain the
paramount concern of a system of law." The parties cannot contract away what
is deemed to be essential for their health, welfare, or dignity.
e) So, too, the migrant worker must be allowed to receive visitors there of his own
choice, so long as there is no behavior hurtful to others, and members of the
press may not be denied reasonable access to workers who do not object to
seeing them"
f) A labor camp is not required to keep its property open to the general public.
The employer may reasonably require a visitor to identify himself and to state
his general purpose. The employer may not however deny the worker his
privacy or interfere with his opportunity to live with dignity and to enjoy
associations customary among citizens.
2. What do you think about this test? is it easy to apply?
○ The test is not easy to apply. It is not predictable.

Necessity rationale
1. A man’s right in his real property is not absolute. Necessity, private or public, may justify
entry upon the lands of another.
a. One should so use his property as not to injure the rights of others
b. Rights are relative and there must be an accommodation when controversies and
rights meet.
2. Argument for defendants:
a. Tejeras offers medical services, such services are emergent. (after all, legal advices
are not so emergent as medical services);
b. privacy, Shack should talk about legal issue with the worker privately.
3. Argument for Tedesco:
a. Tedesco has already offered an alternative to defendants that such services can be
provided in his office and with his presence.
b. Moreover, Tedesco could argue that the defendants have other alternatives. They
don’t have to go to Tedesco’s camp to offer such services. The defendants can do it
in their own offices since those migrant farmers can go out and accept such services.
the removal of sutures(缝合) is not very urgent.
 c. the removal of sutures(缝合) is not very urgent.

Implied statutory right of access rationale

1. Migrant farmers are highly disadvantaged groups. The congress has already enacted and
passed these special laws to protect their interests, including legal advices, medical
advices and so forth.
2. However, “such ends cannot be achieved if the intended beneficiaries could be insulated
from efforts to reach them.”
3. The court argues that the congress impliedly creates a statutory right of access for persons
like Tejeras and Shack who provide legal and medical advices to migrant farmers.
4. The statute does not explicitly state that you can walk across the plaintiff’s farm to find
those migrant farmers. But the court argues that the statute will make no sense unless
people can go across these private lands to these things. So there is an implicit right of
access.
5. Argument for Tedesco: if the congress wants to create such implied right of access, why
does it not clearly say it so? But the congress did not.

Hypos
1. A, B, and C, farmworkers living on Tedesco's property, decide to hold a large birthday
party for their co-worker D. They invite 10 friends from a nearby town, who enter the
property to attend the party.
a. No trespass.
b. Citing shack case, “Representatives of these agencies and organizations may enter
upon the premises to seek out the worker at their living quarters. So, too, the migrant
worker must be allowed to receive visitors there of his own choice, so long as there
is no behavior hurtful to others, and members of the press may not be denied
reasonable access to workers who do not object to seeing them.”
c. "but the employer may not deny the worker his privacy or interfere with his
opportunity to live with dignity and to enjoy associations customary among our
citizens. These rights are too fundamental to be denied on the basis of an interest in
real property and too fragile to be left to the unequal bargaining strength of the
parties." P63
d. In the instant case, as long as the farmworkers’ friends cause no harm to the
landowner’s property, they shall be allowed to visit the farm and attend the party.
e. What about there are 100 visitor? Maybe there is trespass.

2. X owns a vacant apartment building in a large city. A group of homeless people enter the
building through an unlocked door and begin living there as squatters. X discovers the
squatters 2 months later.
(1) Argument for “a group of homeless people”:
i. the building is not locked. It seems like the owner of the building does not care
about people enter it or not. It can be seen as the implied consent.
ii. Using the Shack, the private right is not absolute; it has to serve social values.
In this case, there are two needs:
1) the homeless people need to find suitable shelter because the homeless is a
big problem in the city (e.g. they suffer a lot danger), and they are
disadvantaged people VS. the X’s need is less because he is not even there
and the building is vacated.
2) Just between the needs of both parties, and the Shack protects the social
values and disadvantages of migrant workers. Here the homeless people
 values and disadvantages of migrant workers. Here the homeless people
have the same disadvantages. Under the principle of the Shack, the
homeless people have the stronger needs than X.
3) (The necessity cannot be used because it cannot last for a period of time.)
(2) The argument for X
i. the Shack’s principle is quite irrelevant, so we don't need to make a balancing
test
ii. The situation in this case is quite different. In the Shack, there was a contract
between the landowner and migrant workers. The migrant workers are invited
to work as farm workers. They did not come secretly, but in this case, the
homeless people come in secretly against X’s wishes. (the judge will hold this
opinion)
iii. Constitution protect people's land
iv. Even if we use Shack, try to say that the owner's rights are more important more
than homeless people's rights.
(3) Result unclear. But there is trespass. Shack's rule is limited to specific case. and in
Shack, there is contract relationship.

3. M owns the farm that adjoins the Tedesco property. M's farmworkers live on M's
property. N and O, two union organizers, enter M's land in order to convince the
farmworkers to join a union, and thus improve their wages and living conditions.
(1) Argument for N and O: no trespass.
a) Since these two union organizers are visitors to protect migrant worker’s rights
and interests.
b) “We may assume for the present that the employer may regulate their entry or
bar them, at least if the employer’s purpose is not to gain a commercial
advantage for himself”. In this case, M actually intended to gain a commercial
advantage, since migrant workers might unionize to increase their payment and
thus the employers’ costs are raised.
(2) Argument for M: trespass.
a) The two union organizers are not employed by the federal government
b) In Shack, two defendants come for specific needs: medicine, legal. But in this
hypo, N and O are just persuading my workers to do something.
c) "It is not our purpose to open the employer’s premises to the general public if in
fact the employer himself has not done so. We do not say solicitors or peddlers
of all kinds could enter on their own."
d) The entry of unionizers could harm the interests of M since the farmworkers
may unionize together.
e) M's freedom to use his land; property rights are important; M, as an employer,
provides jobs; safety and order concerns(if anyone could come in M's land, this
is unsafe and out of order)

4. T operates a casino in Atlantic City; he discovers that gambler G is "counting cards" in

order to improve his odds of winning at blackjack. T asks G "to leave and never return." G
enters the casino two days later and begins gambling.
(1) No trespass. Based on a New Jersey case, casino owners do not have right to exclude
gambler who counts cards(not cheating) from entering the casino which is open to
the public. Not reasonable.
(2) Prof Ho: 是否有权利禁止这个人再回来，要看两个因素，第一，这个人究竟做了什么，记
牌、作弊、斗殴、贩毒？第二，赌场禁止的期限是多长，一个月内不允许他回来，还是一
 牌、作弊、斗殴、贩毒？第二，赌场禁止的期限是多长，一个月内不允许他回来，还是一
年，或者是永久。一般来说，没有永久禁止的权力

5. If homeless people come to live in Campbell’s vacant house in Harbin during winter:
(1) The court has to considering competing needs of both parties:
a) For homeless people: shelter; place to live; life
b) For Campbell: liability; damage, injure.
(2) It is difficult for the court to decide.
(3) Difference between this hypo and Shack: Shack did not conduct trespass; the
defendants are invited to provide services while the homeless people trespass on
Campbell’s house without permission.

"Right to Roam" exception to the right to exclude P65

The "Right to Roam" exception to the right to exclude - should the US also adopt the "right to
roam," as Britain has done? What are the pros and cons of adoption of the "right to roam"?
1. Pros: Utilitarian Theory: Some people have a large land but they only live on the small
part. It’s not efficient to use the land social. This can maximize social happiness(benefit
the society)
2. Cons: property owners shall bear the liability if any visitor suffer injuries within the
property. Maybe someone entering a private land without consent of the owner may cause
harm to the land, but it is hard for the owner to know who does that. This increases the
management cost.
a. Some US states offer land owners immunity to liability.
6: The Right to use 68-81; 93-94
2019年8月27日 下午 08:53

1. Today, we focus on the right to use. two cases and two doctrines: spite fence
doctrine(narrow) and nuisance doctrine(broader).
2. Traditionally, a landowner had broad autonomy to use his land as he wished
3. However, today, there are multiple exceptions to the right to use - but why shouldn't
an owner have the absolute right to determine how his land is used?
(1) Utilitarianism:
i. Unrestricted usage of land may harm others and decrease the utility.
(2) Avoid Conflicts: We can't give an owner absolute right to use because it might
interfere with others’ absolute rights to use their land. So there are conflicts
between property owners. (when there are a lot of conflicts, the land will not be
used productively)
4. So the law has recognized that we have to in some cases limit the right to use. (theme
in property law: you cannot use property that injure somebody else)
5. one broader question: there are two landowners and they each have right to use, their
right to use may conflict. How does law supposed to regulate or resolve this conflict?

Sundowner, Inc. v. King: Spite fence doctrine

1. Spite fence is a narrow concept. And it is difficult to prove it.
2. No property owner has the right to erect and maintain an otherwise useless
structure for the sole purpose of injuring his neighbor (INTENT: malice).
(1) Useless: objective test.
i. if A builds a fence simply with an intent to hurt his neighbor and don’t
mean to use it for anything, but the fence turns out to have some value.
Such acts do not satisfy spite fence doctrine because it is not useless. But
the neighbor could use other arguments like nuisance law to defend his own
rights.
(2) Malice: objective test.
i. If B had built a sign in good faith, but it later turned out to be a bad business
decision because the sign didn't have any advertising value. Would B
commit Spite Fence?
1) No, under such circumstance, it would NOT be a spite fence doctrine,
because the erection of the sign is not for the sole purpose of injuring
his neighbor.
ii. the court could use the negligence or reckless standard, but the court sets a
higher requirement — malice. Because negligence standard will impose too
many limitations on property owner’s right to use. It will hurt property
owners a lot. It is possible that a property owner may have negligence and
do not do enough research before erecting a structure, but he is in good
faith. Under this situation, we don't want to punish the owner because he is
still using his property in good faith. If we use negligent or reckless
standard, what happens? we basically impose liability on good faith actors
and we will put too many restrictions on land owners who are making good
faith decisions.
(3) Note: Structure entails a lot of sense. This rule does not apply to fence alone. A
row of trees, wall, board…all is structure.
3. Famous Crocker spite fence
a. Famous Crocker spite fence: A businessman Croker, very intimidating, very
 a. Famous Crocker spite fence: A businessman Croker, very intimidating, very
wealthy, known for aggressive style. A house owned by Yung, a German
immigrant, Croker wanted to buy this house, because he wants to control this
entire block. The real estate price will go up. Yung refused to sell his house,
Croker built a spite defense, a tall structure surrounding Yung's house. He did
this in order to enforce Yung to sell. In this example, Croker exercises his right to
use his land, law shouldn't give this right to do this, spite fence doctrine is quite
straight forward.
4. Fact of Sundowner, Inc v. King
a. In 1968, the Kings (defendant), owners of an Idaho motel, built a large fence
between their motel property and that of the adjoining Desert Inn motel. The
Desert Inn motel was owned by Sundowner, Inc. (Sundowner) (plaintiff).
b. The fence obscured approximately 80 percent of the Desert Inn motel and
restricted air and light to its rooms.
c. Sundowner brought suit seeking damages and the removal of the fence. The trial
court, finding the fence was erected out of spite and in violation of a municipal
ordinance, ordered the fence reduced. The Kings appealed to the Supreme Court
of Idaho, arguing the trial court erred in requiring partial abatement of the fence
on the ground that it was erected out of spite.
5. Holding/Rule
a. No property owner has the right to erect and maintain an otherwise useless
structure for the sole purpose of injuring his neighbor (INTENT: malice).
b. Based on substantial evidence, the structure served no useful purpose to its
owners and was erected because of the King’s ill will and enmity toward their
neighboring competitor. So the sign structure shall be identified as a spite fence.
6. Discussion
a. The role of intent (P71 Note a)
i. Suppose the Kings had built the sign in good faith, but it later turned out to
be a bad business decision because the sign didn't have any advertising
value. Would the case have come out differently? (p. 71-a)
1) Yes, under such circumstance, it would NOT be a spite fence doctrine,
because the erection of the sign is not for the sole purpose of injuring
his neighbor.
b. A useless structure (P72 Note b)
i. Would the case have been decided the same way if the sign had at least
some minor advertising value? (p. 72-b)
1) No. because the spite fence doctrine requires an element of a useless
structure. In other words, if the structure has any use it would never be
a spite fence. The reason is we want to promote use of land.
ii. Under the Sundowner test, is usefulness determined by an objective
standard? (p. 72-b)
1) Yes, an objective standard. Like in the sundowner case, the court
calls an expert to assess and testify.

Prah v. Maretti: nuisance doctrine (P73)

1. Private nuisance
a. A private nuisance is an 1) intentional, 2) non-trespassory, 3) unreasonable,
and 4) substantial interference with 5) the use and enjoyment of the
plaintiff's land.
i. “intentional” means you have to done it willingly, doesn't require that the
defendant act with malice. (it is not easy to testify.)
 defendant act with malice. (it is not easy to testify.)
a) non-trespassory, not physical. Distinguish nuisance from trespass.
b) "unreasonable" is the most important one.
1) modern view is that conduct is unreasonable if "the gravity of the
harm outweighs the utility of the actor's conduct" (Restatement
(Second) Torts). In effect, the court must determine whether the
defendant's conduct cause more harm than good?(usually, the most
difficult question is whether the conduct is unreasonable)
2. Public nuisance
a. a nuisance harms the general public.
b. Such as prostitutes. Red-light zone. Unlicensed casino (might be private); people
keep dogs, dogs bark entirely neighborhood, biting people.
3. Nuisance law is broader than the spite fence doctrine (hard to prove) because
a. it doesn't require that the defendant act with malice; and
b. it may also restrict conducts we might consider useful
c. Note: spite fence generally is aimed at restricting conduct that is bad. Spite
means to hurt somebody. Nuisance law is broader, something it eliminates bad
conduct, sometimes eliminate useful conduct.
4. Facts: Supreme court of Wisconsin
a. The residence of plaintiff, who came to the place earlier than defendant, uses
solar energy for heat and hot water. The defendant bought the lot adjacent to the
residence and planned to build a home, but the home would adversely affect the
plaintiff’s solar energy collecting. The plaintiff seeks injunctive relief.
b. Maretti refused to move his house because the lake view would have been
impaired, reducing the house's value
c. Prah spent a lot of money in constructing the solar system--approximately US
$120,000 to build his house, US$18,000 of which was for the solar energy
system -- this system met approximately 55-60% of his energy needs, saving him
approximately US$600/year. He eventually switched to gas power.
5. Issue
a. The key issue here is not whether Maretti's house is in fact a nuisance, but
whether nuisance law should be applied to this dispute in the first place?
i. Note: Why? because it is pretty interesting set of facts. This is an issue of
first impression.
6. Holding
a. Yes, nuisance law should apply, which is good for Prah. Retrial in the lower
court.
7. The Court's Reasoning: Important Points
A. Property rights are relative.
i. Balance the rights of landowners. First of all, the court make it clear the
owner's right on land is not absolute, we sometimes do have to balance
owners' right to use. It begins with great general point, competing needs of
the parties. (P74 最后一段)
B. Times change, so laws should change, too
a) How common law evolves over time when social economic and technology
has changed this society? ---- which judge said similar thing? Pierson.
b) Court's examination of the Miller v. Hoeschler(1900) case: originally, the
court is reluctant to provide broader protection for a landowner’s access to
sunlight.
c) The court: Miller is no longer a valid precedent because time's changed,
 c) The court: Miller is no longer a valid precedent because time's changed,
three policies which justified Miller no longer apply in our society.
Original policy Modern: obsolete Dissent
considerations
The right of landowners Society has increasingly a landowner's right to use
to use their property as regulated the use of land his property within the
they willed, as long as by the landowner for the limits of ordinances,
they did not cause general welfare. (many statutes, and restrictions of
physical damage to a more laws today which record where such use is
neighbor, was jealously restrict landowner use necessary to serve his
guarded. land.) legitimate needs is a
fundamental precept of a
free society which this
court should strive to
uphold.
Sunlight was valued Sunlight as a source of Solar energy for home
only for aesthetic energy. society has an heating is of questionable
enjoyment or as interest in promoting economic value. solar
d) illumination. alternative energy sources collectors are costly and
(P76 注意labour theory和 not mass produced. Their
utilitarianism) limited efficiency may
explain the lack of
The most important production.
argument
Society has a significant The policy of favoring Population is increasing in
interest in not restricting unhindered private today's society, we still
or impeding land development in an need to develop land.
development. (If we expanding economy is no
extend liability for longer in harmony with
blocking sunlight, then the reality of our society.
nobody will build on (Today we don't have as
their own land.) strong need to develop
land, rather, we want to
keep that land natural and
not overdeveloped.)
e) Courts should not implement obsolete policies that have lost their vigor
over the course of the years. The law of private nuisance is better suited to
resolve landowners’ disputes about property development in the 1980’s than
is a rigid rule which does not recognize a landowner’s interest in access to
sunlight.
f) What majority does here is to talk about policy concerns
g) Majority distinguish this case from Miller case
1) How to distinguish an earlier case: different facts; it's to narrow; it's
too cold
C. Recognition of a nuisance claim for unreasonable obstruction of access to
sunlight will not prevent land development or unduly hinder the use of adjoining
land. Although obstruction of access to light might be found to constitute a
nuisance in certain circumstances, this does not mean that it will be or must be
found to constitute a nuisance under all circumstances. The result in each case
 found to constitute a nuisance under all circumstances. The result in each case
depends on whether the conduct complained of is unreasonable
8. Dissent's another reasoning: plaintiff's inaction
A. plaintiff could insulate himself from the alleged problem by acquiring the land as
a defense to the potential problem or by provident use of his own property; he
fails to take any action to protect his investment. There is nothing in the record to
indicate that Mr. Prah disclosed his situation to Mr. Maretti prior to Maretti's
purchase of the lot or attempted to secure protection for his solar collector prior
to Maretti's submission of his building plans to the architectural committee. Such
inaction should be considered a significant factor in determining whether a cause
of action exists.
9. Further Discussion and Analysis
A. If sunlight is used for energy, and not for mere aesthetic reasons, courts will be
more willing to find a property interest and will use the theory of private
nuisance when deciding the question
B. A note on aesthetic nuisance
a. The court is reluctant to support aesthetic nuisance claim.（not liable）
b. Everyone has a different view of what beauty is, it would be hard to decide
whether it is a nuisance.
c. you have to show an actual injury.
C. What might have been alternative solutions for Prah and Maretti to solve
their dispute?
i. Negotiation: to raise the roof; use the mirror; moving Prah’s solar panel to
Maretti’s room, it will not hurt his room and in return, Prah should pay for
Maretti;
ii. Demerits of disputes: Time-consuming, monetary-cost, harm the harmony
of the neighborhood
D. How would you have decided the case using the Restatement (Second) of
Torts standards (see above list of elements included earlier in this map)?
A private nuisance is an 1) intentional, 2) non-trespassory, 3) unreasonable, and
4) substantial interference with 5) the use and enjoyment of the plaintiff's land
i. Intentional, yes, he does this willingly. He knows the harm, builds his home
and still refuse to remove.
ii. non-trespassory, yes
iii. Unreasonable: modern view is that conduct is unreasonable if "the gravity
of the harm outweighs the utility of the actor's conduct" (Restatement
(Second) Torts ) Does the defendant's conduct cause more harm than good?
1) they will have to balance Prah's value importance solar collectors here
vs. value of Maretti's freedom to build his home.
iv. substantial interference. yes. we reduce efficiency of solar collector and
harm them.
v. use and enjoyment, yes, it effects Prah's enjoyment on his land because he
can't use his solar collection.
E. Thinking in the abstract – what’s Prah’s best argument (using Pierson v. Post) if
he wants to argue he actually captured the sunlight like Pierson captured the fox?
What's the best argument he could make?
i. He captured the stream of sun photons by putting it to productive use, by
analogy to the prior appropriation doctrine for obtaining rights in surface
water (see Page 80 note 3: the first user to appropriate the resource has the
right of continued use to the exclusion of others).
 right of continued use to the exclusion of others).
ii. But this is likely a weak argument for a number of reasons. It would be
difficult for Prah to rely on the Pierson case - Pierson captured one fox.
Prah has captured sun photons in his solar collectors, but not all the photons
that are in the air. The situation also is quite different from water, oil or
other resources, which can easily be captured. It is impossible to capture
every possible sun photon in the air.
F. The dissent advocates a more "bright-line" rules approach to the nuisance issue,
whereas the majority opinion would seemingly require a case-by-case
determination of whether a new home may be a nuisance - how does a case-by-
case approach affect development and housing?
i. A bright-line rule (or bright-line test) is a clearly defined rule or standard,
composed of objective factors, which leaves little or no room for varying
interpretation. A bright-line rule has the virtues of certainty and
predictability, perhaps at the cost of justice in the individual case.
ii. How does a case-by-case approach affect development and housing? Delay
people from constructing houses. Hinders the development in town, people
be afraid to build their house, lead to fewer house, higher price of house.
G. If you represented a client who wanted to build a new home on a vacant lot
located to the south of an existing home with a rooftop solar collector, how
would you advise her to proceed?
i. Advise him to be very careful, if you interfere with someone, you could be
found guilty of nuisance. People can sue you for nuisance.
10. Hypo
Hypotheticals-how far does Prah stretch? Should the court apply nuisance law or not
in the following situations?
a. A constructs a windmill in her backyard to generate electricity. B now proposes
to build a home on his adjacent lot, which will partially block the flow of wind.
i. Yes - the court should apply nuisance law. The facts are similar to Prah,
except here wind (not sunlight) is the energy source. The three-part analysis
done by the Prah court applies here too -- society has increasingly regulated
the use of land, society has an interest in promoting alternative energy
sources, and the policy of favoring unhindered development has lessened in
force over time.
b. C builds a new home with large south-facing windows. The windows function
much like a greenhouse, trapping warm air inside and thus reducing C's home
heating bills; they also provide a lovely view of the countryside. D now plans to
build a home on her adjacent lot, which will partially block the sunshine from C's
windows (and also block the view).
i. Result unclear. This is a harder case because C’s primary motive may be
simply to protect her view. The first and third factors in the Prah analysis
apply, but arguably not the second. Prah was not focused on aesthetics, like
views.
ii. D's lawyer: nuisance law does not apply here. Unlike Prah, the window is
not for generating energy so D’s blocking the sunshine has no apparent
effect on the function. Thus the nuisance law does not apply.
iii. C's lawyer: C wants to protect the heating. The window has a greenhouse
function, it can reduce C's house's energy consumed, which is
environmental friendly. In Prah case, the second argument does not apply
only to using of alternative sources like wind, solar energy, what is
 only to using of alternative sources like wind, solar energy, what is
important is to use alternative ways to reduce energy consumed, in order to
protect environment. So Prah case should apply, which means nuisance law
should apply.
c. How far can Prah case go depends on whether sunshine/wind/somethings
else is used as power(natural resource) with specially developed instrument
7: Adverse Possession (The Basic Elements), Part 1: Gurwit v. Kannatzer
(Missouri CoA, 1990) 95-105
2019年8月28日 下午 09:07

Question:
Let’s say O has an FSA and conveys a life estate to A. B enters the property and
begins adversely possessing. If he started his adverse possession prior to the
conveyance to A, he may be able to get an FSA by adverse possession. If B starts
adversely possession after O’s conveyance to A, then he will be adversely possessing
against A only, and generally, most courts will say that if he fulfills the AP
requirements, the most B can get is a life estate PAV, measured in A’s life. But some
courts may still say A gets an FSA. The law varies on state, but generally, if B starts
AP after the conveyance to A, he will he possessing against A only and will be only
eligible for a LEPAV (life estate pur autre vie) measured by A’s life.

American property law

1. Was profoundly shaped by English law
2. The need to develop land for productive use became a major theme in American
property law
3. The central challenge in American property law: striking the appropriate balance
between the rights of the owner and the interests of society in general

Subsequent possession: Unique to Anglo-American law. Revolutionary.

1. Definition:
(1) Adverse possession is a doctrine under which a person in possession of land
owned by someone else may acquire valid title to it, so long as certain
common law requirements are met, and the adverse possessor is in possession
for a sufficient period of time, as defined by a statute of limitations.
A. The enjoyment of real property with a claim of right when that
enjoyment is opposed to another person's claim and is continuous,
exclusive, hostile, open, and notorious.
B. In Louisiana, it is the detention or enjoyment of a corporeal thing with
the intent to hold it as one's own." La. Civ. Code art. 3421
1) Note: Louisiana was governed by French, so in Louisiana, it is
common law + civil law
(2) In other words, adverse possession can be described as a forced conveyance.
(3) Adverse possession doesn't run against the government. Generally speaking,
it may be very hard to win a case when a possessor claims adverse possession
of US government's land. (P132, b. 最下面 however, statutes in some
jurisdictions permit adverse possession against land owned by state or local
government if…)
(4) If you establish adverse possession, title is transferred from original owner
to the adverse possessor as of the date of entry, not the end of the statute of
limitations period
A. Prof Ho: It is just how the law works.
(5) For the elements of adverse possession, a handful of jurisdictions also require
that the occupant pay the taxes assessed against the land.
 Adverse possession in America
(1) In most states, adverse possession is determined by case law and the precise
phrasing of the ap standards varies somewhat from state to state
(2) In a few states, adverse possession is determined by case law + statute

2. Policy justifications for the adverse possession doctrine

(1) Utilitarianism (encouraging development): land is kind of limited
resources, absent landowner (laziness) does not do much to the land, the
occupant uses the land most efficiently, adds value/labor to the land, and
increases the utility for the whole society. P97
(2) Protecting Personhood: if one possesses a piece of property for a long time,
that piece of property becomes part of yours. "a thing which you have
enjoyed and used as your own for a long time…takes root in your being and
cannot be torn away without your resenting the act…" P97
(3) Correcting title defects: technical mistakes often occur in the process of
conveying title to land. For example, the property description in a deed might
contain an error. Adverse possession resolves such problems by protecting the
title of the person who actually occupies the land. Under this model, lengthy
possession serves as proof of title.
i. Sometimes, when people buy a land, there may be a mistake in the deed.
Maybe the deed is for 20 acres, but the person who purchase the land
found he has 22 acers. So the 2 acres are technically not his. But the real
landowner does not know and care, the buyer keeps working on the land
and has reliance on the land.
(4) Preventing frivolous claims: under the dominant view, adverse possession is
seen as a special statute of limitations for recovering possession of land.
Thus, like any other statute of limitations, it bars lawsuits based on stale 不新
鲜的, unreliable evidence, thereby protecting the occupant from frivolous
claims. It also provides the occupant with security of title, thus encouraging
the productive use of land.

3. Arguments against adverse possession:

(1) Utilitarianism justifying adverse possession is far too broad. There are
different types of land. Land has different purposes. Making a general broad
argument of promoting the efficient use of land does not account for different
types of lands and their usages.
(2) Environmentalism: A landowner may intentionally preserve his land in
natural condition to protect the environment. P104, (g).
(3) Unfairness; force conveyance of title; taking land which basically is not
yours.
(4) Time changes, adverse possession was a historical possession which has no
substantial application in today's world anymore. The world is very different
from the 1800. those goals that the US values 200 years ago no longer apply.

4. Adverse possession doctrine and U.S. history

This doctrine in the United States evolved in the 1800. During that period, there
was a big push in the US to go west, part of movement in the US called "Manifest
destiny". This push from the east to the west spread a large part of the US. Many
settlers went west. Rich people started to by huge ploughs of land for pure
 settlers went west. Rich people started to by huge ploughs of land for pure
investment purpose. These people did nothing to the land while these lands should
have been used for farming, hunting and razing. Hence, the adverse possession
doctrine emerged to promote efficient use of land. After these rich people bought
huge ploughs of lands, non-owners started going on the land, hunting and using the
land. So the doctrine grew to award such efforts.

The Common Law Elements of Adverse Possession (U.S. Law)

Adverse possession is very Fact-specific. Case to case.
Adverse possession is established, generally, when you satisfy: CHOATE
Actual Exclusive Open and Adverse Continuous For the
possession possession notorious and hostile possession statutory
possession period
same manner cannot be visible and
that a shared with the obvious
reasonable owner or with
owner would the public in
general

1. Actual possession
(1) The claimant must physically use the land in the same manner that a
reasonable owner would, given its character, location, and nature.
(2) The type of the land is very important.
2. Exclusive possession
(1) The claimant's possession cannot be shared with the owner or with the
public in general.
i. Note: sometimes, even if the land owner may appear on the land, it is
still OK to establish exclusive possession for a possessor. For example,
the land owner just show up on the land once a year and do nothing, this
would not stop the possessor from establish a excusive possession.
ii. But generally speaking, adverse possessor cannot share his or her
possession with the true owner.
iii. Note 2: use of disputed property by third party may also prevent an
adverse claimant from proving exclusive possession, P103 (c)
3. Open and notorious possession
(1) The claimant's possession must be visible and obvious, so that if the owner
made a reasonable inspection of the land, he would become aware of the
adverse claim.
(2) In other words, an adverse possessor shall possess the land in such a way that
a reasonable owner would be able to tell that there is somebody on the land.
Basically we do not have to prove the true owner actually know for certain
that the adverse possessor is there. The test is that your possession is
sufficiently obvious that if a reasonable person come on and inspected, he
would know that somebody is there.
4. "Adverse and hostile" possession (see reading on TWEN)
(1) The most complicated element. Different jurisdictions have different
approaches to determining if the adverse possessor has satisfied the “adverse
or hostile” element
(2) No permission
a) All states agree that possession authorized by the owner does not meet
 a) All states agree that possession authorized by the owner does not meet
this requirement. All jurisdictions require the adverse possessor to show
he did not have permission from the landowner to possess the land.
b) Generally, landowner's silence will be interpreted as no permission, and
the proof burden was laid on landowner to prove that he or she has
offered permission.
(3) In determining whether or not the adverse possessor has satisfied the “adverse
or hostile” element, most states do not focus on the adverse possessor’s state
of mind
A. Majority rule: Objective Test Based on Possession: as long as you
proved actual possession, hostile possession is proved. The courts do not
care the possessor's state of mind.
a) the only thing that matters is if the adverse possessor actually
possessed the land. If the adverse possessor can show actual
possession (remember that actual possession is another element to
be satisfied), the court will consider his possession to be “adverse
or hostile.” actual possession → adverse and hostile possession
B. Good faith approach: in some states, the adverse possessor will only
win if he can show that his possession was in good faith. In other words,
the adverse possessor is an innocent person who genuinely (but
mistakenly) believed the property is his.
a) This is the person who says: “Oops, sorry, sorry, sorry, sorry -- I
really thought I owned it, sorry!”
C. Bad faith approach: in some states, the adverse possessor will only win
if he can show that he knew that the occupied property belonged to
someone else and that he intended to dispossess the title holder. (this
view is rare now)
□ This is the person who says: “Haha! I know this property isn’t
mine – I know it’s yours. But I fully intend to make it my property!
Haha! Take that! Haha!”
D. Claim of Right: some states require that the adverse possessor show
that his possession is under a “claim of right” – this basically means that
the adverse possessor intends to take and use the land as his own and
exclude everyone else.
a) The adverse possessor must act like an owner and therefore believe
he’s the owner. Intent here doesn’t need to be proved by any verbal
statements – courts can infer intent from the adverse possessor’s
actions.
b) As mentioned in class, practically speaking, the “claim of right”
test is the same as the “objective test based on possession” (i.e., the
first one in this list).
c) However, there may be certain situations – for example, if the
adverse possessor showed no intent to control the property or was
unclear about the precise boundaries of the property – which may
make it difficult for the adverse possessor to show “claim of right.”
Note: one's true intent is hard to prove.
5. Continuous possession
(1) The claimant's possession must be as continuous as a reasonable owner's
would, given the character, location, and nature of the land.
periodic 周期的/定期的 possession sometimes may be OK, because when
 (2) periodic 周期的/定期的 possession sometimes may be OK, because when
determining this element, the character, location and nature of the land shall
be taken into account. We don't necessarily to be on the land every day, it
depends on what kind of land it is. dessert is different from the backyard.
6. For the statutory period
(1) It depends on the state, ranging from 5 to 40 years.
(2) The most common periods are 10, 15, and 20 years.

Gurwit v. Kannatzer (Missouri CoA, 1990) (P99)

• Important case because it illustrates the common law standard for adverse
possession, which is the majority approach in the U.S. We will contrast this case
with Van Valkenburg v. Lutz (NY, 1952), which explores the statutory approach
used in a minority of states (we'll discuss Van Valkenburg in the next class)
• Note: in some US states, they may supplement the common law standard with
statutory requirements. They may add more details. Like NY, Florida and
California.
• Something about Missouri
○ St. Louis-style wet-rub ribs
○ toasted ravioli
○ gooey butter cake
○ Mark Twain (1835-1910)

Fact

1. The disputed land is 17-acre, a big land. (Mr. Beans)

2. Gurwits: thought the land was his.
3. Gurenders: owner of 17-acer land, they did not know the land was his.
4. Description of the land: It was rough, brushy, wooded land. Heavily forested.
Trees and brushes. Wilderness. No fence, monument or any kind of demarcation.
Undeveloped, Uncultivated, was used not even for pasture 放牧.
5. Gurwit’s activities: Cut firewood, give friends permission to cut firewood thereon.
Putting up signs of “no passing” and “no trespassing” along the road. Cleaned up
downed trees and brushes along the road. Planted plots of food for wildlife on the
tract.
 tract.
6. But the fact fails to offer the extent and frequency of their activities. 1963-1983
7. Quiet title action. Lower court found for Gurwirt.

Reasoning
1. Adverse or hostile possession
The court’s reasoning: “Their possession was hostile, not in the sense that they
fortified and stood ready to defend it by force of arms—though their posting of "no
trespassing" and "no hunting" signs indicates most strongly a "hostile" possession.
The intent of the Gurwits to possess, occupy, control, use and exercise dominion
over the property satisfies the requirement of hostility.”
2. Actual possession
Rule: The claimant must physically use the land in the same manner that a
reasonable owner would, given its character, location, and nature.
A. “Possession, as we have observed supra, depends upon the nature and
location of the property. The Gurwits lived some distance from the land. It
was not necessary that they occupy or use every foot of the land at every
minute. Their acts of dominion over the property were sufficient to establish
the required possession.”
(1) The character and the nature of the land: wild, undeveloped, woods and
forests.
(2) How a reasonable person would use it: cut wood and use for fire and
clean up the land for farming; camping, hiking; hunting
(3) What Gurwits do: cut firewood, give friends permission to cut firewood
thereon.
(4) Note: If Gurwits choose to preserve the originate nature of the land, for
example, he likes trees so he was reluctant to cut down trees, he wanted
to conserve the land, generally speaking, the court in the US would not
support actual possession, because a reasonable people would not do it.
B. Level, frequency, extent.
(1) How much did he cut firewood? In weight? In quantity? How often did
he cut? The court did not cover this issue——did not analyze the extent
and the level and the frequency of the activities.
(2) Note: in common law, simply putting signs is not enough to establish
actual possession.
3. Open and notorious possession
Rule: The claimant's possession must be visible and obvious, so that if the owner
made a reasonable inspection of the land, he would become aware of the adverse
claim.
A. Court: “Gurwit testified to the fact of his cutting firewood, picking up trash
along the road, cleaning up the brush and trees left by the road widening
project, all in the sight of passersby. No one having an adverse claim to the
property could fail to have noticed that the Gurwits were claiming this
property as their own.”
B. Is a fleeting glimpse enough, or should a court require permanent, visible
evidence of the adverse possessor's presence (e.g., a fence)?
(1) The acts of caring the land cannot be temporary. So a possessor must let
others see and know he constantly and continuously take care of the
land. Only by this way can he achieve open and notorious.
C. Did the Gurwits do anything that provided permanent notice?
(1) Posted “no trespassing” and “no hunting” signs along the road.
 (1) Posted “no trespassing” and “no hunting” signs along the road.
D. Two general approaches in U.S. case law: which do you think is better?
(1) O/N met if true owner would have seen adverse possessor engaged in
activities if he/she happened to inspect at some time. (a lower standard)
(2) O/N met if visible traces of adverse possession left behind (eg: signs,
fences, stumps 树桩, footprints, NY requires a higher standard)
◊ No. 1 is better. Actual possession
◊ No. 2 is better. Permanent physical trace. It is stronger, more
obvious.
◊ Gurwit case applies the first one. Court said that Gurwits are doing
activities.
E. Do you think this case is consistent with Zambrotto? P103
(1) Yes. In Zambrotto, the court held using a 5-acre forest tract for
occasional hiking and rattlesnake hunting (recreational use) was actual
possession but not open and notorious procession because the nature and
frequency of the activities are insufficient to put the owners on notice
that their title was being challenged.
(2) This case is different from the facts of Zambrotto. Cleaning bush and
posting signs are sufficient to put the owners on notice that their title
was being challenged. Gurwit even brought machinery into the disputed
land. It’s obvious and easy to be noticed.
4. Exclusive possession
Rule: “Exclusive possession means that the claimant must hold the possession of
the land for himself, as his own, and not for another.” The claimant's possession
cannot be shared with the owner or with the public in general.
A. Gurwit possessed the land only for himself, he did not share it with the true
owner. In this case, Greunder never came to the land.
B. Exclusivity focuses on the real fact. What Gurwit think does not matter.
Whether he knew or did not know the land is his, such issue does not matter.
C. Gurwit only gave his friends permission to use the land, it is not the whole
public, so EP satisified. But if Gurwit gave Greunders permission to pick up
firewood on the land frequently, EP is still broken. Or even if Gurwit refused
Greunder to enter the land and cut firewood, but Gruender still did so,
exclusivity is broken.
5. Continuous possession
A. The claimant's possession must be as continuous as a reasonable owner's
would, given the character, location, and nature of the land.
B. Court: “The Gurwits' possession was as continuous as the nature of the
property would admit. There were no doubt days or weeks when they were
not physically present on the disputed tract, but continuous possession clearly
does not require continuous occupation and use.”
C. But, weren't there days and weeks that the Gurwits were not on the land?
How often would a reasonable owner of such land use it?
(1) The character of land is rural, unfenced and wilders. There were not
need every day. Probably once a year is enough. Because the required
continuity is measured by a reasonable owner's conduct, sporadic 间断发
生的 uses of wild lands are usually deemed continuous. (P103 e)
6. Discussion
A. Recreational purposes P102(b)
 (1) In most jurisdictions, activities such as gathering firewood, cutting small
amounts of timber, grazing cattle or other animals are considered
sufficient "actual" possession of wild and undeveloped lands.
(2) The use of land solely for recreational purposes is not considered
actual possession in some states ("hunting, hiking, and riding four-
wheelers" on forest land did not constitute actual possession) P103
(3) But in some states, recreational purpose is OK.
(4) in exam, recreational issue will be clear
B. Environmentalism (P104 Note d)
(1) Before abandoning use of land out of environmental reasons is not
"actual possession"
(2) However, in Meyer v. Law, the court holds that such idea should be
changed

Hypos
Has adverse possession been established in these situations? Assume the statutory
period is 10 years.

1. Suppose the Greunders had collected firewood on the disputed property once each
summer - would the Gurwits’ possession still be considered exclusive? P103
(1) No. exclusivity is broken.
(2) In order for a true owner to interfere with the adverse possessors, generally
speaking, he must also use the land in a way a reasonable owner would, given
the land’s character, nature and location.
(3) The court would say (1) the Greunders came to the property, but that alone
will not destroy exclusivity, the focus is how they use the land (2) cutting
firewood is a reasonable use given its character, nature and location (3)
frequency issue
(4) exclusivity focuses on the real fact. What Gurwit think does not matter. So,
even if Gurwit refused Greunder to enter the land and cut firewood, but
Gruender still did so, exclusivity is broken.
2. What if the Greunders entered the land once a year? Would the Gurwits’
possession still be exclusive?
a. Still exclusive. Visit is different. Most courts would say exclusivity is not
broken because Greunders have just visited the land once a year. The level is
pretty low.
b. But what if 20 times a year? Still exclusive. breaking exclusivity shall take
into account both use and frequency. Just entering a land is not a reasonable
owner would do.
3. What if the Greunders hiked on the land?
a. This is about recreational use. In some jurisdictions, recreational use would
be OK. In other jurisdictions, recreational use is not OK. Historically
speaking, hiking, camping and among others recreational use is not enough.
But later, people has recognized that in some land, recreational use is more
and more common. After all, time changes. (in exam, recreational issue will
be clear) p103
4. If Greunder came to the land in the evening and stealing apples, would it break
exclusivity?
a. First, trespass issue. It might not be trespass, since it is his own land.
 a. First, trespass issue. It might not be trespass, since it is his own land.
b. Secondly, picking up apples is a reasonable use considering the land’s nature,
character and location.
c. Third, frequency issue. If he only came once, then exclusivity is not broken.
Frequency requires more than once.
5. A held title to a 200-acre (809,371 square meters) tract of remote and unimproved
desert land, which she never visited. Driving past the land one day, B noticed that
rare and valuable cacti 仙人掌 grew there; B spent 20 minutes digging out 4 small
cacti, which he later sold. Over the next 10 years, he visited the property on 5
more occasions, each time removing a few cacti. B claims title to the tract.
○ Character, location, and nature of the land: remote and unimproved desert
land, very big land.
(1) Actual Possession : The claimant must physically use the land in the same
manner that a reasonable owner would, given its character, location, and
nature.
i. Argument for A: the level of actual possession is low.
ii. Argument for B: this is a remote and unimproved desert land, my
activities are enough.
iii. Citing Gurwits case, the court focus a lot on the type of the land. So the
actual possession is satisfied.
(2) Open and Notorious P: The claimant's possession must be visible and
obvious, so that if the owner made a reasonable inspection of the land, he
would become aware of the adverse claim.
A) A's lawyer: not satisfied.
1) Only a few cacti are removed. Stumps of cacti are not obvious
enough in such a large land.
2) You dig the cacti out and left a hole which is not obvious, because
there is desert, and we all know that the sand is move around
B) B's lawyer: Satisfied.
1) Open and notorious: the owner would know: Digging the cacti is
similar to cutting down the trees.
2) 200-acre land is large, in Gurwits case the land is 76 acres and it is
huge too. The area of land is not necessary in the element of open
and notorious possession.
C) Maybe A's arguments are stronger
(3) Adverse/hostile P: assuming satisfied.
(4) Continuous P: 10 years 6 times. Given desert land, type is ok but level is
low.
i. A's lawyer: Not satisfied. 20 minutes, 5 more times, a few, 100 minutes
for 10 years is not enough to constitute continuous possession.
ii. B's lawyer: Satisfied, because this is desert. But this element is difficult
to determine
iii. Common sense: level is low. Too much interruptions. Not satisfied.
(5) Exclusive P:
i. based on the facts, satisfied. Not sharing with the landowner and the
public in general. (A does not come on the land).
ii. Note: exclusive possession does not care about the mind of the adverse
possessor; the court will generally judge objectively whether the owner
or the general public come to the land.
(6) Statutory P: satisfied. 10 years.
 (6) Statutory P: satisfied. 10 years.
(7) In sum, A is more likely to win. Time is too limited to establish adverse
possession.
6. C owned a home in a rural subdivision. D owned the house next door. All
backyards in the subdivision were unfenced and covered by wild grass. Over the
next 10 years, D occasionally watered the wild grass behind his house; he also
mowed it 3 or 4 times each summer. D then discovered that part of the land he had
been watering and mowing (a strip about 20 feet wide - i.e., about 6.1 meters wide)
was actually part of C's original lot. Over the years, C's children had played on this
strip of land on 8 or 9 occasions. D claims title to the strip.
○ Character and nature of the land: rural subdivision. Unfenced backyard,
covered by wild grass. Reasonable owner will water and mow the grass. The
land is behind someone's house. A small piece of land
(1) Actual Possession: satisfied.
i. Because he watered the wild grass behind his house and mowed it 3 or 4
times each summer. Reasonable use, reasonable frequency. (the true
owner would do this)
(2) Open and Notorious P: satisfied
i. Obviously, because wild grass has been cut, and the land is quite small.
(3) Adverse/hostile P: assuming satisfied.
(4) Continuous P: satisfied
i. 3-4 times each summer. (mowing the grass 3-4 times each summer is
enough.)
(5) Statutory P: satisfied. 10 years.
i. Considering controversial elements.
(6) Exclusive P: real problem is here.
i. The fact that it is C’s children but not C does not matter. Because under
law, parents are responsible for their children up to a certain age. Here,
most states will say that C’s children can represent the true owner C. So
the type of person is satisfied, being the true owner.
ii. Reactional act of real owner's children 8/9 times. And it's reasonable for
children to play here
iii. Assume court recognize recreational act, C can argue the exclusivity is
destroyed
iv. Assume court does not recognize recreational act, D can argue that the
exclusivity is not destroyed (however courts is not likely to take this
argument)
v. Next considering the frequency of the activities. Note that true owner’s
one time visiting is not sufficient to break exclusive possession. In this
case, it is 8-9 times. It is enough to break the exclusivity.
(7) Conclusion is that there might be no adverse possession

Comparative Study
1. Adverse Possession in Hong Kong and the Law Reform Commission of Hong
Kong 香港法律改革委员会's Recommended Reforms (Consultation Paper,
December 2012) and the HKSAR Government Response
2. Must show other standards: like in good faith, unfair
3. Register as an adverse possessor.
4. Adverse possession in HK is much harder than that in US.
8: Adverse Possession - Basic Elements (Statutory Approach) - Van
Valkenburgh v. Lutz (NY, 1952) 105-113
2019年9月6日 上午 01:09

Introduction
1. Gurwit represents the majority approach toward adverse possession in the United
States -- i.e., based on case law and common law elements.
2. A minority of states in the U.S. supplement the traditional common law elements for
adverse possession with additional statutory requirements (e.g., Florida,
California, New York)

Van Valkenburgh v. Lutz (NY, 1952)

1. Purpose
A. How does the NY statutory approach compare with the common law standard?
B. NY law on adverse possession is a combination of statutory requirements
and common law elements, although the Court here only discusses statutes.
This makes sense because if you don’t fulfill statutory standards, you naturally
do not satisfy common law standards.
C. NY law has changed since this case. But we will discuss this case under the then
NY law.
2. Fact
A. Lutz (D) and his family owned and occupied a parcel of land near a triangular
tract in the City of Yonkers. Beginning around 1920, Lutz (D) used the tract to
cross to his land. He then cleared part of the tract and built a shed thereon and
maintained a garden, knowing that he had no title to the tract.
B. In 1937, Van Valkenburgh (P) moved onto a parcel contiguous to the triangular
tract and a small feud developed for unrelated reasons between the parties. In
1947, Van Valkenburgh (P) purchased the triangular tract at a foreclosure sale
for nonpayment of taxes. The Lutzes did not receive notice of the foreclosure
sale. P gave Lutz (D) notice to vacate the tract.
C. At a meeting between the parties and counsel, Lutz (D) agreed to remove the
shed and garden, but claimed a right of way by right of prescription across the
tract. Though Van Valkenburgh (P) agreed, he erected a fence across the right
of way path, whereupon Lutz (D) obtained a judgment awarding him a right of
way, which was affirmed. Van Valkenburgh (P) then brought this suit to compel
removal of encroachments and delivery of possession of the triangular tract. The
trial court held for Lutz (D) granting title by adverse possession, and Van
Valkenburgh (P) appealed.
a) 1912- Lutz bought lots 14 and 15 – instead of walking up the hill to get to
their house, they walked thru lots 19-22.
b) 1928 – Lutz lost his city job, and since then, stayed home tending a garden
and cultivating the land in lots 19-22.
c) 1937 – Van Valkenburgh bought lots, west of Gibson place.
d) 1946 – Bad blood developed between the two families.
1) During these periods, no one paying tax for the land.
e) 1947 – Van Valkenburgh bought lots 19, 20, and 21 through tax sale.
Note that the tax sale has no effect since the government should
publish sufficient notice to the public before a tax sale, as due process
clause in the Constitution requires. Here, Lutzes never received notice
of the sale.
 of the sale.
f) 1947.7 – Lutzes filed a lawsuit against VV based on prescriptive easement
argument
easement: The legal right to use someone’s land even though you do
not have the permission from the owner.
g) 1948.1 – Lutzes won a judgment for a prescriptive right– meaning that he
conceded that Van Valkenburgh owned the property, but he had a right to
use the traveled way to reach his property.
Prescriptive easement: right to use someone else’s land, acquired by
continual usage, w/o permission of the owner. 时效地役权
h) 1948.4 – VV sued the Lutzes to obtain possession of the triangular parcel
and for related relief, Lutzes used adverse possession as a defense.
1) New argument – Lutz retained possession of the land from Van
Valkenburgh and early possessors by virtue of having held and
possessed the same adversely to the possessors upwards of 30 years.
2) Lutzes were allowed to challenge the VV title despite the tax sale
because they never received notice of the sale, as due process requires
i) 1950: Trial court found that Lutzes acquired title to the land in dispute in
1935 by adverse possession. The VV appealed.

○ The triangular tract of land: wild natural land with brush and small trees
○ The Lutzes’ activities on the land: remove brush; building a “traveled
way”; clearing much of the triangular parcel; farming + selling vegetables
to neighbors; building a one-room dwelling for his brother; raising
chickens and constructing coops or sheds for them; planting trees.
D. who owned the triangular tract until 1935? And why do you think the owner
never acted to evict the Lutzes?
a) Obviously, we did not know who owned the triangular tract until 1935.
b) It is quite possible that the owner did not never enter the land, or he did not
care about the land.(tax sale)
3. Issue
May title to a parcel vest in an adverse possessor who occupies the parcel under
claim of right, protects the parcel with a substantial enclosure/improves or cultivates
the parcel, and maintains that state of affairs for the statutory period)?

4. Relevant Statute
A. Lutzes case is in accordance with the circumstance in section 40. In this case,
Lutzes claims adverse possession not because there are defects in the deed or
other things, they just claim adverse possession.
B. The requirements in the statute somewhat overlaps with the common law
standard. It is noted that the statute assumes that the disputed land is
undeveloped.
a) “15 years” overlaps with statutory periods.
b) “usually cultivated or improved” overlaps with actual possession. But
more meticulous 小心谨慎的
□ Activities possessing to land, doing something on the land as the true
owner would do.
c) “substantial enclosure” overlaps with open and notorious possession.
□ Enclosure or protected by the fence or by the wall or closed
something and has to be substantial.
□ Nothing is more visible than a fence protecting the property.
d) “actual continued possession” overlaps with continual possession.
e) “under a claim of title” overlaps with adverse possession.
C. The essential elements of proof being
i. Premises are protected by substantial enclosure or are,
ii. (Usually cultivated) or improved. (“cultivated” like growing things,
improving the soil and farming; “improved”: building a house, which
improved the property.)
D. Section 34 does not deal with the adverse possessor. It deals with the person
who intends to recover the land (A). if A wants to recover his property, the
property must be seized from him 15 years before he raised the suit. (New York
is longer than 10 years)
E. To acquire title to real property by adverse possession not found upon a written
instrument, it must be shown by clear and convincing proof that for at least 15
years (statute of limitations) there was an actual occupation under a claim of
title, for it is only the premises so occupied and no others that are deemed have
been adversely.
The Court's Reasoning (Lutzes lost)
1. First, what does Lutz have to show/prove to win the case?
a. Either substantial enclosure or usually cultivated or improved (usually only
modify cultivation)
2. Majority
a. In this case there was no proof offered of any protection of the parcel by
enclosure by Lutz (D), and the proof shows that he did not cultivate the entire
premises claimed. Furthermore, there was no improvement of the land because
the shed thereon, the only structure of any kind involved here, was built by Lutz
(D) with the conceded knowledge that he did not own the land under it. Title to
a parcel may vest in an adverse possessor who occupies the parcel under claim
of right, protects the parcel with an enclosure/improves or cultivates the parcel,
and maintains that state of affairs for the statutory period. In this case, the
elements permitting taking title by adverse possession were not present.
Reversed, judgment directed for Van Valkenburgh
3. Dissent
a. The weight of the evidence establishes Lutz's (D) right to the property in
question by adverse possession. There was a “traveled way” across the property.
Lutz (D) operated a truck farm there of substantial size. The fact that Lutz (D)
knew he had no title to the tract is irrelevant so long as he intended to acquire
title in himself, as he did. Lutz (D) actually occupied the property and title
vested in him.
4. Cultivated or improved
A. The Court first analyzes whether the premises were usually cultivated or
improved (since no evidence of substantial enclosure)
B. Why does the Court emphasize that the boundaries of the cultivated area "are
neither defined nor its location fixed with certainty"? As the attorney for Lutz,
how would you have proven this at trial? (p. 107)
a) One shall know the boundary of the land before he cultivates on the land.
b) You don’t have the confidence and certainty to productively use the land if
you have no idea of the boundary of the land.
c) The defendant cannot prove that they know the boundaries, so the
argument of “usually cultivated” failed.
d) If I were the attorney for Lutz, I might bring a map in court to let Ms. Lutz
mark the boundary in her own view. There is a high possibility that Ms.
Lutz has somewhat idea.
C. How to argue for “usually cultivated or improved”
i. my client has “usually cultivated or improved” the land, this part of statute
contains two elements, 1) my client has actually cultivated and improved
the land; 2) on usual. In the part of cultivation and improvement, there is
no doubt that my client takes actions to cultivate or improved the land, for
example, he used the land as farm to grow vegetables and crops, and
removed brushes. My client has showed he cultivated the land. In terms of
improvement, growing crops and removing brushes also are improving the
land. Also, he built the dwelling on the land that is also an improvement.
Besides, my client cultivated and improved the land as usual, because this
is not one-day activity and he last 1916-1948. In 1928, my client lost his
job and began grew crops, in other words, he began to cultivate the land
full time.
 full time.
D. Were the premises improved?
a) Note: Cultivation is different from improvement. Cultivation might refer to
collecting or cutting firewood, farming and likewise. Improvement means
to make the land more valuable, like building a structure on the land.
b) The court said No. since there were unclear evidence. (1) no idea of
boundary (2) there is no evidence suggest hostile possession (3) evidence
does not show the premise was sufficiently improved.
E. The dissent's arguments: There is enough evidence.
i. Beginning at the general point: the dissent states that the majority was
questioning the facts collected by the lower court. The majority shall be
deferential to the lower court’s findings of facts.
ii. Evidence has shown that Lutzes have actually made substantial
improvements on the land. (since 1928, a full-time farmer on the land;
raise chickens, plant fruit trees, build dwelling)
iii. Issues of boundaries: “there is evidence that the cultivated area extended
from the traveled way on one side of the property to a row of logs and
brush—placed by Lutz for the express purpose of marking the farm’s
boundary—at the opposite end of the premise”

5. Claim of title requirement - i.e., the state of mind of Lutz

(1) According to the majority, what state of mind must an adverse possessor have in
order to make a claim of title?
a) The COURT first implies that Lutz’s occupancy wasn’t adverse because
when Charlie’s shack was built, Lutz knew it was not his land. ——
suggesting a good faith standard
b) But, court also states that Lutz’s occupancy was not adverse because when
Lutz built his garage (which encroached on the disputed tract), he thought
it was his own land. —— suggesting a bad faith standard
c) The majority opinion contradicts itself.
(2) The dissent's response on Lutz's state of mind issue
a) Good faith is not required. Objective test.
(3) In determining Lutz's state of mind during the adverse possession period, how
much weight should the court give to a statement made after that period? What
do you think?
a) I would argue that the state of mind is irrelevant, the acquirement of
adverse possession was in 1935, which is far earlier when VV came to the
scene.
(4) New York law today
a) Good faith is required
6. Central problem for Lutz - his attorney's error?
a. Keep silent, maybe the result is quite different/
b. bring the lawsuit right of adverse possession at beginning.
c. (try aggressive claim at first, then if you lose, you can be moderate (call for
easement)
7. Comparing Gurwit and Van Valkenburgh
(1) The traditional requirements for adverse possession are that the possession be
actual, open, notorious, exclusive, adverse or hostile, continuous, under a claim
of right, and for the statutory period. These requirements are variously
expressed in the statutes and in the cases.
 expressed in the statutes and in the cases.
(2) Personhood theory: adverse possessor has a strong connection with the land.
Objectively speaking, adverse possessor in good faith has a stronger argument
than that in bad faith.
a) Note: Labor theory does not really help here, because they both mix their
labor there.
8. New York law today requires good faith to constitute adverse and hostile
possession.

Color of title (P112, e)

1. It refers to a deed, a judgment, or another written document that is invalid for some
reason
2. The standard for adverse possession based on color of title are easier to meet in many
states
9, AP: tacking; Howard v. Kunto 125-133
2019年9月6日 下午 07:45

Introduction
1. Today's class focuses on some issues in the mechanics, the application of adverse
possession — we will focus primarily on the concept of tacking, as well as other
procedural issues in adverse possession
2. Judicial action is not necessary for an adverse possessor to obtain title
a. If A occupied B's land for the required period and satisfied the adverse possession
elements, A automatically acquires title when the period ends
3. There are two uses of adverse possession, adverse possessor either (1) bring a quiet
title action to confirm his title, or (2) raises the doctrine as a defense to an owner's
lawsuit to recover possession.
4. Lawyer's duty (P125 蓝色框框)

The concept of tacking

1. The period of adverse possession of one possessor can be tacked to the period of
adverse possession of another possessor if the possessors are in privity with each
other.
2. Privity generally exists when the possession is passed from one to the other by deed,
will, written contract, oral contract, mere oral consent or permission. (voluntary
transfer of possession (privity))
3. There is a wide variation among the states as to when tacking is permitted

Howard v. Kunto
1. In Washington State. Seattle is very famous for its coffee culture.
2. New Jersey is famous for its shores.
3. Illustrate another justification of adverse possession: correct title defects

1. Purpose
Howard v. Kunto is an important case which illustrates the concept of tacking, as well
as one of the uses of adverse possession - to correct a title defect on behalf of a good
faith owner
 faith owner
2. Facts
A. People are on the wrong lands; everyone is on their neighbor’s land but think that
their own.
B. The Kuntos (D) took possession of a summer home under a deed that
unbeknownst to them described the adjoining property. The infection started way
back in 1932. After Howard’s family discovered the mistake, Howard exchanged
title of deeds with Moyer. Thus, Howard (P) obtained a conveyance of the deed
that described the property occupied by the Kuntos (D), then sought and obtained
a judgment quieting title in himself. After all, Howard has a right of property
against Kunto and intends to reject Kunto on the land. In this case, Kunto is using
adverse possession as a defense.
C. Kunto lost in the trial court, for lack of continuity and statutory periods.
i. The fact that Kunto’s physical use of the premise is restricted to summer
occupancy defeats the claim of adverse possession. (continuity failed)
ii. Tacking not allowed. (statutory periods failed. 10 years needed)
D. Kunto appealed and won.
3. Issue
A. Continuity: Is a claim of adverse possession defeated because the physical use of
the premises is restricted to summer occupancy?
B. Tacking: May a person who receives record title to tract A under the mistaken
belief that he has title to tract B (immediately contiguous to tract A) adversely
possess tract B through his and his immediate predecessor's possession?
4. Holding
A. A claim of adverse possession is not defeated if the physical use of the premises
is restricted to summer occupancy since to hold otherwise would ignore the nature
and condition of the property.
B. A person who receives record title to tract A under the mistaken belief that he has
title to tract B (immediately contiguous to tract A) may adversely possess tract B
through his and his immediate predecessor's possession as long as the possessor is
not a wrongdoer or trespasser
5. The Court’s reasoning - Issue of "uninterrupted" and continuity
A. "to constitute adverse possession, there must be actual possession which is
uninterrupted, open and notorious, hostile and exclusive, and under a claim of
right made in good faith for the statutory period" (p. 127) Analysis:
uninterrupted means continuity.
B. Why did the Kuntos's summer occupancy satisfy the requirement of "continuous"
possession (i.e., "uninterrupted" possession)?
i. Nature and condition of the land: vacation beach home near the shore.
ii. A reasonable owner will go to the land only during summers taking into
account of the nature and condition of the land.
iii. Normal use of reasonable owner. Thus summer occupancy satisfied the
continuous possession.
C. How do you think the Court would have ruled if Kuntos (and their predecessors)
had occupied the home for only 6 summers in 10 years?
i. Possibly satisfying the continuity.
ii. A reasonable owner will go to the land only during summers taking into
account of the nature and condition of the land (vacation beach home near
the shore).
iii. A reasonable owner might not spend summer time in a same place every
 iii. A reasonable owner might not spend summer time in a same place every
year. And there might be bad weather issue or money issue or family issue.
So six summers are enough.

iv. No definite answer. Depends on the jurisdiction. Some courts might say that
the first situation shows GENERAL CONTINUITY. Even there are some
interruption, but generally it has a beginning, middle and an end. While the
second situation you have concentrated everything in the beginning, the last
four years you don’t come on at all. So you don’t have the general continuity
there. (1) is more possible satisfying continuity than (2). (2) is more
possible satisfying continuity than (3).
1) 最后四年都没有去，会让人觉得你已经“放弃”了这个地方
2) 第2/4/6/8/10，这样更容易构成continuity
D. What if there was no house at all on the lot, but Kuntos (and their predecessors)
camped on the land for 6 weekends each summer?
i. nature and character of the land: by the beach, no lot, unimproved, sandy,
with grass
ii. activity: camping on the land. Reasonable person would do it.
iii. continuity: how often? June to August: 12 weeks. 6/12 may be OK. We
cannot force people to be there for 12 weeks, that will not be a hypothetical
reasonable owner.
1) What about under 6 weeks, maybe three weeks? Three weeks maybe
reasonable, because camping is different from living in a house.
2) Then what about two days? 2 days might be too low. After all, there is
no clear answer.
6. The Court’s reasoning - Issue of Tacking
In order to tack among adverse possessors, what’s the requirement? You have to
satisfy the privity requirement. Then let’s talk privity.
A. Court's vague standard for privity: "some reasonable connection between
successive occupants of real property so as to raise their claim of right above
the status of the wrongdoer or the trespasser" (p. 129)
a) PRIVITY: refers to a transactional relationship between 2 (or more) parties.
b) One party transfers something to the other (transfer of estate)
c) One party enters into agreement with somebody else
d) General standard in US: In tacking context, privity is generally satisfied
when one occupant voluntarily transfers his rights (ownership or possession)
to a successor (via an original deed or will, for example) or if, he purports to
do so.
e) Sometimes, the law will say even there is some mistake in the will, if
purports to do so. In some jurisdictions, you don’t need to do it by will, you
can simply do it orally. The court in this case adopted a very vague standard,
the Kunto standard is the general standard in America.
B. What are the policy reasons for allowing tacking?
i. Unitarianism, more productive use of land. It gives the chain of adverse
 i. Unitarianism, more productive use of land. It gives the chain of adverse
possessors a chance to keep the land.
ii. the requirement of privity can protect good faith relationship, otherwise any
trespassers would come forward and ask tacking. (squatter, trespasser v.
property purchaser, P129)
iii. Privity is more formal, the adverse possessor having a deed feels more safe
and more likely to productively use the land. Otherwise, you might not care
that much of the land.
C. Why were the Kuntos allowed to tack? And what's the substantial difference
between the Kuntos and an ordinary trespasser?
Existence of privity, voluntary transfers of possession. In court’s opinion, if you
want to tack, you position has to be better than adverse possessor.
i. Kunto: in good faith investment. (some people might not feel sorry for
Kunto since they argue that Kunto failed to survey the land before he
purchasing the land, but it is noted that ordinary owners do not survey the
entire land before purchasing a land. They did not do due diligence. Some
people might hire a lawyer to check the title, but few people will go to the
land and survey the entire land because it costs money. Additionally, AP
would correct mistakes in title with a relatively low cost.
ii. Kunto: productively using the land. As a court, we want to promote the
productive use of the land. Kunto is honest people, they productively use the
land in good faith, they pay a large number of value, the only unfortunate
thing is that the deed is incorrect, therefore Kunto deserves to be protected.

Practice Hypos (p. 131) for Tacking

○ Under the Howard approach, is tacking allowed in the following situations? Assume
the jurisdiction has a 10-year statutory period.

1. A occupies O's land for 6 years. A then tells his friend B: "You can be here if you
want, but I'm leaving." B occupies the land for 5 more years.
(1) Reasonable connection in Howard case: voluntary transfer of rights
(2) In this hypo, no deed, no clear transfer of anything here. since A's words here can
neither constitute deed or clear transfer
(3) Most courts don’t take it as "contract" because it does not contain a "transfer of
possession", it is just "permission to be here"
(4) Therefore, no reasonable connection.
(5) Note: gift promise can establish reasonable connection, but here A did not say: I
will you give you the land.
○ The argument against B: this is not a really voluntary transfer. Using the Howard
standard, the Howard standard is about some reasonable connection between the
two individuals to raise standards from wrongdoer to trespasser. Based on the
conversation between A and B, there is no transfer. B seems like just trespassers.
Again, A just said, "You can be here if you want, but I'm leaving." It is not a
certain kind of transfer. (right answer)
○ The argument for B: focusing on the Howard standard, the standard is not very
clear. It does not require voluntary transfer. So this may not be a traditional
transfer, such as transfer the property in a deed, but the Howard standard requires
that. A then tells his friend B: "You can be here if you want, but I'm leaving."
Even if it requires voluntary transfer, that is a kind of transfer. It is giving an oral
permission for B to be there. (wrong answer)
2. C occupies O's land for 2 years. C then tries to convey the land to her sister D, but the
 2. C occupies O's land for 2 years. C then tries to convey the land to her sister D, but the
deed C uses for this purpose is invalid. D occupies the land for 9 more years.
(1) Allowed. Reasonable connection. Similar to Howard case. Privity exits.

Adverse Possession and Disabilities (p. 132)

1. Disabilities
(1) Most common disabilities: imprisonment, minority (under 18), and lack of
mental capacity... Some states also protect the owner who is away on military
service or who resides outside of the state.
(2) Some states suspend the running of the period until the disability is removed
(3) Most states provide a limited period of time after the disability ends within which
a suit must be bought (e.g., a state statute allows an owner to bring suit within 5
years after his disability is gone)
i. A is the true owner. He is insane in 1995, and is cured in 2012.
ii. B's adverse possession begins in 2000 and the state's statutory period is 10
years.
iii. So A still have five years to sue to eject B, that is 2012+5=2017
iv. So the earliest time that B can get the land through AP is 2017
(4) In most states, the running of the adverse possession period is not affected by
an intervening or supervening disability. (only a disability that exits at the
beginning of the AP period will extend the statutory period)
(5) the disability must be of the true owner.
i. There is no tacking of disabilities
ii. Disabilities do not shorten the state's standard period for adverse possession
iii. Death ends all disabilities
iv. Most courts in US allow heirs to bring suits to enjoy the benefits of the
disability statute.
(6) Be sure to check the relevant statute in each jurisdiction for what that jurisdiction
considers to be a "disability" in the adverse possession context
(7) What if the true owner has more than one disability, the law will allow him to use
his ability which allows him more time to sue. Whichever the disability last
longer is the one we choose.
(8) What if the disability never ends?
i. Every disability ends because everybody dies. What if somebody in prison
for three years or a long time? As long as the true owner is under disability
at the time adverse possession begins, the statute of limitations will not run
against such true owner until his disability is actually removed. So even if
his disability last for a long time, that's ok. Basically, the statute of limitation
will be told as we will wait for him until his disability ends.
2. PRACTICE:
(1) Suppose owner C is ten years old in 2000. D begins adverse possession of C's
land in 2000. C dies in 2003, and all his rights in the land are inherited by his heir
H. However, H has been mentally incompetent since 2002. The normal adverse
possession period is ten years, but an owner under a disability may bring suit
within five years after his disability is removed. When is the earliest time that D
can perfect title by adverse possession?
a) Normal statutory period: 10 years. 2000+10 = 2010
b) 2000: C is 10 years old (minority)（we don't care about the heir H's
disability)
1) C under disability in 2000.
 1) C under disability in 2000.
2) C dies in 2003. C's disability ended.
c) 2003 + 5 = 2008
d) Disability des not shorten the state's standard period for AP
e) So wait until 2010.
f) The law does not care about the disability of the heir.
(2) An action to recover the title to or possession of real property shall be brought
within 21 years after the cause of action accrued, but if a person entitled to bring
the action is, at the time the cause of action accrues, within the age of minority or
of unsound mind, the person, after the expiration of 21 years from the time the
cause of action accrues, may bring the action within 10 years after the disability is
removed.
a) A enters Blackacre in 1980 when the owner (O) is 2 years old and begins to
adversely possess Blackacre. What is the earliest that A can perfect title by
adverse possession? (or put another way, how long does O have to bring
suit?) (Assume age of majority is 18. Assume O is healthy and does not
die.)
1) 1980(AP began) +21=2001
2) 1980+(18-2) =1996
3) 1996+10=2006
4) Comparing 2001 and 2006.
5) Answer is 2006
b) Change the facts: O dies at age 12. What is the earliest that A can perfect
title by adverse possession?
1) 1980(AP began) +21=2001
2) 1980+(12-2) =1990
3) 1990+10=2000
4) Comparing 2001 and 2000
5) Answer is 2001
3. Albert is the true owner of Woaiyouyong, which he has owned before and during
2000. Ning Zetao enters Woaiyouyong in 2000 and begins to adversely possess
Woaiyouyong in 2000. Albert suffers from a mental defect in 2000 and dies in
2020. Woaiyouyong passes to Albert's heir, Fu Yuanhui, who likes to smile a lot and
make funny faces. Fu Yuanhui does not have a disability. On which date can Ning
Zetao acquire title by adverse possession (he really wants to swim in Woaiyouyong)?
(1) Assume in this jurisdiction that the AP statutory period = 20 years. Also assume
that a person who is disabled may bring a CoA to recover possession against the
adverse possessor within 10 years after his disability his removed.
(2) Answer: Ning Zetao acquires title in 2030.
A. The normal statutory period is 20 years, and so 2000+20 = 2020.
B. Albert's disability doesn't end until 2020, and we know it was indeed
existing when Ning Zetao began adverse possession of the land in 2000.
C. The answer is that most courts will allow an heir to bring suit and enjoy the
benefits of the disability statute.
D. Therefore, Albert's disability ends in 2020 (because death ends all
disabilities), and therefore 2020+10 = 2030.
4. Albert is the true owner of Woaiyouyong, which he has owned before and during 2000.
Ning Zetao enters Woaiyouyong in 2000 and begins to adversely possess it in 2000.
Albert suffers from a mental defect in 2000 and dies in 2020. Woaiyouyong passes to
Albert’s heir, Fu Yuanhui. In 2020, Fu Yuanhui joins the Olympic Team and goes to
live on a training camp away from everybody else. In this jurisdiction, her living in
 live on a training camp away from everybody else. In this jurisdiction, her living in
this training camp constitutes a “disability.” On which date can Ning Zetao acquire
title by AP?
(1) Assume in this jurisdiction that the AP statutory period = 20 years. Also assume
that a person who is disabled may bring a CoA to recover possession against the
adverse possessor within 10 years after his disability his removed.
(2) 2030. F's disability does not matter, and it cannot be tacked to Albert's disability

Adverse Possession in Law Practice: Real Estate Transactions (e.g., buying and selling
homes)
1. Seller affidavits - commonly used in the conveyance of real property - the seller makes
certain representations concerning the property
2. There is a commonly-used seller representation on adverse possession
3. E.g., "the Seller has been in open, notorious, adverse and peaceful possession of the
Property and there are no adverse claims to title to the Property, and no other person is
in possession of any part of the Property and the Seller is not aware of any claim to
title or possession of the Property, except as follows: [include EXCEPTIONS if
necessary]."
10: Subsequent Possession -- Finders Law (Armory, Hannah) 172-182
2019年10月16日 下午 09:49

1. Four categories of "found" chattels (tangible personal property) (P172):

lost property: owner unintentionally & involuntarily parts with it
mislaid property: owner voluntarily and knowingly places it somewhere, but
then unintentionally forgets it
Abandoned property: owner knowingly relinquishes 放弃 all right, title, and
interest to it
treasure trove: owner concealed it in a hidden location a long time ago.
Treasure trove is usually limited to gold, silver, coins, or currency.
2. Finders law has societal importance because people lose & misplace things all the
time.
3. A finder's rights are governed by a number of factors, including the type of item and
the place where it was found.
4. Most states in the U.S. now have statutes governing the recovery of personal property.
So that makes the lawyers' life easier: no need to search into case law.
a. Many countries have statutes too. Japan, for example, has law which tries to
encourage finders to turn things they fins to government. Governments then is
able to create system whereby true owners can look for their property. P194
b. The policy will advertise for a statutory period of time (e.g. it is normally short. 2
weeks), if the true owner does not recover his right, the police will give this item
to the finder (the title will be transferred to the finder). Some country will
legislate these property belongs to the state, if the true owner does not recover his
right. But it does not workable in America, because the U.S. wants to encourage
people to be honest.

Armory v. Delamirie (93 Eng. Rep. 664 (1722)) (P173)

Fact
1. Armory (P), a chimney sweeper's boy, found a jewel. It is not his chimney and not his
jewel. Then he took the jewel to Delamirie's (D) goldsmith shop to learn what it was.
Delamirie's (D) apprentice, under the pretense of weighing the jewel, removed the
stones from the setting and told his master the value. Delamirie (D) offered Armory
(P) three halfpence for the stones, but he refused. Delamirie (D) returned the setting
without the stones — the most important part of the jewel.
2. The chimney sweep brought an action in trover 动产侵占之诉:
a. a type of old lawsuit in common law jurisdictions for recovery of damages for the
wrongful taking of personal property)
b. Why didn't the chimney sweep sue in replevin 返还原物之诉
i. He sued in trove will get damages - money back. He sued in replevin which
he will get the jewel back. Money’s liquidity 资产变现能力. MONEY IS
MORE liquid. (he wanted to get quick money more than jewelry.)
Rule:
Established the rule that the finder of a lost item has superior right over everyone except the
true owner.

The Court's Reasoning (3-part analysis)

The Court's Reasoning (3-part analysis)
1. Finders law
(1) The finder of lost property, although he does not acquire absolute ownership,
does acquire title superior to everyone else except the rightful owner. Such title is
a sufficient property interest in the finder upon which he may maintain an action
against anyone (except the rightful owner) who violates that interest.
2. Respondeat superior ("let the master answer")
a. Additionally, Delamirie (D) was liable as he was responsible for the actions of his
apprentice.
3. Damages
a. As for the measure of damages, if Delamirie (D) did not show the stones were not
of the finest value, their value would be so determined.

Some questions
1. Why this formulation is incomplete
A. The court only thinks about three people: true owner, chimney sweeper’s boy,
and the goldsmith. Fails to consider the prior possessors.
B. The finder of a jewel has such a property as will enable him to keep it against
anyone but a prior possessor, or the rightful owner.
2. Different from Pierson
a. Pierson dealt with how a person gets possessory rights to unowned things
b. in Armory we are dealing with how someone gets possessory rights to things
already owned by someone else
3. Would it make a difference in Armory if the chimney sweep had stolen the jewel?
a. No. P174(c)
b. The rightful owner still has the most right to the jewel. But between the chimney
sweep and Delamirie, it doesn't matter the chimney had stolen the jewel, he still
technically has a better possession right than Delamirie.
c. In society, if we only protect the rightful owner, the law will disagree with this
for a couple of reasons.
d. If we only protect the rightful owner, this will create disorder in society. This will
lead to a bunch of unlawful acts.
i. O是原主人。A从O那里偷走了一个东西。如果我们不承认A对这个东西拥有的right
高于除了O以外的任何人的话，那么B可以从A那里偷走，C可以从B那里偷走..这样
会产生无穷无尽的案件
4. Who "owned" the jewel? P174
a. Traditionally a rightful owner means the original true owner. Most of the
time, possession is an evidence to ownership. But not always, sometimes you
may own something but you do not possess it. (E.g. Tenant-landlord.)
i. 在这里，虽然首饰店老板possess这个jewel，但是没有ownership
b. Possession can be quite relative.
i. The law of finders says basically a prior possessor has a greater possessory
right than anybody in chain. It is a pretty straight forward rule.
c. Possession can exist in other relationship
i. Possessor can hold property in other relationship like bailment. E.g:
bailment: bailor/bailee; dry cleaner. Airline.
ii. If the chimney sweep keeps the jewel, he becomes a bailment（寄托）, he
basically possesses the jewel, he doesn't have title to it. bailor - bailee.
iii. When someone has possessory rights but not ownership, it usually happens
when you transfer possession to someone but not transfer title.
 when you transfer possession to someone but not transfer title.
5. Liability to the rightful owner? P174 - Note d
a. Generally, a subsequent possessor's full payment to the finder bars any later
action by the true owner against the possessor
b. However, the true owner can compel the successful finder to transfer the payment
to her
6. The value of a "jewel of the finest water"
a. The Court awarded Armory the value of a "jewel of the finest water" - why might
the Court have ordered the goldsmith to pay the value equivalent to "the jewel of
the finest water"?
b. What is jewel of the finest water? (water - used in jewelry describe quality.)
Water was a standard for assessing the color and transparency of a jewel. a "jewel
of the finest water" has the best quality, and thus the most value.
c. Punishment: a punitive measure for the defendant cheated the chimney sweep
d. Only in this way can the court be 100% sure that the chimney sweep’s rights are
preserved
e. encourage return of the jewelry
f. Note: Some courts may not give full value, instead they say you just pay fair
market value. Even some courts will use less value than fair market value. 因为真
正的主人有可能回来找

Hannah v. Peel (1945) (P175)

Purpose
1. It is a very good common law case.
2. Demonstrate the importance of context when applying rules in finders law
3. Introduces a factual twist - should Peel, as owner of the house where the item was
found, have priority over the finder?

Fact
1. Defendant owned a house, in which he never physically occupied. He bought it in
1938, and in 1940 was requisitioned for quartering soldiers. The plaintiff was a soldier
and found a brooch (decorative jewelry worth a lot of money), in which he turned over
to the police to find the actual owner of the good. The finder found the good under
cobwebs and dirt and in a crevice in his bedroom wall
2. No one claimed the good.
3. Defendant never possessed the land, was never on the land, and the Plaintiff was a
legal occupant in which he found something which was not owned.

Issue
1. Who has the right to the brooch, when neither are the actual owner of the good?

Holding:
1. Plaintiff (finder)

Rule:
1. Rather than having a black and white rule, the courts tend to look at these cases (when
a landowner doesn’t have possession of a good, and a legal occupant finds a lost item)
in light of what the reasonable expectations of the landowner are.(Armory standard)
2. Generally speaking, the lost property goes to the finder
 2. Generally speaking, the lost property goes to the finder
3. Exception to the rule is if an employee finds a good, the good is retained to the
employer because the employee is action on behalf of the employer.
4. Another exception: if A finds something in B's private house. As a home owner, B has
constructive possession of all items in your home
5. Another exception is that lost property found under the soil or embedded in the soil
belongs to the landowner

The Court's Reasoning. Why the finder won.

1. The role of precedents - the Court cites three cases (Bridges, South Staffordshire ,
Elwes ), and several scholars (Holmes, Pollock, and Samond)
(1) Bridges v. Hawksworth: Bridges (traveler) went to a bookshop (Hawkesworth)
and picked up a small parcel with a note in it on the floor. P asked D to keep them
until the true owner appears. However, the true owner was never found. And the
defendant refused to deliver the note to P. County court found for the defendant.
The appeal court found for the Bridges and argued that the finder of a lost article
is entitled to it as against all persons except the real owner.
i. A landowner usually has a better claim to a property found on his land
than any finder only if the owner intends to exclude others from that
land.
ii. In this case, there is no intent to exclude, so the shop owner has no control
over the property of loss.
iii. Justice Holmes:
1) The shopkeeper, not knowing of the parcel, could not have the intent
to appropriate it. Additionally, having invited the public to his shop, he
could not have the intent to exclude them from it. Hence, the finder has
stronger rights over the property than the shop owner.
iv. Justice Pollock
1) focus on the idea of control. The shopkeeper has no de facto control of
every piece of the land. He does not expect objects of that kind to be on
the floor of his shop, and some customer is more likely than the
shopkeeper or his servant to see and take them up if they do come
there.
v. Samond:
1) The plaintiff, and not the defendant, was the first to acquire possession
of them. The defendant had not the necessary animus, for he did not
know of their existence.
(2) South Staffordshire Water Co. v. Sharman
i. embedded property.
ii. The finder is the employee of the owner, and the land is the property to the
owner, so the ring embedded in the land should be possessed by the land
owner. (Item Attached to Land)
iii. The possessor of land is generally entitled, as against the finder, to chattels
found embedded in that land
(3) Elwes v, Brigg Gas Co.
i. embedded property.
ii. The boat is the property of landowner even if the landowner doesn’t know
about the existence of this item because it is embedded in landowner’s land.
(Item Attached to Land)
2. Court relies heavily on the Holmes/Pollock line of reasoning regarding the Bridges
 2. Court relies heavily on the Holmes/Pollock line of reasoning regarding the Bridges
case.
(1) Holmes: It was right in Bridge case. He focuses on intents. The shop owner, first,
didn’t notice the notes; second he didn’t intent to take the notes; third public were
invited onto the property; and fourth the shopkeeper had no intention to scoop
people from that property.
(2) Pollock: Shop owner didn’t expect the notes were put on the floor in his shop.
There were lots of customers in the store. He didn’t have control over that store.
(3) Salmond: The first is to acquire possession.
3. Different from Elwes and South Staffordshire cases, in which the items were
embedded in the land, the brooch in this case was on the window edge. Also, Hannah
is not Peel’s employee or agent, so his findings could not belong to Peel.
4. Just like Pollock’s interpretation of Bridge case, Peel was never in visible possession
of the premises. He didn’t have any significant expectation regarding loss objects
of the house. So the court classified the brooch as a lost item. Hence, someone living
in the house has better expectations.

Note
1. Court focuses on the fact that Peel never inhabited the house - but what about the
government requisition?
(1) You can argue that it was unfair for Peel, because he owned the house but the
house was under government requisition.
(2) One possible reason: The court didn’t want to question requisition for policy
concerns. First, requisition is legal, since government compensated the owner.
Second, People were at war and were required to sacrifice.
2. the Court could have ruled that Peel had constructive possession of all lost articles on
his property - but it did not. Why?
a. The court focuses on two key issues: intent and control. In this case, peel had no
knowledge or intent to hold the brooch, nor did he live in or control over the
premises.
3. How did the Court balance the policies of protecting the finder's expectations,
rewarding the finder, encouraging honesty, and protecting the landowner's
expectations?
(1) Peel has very few expectations as to what is inside.
(2) To encourage honest behavior. The only reason Peel knew the brooch was
because the police sent it to him.
4. What if Hannah was a trespasser? Would the outcome of the case have been the same?
(1) No. The object under trespass still belongs to owner. Finders law wants to
discourage trespassing. And trespassers hurt the landowners’ rights.
5. Under the Armory standard, who should have won - Hannah or Peel?
(1) Hannah. Hannah has greater right to the brooch than anyone other than the owner.
You must meet the intent to control.
6. The Court awarded title to the finder - so what bundle of rights did Hannah receive
exactly? P182, e.
(1) Right to use and possess, but he cannot pass the title. He also is bound to return
the object to the original owner.
(2) Hannah is a bailee (受托人).
i. Bailment: a relationship under property law where you deliver possession of
personal property to someone else without conveying title of ownership.
ii. Under the law of bailments, a finder is obligated to (1) keep the chattel safe
 ii. Under the law of bailments, a finder is obligated to (1) keep the chattel safe
and (2) return it to the prior possessor on demand
(3) In this case, when a finder discovers a lost item, the law creates a constructive
bailment between the ultimate bailor (the true owner) and the bailee (Hannah).
Hannah is required to use the item in a careful way.
7. Prying Eyes and Fingers P181, Note (d)
(1) A homeowner had constructive possession of all lost, mislaid, or abandoned
property located on the premises
8. Bailment (P182)
(1) Bailments: A bailment is the rightful possession of goods by one who is not
their owner. Bailor - bailee
(2) Duty during custody:
i. Mutual benefit: If the bailment is beneficial to both parties, the bailee must
use reasonable care to protect the bailed object from damage or loss.
1) Example: A hotel which takes guests’ possessions and keeps them in
its safe is liable for lack of ordinary care, such as where it fails to use
reasonable anti-theft measures.
ii. Sole benefit of bailor: If the benefit is solely for the bailor’s benefit, the
bailee is liable only for gross negligence or bad faith. [72]
iii. Sole benefit of bailee: If the bailment is solely for the benefit of the bailee
(i.e., the bailor lends the object to the bailee for the latter’s use), the bailee is
required to use extraordinary care in protecting the goods from loss or
damage (but he is still not an insurer, and is liable only if some degree of
fault is shown). [72]
(3) Contractual limitation: The modern trend is that the parties may change these
rules by contractual provisions. But even by contract, the bailee generally may
not relieve himself from liability for gross negligence. [73 - 74].
(4) Acceptance: Also, for such a provision to be binding, the bailor must know of it
and "accept" it. [73] (Example: P puts his car into a commercial garage run by D.
The claim check asserts that D has no liability for negligence. The provision will
be binding only if D can prove that P knew of and accepted this provision – D
probably cannot make this showing, since P can argue that he regarded the claim
check as merely a receipt.)
11 Finders, continued (Mcavoy, Haslem, Benjamin) 182-195
2019年9月15日 下午 02:08

On exam
1. if there is a statute, analyzing the facts based on the statute;
2. if there is not statute, just using the common law rule:
3. First, remember that trespass of finder eliminates all finder law
4. Then, think about employer-Employee relationship
i. If employee find property in course of employment, then property goes to
employer
ii. Whether employee is resting then dose not make difference in most cases
except that employee is getting off work: some courts think that under that
circumstance the property goes to the employee
5. Remember, if the item is embedding or under the soil, then the property usually
goes to the landowner
6. At last, consider 4 categories- what is the nature of this property?
Lost/mislaid/treasure trove/abandon?
i. Treasure trove
a) In some states goes to finder
b) In other states goes to landowner
c) In UK, generally all treasure goes to stat
ii. abandoned property
a) the finder would get the title.
iii. mislaid property
a) goes to owner of the land (the locus in quo)
b) Under circumstance that tenant finds it, property is usually given to tenant
c) Go to the place that the true owner can take his property back
iv. Lost:
a) In most cases finder got it (but not ownership over any prior processor)
b) If lost property is found in a private place like a home, then most court
think it goes to landowner (exception :Hanna)
7. When courts have to choose between two people (e.g. landlord or tenant, employer
or employee) to give a mislaid property, often they choose based on policy
decision: who is more likely to get item back to the original owner.

Lost Property: Finder against other people except the original owner, and a prior possessor
• Exception: in a very private place, like someone's house
○ Exception to the exception: Hannah case (the house owner did not live in that
house)
• Exception: if an employee finds a good, the good is retained to the employer because the
employee is action on behalf of the employer.
• Exception: lost property found under the soil or embedded in the soil belongs to the
landowner
Mislaid Property: Owner of the sight in question has superior rights to the finder
• When courts have to choose between two people (e.g. landlord or tenant, employer or
employee) to give a mislaid property, often they choose based on policy decision: who is
 employee) to give a mislaid property, often they choose based on policy decision: who is
more likely to get item back to the original owner.
Abandon Property: The first finder becomes the owner
Treasure Trove
• In the United States, a few states give treasure trove to the finder
• However, as a general rule, most courts hold that items embedded in the soil are the
property of the landowner. Most jurisdictions reject the treasure trove doctrine entirely
and give such property to the owner of the land where it was found
• In UK: state
1. Type of property: mislaid, lost, abandoned, treasure trove
2. Character of the finder: invitee, trespasser, employee, resident owner,
3. Place of the find: home, business, pubic place

Note
Every time the judge use utilitarian theory to justify their opinion, can we say it's an
instrumental use of law?
1. No. sometimes judges use law to justify themselves, and then in order to strengthen their
reasoning, they use utilitarian theory. This is not an instrumental use of law.
2. If their main reasoning is based on utilitarian theory, like this opinion about mislaid/lost
property, it's utilitarian use of law

Mcavoy v. Medina (Massachusetts, 1866) P183

Massachusetts: New England clan chowder is cream based, while Manhattan’s is potato based.
The court: mislaid property

1. Purpose
(1) This is a classic case that distinguishes between lost and mislaid articles
(2) Lost: Unintentionally and involuntarily saying goodbye to the object.
(3) Mislaid: Knowingly and voluntarily put it somewhere but forget to fetch it.
A) For mislaid property, the general rule is that the mislaid chattel belongs to the
owner of the land, not the finder --- what’s the policy rationale?
B) To deal with mislaid property, the goal is to return it to true owner. By giving
the property to the owner of the land, you increase the chances that the property
may go back to its owner.
2. Fact
A customer in the barber’s shop found pocket-book on the table.
3. Discussing the Court’s Decision
(1) The role of precedent: Lawrence v. State
(2) Elements that distinguish a lost item from a mislaid item: willfully placing the
object somewhere with the intent to return
i. Because the court wants the owner of the property to get back the
property, it regards the item as mislaid.
(3) The Hannah court assumed the brooch was lost, whereas the McAvoy court assumed
the pocketbook was mislaid --- Why?
i. The court always chooses the best and cheapest outcome/result and then it
chooses the category.
ii. Hannah the brooch is not likely to return back to the true owner & want to
encourage honest soldier; the land owner did not control the property; the court
does not want to give it to the land owner.
 does not want to give it to the land owner.
iii. Court often uses the classification system it thinks is the best to reach the goal it
wants. In the instant case, the court wants the pocketbook to go to the barber, so
it chooses the rule of mislaid since by applying the rule of loss, the pocketbook
will go to the finder.
iv. This is an instrumental use of law
4. Lost v. Mislaid
(1) The key point is that nobody can get to know for sure whether or not the piece of
property is mislaid or lost.
i. The distinguish between the lost and mislaid is not 100% certain. One is
intentionally, one is unintentionally. That is the only difference. How can we
make 100% sure what the intent was? The only way you can make 100% sure
is asking the true owner. That is not possible.
ii. sometimes it can be 100% certain. When you take the bathroom, and you put
your phone on the small table, we can make 100% sure that it is mislaid;
somebody intentionally put there and forgot. When you take the taxi, if you
find the cellphone on the floor of the taxi, it must be lost because people do not
put their phone on the floor; if on the seat, it is hard to determine
(2) Do the circumstances of a find help prove whether an item was placed there
intentionally or dropped unintentionally?
i. The nature of the chattel—e.g. cash
ii. The location where they are found—e.g. in desk or bar of the barber shop
iii. The money in envelop—e.g. if you find the bag on the floor? Mislaid or floor.
(3) So how the court decides mislaid or lost?
i. Oftentimes courts will, first of all, figure out what result they want to achieve
and then they will choose the particular system that can reach the result.
ii. For courts, the No.1 priority is to make sure the pocketbook is return to the true
owner. So you need to ensure the pocketbook was mislaid in the barber shop.
iii. In Hannah, the brooch was very old and behind on the top of a window-frame.
It is very difficult to return it to the true owner. And the court wanted to honor
the soldier.
(4) Necessary to make a distinction between Lost and Mislaid?
i. For lost property, would not it be easier for true owner to find his/her lost
property if the owner of the place gets the lost property? For example, I lost my
cell phone in a Didi. When I find out about this, it would be easier for me to get
it back when it is kept by the driver of Didi than when it is kept by a passenger
after me.
ii. 确实，在现实生活中，mislaid和lost property的区别并不是很大：不管你是
怎么失去了你的东西，当你发现的时候，都会去你曾经去过的地方去寻
找。对于lost来说，其实交给owner of the place也更方便人找回来。所以现
在一些州已经在慢慢地取消lost和mislaid的区别
iii. 那为什么common law中对于lost property的general rule是要交给finder呢？
因为我们预设，人们找回lost property的可能性要比找回mislaid property的
可能性小
5. Note
(1) If you are defending the court’s decision, what would be you defense for court’s
decision?
a) If you mislaid a certain property, what is the most people do? —you will think
where it will be. try to trace your steps and then if you remember you went to
 where it will be. try to trace your steps and then if you remember you went to
the barber shop, you probably will go to the barber shop and check.
b) It is extremely difficult to establish with 100% of certainty whether the item is
mislaid. (100% sure of intent-you can ask the true owner)
c) The criteria should be the promotion of productive use of the property.
(2) What if the shopkeeper had rented his shop from a landlord --- who would have
the best claim to the money --- the shopkeeper or the landlord?
a) Most U.S. courts rule for shopkeeper: If the true owner goes back, probably the
shopkeeper is there. (general rule)
1) If the mislaid property found in house, then it's likely that the tenant got
the money
b) (argument for landlord) Think about the reality of society, people changed the
place a lot. Of course, the landowner will also sell and buy land. But they
change places less often than the shopkeepers. Sometimes if you give it to the
landlord, it is more stable.
(3) Couldn’t we argue that the brooch in Hannah was in fact mislaid? And how do we
know that the pocketbook didn’t simply fall out of a customer’s pocket as he bent
over?
a) The pocketbook is on the table; that sounds like a place where people put
something.
b) And for the brooch, in Hannah case, the nature of property was a jewel and it
was found on the window-frame and there is some dust on the box.
1) The argument for mislaid,
a) based on the circumstances, the things was intentionally put on the
window-frame because it is a good place to hide things;
b) somebody maybe left there and intentionally placed there and
overtimes it collected dust.
2) what is the argument for lost property?
a) It is difficult to argue that the brooch is the lost property because lost
property was unintentional forgotten there.

Haslem v. Lockwood
The court: abandoned property

1. Purpose
(1) Examines rights of finders to abandoned property
(2) General Rule:
i. When property is intentionally abandoned by the original owner (usually
require a showing that the original owner intended to give up ownership of it
and engaged in some kind of action to demonstrate the intent), then the finder
becomes the owner. (it is usually very hard to verify whether the true owner
wants to abandon it.
ii. But sometimes it is clear. (e.g. recycle place))
2. Fact
(1) The horse manure lay scattered along the side of a public highway. P (Haslem)
employed two men to scrape the manure into heaps in the evening for about 2 hours.
On the next morning, the defendant Lockwood removed the heaps to his own land.
3. Issue
(1) If a party finds property comparatively worthless… and greatly increases its value by
his labor and expense, does he lose his rights if he leaves it a reasonable time to
procure the means to take it away, when such a means are necessary for its removal
 procure the means to take it away, when such a means are necessary for its removal
4. Holding
(1) No. Leaving for reasonable time to remove it is permitted
5. Discussing the Court’s Decision
(1) Why did Haslem win?
i. Finder law: He was the first to possess the manure;
ii. Labour theory: he labored;
iii. Utilitarian: ruling for Lockwood would frustrate the removal of manure from
the city streets.
iv. A reasonable time for the removal of this manure had not elapsed when D
seized and converted it to his own use.
(2) Why did the Court reject the defendant’s assertion that the manure should be
classified as real property?
i. The manure mixes with dirt on the streets belonging to city. It becomes real
property only when it becomes an important part of the land.
ii. Manure becomes real property only when it serves agricultural purpose. In the
farm, when the manure touches the ground, it became an important part of the
land.
(3) Some scholars have argued that all abandoned items should belong to the
state --- do you agree? Why or why not?
i. There is no right answer.
ii. Most scholars do not really agree with this.
1) Government's burden. If the manure was the property of government,
government needs to remove it.
2) Utilitarian: government is quite inefficient. Giving title to the finder,
economically specking, is better because they is actually taking the
property and immediately putting it back into use in the market. If the
abandon property seems belong to the state, we may not be that really to
actually claim or to find those abandoned items.
6. Note: law of shipwrecks (P188)
(1) Traditionally, either salvage law or finders law applied to shipwrecks
i. Salvage law provides the finder with a reward, but not ownership
ii. Finders law gives the finder ownership of her discovery
(2) In maritime cases, finders law applies only if the shipwreck is abandoned
(3) Under the Abandoned Shipwreck Act of 1987:
i. Abandoned shipwrecks that are "embedded" within the three-mile territorial
limit belong to the United States, which in turn relinquishes title to the
appropriate state
ii. Shipwrecks that are not embedded in this manner are still subject to the
traditional common law rules

Benjamin V. Lindner Aviation, Inc. (Iowa) (P188)

Iowa: High in living qualities. Corn.
The court: Mislaid property

1. Purpose
(1) Illustrates the notion that the location and nature of the find can provide reliable
evidence of the owner’s intent (and most U.S. courts agree with this)
2. Fact
(1) State Central Bank is the owner of an airplane. Lindner Aviation is a company for
 (1) State Central Bank is the owner of an airplane. Lindner Aviation is a company for
routine annual inspection. Benjamin is an employee of Lindner Aviation. The couple
of the screws holding the panel on the wing were so rusty that Benjamin has to use a
drill to remove them. Benjamin found 2 packets of 20 dollars bills wrapped in
aluminum foil in the wing. The money smelled musty.
3. Holding:
(1) The money goes to the bank, the owner of the airplane
4. Discussing the Court’s Decision
(1) The character of found property is determined by examining all the facts and
circumstances surrounding the find
i. A Test: Money Found Inside a House
ii. Some considerations in determining the attribute of the money: Location within
the house, who’s the owner of the house and for how long, the condition and
age of the money, the age of the house
(2) The Benjamin court methodically examined each possible classification
i. Place and manner of the money suggests property was mislaid: Inside the wing
ii. Money wasn’t abandoned property: Nobody rationally abandons $18,000.
iii. Money wasn’t treasure trove: The bills were not that old, less than 35 years.
(3) The Court also says that “We think that the premises where the money was found is
the airplane, not Lindner Aviation’s hangar where the airplane happened to be
parked when the money was discovered” (p. 190) --- do you think the Court was
justified in this conclusion?
i. The owner of the money will find the owner of the plane. Owner of the money
cannot know which hangar the plane is.
ii. Again, the decision is decided by 'end-focusing'
5. Dissent
(1) The money was abandoned. The finder should get the money.
6. Questions
(1) Do you think it’s better for our society if a court mechanically 机械地，呆板地
applies the common law ends-oriented approach?
i. Even though we have the common law practice system, many times the courts
would simply think of the solutions first and then find the category decision of
the result that they want to achieve.
ii. Indeed, some states have said the common-law approach is a categorical
approach. It is not really helpful, rather we should simply adopt statute.(e.g. in
New York, all property is actually treated as lost property) The latter would be
better.
(2) Embedded property
i. If personal property is found embedded in the soil, most courts in the U.S. will
award it to the landowner (not the finder), unless there is an agreement or
statute to the contrary
(3) Employee finder
i. When an employee finds an object during the course of his employment, the
court usually awards the item to the employer. Because the only reason why
he/she was in the room was because he/she was on duty. (see page 193(e))
ii. What if the maid found the money in the drawer while on her break? Most
court would believe that the employer still keeps the property. Her presence in
that room is based on her employment.)
iii. What if the money was found in the public area of the hotel while she was off
duty?
 duty?
1) Most courts hold that the employer still own the money because she was
an employee. Even if in a public area of the workplace, a worker during
his duty hour is required to give the money to the employer, because he is
in the area as an agent.
2) BUT Some courts believe that at that time, she was not an agent for the
hotel. So, as a finder, she can keep the money. The lobby of the hotel-
belongs to the employee, because everyone can enter it.
(4) Lost pets (P192, c)
i. Suppose X finds a lost dog. X cares for it and unsuccessfully tries to find the
owner
ii. Under Armory, X, the finder, gets the dog
(5) Found meteorites 陨石 P193 d
(6) Treasure trove P193
i. In the United States, a few states give treasure trove to the finder
ii. However, as a general rule, most courts hold that items embedded in the soil
are the property of the landowner. Most jurisdictions reject the treasure trove
doctrine entirely and give such property to the owner of the land where it was
found
(7) Finders keepers, losers weepers (P195 Note j)
(8) Statutory approaches P194

Practice Problems (p. 194):

1. X buys a safe at….P194
2. C, a contractor, agrees to demolish D’s building and to remove all resulting debris. After
demolition, while C is moving debris into a dump truck, he discovers valuable bearer
bonds inside part of an old wall. Who owns the items found in these problems?
A. D, as owner of the building, will get the bearer bonds. mislaid
B. The valuable bonds were placed in the wall, so they are probably mislaid (not
treasure trove, because there is no evidence to show it was very old).
C. Therefore, they belong to the owner of the locus in quo.
3. Farmer F employs 2 neighborhood boys to clean his barn. Underneath the chicken coop
鸡舍, the boys discover an old, rusted can filled with silver dollars. Er v. ee
A. The silver dollars go to the farmer.
B. As employees of the farmer, anything the boys find in the course of their
employment will be presumed to be found on behalf of the farmer, especially if it is
hidden beneath the floor of the farmer's barn.
4. G rents an apartment from H. G finds a sack filled with uncut diamonds wedged
underneath the bottom shelf in one closet.
A. G should own the sack.
B. Location and worth of the diamonds will likely result in their characterized as
mislaid
i. although, you might make an argument for abandoned or lost?
C. If they are characterized as mislaid, they go to the individual in the best position to
reunite them with the true owner. Here, it would be G, the occupier of the premises.
As discussed in class, many courts (e.g., the Rofrano court) prefer the tenant over the
landlord.
11 Subsequent Possesion Finders, continued (Mcavoy,
Haslem, Benjamin) 182-195
2019年9月15日 下午 02:08

○ Lost Property: Finder against other people except the original owner
•Exception: in a very private place, like someone's house
•Exception to the exception: Hannah case (the house owner did not live in
that house)
○ Mislaid Property: Owner of the sight in question has superior rights to the finder
•When courts have to choose between two people (e.g. landlord or tenant,
employer or employee) to give a mislaid property, often they choose based
on policy decision: who is more likely to get item back to the original
owner.
○ Abandon Property: The first finder becomes the owner
○ Treasure Trove
•Some states: finder
•Some states: land owner
•In UK: state
In this class, we will focus on cases dealing with mislaid and abandoned
property, as well as the categorization of chattels more generally.
1. Type of property: mislaid, lost, abandoned, treasure trove
2. Character of the finder: invitee, trespasser, employee, resident owner,
3. Place of the find: home, business, pubic place

Mcavoy v. Medina (Massachusetts, 1866)

Massachusetts: New England clan chowder is cream based, while Manhattan’s is
potato based.

Purpose
1. This is a classic case that distinguishes between lost and mislaid articles
2. Lost: Unintentionally and involuntarily saying goodbye to the object.
3. Mislaid: Knowingly and voluntarily put it somewhere but forget to fetch it.
a. For mislaid property, the general rule is that the mislaid chattel belongs
to the owner of the land, not the finder --- what’s the policy rationale?
b. To deal with mislaid property, the goal is to return it to true owner. By
giving the property to the owner of the land, you increase the chances
that the property may go back to its owner.

Fact
A customer in the barber’s shop found pocket-book on the table.
Discussing the Court’s Decision
1. The role of precedent: Lawrence v. State
2. Elements that distinguish a lost item from a mislaid item: willfully placing
the object somewhere with the intent to return
a. Because the court wants the owner of the property to get back the
property, it regards the item as mislaid.
3. The Hannah court assumed the brooch was lost, whereas the McAvoy court
assumed the pocketbook was mislaid --- Why?
a. The court always chooses the best and cheapest outcome/result and then
it chooses the category. Hannah the brooch is not likely to return back to
the true owner & honest soldier; the land owner did not control the
property; the court does not want to give it to the land owner.
b. Court often uses the classification system it thinks is the best to reach the
goal it wants. In the instant case, the court wants the pocketbook to go to
the barber, so it chooses the rule of mislaid since by applying the rule of
loss, the pocketbook will go to the finder.
c. This is an instrumental use of law
4. If you are defending the court’s decision, what would be you defense for
court’s decision?
a. If you mislaid a certain property, what is the most people do? —you will
think where it will be. try to trace your steps and then if you remember
you went to the barber shop, you probably will go to the barber shop and
check.
b. It is extremely difficult to establish with 100% of certainty whether the
item is mislaid. (100% sure of intent-you can ask the true owner)
c. The criteria should be the promotion of productive use of the property.
5. Couldn’t we argue that the brooch in Hannah was in fact mislaid? And how
do we know that the pocketbook didn’t simply fall out of a customer’s pocket
as he bent over?
A. The pocketbook is on the table; that sounds like a place where people put
something.
B. And for the brooch, in Hannah case, the nature of property was a jewel
and it was found on the window-frame and there is some dust on the box.
(1) The argument for mislaid,
a) based on the circumstances, the things was intentionally put on
the window-frame because it is a good place to hide things;
b) somebody maybe left there and intentionally placed there and
overtimes it collected dust.
(2) what is the argument for lost property?
a) It is difficult to argue that the brooch is the lost property because
lost property was unintentional forgotten there.
6. Lost v. Mislaid
A. The key point is that nobody can get to know for sure whether or not the
A. The key point is that nobody can get to know for sure whether or not the
piece of property is mislaid or lost. So how the court decides this?
1) Oftentimes courts will, first of all, figure out what result they want to
achieve and then they will choose the particular system that can
reach the result.
2) For courts, the No.1 priority is to make sure the pocketbook is return
to the true owner. And so you need to ensure the pocketbook was
mislaid in the barber shop.
3) In Hannah, the brooch was very old and behind on the top of a
window-frame. It is very difficult to return it to the true owner. And
the court wanted to honor the soldier.
B. Do the circumstances of a find help prove whether an item was placed
there intentionally or dropped unintentionally?
1) The nature of the chattel—e.g. cash
2) The location where they are found—e.g. in desk or bar of the barber
shop
3) The money in envelop—e.g. if you find the bag on the floor? Mislaid
or floor.
4) The distinguish between the lost and mislaid is not 100% certain.
One is intentionally, one is unintentionally. That is the only
difference. How can we make 100% sure what the intent was? The
only way you can make 100% sure is asking the true owner. That is
not possible.
5) sometimes it can be 100% certain. When you take the bathroom, and
you put your phone on the small table, we can make 100% sure that
it is mislaid; somebody intentionally put there and forgot. When you
take the taxi, if you find the cellphone on the floor of the taxi, it must
be lost because people do not put their phone on the floor; if on the
seat, it is hard to determine
C. Necessary to make a distinction between Lost and Mislaid?
1) For lost property, would not it be easier for true owner to find his/her
lost property if the owner of the place gets the lost property? For
example, I lost my cell phone in a Didi. When I find out about this, it
would be easier for me to get it back when it is kept by the driver of
Didi than when it is kept by a passenger after me.
2) 确实，在现实生活中，mislaid和lost property的区别并不是很
大：不管你是怎么失去了你的东西，当你发现的时候，都会去
你曾经去过的地方去寻找。对于lost来说，其实交给owner of the
place也更方便人找回来。所以现在一些州已经在慢慢地取消lost
和mislaid的区别
3) 那为什么common law中对于lost property的general rule是要交给
finder呢？因为我们预设，人们找回lost property的可能性要比找
回mislaid property的可能性小
 回mislaid property的可能性小

7. What if the shopkeeper had rented his shop from a landlord --- who
would have the best claim to the money --- the shopkeeper or the
landlord?
A. Most U.S. courts rule for shopkeeper: If the true owner goes back,
probably the shopkeeper is there. (general rule)
B. (argument for landlord) Think about the reality of society, people
changed the place a lot. Of course, the landowner will also sell and buy
land. But they change places less often than the shopkeepers. Sometimes
if you give it to the landlord, it is more stable.

Haslem v. Lockwood

Purpose
1. Examines rights of finders to abandoned property
2. General Rule: When property is intentionally abandoned by the original
owner (usually require a showing that the original owner intended to give up
ownership of it and engaged in some kind of action to demonstrate the intent),
then the one who finds it becomes the owner. (it is usually very hard to verify
whether the true owner wants to abandon it. But sometimes it is clear. (e.g.
recycle place))

Fact
The horse manure lay scattered along the side of a public highway. P (Haslem)
employed two men to scrape the manure into heaps in the evening for about 2
hours. On the next morning, the defendant Lockwood removed the heaps to his
own land.

Discussing the Court’s Decision

1. Why did Haslem win?
A. He was the first to possess the manure; he labored;
B. ruling for Lockwood would frustrate the removal of manure from the city
streets. Utilitarian
C. A reasonable time for the removal of this manure had not elapsed when
D seized and converted it to his own use.

2. Why did the Court reject the defendant’s assertion that the manure
should be classified as real property?
A. The manure mixes with dirt on the streets belonging to city. It becomes
real property only when it becomes an important part of the land.
B. Manure becomes real property only when it serves agricultural purpose.
In the farm, when the manure touches the ground, it became an important
part of the land.
 part of the land.

3. Some scholars have argued that all abandoned items should belong to the
state --- do you agree? Why or why not?
A. There is no right answer.
B. Most scholars do not really agree with this. ( e.g. people can argue that
the manure was on the government’s street and it should be belong to the
state. And the court would say you want to encourage to remove the
manure, so it is abandoned manure, because if it was the property of
government, government needs to remove it. And we all know, the
government is quite inefficient. It would be better to award title to the
finder. Giving title to the finder, economically specking, is better because
they is actually taking the property and immediately putting it back into
use in the market.
C. Removing the manure performs two services: 1) it make the road more
clean and easy for people to walk, drive. 2) it is going to use the manure
to do something. (e.g. fertilizer)
D. If the abandon property seems belong to the state, we may not be that
really to actually claim or to find those abandoned items.

Note: law of shipwrecks (P188)

Benjamin V. Lindner Aviation, Inc. (Iowa)

Iowa: High in living qualities. Corn.

Purpose
1. We save this case for last because it summarizes many of the themes from
Armory, Hannah, and Haslem.
2. It is a case that demonstrates the problems courts face when categorizing
found items generally.
3. The Benjamin Court proceeds to analyze each of the 4 types of found property
(money): lost, mislaid, abandoned, and treasure trove --- in the end, via
process of elimination, it concludes the item was mislaid
A. Sometimes the location and where you find the item can provide some
evidence of the owner’s intent as to which category the item fits.
4. Illustrates the notion that the location and nature of the find can provide
reliable evidence of the owner’s intent (and most U.S. courts agree with this)

Fact
State Central Bank is the owner of an airplane. Lindner Aviation is a company for
routine annual inspection. Benjamin is an employee of Lindner Aviation. The
couple of the screws holding the panel on the wing were so rusty that Benjamin
has to use a drill (钻子) to remove them. Benjamin found 2 packets of 20 dollars
bills wrapped in aluminum (铝) foil（箔）in the wing. The money smelled musty.
bills wrapped in aluminum (铝) foil（箔）in the wing. The money smelled musty.

Discussing the Court’s Decision

1. The character of found property is determined by examining all the facts
and circumstances surrounding the find
A. A Test: Money Found Inside a House
B. Some considerations in determining the attribute of the money: Location
within the house, who’s the owner of the house and for how long, the
condition and age of the money, the age of the house
2. The Benjamin court methodically examined each possible classification
A. Place and manner of the money suggests property was mislaid: Inside the
wing
B. Money wasn’t abandoned property: Nobody rationally abandons
$18,000.
C. Money wasn’t treasure trove: The bills were not that old, less than 35
years.

3. The Court also says that “We think that the premises where the money
was found is the airplane, not Lindner Aviation’s hangar where the
airplane happened to be parked when the money was discovered” (p.
190) --- do you think the Court was justified in this conclusion?
A. The owner of the money will find the owner of the plane. Owner of the
money cannot know which hangar the plane is.

Dissent
The money was abandoned. The finder should get the money.

Questions
1. Do you think it’s better for our society if a court mechanically 机械地，呆
板地 applies the common law ends-oriented approach?
A. Even though we have the common law practice system, many times the
courts would simply think of the solutions first and then find the category
decision of the result that they want to achieve.
B. Indeed, some states have said the common-law approach is a categorical
approach. It is not really helpful, rather we should simply adopt
statute.(e.g. in New York, all property is actually treated as lost property)
The latter would be better.

2. Other Finders Law Issues

A. If personal property is found embedded in the soil, most courts in the
U.S. will award it to the landowner (not the finder), unless there is an
agreement or statute to the contrary
B. When an employee finds an object during the course of his employment,
 B. When an employee finds an object during the course of his employment,
the court usually awards the item to the employer. Because the only
reason why he/she was in the room was because he/she was on duty. (see
page 193(e))
(1) What if the maid found the money in the drawer while on her break?
Most court would believe that the employer still keeps the property.
Her presence in that room is based on her employment.)
(2) What if the money was found in the public area of the hotel while
she was off duty?
a) Most courts hold that the employer still own the money because
she was an employee. Even if in a public area of the workplace,
a worker during his duty hour is required to give the money to
the employer, because he is in the area as an agent.
b) BUT Some courts believe that at that time, she was not an agent
for the hotel. So, as a finder, she can keep the money. The lobby
of the hotel-belongs to the employee, because everyone can
enter it.
3. Lost pets (P192, c)
4. Found meteorites 陨石 P193 d
5. Treasure trove P193
6. Statutory approaches P194
7. On exam
○ if there is a statute, analyzing the facts based on the statute;
○ if there is not statute, just using the common law rule:
A. what is the nature of this property? Lost/mislaid/treasure trove/abandon?
(1) the rule of treasure trove in the Britain and in the U.S.A is quite
different. ( in U.S.A, some states think the treasure trove should be
belong to finders.)
(2) if it is abandoned property, it is easy; the finder would get the title.
(3) The difficult is how to determine the property is mislaid or lost.
(4) The mislaid property always goes to owner of the land (the locus in
quo)
a) mislaid property: (different sites-where the true owner would
find his property.)
B. lost-finders law-exception
(1) e.g. employee and employer
(2) the other exception: If the lost property was found in the private
place, the owner of the home owns it because the home is very
private place. So the owner of the home possesses everything in his
home. the Hannah case is quite different, because Peel did not
occupy the house and he did not have that expectation. But he did
not live there because of the requisition of the government
补充
补充
Every time the judge use utilitarian theory to justify their opinion, can we say it's
an instrumental use of law?
1. No. sometimes judges use law to justify themselves, and then in order to
strengthen their reasoning, they use utilitarian theory. This is not an
instrumental use of law.
2. If their main reasoning is based on utilitarian theory, like this opinion about
mislaid/lost property, it's utilitarian use of law

Practice Problems (p. 194):

1. X buys a safe at….P194
2. C, a contractor, agrees to demolish D’s building and to remove all resulting
debris 碎片. After demolition, while C is moving debris into a dump truck, he
discovers valuable bearer bonds 不记名债券 inside part of an old wall. Who
owns the items found in these problems?
A. D, as owner of the building, will get the bearer bonds. mislaid
B. The valuable bonds were placed in the wall, so they are probably mislaid
(not treasure trove, because there is no evidence to show it was very old).
C. Therefore, they belong to the owner of the locus in quo现场.

3. Farmer F employs 2 neighborhood boys to clean his barn. Underneath the

chicken coop 鸡舍, the boys discover an old, rusted can filled with silver
dollars. Er v. ee
A. The silver dollars go to the farmer.
B. As employees of the farmer, anything the boys find in the course of their
employment will be presumed to be found on behalf of the farmer,
especially if it is hidden beneath the floor of the farmer's barn.

4. G rents an apartment from H. G finds a sack 口袋 filled with uncut diamonds

wedged underneath the bottom shelf in one closet.
A. G should own the sack.
B. Location and worth of the diamonds will likely result in their
characterized as mislaid - although, you might make an argument for
abandoned or lost?
C. If they are characterized as mislaid, they go to the individual in the best
position to reunite them with the true owner. Here, it would be G, the
occupier of the premises. As discussed in class, many courts (e.g., the
Rofrano court) prefer the tenant over the landlord.
12 Gift Law 208-219
2019年9月18日 上午 12:53

Definition of "Gift"
1. A gift is the immediate transfer of property rights from the donor to the donee,
without any payment or other consideration. (American Gift law is mainly common
law)
a) Consideration: consideration is a contract law term: it refers to a benefit that each
party gets or expects to get from a contractual deal
b) The gifted interest can be either a present interest or a future interest (see Gruen)
(P215 Note b)
c) What if the donor is lucid? For example, the donor was drunk and gave B an
expensive watch. When the donor was sober next morning, can he got the watch
back?
- Prof. Ho: No, because by definition a gift must be a *voluntary* transfer - if
a donor is drunk and not lucid, his transfer might not be voluntary.
2. Inter vivos gifts:
a) the ordinary gift of personal property that one living person makes to another.
The donor isn't threatened by impending death
b) Generally, a inter vivos gift cannot be revoked.
1) but note "conditional gifts" (next class - Albinger case) - in some US states,
an inter vivos gift can be made subject to a divesting condition subsequent -
the condition must usually be expressly stated
3. Gift causa mortis:
a) a gift of personal property made by a living person in contemplation of
immediately approaching death.
b) in the real world, often functions as a substitute to a will (given on a deathbed)
c) 见下一节课笔记
4. Testamentary gift: testamentary gift is effective only after the donor dies; it is
usually made by a will. (P218 Note g)
a) It transfers an interest to the donee only in the future when the donor dies.
b) A testamentary gift is valid only if it satisfies the Statute of Wills, which requires
a writing signed by the donor and witnessed by two or more people.

Hypo
A husband says to his wife: "Because I am going to die soon from this terminal cancer and
will not be around to celebrate your birthday, I want to give you your birthday present
now."
1. It’s a inter vivos gift since terminal cancer is not "immediately approaching death"

Three elements of Inter vivos gift

The essential elements for a valid inter vivos gift: donative intent, delivery, and acceptance.
1. Donative intent
a) The donor must intent to make an immediate transfer of property.
b) A transfer to take effect in the future is not ok (we call this a "gratuituous
promise")
c) intention must to be pass title (ownership) presently - not just possession
2. Delivery
A. The property must be delivered to the donee, so that the donor parts with
dominion and control.
- Thus a mere oral statement that a gift is being made will not suffice.
B. Four types of delivery (P215 Note b)
1) Manual delivery (also called actual physical delivery)
a) Default by law unless it is impossible to do so
 a) Default by law unless it is impossible to do so
2) Constructive delivery:
a) The donor physically transfer to the donee an object that provides
access to the gifted item.
a) C could hand D the key that opens up the item, e.g. a locked
desk.
b) Constructive delivery is allowed only if manual delivery is
impracticable or impossible.(e.g., intangibles, such as the right to
collect a debt from another person), or which would be very
inconvenient to deliver (e.g., heavy furniture)
3) Symbolic delivery:
a) the donor physically transfers to the donee an object that represents or
symbolizes the gifted item, like the letters in Gruen.
b) very narrow explanation of symbolic delivery. It must be something
written. Letter, agreement, document…
c) In many jurisdictions, allowed only if manual delivery is impracticable
or impossible.
4) Third person delivery
a) Donor instructs his agent to deliver a gift to donee
b) Donor delivers gift to an agent of the donee
C. Why delivery is required? P216
1) Protection of the donor
a) the delivery makes vivid and concrete to the donor the significance of
the act he is doing.
b) if the donor make a gift promise when he is too emotional, drunk,
high.. The delivery requirement could protect him: even if I said I will
give you a car as gift when I was drunk, as long as I do not delivery
the car to you, this promise is not valid.
2) Certainty, Reliable evidence
a) It can help prove donee's intent
b) the act of manual tradition 交付 is as unequivocal 清楚的 to actual
witness of the transaction as to the donor himself.
c) And the fact of delivery gives the donee as least prima facie evidence
in favor of the alleged gift.
3) Ritual culture reason: finality, culture aspect
3. Acceptance
A. The donee must accept the property, although acceptance of a valuable item is
uaually presumed.

Gift by check (P218 Note f)

1. The majority rule is that no gift occurs until the check is cashed, because the donor
retains dominion and control of the funds.
2. A check is merely an instrument authorizing the bank to pay the holder from a special
account. The donor can stop payment, write another check for the same funds, or die,
thereby preventing any gift.

Hypo
1. O calls P into O's bedroom. Pointing to a gold pen on the desk, O declares: "I give you
my pen."
a) No gift, b/c there is no delivery
2. Pointing to his bedside drawer, O declares, "I want you to have my drawer and
everything inside it." O hands P a key that unlocks the drawer; inside are a diamond
ring and the title to O's car.
a) For the drawer, maybe satisfied. Because O gives the key of the drawer, this is
constructive delivery.
 constructive delivery.
b) But for the ring and title to car, since it is easy to use manual delivery to give
them to P, so there is no gift for the ring and title to car, because there is no
manual delivery.
3. O declares, "P, I want you to have my Van Gogh. It's in my office in Rome. Pick it up
whenever you want"
a) Manual delivery? No and not necessary. Too far away.
b) Constructive delivery? No. O does not give the key to his office to P
c) Symbolic delivery? No. there is no document.
d) So, there is no gift
4. Handing P his bank book, O declares, "All the money is now yours!"
a) Manual delivery: all the cash? It depends on how much O has in his bank book
b) Most court: by passing a bank book, this is symbolic delivery
5. Taking 200 shares of Google stock from his safe and handing them to P, O declares,
"I want you to have all of these when I die. Keep them safe."
a) There is manual delivery. But it's is for future, not an immediate transfer. So
there is no gift
6. O lends a book to his neighbor P, who takes it home. Several days later, O finds that
he has a second copy of the book. O calls P and declares: "Keep that book I lent you.
It's yours!"
a) There is a valid gift.
b) No need to re-delivery the gift.
7. A husband says to his wife: "Because I am going to die soon from this terminal cancer
and will not be around to celebrate your birthday, I want to give you your birthday
present now."
a) This is a intro vivos gift
8. O and P are best friends. P borrowed O's Ferrari last month and still has it in his
garage. O wins the lottery and, when O calls P to inform him of his luck, O tells P, "I
want you to have the Ferrari. I give it to you." Is this a valid inter vivos gift?
a) Yes
9. O calls X to his room, and pointing to O's Babe Ruth rookie card, tells X, "I want you
to give this card to P." X then drives across town with the baseball card and gives it to
P. Is this a valid inter vivos gift?
a. Yes

Gruen v. Gruen (NY, 1986)

1. Facts
(1) laintiff is the son of the deceased painting owner. His father, the prior owner,
told him that he would receive the $2,500,00 painting once he passes away, but
that he will hold onto until he dies – 2 letters showing this to be true – once
father died, defendant (p’s step mother) would not give over the painting.
(2) D argues that donor did not comport with estate laws and further, donor cannot
retain possession for the rest of his life, and then give painting away to son, and
deceased did not intend to transfer any present interest in the painting to plaintiff,
but only expressed an intention to give it after his death.
2. Issue
(1) Can a valid inter vivos gift of a chattel be made where he donor has reserved a
life estate in the chattel and the donee never has had physical possession of it
before the donor's death?
3. Conclusion
(1) The son got the painting
4. Court's reasoning
(1) Donative intent
A. was Victor's intention to convey an inter vivos gift or did he have
testamentary intent? (if his intent was testamentary, needs a will)
 testamentary intent? (if his intent was testamentary, needs a will)
B. as long as the evidence established an intent to make a present and
irrevocable transfer of title or the right to ownership, there is a present
transfer of some interest and the gift is effective immediately" (Justice
Simons, p 213
C. the Court concluded that Victor "effectively transferred a remainder of
interest in the painting to the plaintiff at that time."
a) any difference between Victor telling Michael: (1) "I give you the
painting when I die" and (2) "I give you the painting but I want to
keep it until I die" ?
D. counterarguments -- what facts support the stepmother's claim that Victor
intended a testamentary gift?
(2) Delivery
A. To constitute delivery, must be tailored to suit the circumstances of the
case….”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.”
B. Victor never physically handed the painting to Michael - it never even left
Victor's apartment - so why did the Court here say Victor delivered the gift?
a) It would be illogical to have the donor, part with the gift, when his
intentions showed that he transferred title, but wished to retain
possession of the good.
C. HYPO: Was constructive delivery available in Gruen? How could Victor
have used this method - can you think of any?
a) For example, by giving Gruen the key to the room
(3) Acceptance
i. the Court's presumption
ii. what facts suggest that Michael accepted the gift? What facts suggest that
he did not?
5. Questions
A. After the three letters, the father decides to destroy the painting because now he
does not like his son anymore, can son sue his father?
- Yes. Because son has future interest in this painting. The son can sue his
father for damages
B. After the three letters, the son sells his remainders to A. the father is very angry
and destroy the painting, can A sue? Should A sue who?
- Yes, A can sue, A can sue the father. Because A has remainders of the
painting.
13: Gift law on Gifts (continued) 219-231
2019年9月21日 下午 08:04

Conditional gifts
• Majority rule: an engagement ring is a special type of gift in the sense that it is given
with an implied condition - marriage. It is revocable if marriage never occurs. If
the condition precedent isn't satisfied, and no inter vivos gift is made. P223 Na
○ Fault rule: the one who makes the marriage unsuccessful cannot get the ring.
But fault is very difficult to determine sometimes, and that's why many courts
do not like it
○ No-fault rule: the donor gets the ring. (Most courts embrace this approach)
• Minority rule: engagement rule is not different from other inter vivos gifts. It is
irrevocable.
○ Montana Supreme Court supports the minority rule
○ Montana district court: majority rule

Albinger v. Harris (2002) (P219)

1. Quick Knowledge
○ If you want put your engagement ring and wedding band together, put your
wedding band inside (close to your heart)
2. Facts
○ Plaintiff and Defendant became engaged, with Plaintiff giving Defendant an
engagement ring worth $29,000. Over the course of a long engagement, the
couple repeatedly separated and reconciled. On each separation, Defendant
returned the ring to Plaintiff, and upon reconciliation, Plaintiff gave the ring to
Defendant. In the final argument, Plaintiff told Defendant to take her ring and
other gifts he’d given her and to leave their home. Plaintiff later filed suit in
order to recover the ring. The trial court found that the ring had been given in
contemplation of marriage and that when the condition failed, Plaintiff was
entitled to recover the ring. Defendant appealed.
○ Albinger (man) to Harris (woman): "take the car, the hore, the dog, and the ring
and get the hell out" (p. 220)
○ Before discussing the Court's reasoning here -- a preliminary question -- do the
facts of the case satisfy the required elements of a valid inter vivos gift? Yes
▪ Intent?
▪ Delivery?
▪ Acceptance?
3. Issue: Is an engagement ring given with the condition of marriage?
4. Holding: No. A engagement ring is just like a normal intet vivos gift. A gift given
without condition is irrevocable.
5. Reasoning
Why did the Montana Supreme Court here reject the majority view on engagement
rings?
a. Conditional gift: only gift causa mortis gift is conditional gift. A engagement
ring is not a gift with condition.
b. Gender Bias (policy goal; utilitarian; instrumental use of law)
i. Anti-heart balm statutes hurt women more.
1) Anti-heart balm statutes prevent a person from suing for damages
arising from the end of an engagement. (And Montana Supreme
Court embraces these statues)
ii. The adoption of a conditional gift theory for engagement rings would
primarily benefit men
1) The court: if we let men take the engagement ring back, women will
get hurt more.
 get hurt more.
6. Question
a. Do you think the Court's assumptions are correct? marriage proposals -
empirical evidence / empirical 仅凭经验行事的 facts
b. do you think the Court here would adopt a different rule if a woman asked a man
to marry her and gave him an engagement ring?
i. Nothing shall change since the ring is an irrevocable gift
c. what about applying the Court's holding to homosexual couples?
i. Nothing shall change since the ring is an irrevocable gift
d. Note: In US, women usually pay for the wedding(hotels, restaurants..

Effects on society
○ Will the majority's decision here affect how Montana residents approach
engagements?
○ What possible impact could the decision have? Will men give less expensive
engagement rings?
○ Will they delay engagements until they are more certain their relationships will
endure?

-----------------------------------
Gift causa mortis
1. Definition
Gift causa mortis is a gift of personal property made by a living person in
contemplation of immediately approaching death. In the real world, it often functions
as a substitute to a will (given on a deathbed) and courts don't like gift causa mortis.
Why ther is judicial disfavor?
○ Courts generally disfavor the gift causa mortis. The main concern is the
potential for fraud: the dead donor is unable to testify about whether any gift
was made.
○ Accordingly, many jurisdictions require that a donee establish a gift causa
mortis by clear and convincing evidence, rather than merely by the usual
preponderance of the evidence.
○ In addition, the delivery requirement is often applied more strictly.
○ Do you agree that the gift causa mortis should be disfavored?

2. Four elements
a. Donative intent
b. Delivery
c. Acceptance
d. The donor's anticipation of imminent death
i. This is the reason why Gift Causa Morits is given, and that is the difference
between that and inter vivos gift
3. Revocation
The donor may revoke it at any time before her death. And It is revoked if the donor
recovers from the illness or disease that led him to give the gift.
a. Modern rule: a gift causa mortis is immediately effective at the time it is
made, but may be revoked depending on future circumstances (e.g., if the
donor recovers). Whether the revocation is automatic or not depends on the
state (P229 Note b)
a) Majority rule: revoked automatically if the donor does not die
b) Minority rule: a donor who survives must expressly choose to revoke; and
delay is dangerous.
□ The Restatement (Second) of Property: a failure to revoke within a
reasonable time after the donor is no longer in apprehension of
imminent death eliminates the right of reversion
 imminent death eliminates the right of reversion
(1) Brind rule: Brind represents the obsolete view that a gift causa mortis
becomes effective only if and when the donor dies
a) Advantages: easier for judges to determine
b) Disadvantages: too narrow, may be injustice. The dying man does not care
about how he die, he cares about whether he dies.

Brind v. International Trust Co.(1919)

1. Facts
(1) International Trust Company held Maria Brind’s, Donor, deposit, which
consisted of jewelry and a letter that stated the jewelry was to be given to
specified individuals if Donor died from an imminent surgery to remover her
tumor. Donor did not die from the operation because the surgeon and Donor
decided not to perform the incision that would result in her death. J. Fitz Brind,
Donor’s husband, brought this replevin action as administrator of Donor’s estate
to recover the jewelry from International Trust Company. Additionally, other
individuals Donor indicated in her letter that would recover the jewelry became
intervened and, later, became defendants. During trial, there was testimony that
indicated Donor returned to International Trust Company after her surgery and
stated that she still wanted to give the jewelry to her friends. Further, Donor’s
attorney testified that he advised Donor that she may changed the disposition of
her jewelry, and Donor indicated that she was uncertain if she would change her
mind. The jury found the intervening defendants. Donor’s husband appealed on
the grounds that Donor did not make the gift to the intervening defendants
2. Issue
(1) Whether a gift causa mortis is still enforceable when the donor of the gift causa
mortis dies of something other than the illness or peril that he or she feared
when making the gift.
3. Holding
(1) No, gift causa mortis is not enforceable when the donor of the gift causa mortis
dies of something other than the illness or peril that he or she feared when
making the gift.
(2) The husband should have the jewelry
4. Discussion
(1) When a donor does not die from the illness or peril he or she fears when
making a gift, the gift causa mortis is incomplete. The three elements of a gift
causa mortis are: (1) the gift was made in fear or peril of death or illness, (2) the
donor died from that illness he or she feared, and (3) there must be a delivery.
Here, Donor indicated that she feared she would die from the impending surgery
and made a sufficient delivery by depositing it with the trust company.
However, Donor did not die from the surgery, the impending death she feared.
Therefore, the gift causa mortis is invalid and the trial court’s judgment is
reversed.
5. Notes:
(1) Cause of death?
A. Should the cause of death matter? What if the operation had occurred, but
Brind died a few days later from an infection caused by the operation?
1) Husband: not b/c of the surgeon itself. So the gift is revocable
2) Friends: infection is the result of the surgeon. So she still dies for the
surgeon. Not revocable
B. Or what if Brind died because she was struck by lightning on the operating
table?
C. In some jurisdiction, a gift causa mortis is still effective even though the
donor does not die from the contemplated peril, if
1) The death occurs within the same approximate time frame or
 1) The death occurs within the same approximate time frame or
2) The cause of death is related to the anticipated peril
D. Which approach is best? The Brind aopproach or the "in some jurisdiciton"
approach?
E. Are you convinced that Brind wanted her friends to have the jewels only if
she died from the operation, not if she died from the tumor?
F. What do you think about the advice Brind received from her attorney?
(2) Suicide (P230 Note c)
▪ Can a person contemplating suicide make a valid gift causa mortis?
▪ Many early cases: no. such a gift was contrary to public policy because
suicide was a criminal act
▪ More recent cases reject this approach. Now Jersey Supreme Court..
(3) Judicial disfavor
▪ Do you agree that the gift causa mortis should be disfavored?
▪ Courts generally disfavor the gift causa mortis. The main concern is the
potential for fraud: the dead donor is unable to testify about whether any
gift was made.
▪ Accordingly, many jurisdictions require that a donee establish a gift causa
mortis by clear and convincing evidence, rather than merely by the usual
preponderance of the evidence.
▪ In addition, the delivery requirement is often applied more strictly.
▪ Do you agree that the gift causa mortis should be disfavored?

Quick hypothetical
O, who is extremely old and frail, says to P: "I want you to have this priceless watch. Take
it." O hands the watch to P. However, 3 months later, O has not died and wants the watch
back. P refuses. Who owns the watch?
1. P owns it, since it is a gift inter vivos ( the gift was not made in contemplation of
impending death)
14: Introduction to the system of Estates; Fee simple 305-315
2019年9月21日 下午 08:04

Introduction
1. What does it mean to "own" land?
a. In U.S. law, a person does not technically "own" land - it is more accurate
to say that he owns certain legally-enforceable rights concerning the
land , in either the form of an estate or a future interest.
2. Comparative law point:
a. for example, in Hong Kong, if you buy a house or an apartment, is it
accurate to say you "own" the land? What do you actually "own" under
Hong Kong law?
b. if you buy a house in Hong Kong, your only own a lease hold(租赁权).
Government owns the land. In Hong Kong, chief executive gives
constitutional authority to lease land out to people for a short period of
time. 50 or 80, 99 years.
3. The foundation of the modern estates system is this legal recognition of the
rights of present possession and future possession
a. Property ownership, after all, can be divided over time, with one person
having the right to current possession, and another having the right to
obtain possession in the future
b. The best example of this is renting apartment. A tenant has the present right
to possess the apartment, the landlord has a future right. The property rights
are divided based on time.
4. The owner of the right to possess the land now owns the possessory estate, also
called the present estate or simply the estate
a. In other words, a present estate / possessory estate / estate is a legal interest
that entitles its owner to the immediate possession of the land
5. The owner of the right to possess the land in the future owns a future interest in
the land.
a. In other words, a future interest is a legal interest that doesn't currently
entitle its owner to immediate possession, but it may become a present
estate in the future
6. This system of land ownership in the U.S. arose out of the English property law
system
7. FYI: in many civil law countries, title to land cannot be divided into successive
interests, thus, only one person can own a particular parcel at any time. Is this a
better approach?

A (Very) Brief History of Land Ownership in England

1. Norman Conquest of 1066 and William the Conqueror
A. He conquered England and became King. The first thing after conquering is
to distribute land.
a) in Chinese history, whenever a new dynasty started, the first thing the
emperor did is to award land.
B. These tenants-in-chief received the right to occupy, possess, and use
specific parcels of land owned by the king. In return, each tenant-in-chief
was obligated to provide service (役务) and incidents (捐税) to the king.
i. In Chinese history, whenever a new dynasty started, the first thing the
 i. In Chinese history, whenever a new dynasty started, the first thing the
emperor did is to award land.
C. He tries to standardize many of England's rules on land, for example he
compiles a reference book of all land holdings includes every piece of land,
who owns it what tact. This is really important book because it starts
modern British system of land records.
2. Domesday Book of 1086 P306
A. Record of a British census and land survey in 1085-1086 ordered by
William the Conqueror
3. In the feudal period, two types of landholdings emerged: Free tenures and
Unfree tenures
A. Free tenure holders
a) Obligation: service (役务) and incidents (捐税).
1) Service
a) The most common form of service was knight service--the
obligation to provide a set of number of knights to fight in
the king's army.
2) Incident
a) Incidents included an oath of fealty, monetary payments for
the right of the tenant's eldest son to succeed to the tenancy,
the return of the land to the lord if the tenant died without
heir (escheat 土地归复), the right to possession of the land
until a deceased tenant's heir reached age 21, and special
payments in times of financial emergency.
b) Usually held by nobles, granted by king.
c) Modern British system of land deprives from free tenures.
d) It is not entirely free,
1) You owned the land freely, you don't have much interference
with the king, but you still have to provide king with some
services and incidents.
B. Unfree tenure holders:
a) Belongs to tenants, who work on the land, don't have much money.
4. Process of subinfeudation (次级分封方法) and subtenures (次级保有地)
a. As society become more complex, population increases, people who have
free tenures from the king, start to create subtenures. The process is called
subinfeudation.
b. They basically split up the land into pieces and they create tenures
themselves on that land. Now they have their own tenants. The tenant-in-
chief became lords themselves (called mesne lords).
c. Each tenant owned services and incidents to his lord, and each lord was a
tenant to the holder of the tenure above him.
i. As social and economic conditions changed, the feudal services began
to lose value. For example, knights were less important during periods
of peace and eventually became obsolete. Accordingly, incidents
gradually became more valuable than services.
d. Over time what happened?
i. Services decrease. The law tried to avoid subinfeudation. English
government realized people are trying to avoid and create tenure
themselves, so basically, they passed an important law: The Statute of
Quia Emptores (1290) .
 Quia Emptores (1290) .
ii. And tenants grew increasingly unhappy about the payments required
by the incidents, especially the payment to transfer lands to their heirs.
In fact, many of the provisions of the Magna Carta (1215) address
such concerns.
5. The Statute of Quia Emptores (1290) (《封地买卖法》)
a. Abolish subinfeudation.
b. You are not allowed to do subinfeudation, but in return, each tenure holder
is able to essentially substitute anybody else into his land.
c. In other words, you can substitute anybody you want to take over your
land without any kind of restrictions. This gave a tenant the right to transfer
his land without permission from the lord. This creates free transfer on
land. Overtime, feudalism declines. Free tenure slowly changes into a
system of completely private ownership in a form of states.
d. This statute marked the beginning of free alienability and signaled the
impending demise of the feudal system. The forms of land ownership
which we now call estate began to evolve.
6. Under the feudal system, ….P307
7. Post-feudal England: gradual evolution of free tenures into private
ownership of land in the form of estates: 2majortypes
A. freehold estates (they are from the free tenure system)
a) fee simple
b) life estate
c) fee tail
d) Note P307 下面 these estates were mainly..P308 what's that
e) Generally speaking, when you buy house in US, you get best form of
ownership--freehold estates.
B. Non-freehold estates (come from unfree tenure)
a) later evolve into leasehold estates between landlord and tenant.
b) In Hong Kong, they own unfree tenures.

Important Vocabulary for this Entire Unit

An estate or future interest is usually transferred in one of the three ways: deed,
will or intestate succession.
1. Transfer by deed
a. A living person may transfer real property by a deed.
b. The completed transfer is called a conveyance or a grant.
c. The grantor grants/conveys something to the grantee.
2. Transfer by will
a. A decedent dies "testate" 留有遗嘱的 if he dies with a will.
b. The property of a decedent may be transferred by a will.
c. The completed transfer of real property is called a devise.
d. The testator/testatrix devises something to the devisee.
e. "Mike devised his property to his daughter"
f. Note: bequeath, which is to pass personal property by will. The property
itself is called a bequest. E.g. you can bequeath your jewelry in a will to
your daughter, but you devise your home to your daughter.
3. Transfer by intestate succession
A. A decedent dies "intestate" if he dies without a will. In every state, the
statute describes how the property will be allocated when someone die
 statute describes how the property will be allocated when someone die
intestate. Generally speaking, his property will be distributed to his closest
living relatives. Spouse, parents, siblings P314
B. If he has no relatives, property goes to the government.
C. The completed transfer is called intestate succession.
D. A decedent intestate descends something to an heir.

Heirs (P314 Note d):

A. people who inherit real property from a decedent who dies intestate under
the law of intestate succession. Heirs are identified by statute in each state
and usually include the person's spouse and children. Heirs are determined
at the time of death. You only have heirs after you died intestate.
B. Living people don't have heirs - they only have heir apparent only people
who survive the decedent can become her heirs.
C. Note: persons who receive personal property by intestate succession are
called next of kin.
D. How to distribute property of man who dies intestate?
a) First, issue and surviving spouse
1) Issue are lineal descendants including children, grandchildren
and so forth
a) Technically speaking, a person has no living issue, his
children are possible.
2) If the decedent leaves a surviving spouse, the property will be
shared among the issue and the spouse
b) Then, parents and their issue
1) If the decedent does not leave a spouse or issue, the property
generally will be distributed first to their parents
2) If there are no living parents, then property goes to the living
issues of the parents
c) Third, ancestors and collaterals
1) If the decedent does not leave a spouse, issue, parents, or the
issue of parent, the property goes
a) To any surviving ancestors and/or
b) To any surviving collaterals (all other persons related by
blood to the decedent other than already listed here, not
issue, not sopuse, not parents, not parents' issue, not
ancestor
d) Finally, escheat
1) If the decedent has no living relatives, the property belongs to the
state under the doctrine of escheat

Overview of Modern Freehold Estates

In the newly independent United States, state legislatures incorporated most of the
English system into their state property laws. They generally embraced the freehold
and non-freehold estates, and the future interests that accompany them
 1. The three major types of freehold estates: fee simple, life estate, and fee
tail – the major difference among them is duration.
a. Fee tail, in many states it has been cancelled. Almost extinct in US.
i. Pride and Prejudice involved fee tail issue.
b. The traditional life estate is rarely seen in modern practice, but the
equitable life estate is commonly used in the modern trust.
c. Fee simple defeasible are sometimes used to make gifts for charitable
purposes.
2. Each freehold estate is either absolute or defeasible
a. Absolute = means the duration of the particular freehold estate is restricted
only by the standard limit that defines and characterizes that type of estate.
b. Defeasible = means the particular freehold estate is subject to some
provision that may end that particular estate if something happens. (can end
when sth happen)

FSA Life Estate Fee tail

language O to A and his/her O to A for O to A and the heirs of his
heirs life body
Words of purchase "to A" "to A" "to A"
Words of limitation "and his/her heirs" "for life" "and the heirs of his body"
precise language? NO NO YES

FS: fee simple

1. Fee simple absolute (FSA)
A. The simple is freely alienable (by deed), devisable (by will), and
descendible (by intestate succession)
B. Now, over 99 percent of the land in the United States is held in fee simple
absolute.
C. Fee simple absolute often abbreviated as fee simple.
D. The duration of FSA is potentially infinite. (this is the most important
 D. The duration of FSA is potentially infinite. (this is the most important
point)
E. By definition, there is no future interest that accompanies the fee simple
absolute.
F. Presumption of FSA unless there are words of limitation which convey a
limitation.
2. Classical / Historical Common Law Approach: precise language for FSA
A. historical common law. If you want to convey a fee simple to somebody,
you have to use the very precise language. Like: "O to A and his/her
heirs."
B. the words of purchase: "to A",
i. "purchase" here means conveyance.
ii. The words of purchase tell you who gets the estate, who is grantee.
C. the words of limitation: "and his/her heirs"
i. The words of limitation's sole function is to designate the estate
granted--a fee simple.
ii. They convey on interest to B's heirs.
D. Under English law, a person could convey a FSA only if the words "and
heirs" were included in the deed. If these words were missing, the law
presumed that a life estate was created.
3. Modern US law approach
A. Today, modern law prizes an active market in real property, and grantors
typically intend to convey the most marketable interest, the fee simple.
B. Accordingly, almost all states presume that the grantor intends to convey a
fee simple unless he uses words of limitation that specifically conveys a
different estate. Thus, now, a conveyance "to B" creates a fee simple in B.
why?
i. Utilitarian. Need to maintain an efficient market in land. The law
favors free alienation.
ii. Improvement. Development.
C. Why 99% land use FSA?
i. FSA is the most marketable estate. If someone want to buy estate, who
want to buy a fee tail, who want to buy a fee simple defeasible?
Nobody want to buy that.
ii. if the nature of the real estate still exists, the FSA will be eyes price. If
you convey something lower than that, usually you have to reduce the
price a lot because you cannot get the whole pizza, you can just get a
such smaller pizza.
iii. there is a presumption that people in the U.S. have expectation that we
have all the rights in the bundle of sticks, we except to convey
everything we have. So there is a presumption. If there is a clear
evidence, the grantor has different intent, the presumption is not used.
(There is no clear rule of presumption, it is just a presumption. If you
have the clear evidence that the grantor does not have the intent to
convey FSA, then you do not follow the presumption.)
4. Practice problems
Which of the following transfers create an estate in fee simple?
A. O conveys "to B and his heirs forever"
i. FSA
B. O devises "to C for life"
i. No, Life estate
 i. No, Life estate
C. O conveys "to D for 10 years"
i. Not FSA. There are words of limitation.
D. O devises "to E and her heirs provided that E marries"
i. Not FSA. Limitation: fee simple defeasible
E. O conveys "to F, my pet cat"
i. no. Not human being people.
F. O conveys "to G for ever and ever"
i. FSA
G. O conveys "to Google, Inc., its successors, and assigns."
i. Google receives a fee simple.
ii. The words of purchase "to Google, Inc." denote Google as the grantee
of the estate
iii. The words of limitation "its successors, and assigns" identify the
estate as a fee simple. Entities other than persons do not have heirs.
Since corporations are not persons, they are followed by successors
and assigns.
H. Note: people, corporation, government.. they all can receive land in
FSA

Cole v. Steinlauf (CT, 1957) (P312)

1. Purpose
a. illustrates the common law insistence that exact wording be used to create
specific estates.
2. Facts
a. The Plaintiffs and the Defendant entered into a contract for the sale of real
estate, for which the Plaintiffs made a deposit of $420 and spent $50 to hire
an attorney to make a title search prior to the closing date of July 1, 1955.
The title search found a defect in title and Plaintiffs refused to buy the
property, after which Defendants refused to return the deposit.
b. The attorney found that a deed to a predecessor in title to the
Defendant made in 1945 had ran to the grantee “and assigns forever.”
No mention of “heirs” was made as would be customary and necessary in a
fee simple conveyance made in Connecticut. The Plaintiffs, on the basis
that the prior deed failed to mention “heirs,” refused to close the deal with
Defendant and demanded that Defendant return the deposit of $420 plus
expenses for the title search, which the parties agreed had cost $50. The
Plaintiffs sued to recover the deposit and the cost of the title search. The
trial court found the issues for the Defendant on the basis that the former
deed did convey a fee simple title. The Plaintiff appealed.
3. Holding:
a. To create an estate of inheritance in land by deed, it is necessary yo use the
word "heirs"
b. Where the common law rule is in fact, a grant to a grantee "and his assigns
forever" vests only a life estate
4. Note:
a. Why did it matter if the earlier deed was defective?
i. General principle in conveying land: you can only give somebody
what you have. If the earlier purchaser wasn't getting FSA, then he
cannot convey a FSA. .
b. If Cole were decided today, how would the court interpret the conveyance?
b. If Cole were decided today, how would the court interpret the conveyance?
i. Almost all jurisdictions in the U.S. no longer require the words "and
heirs" - informal language like " O to A " will usually be sufficient
ii. If there is any ambiguity like word "and assigned", the grantor
intended the most title that is FSA unless there is clear intent in the
contrary.
15(1): Fee tail 315-329
2019年9月25日 上午 01:33

1. Definition
(1) The duration of a fee tail is determined by the lives of the lineal descendants
of a particular person. The transferor retains a reversion, which will become
possessory if the transferee’s line of lineal descendants expires. Operative
language: "to A and the heirs of his body"
(2) Requires this precise language (words of limitation)
A) The words of purchase "to A" designate the grantee
B) The words of limitation "and the heirs of his body" identify the estate as
a fee tail
C) You cannot say "to A and the children of his body".
(3) Unlike the fee simple, the fee tail (in its original form) is subject to several
restrictions - restrictions that are inherent by the very nature of the fee tail
itself.
2. History in England and Now in US
(1) It is the most important estate for the landed aristocracy in medieval England,
because they could keep the land within the family for generations. England
abolished the fee tail in 1925. Now most states in US have rejected it. Why?
A) It impairs freedom of alienation: Fee tail is not marketable. Lacks
alienability, not free to transfer.
B) It undermines democracy: It is a symbol of feudalism, which controls
destiny of the land.
C) It interferes autonomy of the landowner, and harms efficiency of usage
of land. Utilitarian theory.
D) It hurts wife. Because when the owner dies, only his children can get the
land. His wife cannot get land.
(2) Today the fee tail can be created in only four states: Delaware, Maine,
Massachusetts, and Rhode Island. Why they keep fee tail? Freedom.
Individual's freedom to handle your land.
3. Example: O to A and the heirs of his body
(1) What can A do?
i. A can possess the land right now and for the duration of his life, but he
cannot make any agreements to sell, give or devise the land. In other
word, A’s ability to transfer the land during his lifetime is limited. A can
only alienate his right to possession until his death.
(2) What happens when A dies?
i. When A dies, the land automatically passes to his issue (lineal
descendants e.g. children, grandchildren). A's collateral relatives, like
cousins, cannot have the land when A dies.
ii. Note: Fee tail is not devisable, because it automatically passes to the
lineal heir upon the holder's death. So, you cannot say a son inherit a
land from his dad if his dad has a fee tail.
(3) What does O have?
i. Fee tail ends when the family bloodline dies out. O retains a reversion
(a future interest), which will become possessory if A’s line of lineal
descendants expires. If A’s blood line ever ends, the holder of O’s
reversion (perhaps O, O’s assignee, O’s devisee, or O’s heir) receives a
FSA in the land.
4. Fee tail male
(1) O conveys "to G and the male heirs of her body".
(2) The words of limitation "and the male heirs of her body" describe the estate as
a fee tail male (a form of fee tail which passes only to male lineal
 a fee tail male (a form of fee tail which passes only to male lineal
descendants). Therefore, if has two sons and one daughter, upon G's death, the
sons receive the fee tail. The estate would then pass only to the males in the
sons' line of descent.
(3) If G has no son, then the land will go to his nephew or some other male heir?
No! only G’s sons, grandsons…. Nephews cannot get the land.
5. Fee tail special
(1) O conveys "to G and the heirs of her body by R."
(2) The words of limitation "and the heirs of her body by R" identify the estate as
a fee tail special. A fee tail special is created when the transferor wants to
restrict the fee tail only to the descendants of the transferee who are parented
by a particular person. The goal was usually to keep the property within the
immediate family bloodline
6. Fee Tail Today (P328 Note a)
(1) If a person tries to create a fee tail in a state where it has been abolished, the
most common result is that a fee simple arises.
(2) A few states preserve the fee tail for the lifetime of the first holder, but then
provide that it becomes a fee simple when passed to the holder's children.
(3) In the handful of states that still recognize the fee tail, the holder may easily
convert this estate into a fee simple by an inter vivos transter to another
person; this process is called disentailing the tail.
(4) Practice question: in Delaware, a state that permits the fee tail, X is a holder
of a fee tail. He wants to devise the land to his spouse. How? (p. 328(a))
i. Disentail the tail. There are disentail statutes. So you can convert the
estate into fee simple by an inter vivos (living) transfer to another
person.
ii. For example, X can remove the tail by sign a contract with his lawyer. X
gives the land as a gift to the lawyer, so the lawyer has FSA in this land.
Then the lawyer gives the land to X/X's wife?
iii. “the fee tail” is not very popular: No one wants to own the fee tail,
because it is not marketable. And No one wants to by a land in fee tail.
Because once the landowner dies, the land will go automatically back to
his heir.
7. Pride and Prejudice
In Jane Austen's most famous novel, Pride and Prejudice, the Bennets were
frantically trying to find suitable husbands for their five daughters. Mr.
Bennet. Fee tail. His nearest male heir, Mr. Collins.
8. Practice questions: which transfers create a fee tail? (p.329(c))
(1) O conveys "to B and the heirs of his body."
i. Yes. When B dies, the property passes to B’s issues, and when there is
no issue, the property passes to O or his devisees. (reversion)
(2) O devises "to C and her children."
i. No. not the exact words. So, C and her children have FSA
(3) O conveys "to D and the children of his body."
i. NO, not the exact words. So D and D's kids have FSA
(4) O conveys "to E and the heirs of E."
i. Not fee tail. E has FSA. Living people do not have heir.
9. Adverse possession & life estate
(1) O conveys Greenacre to A for life, then to C.
(2) B enters the land when A is alive. Suppose all the elements of adverse
possession are met, what B gets? A life estate pur autre vie or fee simple
absolute?
(3) There is a paragraph about this question in our casebook: “But suppose the
owner holds a lesser interest, such as a life estate. In this case, the successful
adverse possessor receives only what the owner had—a life estate.” (page
 adverse possessor receives only what the owner had—a life estate.” (page
132, note B) Is this correct? Does this mean that an adverse possessor can
only get the present estate of a real property? If
(4) Professor Ho:
It depends on the timing. Let’s say O has an FSA and conveys a life estate
to A. B enters the property and begins adversely possessing. If he started his
adverse possession prior to the conveyance to A, he may be able to get an
FSA by adverse possession. If B starts adversely possession after O’s
conveyance to A, then he will be adversely possessing against A only, and
generally, most courts will say that if he fulfills the AP requirements, the most
B can get is a life estate PAV, measured in A’s life. But some courts may
still say A gets an FSA. The law varies on state, but generally, if B starts AP
after the conveyance to A, he will he possessing against A only and will be
only eligible for a LEPAV measured by A’s life.
15(2): life estate, doctrine of waste; 315-329
2019年9月25日 上午 01:33

1. Definition
(1) An even more inherently limited estate than the fee tail.
(2) Operative language: “O to A for life.”
i. Words of limitation: "for life".
1) But phrases such as "until B dies", "while B is alive", "as long as G
lives" are commonly accepted as long as they demonstrate the
grantor's intent.
2) Today, most jurisdictions assume that a fee simple is intended if
there is any ambiguity in the conveyance.
ii. What can A do? what happens after A dies?
1) A is a “life tenant”. He has the right to possess the land as long as he
lives. After A dies, the land goes back to O. If O dies before A, the
land goes to O's heir/devisee.
2) A can transfer his life estate to B. B has a life estate pur autre vie:
A’s life.
i. If B dies before A, B’s heir and devises continue to hold the
property until A dies. When A dies, no matter it is B or B's heir
on the land, the property goes back to O.
3) A can also convey to B for a term of years.
4) A cannot do anything which could interfere with the return of
property to O and his devises. Waste. Thus he must make reasonable
repairs, not demolish the structure, pay all property taxes, etc. [116]
5) Note: O conveys "to B for the life of C". B has a life estate pur autre
vie.
6) An ordinary life estate is alienable, but not devisable or descendible.
i. Because the estate ends at the holder's death, no interest is left
to transfer. But the grantee who holds a life estate pur autre vie
can devise his estate or allow it to pass by intestate succession
to his heirs.
iii. What does O have?
1) O retains a future interest (a reversion) that becomes possessory
upon the end of A's life estate.
(3) Defeasible: A life estate may be defeasible, just as a fee simple may be. [114]
(Example: O conveys "to A, for so long as she shall remain my widow, then to
my son B." A has a life estate determinable.)
2. Future interests
(1) The future interest is usually a reversion (of grantor) or a remainder (of a
third party)
(2) O conveys "to A for life." The future interest owned by a grantor in this
situation is a reversion. O has reversion.
(3) O conveys "to A for life, then to C." the future interest owned by a third party,
it is a reminder. C has reminder.
3. Can corporations have life estate?
(1) No. O conveys "to Google for life." O retains his fee simple. A life estate
cannot be created in favor of partnerships, corporations, or similar business
entities because they have potentially infinite "lifetimes". Google receives
 entities because they have potentially infinite "lifetimes". Google receives
nothing form this conveyance.
(2) But corporations can have life estate pur autre vie. O conveys "to F for life." F
then conveys her interest "to Google, Inc." Google has a life estate measured
by F’s life.
4. Legal life estate & equitable life estate
(1) The ordinary life estate (technically called a legal life estate) is rarely created
now. (why P322)
(2) In trust law, equitable life estate. Trust is a common law creation.
(3) Trustor - trustee - beneficiary
A) A trustee holds legal title to the trust property and manages the assets as a
fiduciary for the benefit of the trust beneficiaries, who hold the equitable
title. The interests of the beneficiaries are usually split into present and
future interests. The equitable life estate is the most frequent type of
present interest.
B) Trustee can be a person, an institution, a corporation, a bank…
C) Fiduciary has fiduciary duty, which is defined by trust deed. fiduciary
duties usually include be loyal, be careful, give other parties information..
D) Beneficiary can sue trustee for breach of fiduciary duty, violation of
contract
(4) A typical trust might provide "O conveys this house to T in trust for the use of
B for life, then to C".
i. T is a trustee who is given the legal FSA of this house.
ii. B and C are the trust beneficiaries. B has an equitable life estate. C has an
equitable remainder (future interest).
iii. B will receive all the income produced by the house during her lifer. And
C will receive the legal FSA upon B's death.
(5) A conveys Sherton Hotel to B in trust for the use of Jack for his life, then to Jill
(Jill is Jack's daughter)
i. For Jack, he has only equitable life estate
ii. B has Fee Simple under trust law, but not under common law(it means
that B cannot do anything B wants to hotel)
iii. When Jack died, then Jill got Fee simple absolute under common law (Jill
has an equitable future interest)

5. White v. Brown (TN S. Ct., 1977) P317

Interesting Tidbits about TN
Elvis Presley, John Grisham, Al Gore, and Memphis-style BBQ
(1) Facts
A) Lide died leaving a will that provided, “I wish Evelyn White to have my
home to live in and not be sold.”
B) Lide's niece, Brown (D), claimed the will created a life estate and she
obtained a remainder interest.
C) White (P) sued to quiet title, contending the will created a fee simple. The
trial court found for Brown (D), and White (P) appealed.
(2) Holding
i. (Brock, J.) FSA.
(3) Rule
i. At CL it was different, but a statute which was enacted, stated, “a will
shall convey all the real estate belonging to the testator unless a contrary
intention appears by the terms of the will and its context.”
 intention appears by the terms of the will and its context.”
(4) Reasoning
A) Language is ambiguous. Unless the words and context of a will clearly
evidence an intention to convey only a life estate, it will be interpreted as
conveying a fee simple.
B) Interpreting the will language presented here as creating only a life estate
would create a partial intestacy 部分无遗嘱死亡（只处理了一部分财产） There
is a general policy against creating intestacy where a reasonable
alternative interpretation exists.
C) Taking these two policies together, the trial court should have construed
the will as creating a fee simple in White (P). Reversed and remanded.
(5) Dissenting
(Harbison, J.) The express language of the will indicated an insurmountable
constraint on alienation, indicating a clear intent to create less than a fee estate.
(6) Topics for Discussion
A) Lide’s Intent
1) When there is ambiguity
a) asking the grantor’s true intent
b) If this intent cannot be determined, the court will embrace fee
simple absolute
2) Ambiguity of the will: “I wish Evelyn White to have my home to
live in and not to be sold.” No children.
3) What precisely was the ambiguity? Do you agree that the will's
language was in fact ambiguous?
B) Rules of Construction (P321 b)
1) To help resolve the perceived ambiguity, the court used 2 rules of
construction: TN Code Ann. 64-101 and 64-501:
a) Every grant or devise of real estate, or any interest therein, shall
pass all the estate or interest of the grantor or devisor, unless
the intent to pass a less estate or interest shall appear by express
terms, or be necessarily implied in the terms of the instrument.
b) A will... shall convey all the real estate belonging to (the
testator) or in which he had any interest at his decease, unless a
contrary intention appears by its words and context.
2) How did the court use these rules?
a) They set the presumption of fee simple, unless there is clear
and contrary evidence of intention.
3) what is the policy rationale(s) underlying/justifying these rules of
construction？
a) Utilitarian. Promote the development of land.
b) To promote marketability of land, and freedom of transferring
property
c) People’s expectations, no one wants to buy a fee tail.
4) Do you think these rules of construction led to a result that Lide
herself never intended?
 If she determined a fee simple, it led to her intention.
 If she determined a life estate, it did not lead to her intention.
 (the presumption is not perfect, but considering the situation, it
is reasonable.)
C) Restraints on Alienation P322
C) Restraints on Alienation P322
1) "to live in and not be sold"-what did the court say about this phrase?
a) It’s not valid. It restraints on alienation.
2) A restraints on alienation is a provision in a deed or will that
prohibits or limits a future transfer of the property. If a provision
expressly prohibits the future transfer of a fee simple, it is void as
against public policy. Why?
a) One of the core policies of our property law system is freedom
of alienation. Utilitarian theory holds that transferability is
necessary to ensure the productive use of land.
3) Three types of restraints P322
a) disabling restraint
b) Forfeiture restraint
c) Promissory restraint
4) While absolute restraints on a fee simple are void, partial
restraints may be valid if they are reasonable as to duration,
scope, and purpose.
5) Don’t be confused about FSD and restraints on alienation
a) I give you this house, but you cannot sale it forever.
◊ This is absolute restrictions like "never be sold" are never
ok! Even for FSD.
b) I give you this house, but you cannot sale is for two years.
◊ For FSD, you can only add some kind of restriction, not
absolute restriction. Two years is ok.
D) Revisiting the Facts
1) What was the condition of the house? What did all parties agree
should be done with the house?
a) It’s falling apart. They all agree to sell the house.
2) What was the relationship between Lide and White like?
a) Quite close.
3) The relationship between Lide and her nieces and nephews?
a) Probably weak.
4) So, do these facts should make a difference in the outcome of the
case?
a) Still fee simple absolute. If the house is fee simple, White can
transfer the house freely with a reasonable price and get a
replacement of a house.
E) Revisiting the facts
1) What was the condition of the house? What did all parties agree
should be done with the house?
a) It’s falling apart.
b) They all agree to sell the house.
2) What was the relationship between Lide and White like?
a) Quite close.
3) The relationship between Lide and her nieces and nephews?
a) Probably weak.
4) So, do these facts should make a difference in the outcome of the
case?
a) Still fee simple absolute.
b) If the house is fee simple, White can transfer the house freely
 b) If the house is fee simple, White can transfer the house freely
with a reasonable price and get a replacement of a house.
F) Additional fact (p 319, blue text box)
1) during the 1960s, the Chrysler corporation was trying to purchase all
of the properties on Lide's block, apparently in order to expand a
factory. It offered $35,000 to her; Lide refused adamantly. Does this
information help to explain the language in Lide's will?
2) Yes. Her nieces and nephews: since she did not want to sell the
house, the will should be a life estate
G) Attorney Role-Playing
As Lide's attorney, how would you have drafted the will to avoid any
ambiguity?
1) “I convey my house to Evelyn White (and her heirs).” (Fee Simple
Absolute)
2) “I convey my house to Evelyn White for life” (Life Estate), make
sure you add “for life”
H) Valuing a life estate (P321, c)
I) Holographic wills P 321
6. Practice Problems (p. 323(g): which transfers create a life estate?
(1) O conveys "to B until he dies."
B has a Life estate; O has a reversion.
(2) O devises "to C for life, then to X."
C has a life estate, while X has future interest(reminder) in fee simple when C
dies.
(3) O conveys "to D for 200 years."
i. Not life estate. It’s term of years. Term of years have limits according to
some states' statutes.
ii. Many courts: 200 years is unreasonable. D has FSA
iii. Some states: after 200 years, O has a reversion.
(4) O devises "to E for life, then to Z for life."
E has a life estate; Z has a future interest in life estate when E dies. O has a
future interest in fee simple. If Z dies before E, then the estate goes back to O
when E dies.
(5) O conveys "to F for life." F then conveys her interest "to Google, Inc."
i. F: life estate. Google: life estate pur autre vie (by F's life) O has future
interest in FSA
(6) O grant a piece of land "to B for life, then to C and his heirs."
B has life estate. When B dies, C has FSA
(7) “A conveys Greenacre to B in trust for the use of C for life, then to D”. P323
B has a legal title/FSA, C has an equitable life estate, D has a future
interest/equitable remainder. C will receive the fee simple upon B’s death.
-------------------------------------------------------------
The Doctrine of Waste
1. The common law doctrine of waste imposes a duty on the life tenant to use the
property in a manner that does not significantly injure the rights of the future interest
holders.
2. Traditionally, three types:
a) Voluntary
i. results from affirmative act that significantly reduces the value of
property (burns the house down)
b) Permissive
 b) Permissive
i. failure to take reasonable care to protect the estate (water damage)
c) Ameliorative
i. results from affirmative act that leads to a substantial change in the
property and increases its value (build a sunlight collector camp or
swimming pool)
3. In U.S., a future interest holder my obtain damages or injunctive relief if the life
tenant commits voluntary or permissive waste. However, most states do not
recognize ameliorative waste.
4. Traditional common law approach to waste vs. the modern approach
(Woodrick)
a) Traditional common law approach: too conservative. A life tenant cannot
alter the property in any substantial way, even if such alteration increases the
value of the property.
b) Modern approach(majority rule): more liberal. A life tenant can make
changes if it increases the value of the property. But a life tenant still cannot
commit voluntary or permissive waste.
5. Balance the interests
a) Both approaches try to balance the interests between the life tenants and future
interest holders. On the one hand, we don’t want to restrict the life tenant too
much, because otherwise that may interfere with their possession. For example,
if you were renting an apartment, and landlord tells that you cannot watch
TV/play any music, it seems unreasonable. A landlord cannot restrict a tenant’s
use of the house too much. Similarly, the court need to strike a balance
between these two parties.
b) On the other hand, we still want to care about the interests of the future interest
holder, because he will reclaim the property back ultimately.
6. Which way is better?
a) People who support modern view
i. utilitarian theory. Even if the tenant changes the property in a substantial
way, but he makes the property better. Land is limited, so we should make
the most productive use of the land.
b) People against the modern approach
i. Personhood: by adopting mordern approach means to evaluate everything
in numbers, but sometimes we cannot measure the value of everything by
money. Like an old house where you like for 20 years, you don't want
destroy it even if doing that will increase the land's value.
ii. it is simple, easy rule
iii. the conservative approach follows most people’s expectation. If you rent
an apartment which would one day go back to the landlord. An ordinary
landlord would hope that he could get back the apartment back in the
exact same condition as it was when the landlord rented to the tenant. A
tenant can put photos on the wall, but he cannot rebuild the bathroom.
7. Under doctrine of waste one cannot dig for coal/oil etc. if he has only life estate

Note: in the face of a question concerning life estate, don’t forget to analyze the
issue of doctrine of waste.

Woodrick v. Wood (Ohio CoA, 1994) (P324)

1. Purpose:
a) involves a novel situation where the destruction of a building increases the
 a) involves a novel situation where the destruction of a building increases the
value of the underlying land - the court rejects the Plaintiff's claim of
ameliorative waste
b) related to utilitarianism (brother) and personal hood theory (sister)
2. Facts
a) George Wood died in 1987. He owned a property. He devises a life estate to
his wife, Catherine, and the future interest goes to his children: Sheridan and
Patricia. There is a barn on the land. The barn was initially used as a stable (for
keeping houses) but has not housed any houses for many years. It cannot be
used for its original purpose anymore. Some of the wood has begun to rot. The
condition of the barn is poor. Catherine and Sheridan want to raze/demolish the
out-of-use barn. The daughter wants to keep the barn. She sued in the trial
court under the doctrine of waste to seek for an injunction (seeking to enjoin
them from razing the barn). At trial court, they did not offer injunction but
order the Woods to pay Patricia $3200 dollars if they destroyed the barn.
Patricia is not satisfied with the trial court’s decision to award her the monetary
value of the barn and appeals to the appeal court of Ohio. The reason why she
appeals might lie in the fact that she may have some personal connection with
the barn under personhood theory. She wants junction rather than monetary
compensation.
i. Mother and brother: no useful anymore; Smell; City regulations forbidden
such buildings
3. Conclusion:
a) Mom and brother's action did not constitute waste
4. Discussing the Court's Decision and Reasoning
a) Woodrick: majority approach
i. case adopts the modern approach of waste (The destruction of the barn
does not constitute waste to the property because it would actually
increase the value of the property), it differs from the historical approach
of waste (which states that a life tenant cannot do anything on the land,
substantially change the land, even the conduct increases the value of the
land).
b) Should it make a difference in the outcome of the case if Woodrick had a close
connection to the barn as a child and was trying to protect a personhood
interest? (will the court provided injunction, or will most US courts care much
about the sentimental value)
i. Generally speaking, Utilitarian justification is superior to personhood
justification. Philosophical response.
ii. Practically speaking, sentiment value is difficult to determine. Besides,
the sister can say she love the barn, but the brother can also say that he
hates the barn. It is hard to judge.
5. Interesting Tidbits about Ohio
a) Neil Armstrong
b) Sauerkraut Balls
c) Cincinnati Chili
d) Buckeye Candy
e) Presidential election in US. Everybody votes in their own state, and if Trump
or Clinton will win a state, and each state has certain number of electoral votes
based on that state population. Trump will definitely win in Texas, and Clinton
will definitely win in California (lots of votes here). In United States, you have
to get 274 votes to win a president. Ohio, Florida is a swaying state. During US
 to get 274 votes to win a president. Ohio, Florida is a swaying state. During US
history, no US presidents have ever win the election without win the votes of
Ohio.
6. Questions
a) O conveys "to B until he dies."
i. B has a Life estate; O has a reversion.
b) O devises "to C for life, then to X."
i. C has a life estate, while X has future interest in fee simple when C dies.
c) O conveys "to D for 200 years."
i. There is no intent to create life estate. But some courts may interpret as
fee simple absolute.
d) O devises "to E for life, then to Z for life."
i. E has a life estate; Z has a future interest in life estate when E dies.
ii. O has a future interest in fee simple. If Z dies before E, then the estate
goes back to O.
e) O conveys "to F for life." F then conveys her interest "to Google, Inc."
i. Google has a life estate measured by F’s life.
16 Defeasible Fees 329-345
2019年10月13日 下午 03:25

 Estate defeasible: an estate that may end upon the occurrence of some future event. It is
subject to the possibility of being prematurely terminated at a future time
➢ for example, if a grantor wanted to add a limitation to a fee simple, the fee simple
would become a defeasible fee simple
➢ remember that all possessory estates (i.e., a fee tail, life estate) can be subject to a
defeasible limitation (e.g., life estate determinable)
 Defeasible fee simple
➢ fee simple determinable
➢ fee simple subject to a condition subsequent
➢ fee simple subject to an executory limitation
 Defeasible fee simple are often used to make gifts of land to public entities or charitable
institutions.

1. Fee Simple Determinable: FSD; POR

(1) Upon the occurrence of some specified event, the fee simple determinable
automatically terminates -- once that event occurs, the fee will revert to the grantor
(or his heirs or successors)
(2) Words of duration: so long as, while, until, during
O to A and her heirs so long as A does not
 O to A and her heirs so long as A does not
attend law
school
Words of limitation, Words of duration, which
which indicate a fee indicate the estate is
simple determinable
(3) Future interest: a possibility of reverter, retained by the transferor (or his heirs).
A possibility of reverter automatically becomes possessory upon the happening of
the stated condition.
If A does not attend law school, nothing happens.
What happens if A attends law school?
The state automatically ends. And O automatically becomes the owner of the
land. If O is dead, the land goes to O’s heirs and devisee. A becomes a
trespasser immediately. If A refuses to leave the land, O can sue A for
trespassing. If O does not do anything (eg. He goes to China and never visits
the land), A might obtain FSA through adverse possession. The moment A
goes to law school, he begins adverse possession.

(4) The fee simple determinable is freely alienable, devisable, and descendible. But the
duration condition continues to apply to any transferee.
✓ Example: O owns Blackacre in fee simple. He sells the property "to A and his
heirs so long as the premises are not used for the sale of alcoholic beverages."
✓ A then purports to convey a fee simple absolute to B, who builds a bar. When
the first alcoholic beverage is sold, B’s interest automatically ends, and the
property reverts to O (or his heirs).
(5) Now, POR is alienable, devisable, descendible in most jurisdictions.
a. At common law, the possibility of reverter was not devisable or assignable. It
could only be transferred by intestate succession.
b. Under the common law, the possibility of reverter could be released to the
holder of the possessory estate. This was permitted because it made the
property more marketable by merging the two interests into an FSA.
(6) O to A, as long as A does not attend law school.
✓ A has FSD.
✓ A conveys his FSD to B. (if B has FSD, the condition still binds A.)
✓ If A dies, B’s FSD turned into FSA.
✓ This is a personal limitation.
(7) O to A, so long as land used for growing vegetables.
✓ If A dies, his FSD convey to his heirs.
✓ The limitation is on the land use, so this limitation continues to bind A’s heirs

2. Fee Simple Subject to a Condition Subsequent: FSCS

(1) Grantor has the right and power to terminate the estate of the grantee if a specific
event occurs: in other words, the fee simple subject to condition subsequent ends
only if and when the grantor enforces the right to retake possession.
(2) Words of condition: provided that, but if, on condition that.
a. In order to avoid ambiguity, it is helpful if the instrument contains a clause
stating that “the transferor has the right to re-enter and reclaim the property” or
words to that effect.
O to B and her heirs provided that the land is
 O to B and her heirs provided that the land is
use as a farm
Words of limitation, Words of condition, which indicate
which indicate a fee the estate is subject to a condition
simple subsequent

(3) Future interest: a right of entry (aka a power of termination). A right of entry can
only be retained by the transferor, or his heirs.
(4) Distinction between FSD and FSCS
a. In FSD, when the limitation is violated, the grantor automatically reverts the
land. In FSCS, if the condition is violated, the ownership of the land did not
automatically transfer to the original owner, O has to enforce his right to retake
possession. If O does not do that, A did not become a trespasser, which means
A’s possession cannot be considered adverse. So A cannot use adverse
possession to get a FSA. O has to enforce his right before A’s possession
becomes adverse.
(5) How does a transferor exercise his right of entry?
a. Traditionally, the transferor would physically re-enter the land and retake
possession through self-help. Today, many states allow the transferor to end
the estate by giving notice to the transferee or by filing a quiet title action.
(6) The FSSC is freely alienable, devisable, descendible. Any transferee is bound
by the condition.
(7) Today ROE is alienable, divisible, and descendible in most jurisdiction.
a. At common law, the right of entry could not be assigned or devised; it could
only be transferred through intestate succession.
(8) Under the common law, the right of entry could be released to the holder of the
possessory estate. This was permitted because it made the property more marketable
by merging the two interests into an FSA.
(9) What if the transferor exercise right of entry long after the breach of condition?
a. Unreasonable delay is not allowed. You give up your ROE if you do not
exercise your ROE in a period of time. Then the transferee has FSA. the length
of the period of time depends on the state. Some states have a certain time, like
20 years. Some states have no certain time, but a case-by-case decision.
(10) Example: "O to A and his heirs provided that the property is used solely for
classical music orchestra performances and classical music orchestra rehearsals."
a. A has a fee simple defeasible rather than a fee simple absolute.
b. A has a fee simple subject to a condition subsequent.
c. O has a future interest called a right of entry. If O is dead, the right goes to O’s
heirs and devisees. (Note: people do not always exercise their right, like
Walmart’s return right)
d. What happens if the property is used for hosting rock music parties?
e. The condition is violated. Sometimes it may not be clear whether condition is
violated or not. What if the property is used for hosting erhu/guqin concert?
Obviously, there is ambiguity. Tip: assuming it happens, then continue your
analysis.
f. if O does not enforce his right of entry, A still enjoys the FSCS.
g. if O enforces his right of entry, then FSCS ends. O (or if O is dead, O’s heirs
or devisees) get the FSA in the land.

3. Fee Simple Subject to an Executory Limitation (FSEL)

3. Fee Simple Subject to an Executory Limitation (FSEL)
(1) Aka a fee simple on executory limitation.
(2) Essentially the same as a fee simple determinable except that the future interest
belongs to a 3rd party rather than the grantor.
(3) Words of duration/condition: like FSD, or FSSC. So long as, while, during, until,
provided that, but if, on condition that
(4) Future interest: an executory interest.
(5) Example: "O to A and her heirs so long as A does not attend law school, and if A
ever does indeed attend law school, then to B."
○ A has a fee simple subject to an executory limitation.
○ B has a future interest - he has an executory interest.
○ If A does indeed attend law school, The title of the land automatically goes to
B. B will have FSA
(6) The FSEL is freely alienable, devisable, descendible. Any transferee is also
bound by the condition.
(7) An executory interest is freely alienable, divisible, and descendible.

Note:
(1) Preference of FSCS when ambiguous. P338
a. When the language is ambiguous, the court will generally construe the estate
as a FSCS instead of FSD, because social policy abhors the forfeiture of
estates because this interferes with marketability. FSCS presents only a limited
risk of forfeiture while FSD results in automatic forfeiture.
b. A few jurisdictions have abolished the FSD and the possibility of reverter. Any
language that would be interpreted as creating either under the common law is
treated as creating a FSSC or right of entry.
(2) Condemnation proceeds P339
a. Suppose B holds a fee simple determinable, C has the possibility of reverter
b. If the city condemns the property, the holder of the fee estate (B) receives all
condemnation proceeds
(3) Waste and the Fee simple defeasible P339
(4) Quick Practice
"O to A for life, but if A becomes a lawyer, then to O."
○ Step 1: “O to A for life”: Life estate
○ Step 2: “but if”: (defeasible): Life estate subject to Condition subsequent
○ O: future interest: right of entry
○ A: Life estate (defeasible) subject to Condition subsequent

Mahrenholz v. County Board of School Trustees of Lawrence County (IL, 1981)

(1) Facts
a. Mahrenholz (P) sued to quiet title to land deeded to the School District (D)
“for school purposes.” The land grant specifically stated that “this land to be
used for school purpose only; otherwise to revert to Grantors herein.” The heir
of the grantors subsequently conveyed his interest in the land to Mahrenholz's
(P) predecessor in interest.
b. Mahrenholz (P) contended that the original conveyance created a fee simple
determinable which gave rise to a possibility of reverter. This allowed him to
become the possessory owner of the property by operation of law when the site
ceased being used to hold classes.
c. The trial court held that the conveyance created a fee simple subject to a
 c. The trial court held that the conveyance created a fee simple subject to a
condition subsequent and because the heir had not affirmatively enforced his
right of re-entry, he had no possessory interest to convey. Mahrenholz (P)
appealed.
(2) Issue
a. "whether the trial court correctly concluded that the plaintiffs could not have
acquired any interest in the school property from the Jacqmains or from Harry
Hutton" (see pgs. 334-335) - both sides agreed that the 1941 deed conveyed a
fee simple defeasible estate, but they disagreed on the specific type of
defeasible fee created

Note:
A) W.E. & Jennie Hutton (“H”) owned 40 acres of land
B) Then IL law (followed common law) can only transfer PoR or RoE in 2
ways – interstate succession or disclaimer in favor of the person holding
the defeasible estate
C) 38.5 acres -> Jacqmains (“J”), court doesn’t discuss this land
D) The deed was “this land to be used for school purposes only, otherwise to
revert to grantors herein”
(3) The Court's Reasoning and Hutton's Intent
a. Only where the grantor creates a possibility of reverter will he or his
successors become possessory owners immediately upon the breach of the
deed restriction. A grant of use for an exclusive purpose followed by an
express provision for reverter creates a fee simple determinable and a
possibility of reverter.
b. The deed in this case created such use and therefore the heir held a possibility
of reverter. His conveyance to Mahrenholz's (P) predecessor conveyed this
interest which became possessory, if at all, when the land was no longer used
 interest which became possessory, if at all, when the land was no longer used
for classes. Therefore, the trial court erred in dismissing the action. Reversed
and remanded.
c. This case illustrates the difference in theory between the possibility of reverter
created by a fee simple determinable and the right of re-entry created by a fee
simple subject to a condition subsequent. In the former, the breach of condition
precedent automatically terminates the possessory estate. In the latter,
termination is merely a right which must be exercised by the holder. This is
purely an academic distinction as any possessory interest will have to be
formally terminated before the estate holder will abandon the estate.
d. “Only” infers a limited grant. The land is clear to use FSD. “If the
condition is broken, the land reverts to grantors herein” --- the Huttons’
intent is to get the land automatically back.
e. Courts usually prefer FSCS, since it’s less harsh than FSD. But here they
thought the deed is clear, so they grant FSD.
(4) Other Questions for Discussion
A) Role-playing (p. 339(f)): the Huttons arrive at your office in early 1941 and
tell you they want the property to automatically revert to them if it ceases to be
used for school purposes. They want the property to be used for active
teaching of students. As their lawyer, how would you draft the conveyance
deed?
a) W.E. and Jennie Hutton convey the property to the trustee of school
District No. 1 so long as the property is used for a site for the active
teaching of students.
b) W.E. and Jennie Hutton: name, ID number, password number, pinyin..
c) the property: address, area, specific location..
d) the trustee of school District No. 1: name, certification number..
B) "School purpose" -- what if the school board used the property for
administrative offices? Or as a site for school bake sales? (p. 340(g))
i. Court will try to find the intent.
(5) Metropolitan Park District v. Unknown Heirs of Rigney
A) Issue:
i. Whether the lapse of an extensive period of time between the breach of a
fee simple subject to a condition subsequent and the election of forfeiture
extinguishes the condition
ii. Whether a grantee of a FSCS may acquire title by adverse possession
following a breach of the condition subsequent, but prior to a claim of
forfeiture, and if not, whether the lapse of a long period of time between a
breach an election of forfeiture waives or otherwise extinguishes the
condition?
B) Holding
i. Since grantor never exercised right to entry, the district held the title
lawfully. So, there was no adverse possession.
ii. A right of entry holder exercise the right of entry in a reasonable time
(6) Suppose that V, a staunch vegetarian, conveys his restaurant "to M so long as only
vegetarian meals are sold on the premises, but if not then V may re-enter and
reclaim the premises." After several years, M conveys the property to P.
Immediately, P begins to offer special happy hours, during which drinks are served
with complimentary fish nuggets. P also offers a boutique Brazilian wine that
includes traces of beetle larvae. Six years later, P offers to sell the restaurant to your
client. What advice would you give your client? (p. 344(c))
 client. What advice would you give your client? (p. 344(c))
a. The original conveyance is unclear, because “so long as” suggests Fee Simple
Determinable, but “may re-enter and reclaim the premises” suggests FSCS.
We can interpret this to FSCS.
b. The condition is that “only vegetarian meals are sold on the premises”.
c. Is P violating the condition?
d. Yes, since fish nuggets and beetle larvae are not vegetables. the fish nugget is
sold as part of the meal because people always go to meal in this restaurant
after the happy hour (after work you can enjoy yourself, sometimes the owner
will provide French fries, peanuts…);
e. No, fish nuggets and beetle larvae are not meals, and fish nuggets are free.
(what is the meaning of the meal? Substantial food, more than slight and
people almost eat every day. E.g. Brazilian wine is just wine, is not meal. The
fish nuggets is not meal and is not vegetable.) (It still sold, if you buy the wine,
you are bond with the fish nuggets which means you actually pay for it.
Nothing is free.)
f. It’s not clear whether there is a breach. It would be bad for client if the breach
had been constituted. There might be a waiver issue here, since the delay has
been 6 years. You have risk of losing FSCS. (Rainie: six years may be
considered as reasonable delay, so waiver is not established.)
g. Stronger arguments: no breach
h. Suggestion:
i. Asking V to disclaim the right of entry or buy it.
ii. Ask P to warrant that the right on the property is complete.
iii. negotiating to Lower the offering price.
iv. asking P do not buy the FSCS.

Practices (p. 344(d))

(1) O conveys "to B and his heirs so long as the land is not used as a nightclub."
B: FSD
O: Possibility of reverter
(2) O devises "to C and her heirs, but if Boston becomes a state then O's heirs have the
right to re-enter and retake the estate."
C: FSEL
O: Nothing.
O’s heirs: Executory Interests in Fee Simple Absolute
(3) O conveys "to D for life, then to M and her heirs while the well continues to
provide water."
O: future interest in probability of reversion
D: life estate
M: future interest (contingent remainder) in FSD
(4) O conveys "to E and her heirs provided that alcohol is never served on the
premises."
O: right of entry
E: FSCS
(5) O conveys "to the First Baptist Church provided that the land is used as a church,
then to Google, Inc."
O: nothing
First Baptist Church: FSEL
Google, Inc: an executory interest in (FSA)(shifting)
17: Modern Future Interests 345-356
2019年10月14日 下午 12:42

Definition of Future Interests

○ Future interest: an existing, nonpossessory property right that may become possessory
in the future.
○ What can the holder of future interest do? P346
○ Types of Future interests
(1) retained by the transferor
- Reversion
- Possibility of reverter
- Right of entry
(2) retained by the transferee
A) remainder
1) vested reminder
a) indefeasibly vested remainder
b) vested reminder subject to divestment
c) vested remainder subject to open
2) contingent reminder
B) executory interest
○ History of future interests P347
○ At common law, the four basic possessory estate were ordered by their potential
duration, from highest to lowest: fee simple, fee tail, life estate and leasehold (term of
years)
Future Interests Created in the Transferor
(1) Reversion
A) Transferor retains a reversion when he conveys a smaller estate than the one he
has.
B) Technically, a reversion is the future interest remaining in the transferor when she
grants a vested estate of less quantum (that is, potential duration) than she began
with.
C) Another way to think about it: the transferor's reversion has to wait patiently until
the transferee’s possessory estate ends naturally
D) Alienable, devisable, descendible
E) Example: “O to A for life.”
▪ A has life estate. O just has to wait patiently until A’s life estate ends. O has
reversion.
(2) Possibility of Reverter
A) Transferor's future interest that follows a determinable estate.
B) Remember that determinable estates have added limitations that might cause
them to end earlier.
C) The transferee's estate will end automatically if the triggering event occurs, so the
transferor's possibility of reverter also waits patiently to see if the event will occur
D) Reversion vs. Possibility of reverter: a reversion is not speculative: we know
that the prior estate (e.g., fee tail, life estate) will at some point end and that the
reversion will definitely become possessory at some point. But PoR may never
become possessory if the triggering event never occur.
E) Today the POR and RoE are freely alienable, devisable, and descendible in
almost all jurisdictions.
A) The common law traditionally restricted the transfer of POR and ROE due to
concern that they may impair the marketability of land. They could only be
transferred by intestate succession.
F) Example: "O to A and his heirs so long as the land is used for a cockroach farm."
O has possibility of reverter.
 O has possibility of reverter.
(3) Right of Entry
A) Grantor's future interest following an fee simple subject to a condition subsequent
B) Example: "O to A and her heirs; however, if the land is not used for a cockroach
farm, then to O."
▪ A has a fee simple subject to a condition subsequent.
▪ O has right of entry.
C) The right of entry does not become possessory until and unless the holder takes
affirmative steps to regain possession. O must re-enter, give formal notice, or
bring legal action in order to terminate B's estate.

Question
Can a grantor have both a reversion and a right of entry? Can a grantor have both a
reversion and a possibility of reverter? Consider these examples…
1. "O to A for life, but if A divorces, then to O."
(1) A has a life estate subject to condition subsequent, O has a right of entry.
(2) When A dies, O has the FSA. So you can say O has reversion b/c A will die
someday, this is certain.
(3) So O has reversion and RoE at the same time.
2. "O to A for life so long as A is married."
(1) A has a life estate determinable, O has a possibility of reverter.
(2) When A dies, O has the FSA. So you can say O has reversion.
(3) So O has PoR and reversion at the same time.
3. Some scholars will argue here it is technically correct there is reversion and argues
that reversion is the best future interests you can have and it includes POR and
ROE.

Present Estate Future interests Created in the transferor

Fee simple absolute None
Fee simple determinable Possibility of Reverter
Fee simple subject to CS Right of Entry
Fee simple subject to EL None
Life estate absolute Reversion
Life estate defeasible Reversion
Fee tail Reversion

Future Interests Created in the Transferee

A future interests created in a transferee can only be remainder or an executory interest

Remainder
1. Remainder is a future interest in a transferee that is:
(1) capable of becoming possessory immediately upon the expiration of the prior
estate, and
(2) does not divest (cut short) any interest in a prior transferee (contrast this with
executory interests)
2. Both types of remainders are freely alienable, devisable, and descendible in all
2. Both types of remainders are freely alienable, devisable, and descendible in all
jurisdictions.
3. The distinction between vested and contingent remainders P352下
4. Example: "O to A for life, then to B."
5. Distinguishing Remainders and Reversions:
(1) "O to A for life, then to B."
(2) "O to A for life, then to O."
6. Two types of reminder: vested remainder and contingent remainder. Generally:
according to the words actually creating it, a vested remainder is certain to become
possessory . A contingent remainder is not.
(1) Vested reminder. A remainder is vested if it is created in an "ascertainable"
person AND it is not subject to a condition precedent other than the natural
termination of the prior estate
A. ascertainable person
Person is ascertainable if he has been born and is identified for sure at the
time of the transfer.
Examples where the remainder-holder is NOT ascertained:
○ O to A for life, then to A's first child. (A doesn't have any children)
unborn children are not ascertainable
○ O to A for life, then to B's heirs. (you cannot have heirs when you are
alive) A person's heirs cannot be ascertained until his death
○ O to A for life, then to A's widow. (because O has no window when he
is alive)
○ O to A for life, then to whoever is teaching Property Law at STL
(could be somebody, but could be nobody, could be two or more
persons )
Examples where the remainder-holder is ascertained:
○ O to A for life, then to B.
○ O to A for life, then to A’s first child. (A has one child named B)
○ O to A for life, then to A’s current Property Law teacher. (A is taking
Property Law right now from Professor X)
note: people prefer to identifying the specific person’s name
B. NO condition precedent
A condition precedent is a condition, other than the ending of the prior
estate, that must be met BEFORE the remainder can become possessory
(recall that vested remainders have no condition precedent)
contrast with condition subsequent, which are events that might divest an
interest AFTER it has become possessory
Example: "O to A for life, then to B if B has reached 21 years of age."
○ "if B has reached 21 years of age" is a condition precedent. So B's
remainder is not vested.
○ Condition precedent must be satisfied before possessory right is
obtained.
○ A: life estate (present estate)
○ B: future interest, remainder (contingent remainder)
○ O: reversion
○ When A dies, B is 11. O has FSA again. Then when B is 21, should O
give land to B again? NO
 ○
give land to B again? NO
(2) Contingent remainder
1) 见下
7. Three types of vested remainder.
(1) Indefeasibly vested remainder
(2) vested remainder subject to divestment: a remainder that is vested, but is subject to
a condition subsequent
(3) vested remainder subject to open: a remainder that is vested, but held by one or
more living members of a group or class

Indefeasibly vested remainder

(also known simply as a vested remainder) a remainder in an identifiable person that is
certain to become possessory estate

Vested remainder subject to divestment

1. A remainder that is vested, but is subject to a condition subsequent
2. Example: "O to B for life, then to D, but if D does not survive B, then to E."(重要)
(1) B has life estate.
(2) D has reminder. "but if D does not survive B" is a condition subsequent. D is
ascertainable, there is no condition precedent. So D's remainder is vested. But the
condition subsequent will divest D's future interest, so D has vested reminder
subject to divestment
(3) E: shifting executory interests

Vested remainder subject to open

1. A remainder that is vested, but held by one or more living members of a group or
class that may be enlarged in the future. Aka a vested remainder subject to partial
divestment
2. Example: "O to A for life, then to O's children." (O has 2 children, G and H, at the time
of conveyance)
A has life estate. G and H both have a vested remainder subject to open.
(1) what future interest O’s potential children have?
(2) Alex: Since the potential children's future interest does not divest prior transferee,
i.e. A's estate, so it should be a reminder. Because the reminder is retained by
unascertainable persons (unborn children), it should be a contingent remainder.
But once a child is born, he/she becomes an ascertainable person, and his/her
future interest will become vested remainder subject to open.
(3) Professor Ho: For this conveyance, we don’t worry about the unborn children -
remember, follow the language of the conveyance - we need to figure out what
future interest “O’s children“ have. Not “O’s unborn children” or “O’s first
child”, but “O’s children.”
3. Example: O conveys "to A for life, then to the children of B." when A dies, B has three
children, F, E, and H. So the property belong to F, E, and H. They get FSA in this
property. B's other children who are born after A's death cannot get the land.

Contingent remainder: condition precedent

1. A remainder is contingent if it is
(1) given to an unascertainable person, or
(2) subject to a condition precedent
2. "O to A for life, then to A's first child if A marries (A is unmarried and has no
 2. "O to A for life, then to A's first child if A marries (A is unmarried and has no
children)."
(1) A's first child is not ascertainable, so A's first child has a contingent remainder.
(2) A dies, has two children. The first child is born before he is married. And second
one after he is married. When A dies, who gets the land?
- Ho: O. because the first child is born before A is married.
3. "O conveys to B for life, and then to D if D becomes the prime minister." there is a
condition precedent, so D's remainder is contingent.
(1) When B dies, D is not the prime minister. So O has the land again. Then ten years
after B's death, D becomes the prime minister. Should O give the land to D?

Technical question:
Is there any functional difference between a contingent remainder with a condition precedent
and a vested remainder subject to divestment?
Comma; and the language "if" "but if"
1. O to A for life, and to B if B becomes a lawyer.
(1) B has a contingent remainder with a condition precedent.
(2) A contingent remainder with a condition precedent often comes without a comma
2. O to A for life, then to B, but if B does not become a lawyer, then to E.
(1) B has a vested remainder subject to divestment.
(2) b) A vested remainder subject to divestment often comes with a comma

Executory Interests
1. Future interest in a transferee that must divest another estate or interest to
become possessory (cutting short the previous interest)
(1) The common law provided that a future interest in a transferee following a
defeasible fee simple could only be an executory interest.
2. If the executory interest divests the transferor, it is a springing executive interest
3. If the executory interest divests the transferee, it is a shifting executive interest
4. Today an executory interest is alienable, devisable, and descendible in all
jurisdictions.
5. Example
(1) "O to A, provided that if A ever allows the farm chickens to run away, then to B."
- A: FSEL
- B: Shifting executive interest
(2) "O to A when she turns 21 years old. (A is 10 at the time of conveyance)
- O: FSA FSEL
- A: Springing executive interest
(3) “O to A for life, then to B five years after A’s death.”
- A: Life state
- O: reversion subject to executory limitation (there is a condition on the
reversion)
- B: Springing executive interest
18: concurrent ownership generally 375-386
2019年10月15日 下午 04:55

Concurrent Joint Tenancy Tenancy in Common Tenancy by entirety

Estates in land
Ownership Undivided interest Proportionate and Undivided interest
undivided interest
Right of yes NO Yes
Survivorship
Required Unity 1. Unity of Time Unity of possession 1. Unity of Time
2. Unity of Title 2. Unity of Title
3. Unity of Possession 3. Unity of Possession
4. Unity of Interest 4. Unity of Interest
Estate "to X and Y as joint tenants "to X and Y" (as "to A and B as tenants
Language with right of survivorship" tenants in common) by the entirety"
Methods of Unilaterally severed, then Freely transferable Mutually severed,
Termination convertibles as Tenancy in death or divorced
Common
Passing of Upon death, property passes Upon death, property Upon death, property
Property to remaining joint tenants passes to heirs passes to heirs
(operation of law)
Concurrent ownership:
1. Each co-owner or cotenant has the right to use and possess the entire property.
2. Suppose A and B are cotenants in a land, each holding a 50% share. Rach has the right to
use and possess all the land.

There are 3 types of concurrent estates:

P376方框，第四种

Tenancy in Common
“O conveys the property to A and B (as tenants in common)”
1. Two or more persons own the same property at the same time
2. This tenancy is more common than tenancy than joint tenancy
3. Each tenant in common has an undivided, fractional intertest in the property. But
each tenant in common has the right to use and possess the entire property, even if
his fractional interest is smaller than the interest of others.
(1) But if property is sold or there is rental income, a tenant in common will only get
the x% which corresponds to his/her ownership.
4. Each tenant's interests alienable, inheritable, and devisable
(1) If tenant in common transfers her interest, grantee receives exactly what grantor
owned
(2) Most flexible in the three kinds of concurrent tenancy
5. If the facts does not say exact number, just assume that each cotenant has equal
share
 share
6. Presumption of tenancy in common: a tenancy in common, absent express language to
the contrary. P380 (b)
(1) Historically, the common favored the joint tenancy.
Presumption of FSA
Presumption of FSCS (in contrast to FSD)
Presumption of Tenancy in Common (in contrast to Joint Tenancy)
7. Rebuttable presumption of equality: If the conveyance does not specify the size of the
interests, there is a rebuttable presumption that equal shares were intended.
8. Heirs: Apart from a conveyance directly creating a tenancy in common, a tenancy in
common can result from operation of law, including the intestacy statute: if the intestacy
statute specifies that two persons are to take an equal interest as co-heirs, they take as
tenants in common. (Example: A, fee simple owner of Blackacre, dies without a will. His
sole surviving relatives are a son, S, and a daughter, D. The intestacy statute says that
heirs who are children take "equally." S and D will take title to Blackacre as tenants in
common, each holding an undivided one-half interest.)

Joint Tenancy
"O transfers the property to A and B as joint tenants with right of survivorship."
1. Each joint tenant has an undivided right to use and possess the entire property.
(1) Joint tenants are seized per my et per tout.
2. Each joint tenant has a right of survivorship.
(1) If A and B own property as joint tenants, and A dies before B, A's interest
immediately and automatically passes to B. not to A's heirs or devisees.
(2) If A, B, and C has 1/3 as joint tenants. A dies first, B got 1/6 + 1/3 = 1/2. C got 1/6
+ 1/3=1/2.
3. A joint tenancy interest is not inheritable, not devisable.
(1) But a joint tenant can alienate his particular share during his lifetime.
(2) If joint tenants die simultaneously, courts treat their interests as if they own tenants
in common, with each owner deemed to own her proportional share that will be
inherited by heirs or devisees
4. To create, courts traditionally required the "4 unities". If the unity of time, title, or
interest is missing, a tenancy in common is created. Although most states have rejected
this approach and many will now recognize a JT if that is the grantor's intent
(1) Time
(2) Title
(3) Interest
(4) Possession (P376)
5. Joint tenancy can be severed if one of the joint tenants transfers her interest during her
lifetime
(1) The transfer breaks the unities of time and title; the right of survivorship is
destroyed, and the grantee becomes a tenant in common with the other concurrent
owners.
(2) If A and B own property as joint tenants and A transfers conveys her 50% interest
to C, B and C will own the property as tenants in common.
(3) If A, B, and C own property as joint tenants, and A transfers her interest to D, then
D will own a 1/3 interest as a tenant in common while B and C. But B and C still
own their 1/3 interests as joint tenants with each other. When D dies, her property
will go to her heirs or devisees. However, when B dies, her 1/3 interest will go to
 will go to her heirs or devisees. However, when B dies, her 1/3 interest will go to
C -- i.e., her 1/3 interest JT interest will pass to C. Then C will own a 2/3 interest as
a tenant in common with D or her heirs or assigns.
6. The use of a straw person. P381 Note c
(1) What should A do if she want to create a joint tenancy with B (suppose A already
had title to the property)?
(2) A convey property to C (straw person)
(3) C convey property to A and B as joint tenants with right of survivorship
(4) Today many jurisdictions have eliminated the need for a straw person and the
grantor may create a joint tenancy by conveying to herself and another person
7. Use joint tenancy as a substitute of will. P381(f)

Tenancy by the Entirety

"O transfers the land to A and B (as husband and wife) as tenants by the entirety."
1. About 1/2 of US states retain this form of concurrent ownership, which is only to
married couples.
2. Each joint by the entity has an undivided right to use and possess the entire property and
a right of survivorship.
3. Four unities traditionally required + marriage
(1) but many states have abolished requirements that parties obtain title at same time
via the same instrument
4. Differs from the JT because
(1) the individual undivided interests cannot be transferred without the consent of both
spouses
(2) the individual interests cannot be reached by the creditors of one spouse
(3) partition is unavailable as a remedy for owners who cannot agree with what to do
with the property - can sever relationship only by divorce
(4) If the parties are divorced, the tenancy by the entirety ends. The parties are then
treated as owning equal shares (usually as tenants in common).
(5) A tenancy by the entirety can only be ended by death, divorce, or the
agreement of both spouses.
(6) Neither spouse may transfer or encumber 抵押债务 his or her intertest.
(7) Tenants by the entirety are seized per tout et non per my. The husband and wife are
a unity.

Practice Question (p. 380d)

1. S conveys Greenacre "to A, B, and C as tenants in common." Shortly thereafter, A sells
his interest to F; then B dies, devising her interest to G. Who owns what interest in
Greenacre?
(1) A: 1/3 —— F: 1/3
(2) B: 1/3 —— G: 1/3
(3) C: 1/3
(4) F(1/3),G (1/3),C (1/3) each has the right to possess the property.
2. S conveys Greenacre "to A, B, and C as joint tenants with right of survivorship." Shortly
thereafter, A sells his interest to F; then B dies, devising her interest to G. Who owns
what interest in Greenacre
(1) For joint tenancy, devise is not permitted.
(2) F (1/3) of tenancy in common, C (2/3) of tenancy in common

James v. Taylor (AK CoA, 1998)

James v. Taylor (AK CoA, 1998)
1. Facts
(1) The conveyance was made to the three grantees "jointly and severally, and unto
their heirs, assigns and successors forever"
2. Holding
(1) The conveyance here is to create a tenancy in common
3. Presumption in Favor of a Tenancy in Common
(1) Step 1: “Jointly and severally” is ambiguous, not referring the intent.
(2) Step 2: Arkansas law adopts the modern view that a transferor creating a “tenancy”
intents to create tenancy in common, unless he “expressly declared” in the
instrument to joint tenancy.
(3) Step 3: There is nothing within “the four corners of deed” to expressly indicate any
kind of right of survivorship.
4. Why does the law apply a constructional preference in favor of tenancy in
common?
(1) More marketable interests.
(2) People's expectation. Most average people intend to create tenancy in common.
5. What was the extrinsic(external) evidence considered by the chancellor that
weighed in favor of a joint tenancy, and why wasn't this evidence controlling?
(1) The Extrinsic Evidence to Joint Tenancy:
A) She told her lawyer that she wanted to devise the property to surviving
children
B) When her son died, she created a new will that exclude the son’s children.
C) After both sons died, she left Taylor as the sole beneficiary.
D) All these facts showed she wanted to create joint tenancy.
(2) Why wasn’t the evidence controlling?
A) The statute law. The statutory presumption.
B) We focus on the intent expressed by the deed. Not the extrinsic evidence. We
need to find intent within the four corners of the deed. But nothing in the text
showed the intent to create the survivorship interests.
6. Should the law honor an owner's clear intent?
(1) Traditionally, no.
(2) However, the modern trend to focus more on the grantor's intent and less on
formulaic language.
(3) Now, most courts will take into account both the deed language and the
external evidence about intent.
(4) “4 corners of the deed” means the whole paper can express the true intent of an
owner.
7. Preferred language (P380 Note c)
In order to avoid ambiguity it is preferred to use precise language
(1) "as tenants in common"
(2) "as joint tenants with right of survivorship"
(3) "as husband and wife as tenants by the entirety"
8. O transferred to A and B for life, then to the survivor
(1) Many courts hold that A and B hold tenancy in common for life, followed by a
contingent remainder in the survivor

Severance - Tenhet v. Boswell (CA, 1976)

1. Purpose
This case considers whether the execution of a lease by one joint tenant severs the joint
tenancy.
 tenancy.
2. Facts
(1) A joint tenant leases his interest in the joint property to a third person for a term of
years, and dies during that term. Trial court: there is severance.
(2) The Supreme Court of California held that the lease does not sever the joint
tenancy, but expires upon the death of the lessor joint tenant.

Discussion
1. Severance - why did the Tenhet court hold that the lease did not sever the joint
tenancy?
(1) Tradition Approach: A lease by a joint tenant to a third person effects a complete
and final severance of the joint tenancy. Such a view is generally based on
traditional form unity rules. Under the traditional approach, lease destroys joint
tenancy.
(2) Another Approach: There is a temporary severance of a joint tenancy during the
period of lease, and if the lessor dies while the lease is still in effect, the joint
tenancy is extinguished. If the term of lease expires before the lessor, then the joint
tenancy is undisturbed because the joint tenants resume their original relation.
(3) Court’s Approach: However, the court followed neither of them. The court held
that severance depends on the intent of joint tenant to terminate the right of
survivorship. In this case, since the court could not find that Johnson intended to
sever the right of survivorship, no severance.
i. “Because a joint tenancy may be created only by express intent, and because
there are alternative and unambiguous means of altering the nature of that
estate, the court held that the lease here did not operate to sever the joint
tenancy.”
Policy arguments in favor of the rule that lease severs joint tenancy: It promotes
the marketability of the land.
Policy arguments against the rule that lease severs joint tenancy: Most average
people of joint tenancy interest may assume that lease has no effect on their rights
of survivorship

2. The Lease: whether the plaintiff’s ownership of property is unencumbered by the

lease?
(1) The lease only lasts as long as Johnson’s interests in the joint tenancy are
valid. At the moment Johnson dies, the lease becomes invalid.
Citing the case Swartzbaugh, it is held that “a lease to all of the joint property by
one joint tenant is not a nullity but is a valid and supportable contract in so far as
the interest of the lessor in the joint property is concerned.” During the lifetime of
the lessor joint tenant, her interest was an undivided interest in FSA that
encompassed the right to lease the property.
By the nature of joint tenancy, the interest of the non-surviving joint tenant
extinguishes upon his death. So, the lease expires when the lessor dies.
In effect, if a joint tenant leases her interest, the lease ends at the earlier of two
events: the end of the lease term or the death of the lessor. (in most jurisdictions, a
lease does not survive the cotenant's death.)
(2) Should we feel bad for Boswell?
i. No, reasons are as follows:
 i. No, reasons are as follows:
ii. A big transaction for 10-year’s lease for a private home is very unusual
iii. He should have searched the history of the title before entering the title of
lease.

Mortgages (important point) (P385 Note b)

1. Whether mortgage sever joint tenancy
(1) Historical approach: (title theory)
i. the mortgage is seen as the conveyance of title to the mortgagee; this severs
the joint tenancy because it destroys the unities of time and title.) (so that the
mortgagee can foreclose on the undivided one-half interest of the mortgagor,
but the interest of the other party is not affected)
(2) Modern approach: (lien theory)
i. a mortgage doesn’t sever a joint tenancy in most states. It is viewed merely as
a lien to secure repayment of the debt and title still stays with you during
mortgage. So the unities are still preserved.
2. Whether the mortgage survives the death of the joint tenant?
(1) Illinois Supreme Court: does not survive
i. while the joint tenant was alive, the mortgage existed as a lien on his interest
in the joint tenancy. Upon his death, his interest ceased to exist and along with
it the lien of the mortgage.
(2) Many courts: survive
i. a mortgage survives the death of the mortgagor-joint tenant, so the surviving
joint tenant takes title subject to the mortgage.

Secret severance P 386

1. How does it work?
(1) A is B's wife. two person hold title to their home in joint tenancy
(2) A secretly conveys her interest to herself, then the joint tenancy becomes a tenancy
in common
(3) So if A dies before B, A can devise her interest to a third party, C
(4) If B dies before A, A will destroy the severance deed and claim to be the sole
owner
2. The court allows a wife to do: Secretly sever the joint tenancy and then devise her
interest to another person
3. In a few states it is required that the deed effecting severance should be recorded in order
to prevent the severing joint tenant from trying to claim sole title if he outlives the other
joint tenant

Option to Purchase
If Boswell exercises his option before Johnson’s death, the joint tenancy is extinguished, and
he has a tenancy in common. So he can lease the house to others.
19: Doctrine of Partition / Rights & Duties of Co-Tenants
2019年10月18日 下午 08:05

Partition
1. Any tenant in common or joint tenant has the right to sue for partition of property. A partition
judgment ends the cotenancy and distributes its assets.
2. Two Types of Partition:
a. Partition in Kind (aka Actual Partition; Physical Partition)
i. After partition in kind, cotenancy is over. Everyone gets his own land. If you go to another
one's land, it's trespass to land.
b. Partition by Sale (Sell the property and distribute the proceeds among the parties)

Ark Land Co. v. Harper (WV, 2004)

1. This is a very rare case where personhood theory overcomes the utilitarian theory. 联系第一节课学的内容
2. WV is a state where coal industry was very important
a. Protect environment
b. Healthy issue
c. Now WV has high rate of unemployment.
3. Facts
a. Corp: partition by sale
b. Family member: partition in kind
c. Trial court: presumption of partition in kind is overcame. So partition by sale
4. Issue
Whether the evidence supported the circuit court’s conclusion that the property could not be
conveniently partitioned in kind, thus warranting a partition by sale?
5. Holding
a. Partition in kind
6. Reasoning
a. We cannot rely only on economic argument. Economic value is not a exclusive determinative
factor in partition. Instead, we need to balance a number of factors including long ownership,
sentimental value, emotional interests, etc.
b. This latter factor should ordinarily control when it is shown that the property can be partitioned in
kind, though it may entail some economic inconvenience to the party seeking a sale.
c. The big company did not overcome the presumption in kind
d. The company's evidence that the land's value will increase because of their activity is self-serving.
If we follow this way, bad consequences to society. P390
e. The company failed their economic gamble game. P391
7. Presumption of partition in kind (in theory)
a. In most jurisdictions, partition in kind is preferred to partition by sale (in theory), because it leaves
cotenants holding the same estates as before and does not force a sale on unwilling cotenants. And
Partition by sale can be harsh P388 N1
b. In practice, partition by sale is used more commonly. 见下面的 efficient partition.
8. How to overcome the presumption of partition in kind in West Virginia? (the party who wants a
partition by sale has the burden of proof)
a. The property cannot be conveniently partitioned in kind
b. The interests of one or more of the parties will be promoted by the sale
c. The interests of other parties will not be prejudiced by the sale.
9. Maximizing Value? [Sentimental attachments (personhood) v. economic value (utilitarian)]
(1) The Company: 1. Valuable use of land is mining. If partition in kind is adopted, the cost of
exploitation will increase a lot.
10. The dissent:
(1) The longstanding ownership, sentimental or emotional attachment are important. But in this case,
there is no sentimental attachment ownership evidence.
A) Most heirs were no longer living on that parcel of land.
B) The property is only used for weekend activities.
C) Most family members have sold the interests on the land.
 C) Most family members have sold the interests on the land.
D) So why should sporadic use by few family members outweigh the interest of land?
(2) Coal mining is an important economic activity, has great social utility P392
11. Further Analysis
(1) Is partition by sale or partition in kind more efficient? What do you think? P393 (note c)
A) Partition in kind is preferred in theory
B) In practice, partition by sale is used more commonly since partition in kind tends to fragment
property rights, which may lead to the underutilization of land
C) It depends on the type of land and the usage of that land. For example, to a farm, a partition
by sale is more plausible 合理的 since the land requires the farm as a whole. For a parcel of
land divided carefully for various functions, a partition in kind is more preferred.
(2) Agreement not to partition P393 N(d)
A) Traditionally, agreement not to partition is invalid
B) Today most jurisdictions allow such an agreement if it is reasonable in duration and purpose
(3) Partition abuse P393 N(e)
(4) Hypo
A, B, and C are co-tenants in Greenacre, a parcel of wild, undeveloped land. A wishes to convert
the property into a nature preserve to protect the local population of grey foxes, but this will
reduce the value of the land by 30 percent. A files suit to have the land partitioned in kind; B and
C want partition by sale. Assume that the land can be easily partitioned. Which is the likely result?
(apply Ark Land)
A) The property cannot be conveniently partitioned in kind?
1) the land can be conveniently partitioned in kind.
B) The interests of one or more of the parties will be promoted by the sale?
1) Yes, B and C prefer the sale.
C) The interests of other parties will not be prejudiced by the sale?
1) B&C: no. A's monetary interest is promoted.
2) But, economic interests are not the only considerations.
D) In conclusion, the presumption in favor of partition in sale is not overcome. Still partition in
kind.

Co-Tenant Rights and Duties – Esteves v. Esteves (NJ,2001)

Note:
○ When cotenants have an agreement on these matters, the agreement governs their rights and duties.
○ Prof. Ho comes from NJ
○ NJ courts usually applies different rules in U.S.
○ NJ has good public education system
○ Prof. Ho could speak Spanish
○ Take care -- be careful (Washington D.C.)

1. Purpose
Illustrates the general approach to co-tenant rights and duties. However, in an interesting departure
from the majority rule, the court here held that a non-ousted tenant may be entitled to an off-setting
credit for the reasonable value of the other co-tenant's exclusive occupancy.
2. Operating, Maintenance, and Improvement Expenses
(1) As a general rule, if you are cotenant, you are responsible for your share in operating expenses
including taxes, mortgage payments, and insurance charges.
A) If you pay more than your share, you can cover your excess by contribution action for money
or partition.
(2) repairs and improvements: many courts hold that co-owners do not contribute to either repairs
or improvements. Policy:
A) Courts don’t want to force tenants to pay for the improvement;
B) It is not their decision to make the repairs and improvement;
C) Courts don’t want to get into business of evaluating the improvement.
(3) If a property is sold or partitioned, a cotenant who makes needed repairs will receive a credit these
costs in a partition; and the cotenant who improves the property receives a credit equal to the
increased marker value produced by the improvement.
3. Majority Rule: No Rent Owed by Co-Tenants in Possession
3. Majority Rule: No Rent Owed by Co-Tenants in Possession
(1) A co-tenant in possession does not owe rent to a co-tenant out of possession. (Absent of ouster ---
An act to exclude.)
A) If there is ouster, then the exclusive tenant need to pay rent to the cotenant who suffer ouster.
B) Exclusive possession does not constitute an ouster
(2) Rationale: in co-tenancies, all the owners have right to occupy property.
A) The son chooses to not occupy the house
B) Occupying the house is the parents' legal rights
(3) What's the basis for this rule, and it is a reasonable majority rule?
i. Yes. Each cotenant has the right to enjoy the whole right of property. Nobody has blocked
the out-of-possession cotenant to enjoy the property. That cotenant can get to the property as
he wishes.
4. Minority rule
(1) Cotenant who has exclusive occupancy has to pay the cotenant who suffer outer
5. The Esteves Approach (New Jersey approach) to Rent Liability
(1) We don't need to follow majority or minority rule. We care about what is fair.
(2) NJ court rejected the Majority view.
a) If the tenant has been in sole possession and demands some contribution to the operative
expenses, “fairness and equity” asks him to give credit for the value of sole occupancy.
b) In the instant case, it’s only fair that parents give a credit for their sole occupancy to their
son.
c) The obligation to present evidence of the reasonable value of the sole occupancy, which
would normally be represented by the rental value of the property, rests on the party who did
not occupy the property.
(3) What's the rationale for the Esteves approach?
a) Consequent fairness of justification.
b) Exclusive possession is not an ouster, but it’s constructive ouster because it casts the same
effect as an ouster
(4) New Jersey view is a modified majority view. In the situation where the exclusive possessor is
asking for operative maintenance expenses from non-possessors, we should give credit to the non-
possessors.
6. Ouster P397
7. Sharing rents and profits P397
20: Marital Property Generally; Tenancy by the Entirety; Defining Marital
Property 398-415
2019年10月18日 下午 08:05

Getting married in U.S.

1. Marriage law is state law
2. American citizens and non-citizens can both get married in the United States,
provided you meet the legal requirements set by the particular state in which you
want to marry
3. Statistics - approx. 50% of American adults are married (cf. 72% in 1960); median
age for first marriage in the US = 27.4 for women; 29.5 for men
4. Every US state recognizes all marriage oversea as long as it is legal
5. Considerations for non-citizens:
A) recognition of your US marriage back in your home country
B) The act of marriage alone does not change your immigration status in the US
C) If you are coming to the US for the purpose of getting married, your status
under US immigration law will depend on whether you want to apply for a
U.S. green card after you are married
i. if you want to get married in the US and then go back to your home
country after your permitted stay, it's fine to enter the US on a visitor visa
(e.g., on a B-2 visa)
ii. if you want to get married in the US and then apply for a US green card,
you cannot enter the US on a B-2 visitor visa -- you need to apply for a
K-1 visa, which allows a foreign national to travel to the US to marry a
US sponsor

Marriage requirements depend on each state

1. most states require you to apply for a marriage license in order to be legally
recognized as married;
2. A few states recognize what is known as common law marriage, where a couple
live together for a certain period of time and live and hold themselves out as being
married, but never get a marriage license. Requirements for common law marriage
include:
a. Cohabitation + legal rightt of marry + intention to be married + hold
yourselves out to friends & family as being married (e.g., your name, referring
to each other, bank accounts, etc.)
b. Jurisdictions that recognize common law marriages include Alabama,
Colorado, Kansas, Texas, D.C.
3. Sample state requirements: Nevada
A. It is the easiest place in US to get married
B. one of the highest wedding rates;
C. 24/7 wedding chapels and venues for your ceremonies;
D. easy and inexpensive to get your marriage certificate;
E. the government marriage license office is open from 8:00 AM to midnight,
365 days a year!
F. requirements under Nevada law for marriage (same for US and non-US
citizens)
i. First, you need to apply for a marriage license (something that allows
you to get married) - go to the marriage license government office
1) at least 18 years of age, no nearer of kin than 2nd cousins or cousins
 1) at least 18 years of age, no nearer of kin than 2nd cousins or cousins
of half-blood, can't be married (i.e., no polygamy)
2) acceptable identification to prove name and age (e.g., a passport)
3) couple must appear in person together
4) marriage licensed issued very quickly - same day a couple goes to
obtain it, and is valid for one year from issue
a) Some states have a waiting period before issuing the license
and also a smaller window of validity ;
b) e.g., New Jersey has a 72-hour waiting period for first
marriages and a 6-month period of validity.
c) During the period, you can change your mind. Of course, other
people can object. For example, if A says, "oh, I know that
guy, he has a wife in China." then the government will do
investigate.
5) cost is US$77
6) For divorced or widowed applicants, no need to provide divorce
decree or death certificates -- just provide information on
month/day/year + city/state
ii. next step, find someone to perform/officiate your marriage ceremony
1) this person must be registered and have a "Certificate of Permission
to Perform Marriages"
2) the ceremony can be performed at any wedding chapel, church, the
Office of Civil Marriages, and anywhere else the officiant is willing
to perform
iii. after the ceremony, the officiant must within 10 calendar days file the
marriage certificate, which he prepares, with the government office, and
then you can order a marriage certificate from the government

Getting Divorced in the United States

1. You don't have to divorce in the state where you get married.
2. Getting Divorced in the United States statistics: approximately 40-50% of married
couples in the US divorce.
3. Again, depends on which state you got married in - each state has its own divorce
laws.
4. Also known as dissolution of marriage
5. Generally, couples seeking divorce must apply for one to the court, after which the
court will issue a judicial decree (a divorce decree) that indicates that the marriage
is dissolved. After this and some time restrictions in some jurisdictions, the parties
may legally marry again
A) may be brought by either spouse or both spouses
B) can be contested or uncontested. uncontested divorces move much more
quickly, and usually no need for lawyer
6. No fault divorce - fault divorce
A) previously, divorcing spouses often had to show a reason for divorce, usually
assigning some fault to the other party (examples of fault)
B) but every state now recognizes no fault divorce ("irreconciliable differences")
C) although courts may still take into account behavior of spouses in determining
equitable distribution, alimony, and child support
D) no fault divorces = the most common type of divorce in the United States
7. Separation period
A) some states require by law a separation period before a divorce
 A) some states require by law a separation period before a divorce
8. Example: Getting Divorced in Nevada
A) One spouse (or both) has to have lived in NV for at least 6 weeks before filing
for a divorce (very lax compared to other states ) + affidavit from NV resident
B) no-fault state: nobody has to prove that anybody did anything wrong to cause
the divorce
C) uncontested - easy, fast / contested - slower, go before judge
D) no separation requirement
E) the requirements are quite lax compared to other states -- e.g., NJ
a) 1 spouse (or both) resident in NJ for at least 12 months prior to filing for
divorce
b) has "fault" and "no fault" divorce with waiting periods
c) no-fault divorce where couple has been living apart for at least 18 months
prior to the start of the divorce
d) no-fault divorce where couple has experienced "irreconcilable
differences" for at least 6 months before divorce is started
e) fault divorce - includes many grounds, including desertion (desertion for
at least 12 months), extreme cruelty (at least 3 months before divorce),
adultery (no waiting period)

Marital property
1. The traditional common law approach to marital property is virtually extinct in the
U.S.
2. Today most jurisdictions use the separate property system. Nine states use the
community property system.
A) Similar goals: fair treatment of each spouse, protect spouse + family upon
divorce or death

Common law foundation: Gender bias.

1. Upon marriage, a woman lost the ability to own, manage, and dispose of her
property---except for her clothing and jewelry.
2. The law gave the husband an estate jure uxoris in all of the wife's lands.
a. Jure uxoris means "by right of the wife". Upon marriage, the wife's status
changed from a feme sole (a single woman who had the right to own property)
to a feme covert (a "covered" woman who had no legal rights distinct from
those of her husband)
3. He could use, mortgage, or sell his wife's property; it could also be reached by his
creditors.
4. A married woman could not even enter into contracts or execute 签署 other legal
documents.
a. As Blackstone explained, "[b]y marriage, the husband and wife are one person
in law: that is, the very being or legal existence of the woman is suspended
during the marriage, or at least incorporated or consolidated into that of the
husband: under whose wing, protection, and cover she performs every
thing...." William Blackstone, 1 Commentaries on the Laws of England
430(1766).
5. Accordingly, the husband controlled all the family property. In return, the wife was
entitled to her husbands protection and support.
6. If the husband died firs, the common law gave the widow dower
a. A life estate in 1/3 of all the freehold land which was (a) owned by her
 a. A life estate in 1/3 of all the freehold land which was (a) owned by her
husband and (b) inheritable by his issue.
b. The wife's dower rights could not be cancelled during the marriage; they
remained "attached" to property, even if it was conveyed to a third party,
unless she voluntarily released them.
c. Example P 399
d. If the husband received a joint tenancy in a land. The Wife's dower rights
would not attach to this interest.
7. What is a curtesy
a. Similar to dower, curtesy was the right of the husband to a life estate in all
freehold land which was owned by his wife and which was inheritable by their
issue. Curtesy arose only at the birth of a child, not at the time of marriage.
8. Over time, the importance of dower declined. Family wealth was increasingly held
in cash, stocks, or other forms of personal property to which dower did not apply.
Today, most states have other mechanisms for protecting the widow and dower has
virtually disappeared. In the few states that still recognize dower, it generally
applies to both spouses.
a. Arkansas, Kentucky, Massachusetts, Michigan, Ohio, and the District of
Columbia still recignize dower
9. Legislative reforms in the 1800s granted more property rights to married women.
Most states passed Married Women's Property Acts, which provided the wife
with the same rights as a single woman to own, manage, and dispose of her
property. These acts also protected the wites property from the claims of her
husband's creditors.
a. In theory, both spouses now had equal property rigths. The husband had
complete control over his property, and the wife had complete control over her
property.
b. But the husband's wages-and assets purchased from them-were considered to
be his property. In an era when a wife rarely worked outside of the home, this
approach effectively vested control of the family property in the husband

Separate Property System (also known as the "common law" system)

1. The marital property rights arising under the modern separate property system
may be divided into three categories: rights during the marriage, at divorce, and
at death.
2. majority of states follow this system - gives each individual spouse freedom +
authority to own and control "separate property " during and after their marriage

Before and During the marriage

1. The basic rule is that property is separately owned by the spouse who acquires it.
2. Under this system, the creditors of a particular spouse can only attach the separate
property of that spouse. Thus, H's creditors cannot attach W's property. Of course, a
wife and husband could agree to hold property in a concurrent tenancy; or one
spouse might make a gift of property to the other.
3. After marriage, the spouse has the duty to take care of the other. So if one spouse is
rich, and the other is poor, and the rich one does not give money to poor one. Then
the poor one may sue the rich one.

Divorce: equitable distribution (but note equitable is NOT NECESSARILY equal )

1. At divorce, most separate property states require equitable distribution of the
property owned by each spouse.
 property owned by each spouse.
a. This requires a court to divide the property in a just and fair manner,
considering factors such as the spouses' incomes, their standard of living, their
contributions during marriage, their age and health, any special needs, and the
length of the marriage
2. The "property"subject to equitable distribution is usually defined as any property
acquired with the earnings of either spouse during the marriage, although a few
states also include property acquired before the marriage.
3. Some states presume that equal distribution is appropriate absent special concerns.
But as a general matter, the trial judge has broad discretion to decide how the
property should be divided.

1. special case: the case of educational degrees

2. note that equitable distribution is DIFFERENT from alimony or child support
A) alimony is essentially income paid by one spouse to another, based on certain
circumstances -- during a divorce, a state may degree that alimony is awarded
(but not always) -- but equitable distribution will always be necessary
a. We usually see alimony in at fault divorce.
b. The at fault party will pay money to the other party for some years
c. Judge will consider the life standard you used to have during marriage. If it
was high, the no fault party may get more money in order to maintain your
previous life standard
B) most states have specific rules and statutes for child support
a. e.g., Nevada has percentages of gross monthly income that must be
designated for child support (e.g., one child 18%, two children 25%, 3
children 29%), as well as maximum and minimum amounts based on the
parent's income
b. Usually the mother will get children.

Death
1. no will - laws on intestate succession (generally, allocate a lot of the decedent's
property to the surviving spouse, with some property going to the children and
decedent's parents)
2. will - follow the will, but almost every state gives surviving spouse an elective
share (forced share) option. This means that the survivor has choice:
a. take under the decedent's will or
b. receive a defined portion of the decedent's estate, usually a 1/3 or 1/2 share.
3. Why gives a forced share option?
4. Can a dying spouse intentionally avoid the forced share by giving her property
away before she dies? In many states, the forced share applies to gifts made for this
purpose.

Community Property System: nine states

1. The community property system is used today in nine states: Arizona, California,
Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
2. We might arguably add Alaska to the list. Since 1998, Alaska has given married
couples the option of holding their assets as community property if they wish.
3. recognizes unique form of concurrent ownership - community property - gives each
spouse an extra level of protection from the other's actions during the marriage
4. founded on the basis of equality; marriage is seen as an economic partnership
 4. founded on the basis of equality; marriage is seen as an economic partnership
between spouses

During the marriage

1. key difference from separate property system = all property acquired by either
spouse DURING the marriage (including WAGES) are deemed community
property and each spouse owns a 50% undivided interest in all such community
property (however, gifts, devises, inheritances acquired during the marriage are
NOT considered "community property")
2. Growing out of the French and Spanish civil law traditions, this system is based on
the concept that the husband and wife contribute equally to the marriage. Marriage
is seen as a partnership.
3. Each spouse holds an equal, undivided share in the community property, although
neither can transfer that share to a third party. Unlike a joint tenancy or tenancy by
the entirety, neither spouse has a right of survivorship. Property acquired betore
marriage or after marriage by gift or inheritance remains the separate
property of the individual spouse.

Divorce
1. At divorce, all community property is divided between the spouses.
2. CA, LA, NM = require equal distribution of community property (1/2 to each)
3. others = adopt the equitable distribution principle

Death
generally, spouses can dispose of ALL their separate property and up to 1/2 of their
community property by will - other 1/2 belongs to the surviving spouse
1. At death, the decedent may devise her half of the community property and all her
separate property as she desires. The other half of the community property belongs
to the surviving spouse. Accordingly, community property states do not provide a
forced share to the survivor.
2. Suppose that H and W own $3,000,000 in community property assets when H dies.
H may devise his $1, 500,000 share, together with any separate property as he
wishes. But suppose H and W retire to a community property state after living for
30 years in separate property state; what happens when W dies?

Tenancy by the Entirety

1. At common law, every conveyance to a married couple was presumed to create a
tenancy by the entirety.
2. Today only half of the states recognize this cotenancy. In states where it is still
permitted, the tenancy by the entirety may offer significant protection from
creditors.

Contract Law - the effect of premarital / prenuptial agreements or agreements signed at

separation or divorce
1. modern trend - recognize the premarital agreemtn.
a. But if the agreement is not reasonable, judge has the power to reject some
clauses
2. examples (of course, rumors though) of famous celebrity prenups and their
provisions
What about unmarried couples?
1. increasing social phenomenon
2. an express K between the partners on how their property will be divided on divorce
or death is usually enforceable in most states (but because they are not married, they
cannot enjoy the rights given to married couples, like elective share, tax benefits,
Social Security spousal benefits, etc)