Thomas Mitchell_Property_Spring_2014

FINAL PROPERTY OUTLINE

CONCEPT OF PROPERTY

A. 5 Theories of Property

1. First possession
Principle: 1
st
come, 1
st
serve
Advantages of 1
st
Poss. Over Labor
o Clear title facilitates trade benefits society
o Minimizes resource wasting conflict as to who has better claim
Difficulties/Challenges
o must understand clear acts of possession;
o Not necessarily utilitarian
Exceptions
failure to maintain communication of property rights over time may result in losing
themdoctrine of adverse possession

Pierson v Post (SC of NY - 1805) [You think you got the fox, fuck you its dead and mine]
Holding: Court decided that pursuit of an animal is not enough to constitute occupancy (physical taking) or
deprivation of liberty so much so that it is an actionable claim; Post wins

2. Lockes Labor Model
Principle (Economic)
o Encourage labor to improve land to establish title/ownership
o Possessor has claim to his labor(meritorious ownership)
o Property rights came first, government followed
Critiques/Questions
o How much labor must be expended to claim possession?
Subjective/objective test
o Initial Entitlement
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should original title holders should retain possession when successors do all the
work?
o Distribution
Who owns when combined labor?
Johnson v MIntosh [Pre-legalization a land acquisition company bought land from Indian tribes, then feds did and
subsequently sold it to other buyer, original co. sued]
Issue: Does the US federal court recognize the sale and transfer of the land?
Analysis: The Court appears to have taken the ownership by occupation right and separated it from
the other rights, namely the right to transfer, from the Native Americans. By doing so the court logic
seems as follows: Without a state to conquer there can exist no legal positivism that creates
property rights, therefore the only entity that could have acquired the title to the land would
have been the state.
Doctrine of Discovery: by allowing first discovery to determine claims of ownership, the various
European powers avoid unnecessary wars (sorta works)

John Locke Treatise

A. Wasteland will result if the property is not allowed to be individually cultivated; limitations:
i. Whatever is beyond this is more than his share, and belongs to others.
ii. If the whole of the land would be worse if partially enclosed, not entitled to it

B. Money allows acquisition of land in excess of what one could cultivate this can preempt waste by allowing
transactions of perishable goods (apples, etc.)
i. Inequalities are consented to by man


3. Utilitarianism

A. Property should be allocated in such a way that produces the greatest amount of benefit to society

B. Law and economics perspectiveproperty seen as efficient method of allocating valuable resources in
order to maximize economic wealth
4. Jeffersonian Model

A. Principle: Ensure democracy
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B. Views: Only men who own their own property can exercise the independent political judgment that is vital for
a true democracy

5. Personhood
Principle: What property is important to self-development
o Facilitate development and personal attachment to things (ex. Wedding ring,
house)
o To achieve proper self-development, an individual needs some control over the
resources in the external environment
o Replaceable goods are not protectable by personhood
Question/critiques
o recognition that not all property is important to self-development; therefore necessary to
discern which property is important to ones development

White v Samsung Electronics (9
th
1993) [Samsung ran magazine ads featuring a robot that
reminded viewers of Vanna White without her permission]
Facts: Ct award for Vanna White, b/c Samsung was found to have appropriated her identity which was
protected by CA law
Analysis/Holding: Court rejects statutory definition of right of publicity (Eastwood case), invokes the
common law definition, which is more inclusive than the CA statute (harmonizes).The common law
right of publicity reaches means of appropriation other than name or likenessdoes not require that
appropriations of identity be accomplished through particular means to be actionable. Invoked to
protect commercial value of celebrities
Dissent: argues that Vanna Whites identity is ambiguous,
o Ct say that her right to it (not allowing persons to create images that remind the viewer of her),
is at the expense of a richer public domain (Utilitarian Theory)
supports notion that intellectual progress and development is by accretion,
not great leaps

Conflicts of Theories
Personhood v. Utilitarian v. Labor

Moore v Regents of California [patient with rare leukemia is taken to hospital, certain tissue samples are
removed and processed into a lucrative line, w/o patients knowledge or consent] Article on profit sharing of
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cell cultures
Issue 1: Was there a breach of fiduciary duty and lack of consent Yes
Issue 2: Was there conversion (where his cells possessed illegally)?
No Where plaintiff neither has title to the property alleged to have been converted (his cells), nor
possession thereof (doctors had them), he cannot maintain an action for conversion.
No Moore argues, if likeness/persona is tort, why not genetic material but court states Moore isnt
actually that unique, and legislature limits say in cells after excision, and court finds cell line to be an
invention, independent of Moores raw material
Should tort of conversion be expanded thusly?
No not necessary to protect patients rights (consent, etc do a good job); to do so might discourage
socially useful researchers from their work for fear of liability
Concurring: Do not mix the sacred (body) and the profane (commercial interest)!
Dissent: Decision is not equitable; Moore could have shopped around and gotten more money for samples

Property Rights

Bundle of Sticks/Rights

A. Bundle of Sticks (ownership is bundle of sticks)
Ownership is not absolute Exceptions
o cannot violate law
o especially when use of property affects others
o Nuisance
o Intentional harm to others property
Sources of limitation: Constitution, statute, common law
Rights can become unbundled voluntarily (leases) or involuntary (em domain)

B. 4 Most Important Rights

1. Exclude
A. Jacque v Steenberg Homs, Inc [Delivery of mobile home went across mans land who had repeatedly
denied consent to cross his land]
Issue/Holding: can punitive damages be awarded where compensatory damages are nominal?
HOLD: Yes, Court allows it, when punitive damages would set an example.
Other rationale; right to exclude is meaningless if not endorsed by the State!
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B. Exceptions
State v. Shack [farmers disallowed trespassers b/c they would likely investigate and report on abysmal
living conditions of the migrant worker labor camps]
Analysis: Case against right to exclude made by arguments of constitutional protections and 6
th

amendment rights, bill of rights etc.
HOLD: Court accepts as State law ownership of real property does not include the right to bar access to
governmental services available to migrant workers therefore, no trespass they had a legal right to be
there!
i. No reason to limit migrant worker rights to those only enumerated in the constitution
ii. Court seeks fair adjustment of the competing needs of the parties, in the light of the
realities of the relationship
iii. In some ways, migrant workers gained right to entertain visitors of a particular
(particularly ones offering aid, the press, etc.) nature which supersedes the owners right
to exclude; associational rights and rights to privacy
a. Nomenclature supports use of the term license because theses at-will workers
could lose their right upon revocation
Policy: Property rights are a balance between rights of public/other persons and the rights of owners which
highlights the dynamism of the law (right to roam)


2. Use
A. Sundowner, Inc. v. King [Spite fence was erected b/w 2 motel owners b/c one sold and then built
another motel. Spite fence built to decrease value of new motel.]
Holding: No property owner has the right to erect and maintain an otherwise useless structure for the
sole purpose of injuring his neighbor.

B. Prah v Maretti (SCWI 1982) [New house of neighbor would block sunlight to solar heated residence of
other neighbor]
Plaintiff contends: construction is private nuisance; against statute; and interferes with solar
easement acquired under the doctrine of prior appropriation.
Arguments against: protections for landowner to use land however they want as long as not harming
others; sunlight was used only for aesthetic enjoyment; society did not want to impede development
Holding: private nuisance law is applicable in cases involving access to sunlight and
conflicting access to right to use.
Dissent: not sold on obsoleteness of prior doctrine, distinguishes Deetz by saying it held landowner
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cant harm public with use, this is private action

3. Transfer

Johnson v. MIntosh: Rule: Transfer rights limited to title possessor. P thought he owned land b/c conveyed by
native americans; ct says no

Moore v. UC Regents (Gene Cells/Science and Ownership/Transfer rights)
Issue 2: Was there conversion (where his cells possessed illegally)?
o No Where plaintiff neither has title to the property alleged to have been converted (his cells),
nor possession thereof (doctors had them), he cannot maintain an action for conversion.
o No Moore argues, if likeness/persona is tort, why not genetic material but court states
Moore isnt actually that unique, and legislature limits say in cells after excision, and court finds
cell line to be an invention, independent of Moores raw material

4. Destroy
A. Eyerman v Mercantile Trust Co. [Rich lady stipulated in her will that her mansion in a posh section of St.
Louis be destroyed after her death, neighbors sued to stop it b/c it was historic and raised property values]
Holding: Cannot exercise right to destroy if it contravenes public policy
o In the instant case, the court found that the destruction of the house would hurt the surrounding
community & estate itself & historically sensitive, without a contravening benefit (failed to
mention will of owner upon death).
Dissent: public policy is novel argument and should not supplant the traditional right of exclusive
control, unless harm will substantially impair others


Hohfled: Legal Relations Theories

1. Rights v. Duties: Non-property owners have a duty to respect ones state-imposed rights
Privileges/Liberties v. No Right:: permissions to act in a manner w/o being liable for damages to others
and w/o being subject to state power (build obnoxious house!)
o Privilege to use but not in a robust way that harms others' competing rights

Powers v. Liabilities: state-enforced abilities to change legal entitlements held by oneself or others (power to
transfer title)

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Immunities v. Disabilities: Immunities are securities from having ones own entitlements changed by others
(government cant seize land unless public need/compensation)

2. Core Tensions in Property Law

i. Right to Exclude vs Promoting Non-Discrimination (Right of Access)
a. Implicates different types of propert y(no discrimination if public accommodation)
b. Also means there are basic standards of contract to bar abusive practices (landlord must go
through court before evictions)
ii. Privilege to Use vs Security from Harm (cant pollute, no harmful spillover)
iii. Power to Transfer vs Limits on Disaggregation
a. Generally cant impose conditions on future owners that are odd or unusual (all future owners must
vote democratic) public policy argues against, b/c it would limit the available transfer in the
marketplace
iv. Immunity from Loss vs Power to Acquire
a. Property cant be taken from you w/o consent unless by Eminent Domain
b. Balance between informal and formal rights (Adverse Possession)

3. Alienability Dilemma
Alienability (transferability from one person to another) is encouraged, but certain times such a policy is impinged
upon for other policies (like keeping property in charitable control)


PRINT OUT STATUTES IN COURSE PACKET
Adverse Possession

Rule: AP allows someone who has wrongfully entered anothers property to possess it without the original
owner being able to sue to recover (ejectment) possession
a. Once SoL has passed wrongful owner gets title to land (adverse possession)
b. Clears Title
i. AP furnishes benefit of clearing title to land
ii. Once AP has title, free to transfer property & has rights in the bundle

Four basic Justification of Adverse Possession:
1. Preventing Frivolous Claims Dont have to rely on some old parchment/paper
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2. Correcting Title Defects Avoids living with mistakes on title transfers
3. Encouraging Development reallocates title from idle ownership (utilitarian)
4. Protecting personhood O.Holmes, property use takes root in you

Elements:
1. Must be open, notorious and visible
2. Possession must be actual
3. Possession must be hostile (without owners consent)
4. Possession must be continuous
5. Must pass SoL
Perhaps possession must be longer than SoL if original owner was under a disability

A. OPEN, NOTORIOUS, VISIBLE POSSESSION- place title holder on notice
RULE: use of the property must be similar to that which a typical owner of similar property would make
Elements/Example: X enter lands suitable for hunting and fishing and decides to build a house on
the land and enters the land several times per year to fish and hunt satisfies open, notorious
and visible
Exception:
Use would not satisfy this element if the typical owner would use the property more extensively,
build a bigger dwelling etc.

B. ACTUAL POSSESSION- Use in a reasonable manner & like that of actual owner
RULE: Possession of land must be actual, BUT there is some overlap with open, notorious and visible requirement
EXCEPTION:
1. Occupation by tenant of adverse possessor
the adverse possessor does not necessarily have to be in possession of the property
personally.
If the AP leases his possessory interest to a tenant, the tenants possession may
suffice for AP meeting actual possession requirement (see example)
EXAMPLE: O owns blackacre. A occupies it for a little bit and then purports to lease
blackacre to T.
A collects rents from T for the statutory period and doesnt give any of the rent to
O or acknowledge that O is the owner.
o Ts possession will be imputed to A and A will become the owner by AP
at the end of the statutory period.
THIS IS TRUE B/C:
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o As constructive possession was hostile as to O via Ts use
C. HOSTILE POSSESSION- Without Consent
RULE: possession must be w/o owners consent
EXCEPTION:
If title owner leases land to tenant, possession is not without consent
Some jurisdictions require Good faith
TYPES OF HOSTILE POSSESSION:
1. Hostile possession
Starts as permissive and becomes hostile
even if it starts as non-hostile, it can become hostile
o if this happens, SoL starts when possession becomes hostile
(a) Life estate per autrie vie or fee simple determinable:
o the possessor might hold one of theses estates, but if the holder of the
estate continues possession after the end of the estate period the
period of additional possession will count for AP purposes
2. Bad Faith possessor
A minority of courts impose the additional req that adverse possessor must have a bona fide belief that he has title
to the property
a. In this case, a squatter doesnt get title

3. Boundary Disputes
Majority view: one who possesses an adjoining landowners land under the mistaken belief that he has only
possessed up to the boundary of his own land, meets hostile possession req and can own it via AP

C. CONTINUOUS POSSESSION
RULE: Possession and use must be continuous throughout the statutory period
EXCEPTIONS:
1. Interruption by owner:
if the owner re-enters the property in order to regain possession, this will be an
interruption of the adverse possession.
In this case, adverse possessor must start from scratch
2. Seasonal Possession
a. Seasonal use may qualify if seasonal use is consistent with use that similar owners
would make
If so, the entire twelve months of the year will be counted towards the statute of
limitations
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b. Intermittent activities like hunting:
intermittent activities that are not the sort of activities done by true owners like
occasional hunting on the property NOT GENERALLY ENOUGH TO
CONSTITUTE CONTINUOUS POSSESSION
o hunting on this property would not generally be use a similar owner
would undertake
3. Tacking
Possession by two or more consecutive adverse possessors, may be tacked if the two
are in privity with each other. Periods of possession can be added together to meet
SoL
1. EXCEPTION:
NO PRIVITY
o if not in privity, cannot add periods of possession

D. MISC NOTES ON AP:
1.Length of time: varies by state, but usually at least 15 years

E. SoL EXCEPTIONS:
1. Disabilities: if the true owner is under a disability, nearly all states give extra time to eject

2. Tacking on owners side: there is tacking on the owners side in favor of AP

- example: O owns blackacre in 1980, when A enters and begins AP. In 2000, O conveys to X. Under 21
year STAT, A will gain AP in 2001

F. Rights of Adverse Possessor:
1. Before end of SoL:
AP doesnt have rights against rightful owner, but does against others
Suit against TP: can sue for trespass
Damages likely to be reduced b/c AP doesnt have title to land
2. After expiration of SoL:
Not recordable
No penalty for failing to record by AP
AP gets title to land, BUT Ap cannot record title (since he has no deed)
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o EXCEPTION: Judicial Determination: AP can apply for a judicial
determination and if gets it, that determination can be recorded as a
deed
Easement unlikely to be extinguished
b/c no action against mere possessor but against title holder
3. Need to Inspect:
Buyer of a property will need to physically inspect the property to ensure that no one has
adversely possessed the property b/c one who AP is not on a recorded title

4. Scope of property obtained:
AP normally acquires title only to portion of property actually occupied
EXCEPTION: Constructive adverse possession
One who enters property under color of title (written instrument that is defective
for some reason) will gain title to ENTIRE ARE DESCRIBED IN THE
INTRUMENT, even if only actually possesses a portion
5. Govt property and AP
Generally cant AP land owned by govt

6. Transferability
Title gained by AP can be transferred like any other title:
In writing
Pass SoF
7. Quitclaim Deed- Ask someone to give up the rights they have to deed

G. Conflicts:
1. Right of Ejectment- Rightful owner can eject AP, but if doesnt title to AP
2. First in Time, First in Right
If there is a conflict between 2 persons whose interests are solely possessory, first
possessor has priority over second

H. Squatters Rights and Adverse Possession
i. Story about the Costa Rican mother who wants land to leave to her children
ii. The barrio districts in Venezuela, how the state eventually cedes title to squatters
iii. Story of invading squatters in Lima, Peru upward mobility, can take government land


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I. How to deal w/ property issues in foreign countries
A. Adverse possession
- Advantages
i. Not as costly as govt intervening
ii. Low cost option
iii. Recognize formal title
B. Disadvantages of recognizing ADVERSE possession
i. Encourages illegal behavior
ii. These people can be easily victimized
C. Develop land as a state run model
D. Gov can grant title on ad hoc basis

J. Good Faith and AP
A. Color of title
o Within in your deed
B. GF presumption that you relied on your deed
C. Gerbels case
D. Not intentionally malicious
Examples are boundary disputes

Wisconsin Adverse Possession Statutes (893.25-893.32)
839.25 - Adverse possession can only be claimed if land is occupied and substantially improved or
enclosed for 20 years
839.26 If made in good faith and color of title, then requirement is only 10 years
839.27 If founded on title and by paying ta xes, only 7 years

AP Cases

1. Gurwit v. Kannatzer [Disputed 17 acre tract of land, P asked state to quiet title]
Facts: P took possession of property and held it for 20 years (after purchasing adjacent land), and Def
(neigbor) wanted it back. Gurwit believed he owned it b/c previous owner said it was included in sale.
(Brought quiet title action)
Court focuses on the following facts of the case to make there decision to quiet title to the plaintiffs
Analysis: P possessed and exercised dominion over property as much as the character of the property
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admitted
(1) Possession was hostile P posted no hunting and no trespassing signs;
(2) Possession was actual depends on nature of property, not necessary to use every foot;
(3) Possession was open and notorious P cut firewood, picked up trash, cleaned;
(4) Possession was exclusive P held land as his own and not for another;
(5) Possession was continuous there were days not occupied, but that doesnt matter to the court
RULE: Continuous possession does not mean continuous occupation
HOLD: For P. All elements of AP met.


2. Van Valkenburgh v. Lutz (appellee) [Fences,Easements DENY Hostile and actual possession]
Facts: Appellee/Def (Lutz) traveled over land didnt own for years. Def did garden and
cultivate some of the land and stored trash on it. Years later appellant purchased land
appellee traveled over, built a fence across it. Appellee sued for right to use: Claiming AP after
winning an easement to use the land.
HOLD/Analysis: FOR DEF Court seems persuaded that because D won an easement in an
earlier suit, the D/appellee cannot claim that he adversely possessed the land through
improvements and hostile possession.
RULE: If an easement is asked for prior to an adverse possession action, the adverse
possession claim will most likely fail b/c it means the plaintiff was not hostile
Reasoning: (1) Those werent improvements - did not improve enough of the land in
question was not substantial,
(2) hostility is negated by the easement case where here D, there P, acknowledged
lack of title.
Dissent: Clear and convincing evidence of improvements; the title should have been awarded
prior to the easement action, for he had by law already acquired through adverse possession
of land, easement action would only nullify if this was not the case (during 15 year period)



State of Mind/Intent for Adverse Possession

BAD FAITH AND AP
Fulkerson v. Van Buren [BAD FAITH, HOSTILITY, & EJECTMENT]
Facts: Church/Def built on small plot unaware of owner, once found they asked him
for quit-claim deed to land, he refused, they claimed adverse possession 3 years later.
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P filed claim to eject church.
Holding: For P Court concludes that the statutory 7 year requirement must be
attended by 7 consecutive years of adverse possession (requisite intent in AR, w/o
regard for the true ownership)
i. Lacked hostile intent since (1) they recognized ownership right of titleholder
(asked for quit-claim deed) and (2) was unsure of precise nature of the interest
in the land
Dissent: Church recognized owner, but continued to treat property as their own, which
should suffice also, hostile does not mean ill will toward owner
Bad Faith Req: Ill will towards owner necessary

IMPLIED HOSTILITY
Tioga Coal Co. v. Supermarkets General Corp. (Pa. 1988) [Company met all elements of adverse
possession except hostile b/c they thought land was the citys]
Facts: Lower courts for Def: required that Tioga know the true owner, intend to deprive them
of the land, in addition to meeting all the other requirements of adverse possession. P thought
land was citys and it wasnt. So use wasnt hostile towards rightful owners, Def.
Analysis: Court is persuaded by Holmes, who argues that to promote efficient land use, the
court should think of adverse possession as a man laying his roots
HOLD/RULE: Reverse For P; That an objective test be applied to hostility, maintaining the
notion that if all other elements are met, then hostility will then be implied (logic being
that the true owner would few existence of the other elements as hostile to their title)
Dissent: Holmes is for a time forgotten, in modern day, all land is titled.


TACKING, Claim of Right by Mistaken Belief and AP
Tacking is permitted for AP if successive owners are in privity.

Howard v. Kunto (Appellant) (Ct. App. Wa. 1970) [SEASONAL OCCUPANCY & TACKING =
CONTINUOUS, ACTUAL POSSESSION]
Facts: Def/appellants acquired title to land, but the land Def occupied is not the land
described in the deed. Defs beach house was on one lot and deed land was separate,
adjacent lot. The error in the deed occurred over 20 years prior. P/respondents deed showed
they owned the land Defs house occupied. The seasonal occupancy by Def was use that a
similar and average person would use.
P Claims: (1) P claimed seasonal use is continuous and
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(2) P met SoL b/c of Tacking.
Issue 1: Is the claim for adverse possession defeated by only summer occupancy?
RULE 1: No, conduct must only conform to that of an ordinary owner
Issue 2: Can tacking be used to justify continuity element of adverse possession?
P argues that privity is required, and D had no privity b/c deed never referred to the
right parcel of land or even a portion of it
RULE 2: Privity is required only to support a reasonable connection between
successive owners, it is not a technical requirement owners of a mis-identified
tract still have a right to adverse possession via tacking
HOLD: FOR Def/Appellant, successive purchasers under mistaken belief can claim privity in AP
POLICY - Property rights are relative therefore one may sue to eject a would-be adverse possessor if
they themselves were first to adversely possess the property.

Vertical Dimension of Ownership
Airspace Rights

1. United State v. Causby (Scotus 1946) [Flights over Defs chicken farms occurred all day and chickens
died of fright the farmer sued that the government took easement of his airspace without his consent]
Facts: US argues that the Air Force act of 1926 gives sovereignty of navigable airspace (as
determined by civil airspace authority) to the federal government. Argues that any inconvenience was
minor, that it operated within the bounds of the accepted legal standard for its sovereignty and usage;
Court disagrees:
RULE: Airspace is a public highway; the owner owns at least as much of the space above the ground
as he can occupy or use in connection with the land that he does not occupy it in a physical sense
is not material;
TEST: A. If a land owner is to have full enjoyment of the land he must have exclusive control
of the immediate reaches of the enveloping atmosphere
o B. Owners loss, not takers gain is the measure of the value of property taken
Market value is normal measure of recovery
HOLD: For Def/Causby. The low flights were a direct and immediate cause of the diminution in value.
Causby unable to use his land for valuable purpose. P infringed on his RIGHT TO USE, Limits
Utility, Full enjoyment
Dissent: Courts are incapable of making calculations such as these

Subsurface Rights
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2. Chance v. BP Chemicals, Inc. (S.C. OH 1996) [Plaintiff claims that Defs chemicals deposited in
deep subsurface waste areas migrated into the deep underground of Ps property trespass]
Facts: Court asks itself what are the limits of the plaintiffs property interest; Plaintiff argues that
although subsurface rights not absolute, its near absolute
HOLD/RULE: For Def, A landowner has a right to exclude invasions only if they actually
interfere (some damages) with the owners reasonable and foreseeable use of the
subsurface; Court also found evidence of trespass to be highly speculative -
3. Articles on dividing estates between surface and mining Land rights divided between mining estate and
surface estate. Surface rights for property owners were abused by mining companies, more recently accommodation
doctrine has helped surface owners protect the interest in the future reasonable use of the property
Personal Property
1. Rule of Capture
State v. Shaw (S.C. OH 1902) [P was fishing in State owned lake, put out nets, left D came upon nets
and stole 300lbs of fish, P sued for larceny]
Facts: Trial court ruled that fish must have been confined so that there was absolutely no possibility of
escape. (Similar to Pierson v. Post)
HOLD/RULE: Reverse For P, ownership of captured, wild animals is established when the
animal is confined and it is practically impossible for them to escape; capture establishes
control over animal. Therefore the fish, were the property of the P and D did commit larceny by
taking them.
NOTES: Law of Absolute Security- law did not require absolute security against possibility of escape
Tragedy of the Commons assumes no rules for commons; not perfectly analogy


2. Pre-Possessory Interest and Equitable Division

Popov v. Hayashi [Barry Bonds home-run ball, hit guys glove, other guy picked it up] (Pre-Possessory
Interest Rule)
Facts: P not claiming D damaged ball or interfered with use or enjoyment, rather P claims that D
converted his property (stole it) In order for conversion must show his property was reduced
[property] to his exclusive dominion and control he did not achieve full possession
RULE: Pre-Possessory Interest: Where an actor undertakes significant but incomplete steps to
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achieve possession of a piece of abandoned personal property and the effort is interrupted by the
unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property
(such a right supports conversion action).
Equitable division when each actors rights are equally superior against the world at large (ancient Roman law)

3. FOUND CHATTELS Lost property; Mislaid property; Abandoned property;
Treasure trove

A. Lost Property can belong to the finder of the property, (except against rightful owner)

Armory v. Delamirie (UK 1722) [P chimney sweep found jeweled ring in chimney, took it to a
goldsmith, they removed jewel, refused to give it back to him]
RULE/HOLD: For P, The finder of property does not acquire absolute ownership rights, but does
acquire rights against other owners until true owner surfaces property rights are relative
Critique: Fair Market Value is too much, because jeweler does not gain absolute right, but only the
right of a bailee, an inferior right to the true owner
NOTES: 1
st
in possession better claim to title. Employer, Def, responsible for actions of employee
who took the jewel.
DAMAGES: value of best type of product in dispute if cant be returned in full (Detinue)

Hannah v. Peel (UK 1945) [P was soldier who was a soldier staying in the house owned (but not occupied)
by Defendant. P found a brooch and then gave the brooch to the police who later, after not finding the rightful owner,
gave the brooch to Def, who then sold the brooch. P demands the brooch back saying anything in the house
belonged to him as freeholder
HOLD/RULE: For P- Because Defendant was not physically present in the house at any time,
Plaintiffs find was defensible against all parties except the rightful owner. P is entitled to amount that
Def received in the sale.

Public Policy - Hurly: Constructive Possession- contractor found hidden money in house
HOLD/RULE: For Homeowner: Homeowner owns anything that lays upon his premises
o Dont want to expose privately owned and occupied residential property to the prying eyes and
fingers of the very large number of public invitees. (Partially overturned)

Trover/Replevin (Fair market value v. return of property) [just file a claim for conversion]
RULE: If property is stolen or lost by true owner, then finders title is void and therefore cannot transfer
this void title (Dominant holding)
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Exception - Winkfield Doctrine: when a possessor has paid the finder of the property (not true owner),
the True Owner has no action against TP buyer, True owner might have an action against finder
Bailment: Mutual benefit, benefit to bailee/bailor gives rise to different standards of care. 3 types
1. Mutual Benefit- Bailee has duty of care for property
2. Primary Benefit of the Bailee-
3. Primary Benefit of Bailor
Detinue: would primarily like return of property, but if cant do that, give money equivalent


B. Mislaid Property a mislaid chattel belongs to the owner of the locus in quo (place where
event took place), not finder

McAvoy v. Medina (SC MA 1866) [P was customer at a barber shop, D was barber, P found a pocket book
on table, gave it to D, D advertised it, no owner found, P sued to have the pocket book as finder]
RULE: Bridges v. Hawkesworth (found bills in shop in UK) and says instead this case is one of
neglectful ownership/mislaid, rather than property lost, therefore finder has acquired no rights to
property in finding it.
DUTY: Def had duty, once known, to use reasonable care for the safekeeping of the item until the
owner calls for it. P didnt acquire rights to it.
NOTES: Locus in Quo in this case is the owner of the barbershop.


C. Abandonment usually possessory interest goes to first finder, laborer

Haslem v. Lockwood (Conn. 1871) [P shoveled manure into heaps, left for the day, D came along, asked
police who owned them, then took shit to his farm]
HOLD: For P, utilitarian theory & Locke. P put in labor and made improvements title
RULE: abandoned property, once given value by labor (Locke) also gives a reasonable possessory
interest to laborer, during such time he may remove it to his own exclusive control without risk of
competing claim
POLICY: Utilitarian: allow citizens to collect, remove and claim waste if its unclaimed municipal
property. Its good for society.

Abandoned Shipwreck Rule 1987 (damage to historic wrecks preempted it)

Benjamin v. Linder Aviation, Inc. (SC IA 1995) [Bank repossess plane, takes it to D to be serviced, P
19
works on plane, finds hidden cache of money, claims ownership as finder of lost property/treasure trove] There is
always money in the banana stand!
HOLD: For Def, servicer of plane. Property was deemed mislaid b/c it was carefully wrapped and
concealed within the plane. CT finds its mislaid not lost. So it goes to locus in quo (Def), not the
finder/laborer (P).
RULE: intentionally concealed property is consistent with mislaid property
Reasoning: Court rejects treasure trove because uncertain how long it was concealed;
Court rejects Linder Aviation claim, premises are the plane, not the hanger
RULE: Finders fees only apply to lost property, not mislaid property sucks
Because its mislaid, P has no title/right to property no finders fee.


D. Treasure Trove intentionally placed there long ago, legally defined as abandoned, usually
only relates to gold, silver, coins or currency.


4. Gifts: Inter Vivos and Gifts Causa Mortis

A. Inter Vivos Gift:

i. Elements: Di.D.A.
(1) Donative Intent (intent for immediate transfer)
(2) Delivery (donor must deliver, thereby parting with dominion); Hierarchy of delivery
a) Manual Delivery- donor must physically transfer possession of the item to donee
b) Constructive Delivery- donor must physically transfer to the donee an object that provides access to the
gifted item (key). Allowed if manual delivery is impossible.
c) Symbolic Delivery- donor physically transfers an object that symbolizes gifted item (letters). Allowed only if
manual delivery impracticable
d) Exception- A gift may be valid without delivery if donors intent to make a gift is established by clear and
convincing evidence
(3) Acceptance (Donee must accept item, usually presumed for $ item)
a) Although acceptance of a valuable item is usually presumed generally cannot be revoked
b) EXCEPTION: gift intended to take effect in future is invalid (no delivery)

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EXCEPTIONS TO VALID GIFTS:
a) Check are not guaranteed as gifts because $$$ may not be in account (bankbooks are)
b) Engagement rings are conditional gifts- ring is returned to donor (no factual approach)

ii. Burden of Proof: proponent of a gift has the burden of proving each of these elements by clear and
convincing evidence

iii. Testamentary Gifts- Gifts Made By Will
a) testator transfers interest to transferee in future when testator dies
b) Requirements- Must satisfy statute of wills (handwritten + 2 witnesses)

Gruen v. Gruen (Ct. App. NY 1986) [P alleges D, fathers estate, intended to give him a painting, although he,
P, never had possession. Def, stepmom, refuses to give P painting]
Issue: Can a valid inter vivos gift of chattel be made where the donor has reserved a life estate in
the chattel and the donee never has had physical possession of it? YES
Intent - RULE: As long as the evidence establishes an intent to make a present and
irrevocable transfer of title or the right of ownership, there is a present transfer of some interest
and the gift is effective immediately
a) TEST: (1) whether the maker intended the gift to have no effect until after the maker's
death, or (2) whether he intended it to transfer some present interest
b) EVIDENCE: testimony of friends, letters from father
Delivery - RULE: must be tailored to suit the circumstances of the case - 3 types
Constructive (key to the house)
Manual (actual house)
Symbolic (letter giving house)
Acceptance - RULE: presumed when gift is of value to the donee

B. GIFTS CAUSA MORTIS

Gift of personal property that is made by a living person in contemplation of death.
i.ELEMENTS:
(1) Donative intent,
(2) delivery,
(3) acceptance,
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(4) must be made upon the donors anticipation of imminent death

ii. Gifts Causa Mortis v. Inter Vivos
1. Causa Mortis
a) unlike inter vivos, the gift is revocable
b) Can revoke anytime before death
c) IF NO DEATH REVOKED
d) Effective immediately (old law effective only after death)
2. Inter Vivos
a) Not revocable
b) Effectively immediately, unless testamentary

iii. Question/Concerns/Issues
1. What happens if donor dies from cause that was not anticipated and K wasnt made in anticipation of that cause of
death?

Brind v. International Trust. Co. (SC Co 1919) [lady gives jewelry to trust in anticipation of death from surgical
operation, no operation is performed, she dies b/c of the lack of the operation however]
RULE: if donor dies of related, but not exact cause of deathly premonition, then not a valid gift.



Intellectual Property

1.Types of Intellectual Property a good that can be consumed without reducing any other
persons consumption of it.
a) Copyrights: Copyright law protects original works of authorship, such as books, computer,
programs, plays, sculptures, and songs
b) Patents: Patent law protects new inventions, such as cell lines, machines, and meds
c) Trademarks: Trademark law protects words, names, and other symbols which are used by
merchants to distinguish their goods and services from those offered by others.

2. Common Law Approach

i. INS v. Assoc. Press (1918)
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RULE: Absent some special exception, the law does not recognize intellectual property
rights. Thus, once made public, creators cannot recover
Reasoning: Associate Press has a temporary quasi property right to exclude others from
using its news

ii. Cheney Brothers v. Doris Silk Corp. [D copied Ps pattern of a designer. P sues for Copyright
protection]
Facts: The P argues that they should be protected from others stealing their designs for the utility of
their design (utility is a few months, as the cycle of fashion changes)
RULE: Judicial Deference: Congress alone has the power to prevent any imitations, thereby enabling
persons to create monopolies over ideas.; The court rejects applying the standard begot INS v.
Associated Press; The court distinguishes news from dress designs (INS protects news);
o Public Policy: Ct regret turning away an injured party, but claim public policy outweighs the
injustice of denying his redressed; Justice Hand refused to create a common-law patent or
copyright for reasons of justice

Statutory Approach (Modern Approach)

1. Copyrights

A. Copyright Protections
1. US Const. Art 1, sec. 8 utilitarian to promote the progress of science and the useful arts. Gives
incentive for authors to produce works which will benefit public good

2. 1976 Copyright Act (Authors life plus 50 years) & Sonny Bono Copyright Extension Act (CTEA) Mickey
Mouse Protection Act authors life plus 20 years.

3. CTEA Eventually extended to authors life plus 70 years (Eldred case, makes law more universal)

B. 3 requirements for a valid COPYRIGHT:
1. Originality: Independently created with minimal degree of creativity
2. Work of authorship: must fit category; literary, musical, pantomimes/choreography, graphic, motion picture,
sounds, architectural
3. Fixation: must be written, recorded, or otherwise in a physical form
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4. Registration and Notice are NOT required

Eldred v. Ashcroft [P challenges the constitutionality of extending timeframe CTEA to life + 70 yrs]
RULE: Judicial Deference-Congress has the power to limit copyright time frames, but that court is not
at liberty to second-guess congressional determinations with how that is done
Dissent (Breyer): The copyright clause exists not to provide a special benefit but to stimulate artistic
creativity for the general public good.
The benefit Congress here affirms only stimulates the pocket books of the creators
descendants and corporation.
It impoverishes the public domain and the future creators who rely on it;
It restricts dissemination of important works (Utilitarian purpose!)
COUNTER to dissent: CTEA just updates US laws to that of the rest of the world

2. Patents

A. Patents (US law arises from federal statute, US is party to international pacts)
1. Who can receive a patent?
i. Anyone who invents or discovers any new and useful process, machine, manufacture, or
composition of matter, or nay new and useful improvement thereof.

B. Five Elements of a Valid Patent:
1. Patentable subject matter: 4 categories (process, machine, manufacture, or composition of matter) not abstract
concepts like algorithms, scientific principles
2. Utility: Only for useful inventions, actual benefit to humans (rarely at issue)
3. Novelty: Only a new or novel invention may be patented
4. Nonobviousness: If differences b/w the invention and the prior art at the time of invention would have been
obviousto a person having ordinary skill in the area
a) The scope and content of the prior art
b) The differences b/w prior art and claims at issue
c) The level of ordinary skill in the pertinent art
d) Secondary considerations such as commercial success of others
5. Enablement: Patent must be detailed enough to enable any person skilled in the art to which it pertains to make
and use the same.

C. Recent trend towards expanding scope of patentable items (method of swallowing!)

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D.Time period 20 years from the time of filing of the application


Diamond v. Chakrabarty [Microbiologist tried to patent: (1) genetically engineered bacteria capable of
breaking down oil, (2) the process for their creation, and (3) inoculum they were sustained on]
Facts: Lower court allowed patent of (2)process and (3) inoculum but denied patenting the bacteria
themselves, ruling (a) that micro-organisms are products of nature, and (b) as living things they are
not patentable subject matter.
Issue: Are micro-organisms considered a manufacture or composition of matter under patentable
subject matter?
RULE: Yes, if it does not occur in nature and has utility consistent with broad language of patent
legislation. Legislature has not indentified plasmids in law judicial interpretation
Jeffersonian ideals
Dissent (Brennan): courts should not expand patent laws to living organisms without a clear mandate from legislature
(which is absent in the instant case).

3. Trademarks

A. Trademarks - any word, name, symbol, or device used to distinguish a good

B. Creates a right to exclude
Goal is to prevent consumers from being deceived into purchasing shoddy goods; incentivize owner of
trademark to support brand by producing quality goods

C. Time Period:
1. Unlimited, unless it is abandoned, or otherwise becomes generic (Xerox)

D. Three Elements of a Valid Trademark:
1. Distinctiveness: Must sufficiently distinguish b/w your goods and anothers (not arbitrary or fanciful, its
descriptive) demonstrate secondary meaning!
2. Non-functionality: Cant be vital to use or purpose of the article (patents cover this)
3. First use in trade: 1
st
person to use in geographic market obtains right to trademark; different from first to
adopt
NOTE: Unregistered trademarks are still valid

Qualitex Co. v. Jacobson Products Co., Inc. [Can a color be trademarked?]
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Facts: P used a special color/shade of green-gold for item it sells. Def used the same color. P
registered color as a TM and sued for TM infringement. Can color be TM?
NOTE: The Lanham Act is broadly construed and so can include within its scope almost anything. The
court focuses on what the color represents and how it is viewed by consumers, rather than on its
status as a color.
RULE: Color alone, at least sometimes, can meet the basic legal requirements for use as a
trademark.
when that color has attained a secondary meaning and therefore identifies
and distinguishes a particular brand.
Reasoning: Court rejects the following arguments:
a) Shade confusion (twilight, daylight, etc.) if color can be trademarked;
b) Colors are limited in supply one case not enough for blanket prohibition;
c) Color protection can already be got by symbols (trade dress) sometimes it is not easy to
but colored symbol on product
NOTE: The Lanham Act is broadly construed and so can include within its scope almost anything.
The court focuses on what the color represents and how it is viewed by consumers, rather than on its
status as a color.





ESTATES AND FUTURE INTERESTS OUTLINE

A. Modern Freehold Estates usually distinguished by duration
1. Fee simple absolute (over 99% of land in US is in fee simple absolute)
a) Absolute ownership- most alienable and transferable.
b) Full estate transfer
2. Life estate (Rarely seen, now the equitable life estate, used in modern trust)
a) Less than full estate
b) Future Interest: Remainder
c) Grantor Interest: Reversion
3. Fee tail (Almost extinct in US)
4. Fee simple determinable
a) Durational language
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b) Future Interest: ????
c) Grantor interest: Possibility of reverter
5. Fee simple subject to a condition subsequent
a) Conditional language
b) Grantor Interest: Right of reentry
6. Fee simple subject to an executory limitation


B. Classified using 3 criteria:
1. Potential duration
2. Time of enjoyment (now or later)
3. Dignity (freehold vs. nonfreehold)

C. 3 ways to transfer estates:
1. Deed: completed transfer is called a conveyance or grant
2. Will: completed transfer is called a devise,
testator, testatrix makes the will and the recipient is called the devisee
Rule: When property is devised, there can never be a reversion. It's always a remainder, even if
it's going to the heirs of the testator.
3. Transfer by intestate succession: No will, ruled by state statutes, usually closest living relation (real property
descends to an heir)
Ancestors, heirs apparent, lineal descendants, not established until death


D. Intestate Succession
1. Estate transfer b/c no will ( people die w/o will)
2. A living person doesn't have heirs, only heirs apparent
3. Hierarchy of Heirs upon Intestate Death
i. Issue and surviving spouse: Issue are lineal descendents kids, grandkids. (usually half to wife, half
to issues. If no spouse, divided among issues.)
ii. Parents and their issue: If decedent has no spouse/issue, then first to their parents, and if no living
parents, then to the living issue of the parents
iii. Ancestors and collaterals: If no issues, spouse, parents, then (a) to any living ancestor or (b)
collateral (blood relatives)
iv. Escheat: If no living relatives, the property belongs to the state.

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Rules Furthering Marketability
A. Goal: Decrease uncertainty in contingent remainders and executory interests
1. ie, no unidentified heirs that you cant negotiate with
2. Make it easier to transfer future interests --> make land more marketable

B. Rule in Shelleys Case: Applies to Remainder in Heirs of Transferee
1. to B for Life, then to Bs Heirs ---> To B and his heirs so that B can transfer the estate (gives vested remainder
to an ascertainable person)
2. If a freehold estate is given to a person and, in the same instrument, a remainder is given to the heirs of that
person, he takes both the freehold estate and the remainder.
3. Abolished by statute in most US jurisdictions
4. 4 Elements
i. one instrument
ii. creates a freehold estate in a transferee
iii. a remainder in that transferes heirs, and
iv. both interests are legal or both equitable
5. Changed Interest: Gives B a fee simple (now holds both the present possessory & complete future interest)
i. B is ascertainable - any future purchasers can deal directly with B


C. Doctrine of Worthier Title: Applies to Remainder in Heirs of Transferor
1. If a grantor creates a remainder or an executory interest in his own heirs the grantor retains a future interest in
himself rather than creating a future interest in those heirs.
2. O conveys to B for life, then to O's heirs > then to O and his heirs
i. instead of future interest in unascertainable heirs, ascertainable grantor (O) gets reversion of FSA
3. If a grantor creates a remainder or an executory interest in his own heirs, the grantor retains a future interest in
himself rather than creating a future interest in those heirs.
4. Applies both to remainders/executory interests of heirs of the transferor whereas:
i. Shelley's Rule applies only to remainders in heirs of the transferree
5. 2 Elements
1) A conveyance creates a remainder/executory interest
2) In the grantors heirs
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6. Common law inter vivos conveyances by grantor (generally, not wills)
7. Rule of Construction in the few states where it survives at all: Thus, does not apply if transferor clearly
manifests an intent to create a future interest in his heirs


D. Doctrine of Destructibility of Contingent Remainders:
1. Any contingent remainder that has not vested at the termination of the preceding freehold estate is destroyed.
2. O conveys to B for life, then to C if C becomes a lawyer -
Application: - if B dies before C becomes a lawyer C's contingent remainder interest is destroyed. It
becomes a springing executory interest if C ever becomes a lawyer
3. If holder of remainder cant take possession at the expiration of the preceding estate, the contingent remainder is
destroyed, possession moves to the next vested interest
4. 2 conditions
i. Contingent remainder
ii. Doesn't vest by time prior estate ends (usually life estate) (condition hasn't happened)
5. Abolished in almost every jxn
Rule: Modern Approach: If contingent remainder doesnt vest before the prior estate ends, it becomes an
executory interest;
i. grantor gets it back subject to an executory limitation;
ii. would-be possessors remainder becomes a springing executory interest


4. Rule Against Perpetuities: Control from the grave - No interest is good unless it must vest, if at all, not later than
twenty-one years after the death of some life in being at the creation of the interest


Fee Simple Absolute

A. THE GRANDDADDY- Absolute Ownership of Property
1. Entire bundle unless stated otherwise
2. NO STRINGS ATTACHED
3. Most marketable interest
4. Most favorable if there is a violation of rules furthering marketability
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B. Language of Creation
1. Conveys To A, or
2. To A and his heirsthis creates descendant transferability, or
a) living person has no heirs, only prospective heirs
3. CONCURRING EXCEPTION: O conveys to A Forever and ever
a) No language of creation used, but under modern rule (not Cole) intent to give entire interest present

C. Possible Duration
1. Possibly infinite

D. Transferability/Devisablility
1. FREELY devisable, descendible and alienable
2. Passes pursuant to will or intestate

E. Accompanying Future Interests in Grantor/Grantee?
1. None. If alive and well, ownership is absolute

Cole v. Steinlauf (SC of Conn. 1957) [Need to use Heirs to transfer to Heirs. An earlier deed in a
chain of title did not use the proper language for heirs when transferring the deed]
Facts: P wanted to buy real estate and found the Heirs defect in title. Deed ran to grantee
and assignees forever. No mention was made of heirs. B/c didnt include Heirs, P refused to
buy title to estate & Def withheld deposit. Does P have actionable claim?
Holding: Yes, for P. heirs was omitted in an earlier deed in the chain of title,
a) therefore the deed did not convey the fee simple absolute to the next party, which
was a material defect in the title and therefore it is an actionable claim by P.
Case Rule: The word heirs is required.
EXCEPTION A deed can be assumed to vest a fee simple absolute in a grantee where the word
heirs is omitted if: it can be determined clearly from the intent of the parties that a fee was
intended. That was impossible to determine in this case, so the title was was defective.
(Aftermath: 4 years later, same Ct said word heirs no longer needed for fee simple)
Modern Rule: Construction of a conveyance is determined by expressed intention


Life Estate
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A. Principle
1. An ownership interest created for the duration of the life tenants life.
2. Ends @ their death and has future interests
3. Rule: Where there are no magic words used to create either a life estate or fee simple, law upholds technical
requirement that magic words had to be used to create a life estate

B. Language of Creation
1. To A for life, for life While B is alive, until B dies, to B for all of his life
2. Per Autrie Vie: creation of life estate with duration for the life of another
a) O conveys To A for life for the life of B
i. A has a life estate measured by Bs lifetime,
ii. when B dies land goes back to grantor, unless A dies first.

C. Possible Duration:
1. Measuring life is that of selected person
2. Per Autrie Vie: above example, measuring life is Bs Life unless A dies first

D. Transferability/Devisablility
1. Alienable, but not devisable or descendible
2. Estate ends at measuring lifes death, reversion to Grantor
Example: To A for life A transfers to B. When A dies, land goes back to Grantor

E. Accompanying Future Interests?Yes
1. In Grantor:
a) Reversion, in the event of: Death or waste

2. In Third Party
a) Remainder (3 types of Vested Remainders; Contingent Remainder)
i. CAN ONLY KICK IN IMMEDIATELY AFTER DEATH

F. WASTE: life tenant cannot commit
1. If life tenant commits waste, reversion to grantor and/or possible suit for damages by Remainder interest.
2. Affirmative wasteWillful acts of destruction that decrease value
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a) affirmatively/proactively acting to significantly reduce the value of the property (demolishing a
valuable house)
3. Permissive wasteneglectful waste and harmful
a) failure to take reasonable care to protect estate (minor repairs, taxes)
4. Ameliorative waste (sometimes allowed)
a) Waste or renovations that substantially changes the property that increase the value
b) Cant be unilateral alterations unless ALL future interest holders know and consent
c) England didn't permit any changes, even if it increased value; required property to go to remainder in
same condition it was received

G. Disadvantages of LE
1. Life estates aren't desirable; don't know when someone will die
2. Conflicts often arise b/w life tenant and person w/ future interest
3. Creation requires language that clearly indicates this intention

H. Ambiguity in the Language of Grant
1. If the expression in the will is doubtful, the doubt is resolved against the limitation and in favor of the fee simple
absolute estate. (See White v. Brown, courts favors estate that is most marketable)

2. Whole v. Partial disposing of estate (Whole Favored)
i. If a will is susceptible of two constructions, the court prefers that construction which disposes of the whole of
the testator's estate if:
a. that construction is reasonable and consistent with the general scope and provisions of the will
ii. Partial
a. A construction, which results in partial intestacy will not be adopted unless such intention
clearly appears.

I. Restraints on Alienation of Deeds
1. If prohibit future transfer of a fee simple, void against pub policy. Partial restraints may be valid if reasonable as
to duration, scope, purpose-- Rstmt 2 Donative Transfers
2. 3 Restraints on alienation in deeds
1) Disabling restraint Transferee cannot transfer their interest
O conveys to B, and any conveyance by B is void
2) Forfeiture restraint Desiree forfeits interest if they attempt to transfer it
O conveys to B, but if B ever tries to sell the estate, then to D
3) Promissory restraint Desiree must promise not to transfer interest
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J. Equitable life estate:
1. 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.
2. Equitable Life Estate Examples:
1. O conveys home to T in trust for the use of B for life, then to C

K. Life tenant Duties:
1. Obligated to: (1) Maintain the property for the remainder in a basic way- keep premises in ordinary repair, pay
property taxes when due; mortgage: (2) life tenant only responsible for paying interest, but no principal
payments, some jxns - property insurance/premiums
2. Not obligated to: to make improvements, repairs w/ respect to extraordinary damages (storms, earthquakes, fires,
etc), or repair impacts from ordinary wear and tear





Life Estate Cases

White v. Brown (SC Tenn. 1977) [AMBIGUOUS WILLS: Lady dies, her will is poorly written]
Issue: How should court construe a holographic will that says I wish E to have my home to live in
and not be sold but does not further dictate what should occur at the end of the grantor's life?
Facts: The court assumes when the will is ambiguous to convey the real property in fee simple
absolute but here, she put a restriction on the alienability of the fee simple. She said to live in, and
not be sold.
---Court finds the will ambiguous, implements public policy, says clause restricting
alienability is void, gives entire estate in fee simple to plaintiff (Harris v. Bittikofer: intent
rule)
RULE: Ambiguous will favors a conveyance of fee simple absolute (least limiting)
The majority applies two rules of construction
---(1) that the intent of the will is to pass the entire estate
---(2) the will devises the entire estate unless there is language of limitation.
Not to be sold is not enough to overcome presumption of fee simple
Dissent: applies another rule of construction (1) if the will shows aptitude in one area, the whole will
33
should be read for intent
3 Restraints on alienation in deeds
If prohibit future transfer of a fee simple, void against pub policy. Partial restraints may be valid
if reasonable as to duration, scope, purpose Rstmt 2 Donative Transfers
1) Disabling restraint Transferee cannot transfer their interest
O conveys to B, and any conveyance by B is void
2) Forfeiture restraint Desiree forfeits interest if they attempt to transfer it
O conveys to B, but if B ever tries to sell the estate, then to D
3) Promissory restraint Desiree must promise not to transfer interest


Woodrick (daughter) v. Wood (WASTE, life estates and the BARN)
Facts: Father dies, gave wife a life estate, son and daughter would split remainder in fee simple. son &
mom then joined shares and wanted to tear down a barn - daughter sued for waste
Facts/Quitclaim Son quitclaimed share to mother even though she had a life estate; still gets
remainder because use is just one stick and she can still sell/transfer the absolute fee interest Issue 1:
Can the holder of a remainder interest enjoin the life tenant from destroying structures on the land?
Daughter's Theory: Ameliorative waste and affirmative waste
Test: Court applies economic testwould the contemplated act of the life tenant result in diminution of
the value of the property?
Holding: For Def, Court finds that removal of barn would increase value of property, allows it.
Doesn't recognize ameliorative waste. No affirmative waste claim b/c value increased.
a) However, Daughter gets the value of the barn - $3200.
i. Is this unjust enrichment? Daughter could Settlement + increased FMV on resale.
Rule: Life tenant has a right to make beneficial use of the property even if they're altering the land
to do so.



Fee Tail (virtually abolished in US today)

A. Pass through to grantees lineal blood line
1. Creation of fee tail generally creates fee simple absolute
2. Virtually abolished in US today. Only recognized in 4 states.

B. Language of Creation: Strictly Construed
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1. to A and the heirs of his body
a) can be general heirs, gender specific

C. Possible Duration
possibly infinite

D. Transferability/Devisablility
1. only to descendants

E. Exiting the Fee Tail & Conversion to Fee Simple
1. In states that recognize fee tale, holder may convert the sestate into a fee simple by inter vivos transter
(disentailing the tale) transfer to 3
rd
party then they transfer back to you

F. Accompanying Future Interests?-- Yes
Grantor: reversion (if bloodline runs out)
Original grantee, devisee, heir: remainder
Third Party: remainder


Defeasible Fees

3 types of defeasibles: (1) FS determinable, (2) FS condition subsequent, (3) FS executory limitation
a. These are always present possessory interests.
b. Can never have one of theses in a future interest (i.e. remainder, executory interest)


1. Fee Simple Determinable:
FSD-POR (possibility of reverter)

Future Interests w/ Fee Simple Defeasables
Traditional rule - possibility of reverter/right of re-enter can only be transferred by intestate succession
Rule: Grantors future interest - possibility of reverter - is not transferable

A. Language of Creation:
35
1. TO create, grantor must use CLEAR Durational language
2. to A for so long as
3. To A during
4. To A until
5. To A while
Example: To A for so long as she remains a lawyer

B. Possible Duration
1. Depends on language
2. Death of - possibility of reverter

C. Transferability/Devisablility
1. Devisable, descendible, alienable
2. BUT always subject to the condition, if broken possibility of reverter

D. Accompanying Future Interests?Yes
1. Future Interest in Grantor
i. Possibility of Reverter-
a. If condition broken or actualized, FORFEITURE IS AUTOMATIC
ii. SoL for Possibility of Reverter upon broken condition
a. If broken, SoL for exercising future interest begins immediately


2. Fee Simple Subject to Condition Subsequent

A. ITS THE GRANTORS RIGHT TO TERMINATE
1. Not Automatic Reversion
2. When in doubt, Courts favor the condition subsequent (transferee rights a little stronger)

B. Language of Creation:
1. To A, but if XXXX event occurs, grantor reserves the right to reenter and retake.
Provided that, but if, on the condition that
2. 2 REQUIREMENTS
i. Grantor MUST use clear conditional language
ii. Grantor MUST explicitly carve out the right to reenter
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C. Possible Duration
1. depends on: language, breach and grantor decision

D. Transferability/Devisablility
1. freely alienable, devisable, descendible.
2. Transferees bound by condition

E. Accompanying Future Interests?Yes
1. In Grantor
(a). Right of Reentryoccurs if condition broken
i. Not automatic, at grantors option to reenter and retake
ii. Ways To reclaim possession
a. Physical re-enter land
b. Re-take possession through self-help (change locks, etc.)
c. Giving Notice
d. File quiet title action
(b). SoL upon broken condition:
i. does not begin to run until grantor does something to assert his right

3. Fee Simple Executory Limitation

GENERAL RULE: If its a will/devised ALWAYS FS Executory Limitation, b/c grantor is dead and cant have
future interest.

A. THIRD PARTY RECEIVES FUTURE INTERESTS IN EVENT OF BREACH of Condition
1. TP is known as shifting executory interest when interrupts grantees interest
2. TP has a springing executory interest when interrupts grantors interest.

B. Language of Creation:
1. Same as other Defeasible Fees (determinable, condition subsequent) but for TP
Example: To A, but if XXXX event occurs, then to B
Example: O conveys to B and his heirs so long as it as used as a farm, then to C

C. Possible Duration
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1. Depends on language (infinite, short)
2. term of years??? (remainder)
3. Periodic????

D. Transferability/Devisablility
1. ????

E. Accompanying Future Interests?Yes, Executory Interest
1. In Grantor:????
a) if life estate, with executory limitation reversion
2. In Third Party: Forfeiture is automatic
a) Shifting Executory Interest: TP interrupts grantees interest if condition broken
b) Springing Executory Interest: TP interrupts grantors interest if condition broken


Defeasible Fees Cases

1. Mahrenholz v. Cnty. Bd. Of School Trustees of Lawrence Cnty. (1981) (AMBIGUITY:
Determinable v. Condition Subsequent)
Issue: Decedent didn't use the language for either a determinable estate or estate subject to a
condition subsequent?
Holding: It didn't matter b/c the condition was never broken; court said storage was still using property
for school purposes
Facts
1
st
Conveyance: Original owner, conveyed land to D stating this land to be ONLY used for school
purpose; otherwise to revert to Grantors herein. School stopped using land for school purpose
and used it for school storage. 2
nd
Conveyance: Later, the original grantors of the land attempted to
convey their reversionary interest in this land to the Jacqmains. 3
rd
Conveyance: The Jacqmains later
conveyed this reversionary interest to the Plaintiffs. 4
th
Conveyance & Issue: Hutton, the son of the
original grantors of the land later conveyed all of his interest in the land deeded to the school
to the Plaintiffs. Prior to this conveyance to the Plaintiffs, Hutton had relinquished all of his rights of
reverter or rights of re-entry to the Defendants.
SUIT: The Plaintiffs brought suit to quiet title.
PH: TC found that conveyed a fee simple subject to a condition subsequent followed by a right
of re-entry.
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HOLD: For P, it was a fee simple determinable. When the condition was violated, estate
automatically ended. Reverted to Harry Hutton who transferred to Marenholz.
NOTES: --If it was an estate determinable and the school violated a condition, he would have
automatically inherited a fee simple from his parents. But TC found FS Condition Sub & he never
re-exercised his right to re-entry no possession
RULE: saying that only intended a durational limitation, not the creation of chance for transferor to re-
enter. In doing so they rejected that notion that courts generally find fee simple subject to a
condition subsequent over fee simple determinable when the language of the document is
ambiguous.
Reason: Encourage interest owners to be proactive and notify holder when condition is broken; it it's
automatic, unclear when it happens.




2. Metropolitan Park District v. Unknown Heirs of Rigney (1965) (Adverse Possession, SoL and
Estates)
Facts: P are city trying to quiet title to a property conveyed in 1884 the D is an estate, arguing that
there was a breach of a condition subsequent.
Grant: Purpose was for water supply, included language of shall and may be lawful to and for the said
party to re-enter and repossess FS Cond. Sub. & Right of Reentry
Issue 1: Can a grantee acquire title by adverse possession following a breach of the condition
subsequent but prior to a claim of forfeiture?
RULE: No, possession and enjoyment of the property does not become adverse to an
possessory estate of the grantor until the latter, or his heirs, elect to declare forfeiture
Issue 2: Does the lapse of the SoL on right of reentry/repossession waive or otherwise extinguish
the condition?
RULE: Yes, the grantor has a reasonable time after breach within which to declare a forfeiture
or to elect not to declare a forfeiture; if he fails to declare a forfeiture within that time, his
power to do so has expired. [Public Policy]
Reasoning: AP by SoL is desirable from a utilitarian standpoint. Encourages productive use of the land.
Justifies time to elect whether or not to elect to repossess.

FUTURE INTERESTS

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--6 categories: Categorized as retained by the grantor or by someone other than grantor

--No future interest conveyed by a fee simple absolute

--If ambiguous FS condition subsequent w/ right of reentry

A. Future Interests Of Creation in the Grantor: 3 kinds

1. Possibility of Reverter-- Fee Simple Determinable
a) Transferrable via intestacy
b) Cant be transferred inter vivos UNLESS released (interest released to current estate holder)- increases
marketability

2. Right of Reentry (aka power of termination)FS Condition Subsequent
a) Transferrable via intestacy,
b) Cant be transferred inter vivos UNLESS released (interest released to current estate holder)- increases
marketability

3. Reversion- Life Estate
a) If grantor has transferred less than everything he has other than defeasible fees (FS determinable,
Condition subsequent, executory limit) leftover is the reversion
b) CANNOT CONVEY A REVERSION
c) Example: O, holds a fee simple absolute, conveys XXXX To A for life (life estate)
o This life estate has leftovers, leftovers = reversion
XXXX must be less than total estate

B. Future Interests Created in Someone other than Grantor: 3 kinds
4. Vested Remainder (3 kinds):
a.) Indefeasibly vested remainder
b.) Vested remainder subject to divestment
i. IF THERE IS A COMMA THAT OFFSETS CLAUSES, ITS A VR Subj. to Divestment
c.) Vested remainder subject to open
5. Contingent Remainder
a. if not offset by commas, most likely contingent remainder
6. Executory Interest
a) Shifting executory interest- cuts transferee
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b) Springing executory interest- cuts transferor


C. 3 Step Test for Assessing Future Interest in Transferees

Step 1: -Be able to distinguish all vested remainders from contingent remainders
i. (See Remainders Section E.)

Step 2: -Distinguish 3 kinds of vested remainders from each other (See Remainders Sec F.)
1. Indefeasibly Vested Remainder
2. Vested Remainder Subject to Complete Defeasance (Total Divestment/Condition
Subsequent)
3. Vested Remainder Subject to Open

Step 3: -Distinguish all remainders from executory interests
1. Remainder: Patient, cant interrupt present interest, only follows life estate or term of
years; CAN NEVER BE FROM DEFEASIBLE FEES (b/c this can be interrupted)

2. Executory Interests: can come from defeasible fees, life estates. Interrupts anothers
present interest.
i.) Shifting- interrupts transferee
ii.) Springing- interrupts grantor



41

REMAINDERS:

A. General Rule of Remainders
1. PATIENT, WILL NEVER INTERRUPT
2. Never follow Defeasible Fees
3. Take effect immediately upon death.
4. If cannot take effect immediately, then future interest become reversion in Grantor with the Third Party receives
springing executory interest. (proper funeral problem)
a. See example 2

B. Who holds the interest?
1. created in grantee, TP, or entity (never grantor)

C. Creation and Possession of a Remainder
1. Creation: Follows life estates or term of years K
2. Possession
i. Becomes possessory on natural expiration or conclusion of prior possessory estate that created the
conveyance in which remainder in created
3. NEVER FOLLOWS A DEFEASIBLE FEE:
o Holder of a remainder cannot cut short or divest a prior transferee (Got to Wait)
4. Example: To A for life, then B or To A for 10 years, then to B B has remainder in both cases

D. 2 types: Vested v. Contingent Remainder

1. Vested Remainder: AND
(A) Created in an ascertained person AND
(B) Not subject to condition precedent

2. Contingent Remainder: OR (if condition that must be met to grant remainder before commas)
(A) created in unascertained or unknown person (unknown or unborn takers) OR
(B) subject to condition precedent OR

i. taker is subject to a condition precedent
ii. condition appears before the language creating the remainder or
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iii. is woven into the grant of the remainder
(C) Both (1) and (2)
(D) NOTE: someone's heirs after a life estate aren't ascertainable contingent remainder

Example: 1. To A for life, then to Bs first child (unborn)
i. A has life estate & Bs child is unknown.
2. To A for life, then to those of Bs children who survive A (unknown)

Example: To A for life, then if B graduates from college, to B
i. A has life estate, B is in high school and if graduates college, gets estate


E. Types of Vested Remainder
1. Indefeasibly Vested Remainder
(a) A remainder that is vested, but is subject to a condition subsequent, if condition not met, then interest becomes
divested
(b) Created in an ascertainable person - both alive and identifiable (no fetuses)
Example: To A for Life, remainder to B

2. Vested Remainder Subject to Divestment if condition after commas that grants remainder
(a) Remainder holders right to possession or time w/ estate could be cut short b/c of condition subsequent
(b) Not subject to condition precedent
Example: To A for life, then to B, but if B dies under age of 25, to C
i.) A has life estate
ii.) B has VR subj. to total divestment (death under 25 is cond subsequent)
a. condition after grant of remainder
iii.) C has shifting executory interest

3. Vested Remainder Subject to Open
(a) vested remainder in a group or category, or class of takers and at least 1 can take possession
(b) taker is known among the classes b/c at least one is qualified
(c) shares subject to diminution of value if more members enter class
(d) open = more members can join class
(e) closed = when member can demand possession (Rule of Convenience)
i. EXCEPTION: womb rule- kids in womb still member of class
Example: To A for life, then to Bs kids
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i.) A has life estate
ii.) Bs children is the open class
iii.) Closes when A dies

EXECUTORY INTEREST

General Rule: doesn't happen immediately and must interrupt broken condition or satisfaction of condition

A. Interest held by transferee
1. cuts off/divests another interest, or does not happen immediately after the prior estate ends (not a
remainder)
B. Future Interest
Shifting: Thrid Party cuts in Transferees interest
Springing: TP cuts in Grantors interest
C. Creation
1. Must follow a defeasible fee simple; divests grantee/grantor whose estate would otherwise continue indefinitely

EXAMPLES: Contingent Remainder / Executory Limitation
1. To A for life, then to B and her heirs if B survives A
B has a contingent remainder because maybe B won't outlive A
2. Ex: M conveys Blackacre to G for life, then to C if C gives G a proper funeral (EXECUTORY LIMITATION)
i. Possession cant take place immediately - G is going to die, and the funeral must be
planned
ii. Rule: During the space in time before the condition precedent/contingency is met,
Martin has a reversion during the gap
iii. M can only keep the property if C doesnt give G a proper funeral
iv. M has a fee simple subject to an executory limitation - theres a possibility C will fulfill the condition and cut short
his interest and C has a springing executory interest in fee simple absolute - cuts short Martins rights




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Environmental Law

A. Conservation Easements
Purpose: restricts development and use of servient land to preserve govt protected areas
1. Way to regulated land use
i. This is a private land use tool
ii. Completely consensual
2. As the landowner:
i. Conservation easements can reduce your property value
ii. In exchange for easement, get a tax write off
3. Negative Easement
4. Conveyance/Rights of easements holder
i. to a land trust, govt agency, conservation group
ii. continue to land as permitted by gov.
iii. cheaper for agencies to buy conservation easement than fee simple absolute


Land Surface CERCLA

A. CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act of
1980)
1. to protect the public and the environment by forcing the prompt cleanup of hazardous waste sites.
i. Broad statute
ii. Treated as strict liability
iii. Imposes liability for primary, secondary and third parties- PRP (potentially responsible party)

B. Brownfield Redevelopment usually less severe contamination (gas stations, etc.)


C. Innocent buyer defense
1. Requirements:
A. Acquire the land after disposal of any hazardous substance
B. Have no reason to know that any hazardous substance was disposed of at the property
C. Fully cooperate w/ govt officials
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D. Third Party Defense
1. Ct rejects this argument in Monsanto
i.Says you knew about it and did nothing

2. Elements????
i. Provide proof that you took foreseeable to know about it, but didnt get notice
ii. Who can 3
rd
parties be?
A. In Monsanto, relationships too close to assert defense
iii. Questions
A. if only K relationship is a lease, is that enough to prevent someone form claiming TPD--
NO

E. Commercial Transactions and CERCLA
1. To avoid liability, buyer will require the seller to warrant that no hazardous substances are present on or under the
land
2. Indemnification clause for any future clean up costs or CERCLA liabilities


United States v. Monsanto Co. [1989]
Facts: Owners of a parcel of land and the tenants (waste disposal companies) were sued by
the federal and state government for reimbursement of the money needed to clean up the site
after hazardous chemicals leaked from the site onto ground and water table. (toxic rain cloud!)
SITE OWNERS/ ISSUE: Are innocent owners responsible for the environmental hazards caused
by their tenants?
Yes the court believes the strict liability language in the statute does
not provide protection for innocent owners, rather it manifests an intent
to make owners more proactive in disallowing tenants from abusing
environmental standards
---Affirmative Defense: is allowed (but not met here) under two conditions
(1) That the accused provide proof that a 3
rd
party was the sole cause of the
release of hazardous substances
(2) that D took precautions against foreseeable acts by a 3
rd
party and the
consequences that could result from those acts.
GENERATORS clients of tenants
We were one of a number of causes?
46
Governments do not have to prove that their specific waste
contributed to the harm at the site just
(1) they shipped hazardous substances there
(2) hazardous substances like theres were found there
(3) hazardous substances were released.

ISSUE: Was retroactive implementation of CERCLA constitutional?
No it does not create retroactive liability it imposes a prospective
obligation for the post-enactment environmental consequences of the
defendants past acts
HOLD: For P, under CERCLA, liable


The Endangered Species Act of 1973
A. Purpose:
1. Protects species considered to be endangered or threatened
2. Prevents takings of protected animals or their habitats

B. Definitions
1. Take
2. Harm
i. any habitat modification or degradation which actually kills or injures wildlife by significantly impairing
essential behavioral patterns, including breeding, feeding or sheltering.

C. Scope
1. Broad
2. Not limited to public lands


Babbitt (Def) v. Sweet Home Chapter of Communities for Greater Oregon (P) (1995)
Facts: ESA makes it unlawful for any person to take any endangered/threatened
species. Def added to law that significant habitat degradation where it actually kills or
harms wildlife would constitute harm.
(Law, ESA) Take means to harass, harm pursue, hunt shoot,
wound, kill, trap, capture, or collect, or attempt to engage in any such
47
conduct.
(Regulation, New Oregon reg) - Harm means kill or injures such acts
may include significant habitat modification or degradation where it
actually kills or injures wildlife by significantly impairing essential
behavioral patterns, including breeding, feeding, or sheltering.
Plaintiffs argue that law application of harm as expansion of Take regulation
has injured them economically.
ISSUE: Is expansion consistent with ESA definition?
Majority: Yes, FOR DEF
i. An ordinary (dictionary) definition of the word harm supports
the CFR usage
ii. A broad interpretation is consist with the legislative aims of
the ESA
iii. Because permits are integrated into legislation and allowed,
congress knew how broad the language was, approved of it,
and therefore created a permit exception
Dissent:
i. Increases the chain of causality from habitat modification to
injury, too broad
ii. The regulation does not require an act, too broad as well
iii. It equates actual animals with theoretical populations,
expands scope too much


Atmosphere
A. Precedential Case

1. Massachusetts v. EPA (US 2007)
Facts: P sued EPA claiming EPA had authority to regulate CO2 emissions but improperly decided to
do so. The case says MA does have standing to challenge the EPA as an injured party
Issue1: Does the EPA have statutory authority to regulate greenhouse gas emissions of new cars?
HOLD1: Court rules that statute is clear and authorizes EPA to regulate
those emissions
Issue2: If so, are the stated reasons why it does not, consistent with the statute?
RULE: upon a scientific finding that greenhouse gases contribute to climate change (they rule
48
that they do) and climate affects public welfare (they rule that it does) that the EPA is then
required to regulate they then dismiss arguments against regulation, saying they do not relate to
scientific judgment and are therefore irrelevant in the calculus of the decision to regulate.

2. American Electric Power Co. v. Connecticut (SCOTUS 2011)
Rule: Clean Air Act didnt displace Fed CL The Clean Air Act and the EPA action the Act authorizes displace any
federal common-law right to seek abatement of carbon-dioxide emissions

Facts: Def, Conn. And other states, sued P, for CO2 emissions on a public nuisance theory, seeking
injunction
i. Def used fed CL public nuisance claims: CO2 emissions created substantial &
unreasonable interference w/ public rights
ii. Public lands, infrastructure and health were at risk from climate change
Hold: for P; Clean Air Act & EPA displace Fed CL claims
i. Test for whether Congressional Law excludes Fed CL:
a) Does stat speak directly to the question at issue?

Prec Cases
i. Milwaukee I (Illinois v. Milwaukee)
a) States may sue to abate air & H20 pollution by one state to another

Water and Wetland Law
A. SURFACE WATER (lakes, rivers, etc.) - 3 systems divided geographically between states
i. Riparian System: Eastern states water rights to each landowner whose property adjoins a watercoursealso
use REASONABLE USE DOCTRINE, owner can use for water for their land, but not to detriment of other landowners
who adjoin watercourse.
ii. Prior Appropriation System: water rights allocated to the first person to diver the water for beneficial use effect
of reasonable use doctrine embodied in word beneficial
iii. Permit System: Permit required for diversion of surface water/government regulation

B. GROUNDWATER (underground water) 3 systems
i. Reasonable use approach (common): allows use of groundwater only for a reasonable use on the overlying land.
ii. Correlative rights: Surface owner entitled to proportional share of groundwater beneath land
iii. Permit system: Title to groundwater is vested in the state, permits needed for use.

49
C. Public Trust Doctrine
1. Purpose of Public Trust: to protect ecological and recreational uses (beauty)
2. Scope of Public Trust: includes both navigable and non-navigable tributaries
3. Duties of Trustee (State): the states not only have the power, but must use it to protect these interests
i. parties (non-gov) acquiring interest in trust property (Protected) generally hold those
rights subject to the trust, and can assert no vested right to use those rights in a manner
harmful to the trust
ii. Only grant rights to parties which are consistent w/purpose of trust
4. The states have a continuing duty as the trustee



Sipriano v. Great spring Water of America, Inc. (SCTX 1999) (Rule of Capture &
Groundwater)
Facts: P sued water bottle company for draining their wells. Prior to this case, Texas used a
rule of capture, i.e. absent malice or willful waste, landowners have the right to take all the
water they can capture under their land and do with it they please. 1
st
in time, 1
st
in right (no
liability to neighbors)
Holding: Court upholds capture (upheld rule of capture in TX) to stand b/c
(1) they did not want to intrude on the legislature who had been given mandate to
regulate water
(2) the legislature had recently enacted a bill (2 years prior) which should be given
a change to work)


National Audubon Society v. Superior Court (SCCA 1983) (Public Trust Doctrine)
Facts: Def was diverting water from Mono Lake near Yosemite to LA, needed water
i. Diversion caused lake level to drop, surface area drop by 1/3, ione of 2 islands became
a peninsula
ii. P sued to enjoin diversions: Had detrimental effect on wildlife in the area
Issue: Appropriative Water Rights System v. Public Trust Doctrine
RULE: Public Trust Doctrine allows reconsideration of Appropriative Water Rights, therefore no
rights appropriated are beyond continual reconsideration.
HOLD: 50/50 for def& P
i. must reallocate the diversion another way to satisfy the needs of the people of LA and
protect environment
50

---Different states define the scope of the public trust differently (water marks, Wisconsin uses ordinary high water
mark)
----Usually (including WI) if one owns the land around navigable water, then the owner owes no duty to the public to
provide accessHowever not always the case (NJ)


Introductory Cases

Just v. Marinette County (SCWI 1972) (Zoning laws, Protected land and Private Development)
Facts: P violated a shore land zoning ordinance that prohibited the filling of wetlands w/
waste without a permit.
HOLD: For Def, UPHELD as constitutional.
RULE: (a)The use restriction was a proper exercise of police powers and not a taking
under the power of eminent domain, for it prevented a harm rather than secured a benefit.
(b)It preserved the natural character of the property pursuant to the state's Navigable
Waters Protection Act.
--In other words, the ordinance did not create a public right but
protected existing rights of the public in the environment and natural
resources in their natural state.
The court spoke of the "vital role in Nature" of wetlands and noted:
"Is ownership of a parcel of land so absolute that man can change its nature to suit any of his
purposes?...An owner of land has no absolute and unlimited right to change the essential
natural character of his land so as to use it for a purpose for which it is unsuited in its natural
state and which injures the rights of others."



CONCURRENT OWNERSHIP and MARITAL PROPERTY

Concurrent ownership each cotenant has the right to use and posses the entire property

Types of Tenancy

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A. The tenancy in common:
1. Each tenant in common has an separate, undivided fractional interest in in the property (most common form of
concurrent ownership)
i. To A and B as tenants in common (in fee simple absolute)
2. No right of survivorship (unlike joint tenancy)
i. each tenant can make a testamentary transfer
ii. allows estate to pass intestate
3. Tenants can have unequal shares (unlike joint tenant)
4. Rebuttable presumption:
i. If conveyance ambiguous in size of interests, rebuttable presumption of intended equal shares
5. Ambiguous Conveyance favors tenancy in common > joint tenants
i. As long as not husband and wife
a) this can be rebutted by clear and convincing evidence
6. Conveyance by One Co-T
i. A Co-T may convey his interest to TP w/o consent of other Co-T. New Co-T joins non-conveying Co-T as
a Co-T
ii. Cannot bind absent Co-T who doesnt participate in conveyance

7. Easements or Settlement of boundary disputes
i. if 1 Co-T tries to grant Esmnt or settle boundary dispute or do ANYTHING else that would affect title, it
doesnt affect legal rights of other Co-T who dont sign grant/K
a) Applies even if one Co-T has sole occupancy of premises
8. Ouster- a Co-T prevents other from use or possession.

B. The joint tenancy:
1. Rule: 2 or more people own a single, unified, undivided interest in personal or real property & possess the whole
property
i. Each joint tenant has exactly same rights;
ii. ONE CANT HAVE A GREATER INTEREST THAN THE OTHER
iii. To A and B as joint tenants with the right of survivorship
a) WI uses as joint owners, jointly, with survivorship, etc.
2. Creates a right of survivorship
i. if A dies, B automatically becomes sole owner
ii. if A dies, B & C automatically split As share

3. A joint tenancy interest is neither devisable nor descendible
52
i. Cannot leave interest by will and cant pass by intestacy
ii. Heirs and Devisees take nothing in the event of death
a) Interest is instead extinguished
4. Creditors dont have rights against remaining JT after others death

5. Right of Possession:
i. Each of the joint tenants owns the entire interest
ii. Each joint tenant is entitled to occupy the entire premises (subject only to same right by other tenants)
a) Not required to divide up premises
b) They can divide it if they all agree to it

6. 4 UNITIES for valid JT Creation: If any element is missing or becomes so, a tenancy in common is created
1. Unity of interest- JT must have identical interests,
a) BOTH as to their (1) share, and as to the (2) duration of their interest
i. Ex: 1 JT cannot have a 1/4
th
interest & other was 3/4
th
interest
ii. Ex: if 1 person has a interest for life, and the other has a interest in fee simple, the
2 are not JT b/c duration not identical
b) Unity of Shares- not ubiquitous amongst the states, WI doesnt follow this rule
2. Unity of title-- JT must acquire title by same deed or will (instrument)
3. Unity of time--Each JTs interest must vest at the same time
a) If interest does not vest at same time tenants in common
4. Unity of possession--All JT have a right to possess, use and enjoy the entire property
a)this also applies to tenants in common

7. Creation of JT
A. Modern Rule/Statutes: At CL, presumption that any co-tenancy is a tenancy in common unless a clear
intention was shown to create a joint tenancy
B. Language of Creation: to A and B as JT w/ right of survivorship, and not as tenants in common
C. Conveyance by A to A and B in JT
a) Holder of a fee simple wants to establish a JT btwn himself and another
i. Common Law prohibits this b/c Violates unities of time and title:
ii. A received title and different time and different title than B
b) To make JT legal: Straw Man
i. A conveys to C, who will convey to A and B LEGAL
c) Modern View:
i. Allows direct creation:
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ii. Many states have enacted statutes authorizing holder of fee simple to create JT in
himself and another
D. Personal Property:
a) JT can also be created in personal property, but presumption in favor of tenancy in common
apply here also
8. Severance of a JT
A. Can be severed and turned in tenancy in common by:
B. Conveyance by 1 joint tenant:
i. conveyance by 1 JT to a TP severs & creates tenancy in common (TP doesnt have unity of time
or title w/original JT)
C. 3 or more JT:
i. conveyance by 1 JT to a TP will produce tenancy in common btwn TP and remaining JT, BUT:
JT will continue btwn original members
iii. Same applies if 1 of 3 JT conveys to another JT
JT acquires tenancy and common and original interests remain as JT
D. Conveyance to self
i. One court held that conveyance of interest to himself destroys JT

C. Tenancy by the entirety: Married Couples Only
1. Only married couples can hold tenancy by the entirety
a) functions like a joint tenancy,
2. Severance: can ONLY be severed by death, divorce, or mutual agreement
3. Language: To A and B as husband and wife as tenants by the entirety
4. Minority view: only 22 states retain tenancy by entirety
i. rebuttable presumption that a conveyance to H/W intended to create a tenancy by the entirety



D. Partition: Division of property or sale & proceed distribution
1. Any tenant in Co-T or Tenancy in common can bring action for partition.
2. Two Options: In kind or by Sale
a) partition in kind
i. split land between owners who already have it
ii. physical division of property
iii. Preferred remedy: Preserves property rights
iv. Wont evict a party who opposes partition if lives on the property and sale would force
54
eviction
b) partition in sale
i. forced sale of property
ii. usually at auction
iii. division of proceeds
iv. Extraordinary remedy b/c abolishes peoples property rights
3. If 2 options are not available: Remedies
a) buy out option
b) Owelty
i. physical division of land that is initially unfair but supplement it with cash
c) Give a portion of land that is smaller in size but worth the value of equal distribution/interest
4. Preference for partition in kind rather than by sale
a) approve by sale only if physical characteristics of property prevent division of property in kind; or
b) if division in kind would be extremely unfair to one party
EXAMPLE: property regulation would prevent division of property if the proportional interest in property would violate
regulation

Ark Land v. Harper: Economics only test
Rule: If property as a whole is worth more than aggregated values that would result from partition in kind,
then partition in kind would result in great prejudice
a) Then use partition in sale
Holding: for partition in kind


E. Tenancy and Mortgages
1. Mortgage
a) Security interest a bank holds in your property in case of failure to repay promissory note
i. Held as collateral in case of default, bank can foreclose
2. Severance
a) Does mortgage sever joint tenancy? P. 385
i. Title theory: Yes severs
ii. Lien Theory: Doesnt rise to level of being property interest
--Mortgage is viewed merely as a lien to secure repayment of the debt
--Doesnt end joint tenancy b/c unities are preserved

James v. Taylor (Ct. App. AR 1998) (Ambiguity in conveyance presumes Tenancy in Common)
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Facts: Testatrix conveyed deed to children using language jointly and severally, and unto their heirs,
assigns and successors forever she retained a life interest. Two children had died before her death,
the third, after her death asked for sole ownership as a joint tenant, the children of the two other brothers
filed counter suit saying will created a tenancy in common.
Children argument: Absent specific language to create joint tenancy, Arkansas law presumes
ambiguous will to create a tenancy in common
Counter: If ambiguous, trial court still has discretion to find intent of testator
Holding: The AR statute should override the rule of construction, therefore the testatrix created a
tenancy in common

Tenhet v. Boswell (SCCA 1976) (Death, Joint Tenancy, Survivorship)
Facts: Joint tenant leases his interest in the joint tenancy property to a 3
rd
person for a term of year, but
dies during that term.
When such a joint tenant dies his interest dies with, and any encumbrances
placed by him on the property become unenforceable against the surviving joint
tenant.
Holding: The leasing of property from a joint tenant does not sever the joint tenancy, if leased,
the lease is extinguished upon the death of the lessor joint tenant and sole ownership becomes
vested in the other joint tenant.
Partition when cotenants cant agree with management of property, one can sue for partition

Ark Land Co. Harper (SCWV 2004) (Partition)
Facts: Family owned land held in joint tenancy by children, several children sold interest in land to
Coal Company after being rejected on offer to purchase, Coal Co. sued for partition in circuit and
their request was granted. Remaining children owners appealed.
Issue: Can the land be fairly partitioned?
i. American law allows for forced selling and distribution of proceeds pro rata
ii. Lower court applied a three part test before agreeing to partition by sale: The inability to
partition in kind; one or more parties will be helped by sale; other partys interests will not
be unfairly prejudiced
Holding: In a partition where one party opposes sale, economic value of the property is not the
exclusive test for deciding to partition by sale or in kind. (Yeah for sentimentality!)
Concurrence/Dissent: agreed with rule, questioned its application in this instance

Land Pirates (supplement) Blacks losing their family land in the south, enterprising folks get tenant in common to
sell their interest in a parcel of land, then force a sale, buy the whole thing and then turn a major profit by buying it
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auction and selling it to some conglomerate. Substantive due process complaint, because the court says we are
going to sell for your economic benefit, but the fire sale nature robs co-tenant of that benefit. Court says it will only
overturn sale price if it shocks the conscience the only time the court allows it shock the conscience is when the
sales procedure (two ads in a month) is departed from!
a) Remedy of Owelty Due to an inequitable/unavoidable partition in kind, those tenants who
receive the more valuable land pay those who receive the less valuable partitions.
b) O conveys Blackacre to A for life, then to B if B gives A a proper funeral
A - Life estate, B springing executory interest, O fee simple subject to an
executory limitation
This is so because there is no way for B to provide for a funeral for A, at the moment of As death, therefore,
O gains a reversion interest and B gains a springing executory interest.

Esteves v. Esteves (N.J. App. Ct. 2001)
Facts: Father, mother, son buy a house (50% ownership to son, 50% to parents). Son
does repairs, moves out. After 18 years they all agree to sell it. Parents ask son for half
the O&M costs of the 18 years upon sale. Son argues that it should be offset by rent he
could have gotten.
Holding: General principle, the owner who has paid less than his pro-rata share of O&M
expenses must account to co-owner for the difference. No occupancy charge to other
tenant, if tenant in common chooses not to use property.
RULE: If occupier tenant upon sale of property asks for 50% of the O&M, the non-
occupying tenant has the right to prove an off-set by showing value (rental rates) for
single occupancy.
Ouster: When cotenant prevents occupation/use of property by other tenant

Uniform Law Update (edited by PROFESSOR MITCHELL)

i. The law presumes tenancy in common but that kind of ownership is unstable (pros say so)
a) Those with the modest means cannot afford professional guidance to secure their assets
b) Those with modest means also most likely to let land devise through interstate succession,
also often act on mistaken assumptions of law (the more owners, less likely to be sold)

ii. Many states in practice endorse partition in sale, contrary to statute endorsing partition in kind
a) Furthered wrong because economic metric is utilized and overvalued by courts (no
sentimentality for family/ancestral land)
b) Properties routinely sell under market value (forced sale trait)
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c) Loss of real property particularly devastating to (poor) undiversified land holders

iii. Uniform Partition of Heirs Property Act (UPHPA)
a) Creates heirs property category that would govern sales if criteria satisfied
b) No guidance to the court can be provided by a person with an interest in the property
c) Gives right of first refusal to co-tenants, using FMV as cap
d) Provides a test to deal with situation in which tenants still cannot agree and no buyers exist
e) If forced sale must continue, provides safeguards to maintain economic wealth of sellers


Marital Property
Common Law Foundation women had no rights, their rights were vested in their husband

A. Separate Property System Majority Approach
1. During the marriage property is separately owned by the spouse who acquires it
a) creditors can only go after one spouse
2. Divorce property acquired during marriage subject to equitable distribution by court
a) Exclusions to equitable distribution can be gifts and inheritances
3. Death surviving spouse, via a forced share chooses between what property was given in the will, or they can
choose to take between 33%-50% of the property (depending on jurisdiction)
a) The uniform probate code uses a sliding scale to determine percentage.
b) sliding scale: longer than marriage the more the spouse can claim
i. 15 years plus 50%

Equitable Distribution factors: income, living standards, age, health, length of marriage
a) 25% of states explicitly exclude fault of divorce in test; 25% explicitly allow; 50% are
undecided.
b)divide property in a just and fair manner considering many factors (p.400)
c) most distributed property is property acquired during marriage


B. Community Property System Equal Contributions; Used in only nine states (rare)
1. During the marriage all earnings during marriage and assets acquired are owned equally
a) Same with debt
b) each spouse holds an equal, undivided share in community property
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i. neither can transfer that share to a third party
ii. no right of survivorship
c) property acquired prior to marriage = separate
i. same with debt
d) if one spouse takes property w/ title solely in their name, it is still considered community
property
2. Divorce all community property is divided between spouses, property before is separate
a) equitable distribution
b) equal division

3. Death No forced share, both may bequeath their half of property however they like
a) decedent may devise her half of community property and all her separate property as
she desires
b) 2 types
i. will
ii. intestate succession
c) Not a forced share to surviving spouse

C. When is it community property (hypo house bought, but not fully paid for depends on a jurisdiction - vested
interest rule, hybrid pro-rata rule, separate)

D. Tenancy by the Entirety see above
a) right of survivorship?
b)not subject to creditors claims

E. Married Womens Property Acts
1. Interest of a husband or wife in an estate by the entireties is not subject to the claims of his or her
individual creditors during the joint lives of spouses
2. Tries to address inherent inequality in marital property relationships btwn husband and wife

Sawada v. Endo (SCHI 1977) (Tenancy by the Entirety & Fraudulent Conveyance)
Facts: negligent driver loses civil suit, tries to protect assets by conveying his home to his children, P,
the winners of the car accident, sue to set aside conveyance as fraudulent.
Issue: Is the interest in real property, held in tenancy by the entirety, subject to creditors?
HOLD: No, For Def.
a) The interest of a husband/wife in an estate by the entireties is not subject to creditors
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b) POLICY: Family unit could be destroyed if creditors could reach property in tenancy by
entirety.
i. If property remains as a whole during the joint lives of spouses, its
always available in its entirety for benefit and use of entire family
c) Sister jurisdictions allow it, plus to rule otherwise would devalue family assets
Dissent: Reads Married Womens Act differently: ruling restricts spouses alienability of interest
NOTES: Hawaii doesnt allow tenancy by entirety to defraud creditors (this case seems to be exception
a) Found Law doctrine
i. People are supposed to know the law at all times when people act or make decisions
ii. Example: Hawaii law was X the entire time and they shouldve known what it was
b) Fraudulent Conveyance- One creditor gets a lien on property then foreclose on it

Guy v. Guy (SCMS1999) (SUIT FOR VALUE OF EDUCATION & Equitable Reimbursement)
Facts: Wife gets nursing degree and divorces shortly after graduation. Husband provided and cared for
her and her expenses while she was studying. After divorcing, husband asks for value of nursing degree
he helped wife obtain
Issue: Is a professional degree property that can be divided equitably after a divorce?
RULE: A degree is not property, but that does not mean it has no value that can be calculated for the
purposes of equitable division
a) Ct adopts Equitable Reimbursement Rule (Majority)
i.) Replace any investment made by the supporting spouse
PREC CASE: Ferguson v. Ferguson-
a) Spouse can recover contributions made to the attainment of that degree when
equitably dividing marital assets
In Re Marriage of Graham- GUY Ct joins this opinion
a) Professional Degrees not property
i. No exchange value- Cant: transfer, inherit, assign, sell, convey
ii. NO market value
Mahoney v. Mahoney (marriage not a free ticket)
a) Hold: Compensate spouses who work to support the other spouse while the other is in
school
b)Reason: Supporting spouse provides more than mere earnings with the mutual
expectation that both of them will realize and enjoy material improvements in their
marriage as a result of his increased earning capacity


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Prec Case: Marvin v. Marvin- Cohabitants live under implied promise if evidence can support it. Allows
non-bread winner to recover.
In re Estate of Roccamonte (Cohabitant Relationship)
Facts: couple living together as husband and wife. The husband however, had an earlier marriage that
he refused to divorce, citing business reasons. The "husband" then died intestate.
Issue: Usually courts see this scenario as a cohabitant suing for promissory estoppel
Finding: Appeals court accepts that a promise was made and that it formed a contract
Marital-like relationship is undertaking a way of life in which two people commit to each other,
foregoing liaisons and opportunities, doing for each other whatever each is capable of doing, providing
companionship, fulfilling each other's needs, financial, emotional, physical, and social, as best as they
are able.
Issue #2: is a promise of support for life enforceable against the promisor's estate?
YES: "Husband" did not discharge his duties at death and therefore, his estate
just fulfill them.


SAME SEX COUPLES - generally have no rights under Marvin or Roccamente. However same sex
couples may be able to enter into a contract or proceed with a civil union to mirror those rights

In re Marriage Cases (USCA 2008) Gay Marriage Cali Case
Issue: Does CA's constitution allow for distinguishing between rights associated with marriages
RULE: The right to enter into a marriage like institution that creates a family relationship protected by
law is a basic civil right on CA and cannot be qualified or denied based on sexual orientation...to deny
the term marriage does not conform with the principle of supplying equal dignity and respect to every
individual.
Side issues: Is sexual orientation an immutable trait? Not answered - instead the court cites religion as
a legally immutable trait, which although within the sphere of a person's control, is so closely related to a
persons identity that to demand that someone repudiate it in order to enjoy a right is repugnant to the
court - sexual orientation can also be viewed this way. The existence of prior discrimination also means
enforcement risks removing dignity same sex marriage classification.
Dissent: The people through a democratic process should be allowed to define the term of a historical
institution of marriage...this decision was a "judicial fiat."
Aftermath: Prop 8 was passed which altered CA's constitution to read that only marriage between a man and a
woman would be recognized by the state.

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Leasing Real Property
1. Traditionally a lease created a freehold estate which created a possession right and a future interest (typically a
reversion). 1960s saw the supplanting of freehold estate theory with that of contract...costs now use a hybrid.

2. Usually commercial leases are not governed as strictly as residential leases, because commercial parties are
thought to be sophisticated such that they can look out for their own interests

3. Rules
Immutable rules - those that supersede any contract between the parties
Default rules - those that come into play when the contract does not cover them

Laws and Tenancy
A. Fair Housing Act of 1968 (p. 437-439)
1. Applies to landlord-tenant and municipalities
a) municipalities: Taking land in eminent domain and replacing it with far superior housing that low
income cant afford. Offends equal protection
2. Protected Classes
a) Prohibits discrimination due to race, gender, color, religion, familial status, or national origin
b) Handicap or discrimination on perception of handicap is prohibited.

3. Element Analysis
a) What is protected status?
b) Was there discriminatory intent?
c) Any exemptions/exceptions?
4. Prima Facie Case- Burden shifting approach- (Neithamer Case)
a) P has burden to establish prima facie discrimination
b) Burden shifts to Def to show nondiscriminatory intent
c) Burden shifts back to P to show Def argument is pretext
5. EXCEPTIONS
a) Note C, p. 445 (Ms. Murphys Rule)
b) Rules for safety
c) Codes that limit amount of people per square foot

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B. Chicago City Ordinance expands protected classes to include:
1. Race, color, sex, gender identity, age, religion, disability, national origin, ancestry, sexual orientation, marital status
parental status, military discharge status or source of income.

C. Wisconsin Statute expands protected classes to include:
1. Sex, race color, sexual orientation, disability, religion, national origin, marital status, family status, status as a
victim of domestic abuse, sexual assault, or stalking, lawful source of income, age, or ancestry.

2. 5f(1) Cannot ask about disability, but must be susceptible to sufficient clues as to disability!

D Dane County Ordinance expands protected classes to include:
Race, gender, age, religion, color, national origin, ancestry, marital status, family status, mental illness, physical
condition, appearance, lawful source of income, student status, arrest or conviction record, sexual orientation, military
discharge status or political beliefs.

E. Property Act
1. 3604(d)- unlawful to represent to protected person that a dwelling is not available for sale, rent, etc. and it is on the
market

F. Block Busting
1. telling landowners/home owners that minorities are moving into the neighborhood to get owners to sell
real estate brokers get commissions and cheap real estate


Neithamer v. Brenneman Property Services, Inc. (Fair Housing Act: Gay Man w/AIDS, Presume
knowledge of protected class)
Facts: P (HIV positive, gay male) tried to rent an apartment, there was an issue with credit in past. He
explained situation offered to have co-signor, advance a years rent, etc, but was refused. When he
spoke with management, they threatened to counter sue if he alleged discrimination.
Issue: was there a prime face case for discrimination?
Prima facie case includes: P show they are member of protected class, that
they applied for tenancy and were a qualified applicant, that D rejected
application, that property remained available thereafter...must show "rejected
under circumstances that give rise to an inference of unlawful discrimination"
Findings: sexual orientation is not protected class under FHA, but HIV is disability, which is
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protected...defendants argue that they didn't know he was HIV positive...but the law can assign
presumptions that D knew or suspected the protected status (sufficient "clues") [matter of fact].
Holding: In order to establish claim of discrimination - first show prime facie evidence, then burden shifts to
defendants to prove legitimate reasons for rejection, if done, then burden back to plaintiff to show reasons are "mere"
pretext

TENANCY AND LEASING REAL PROPERTY
A. 4 leasehold interests
1. Tenancy for years/term of years- Lease for Fixed & Determined Period of Time
a) Terminates at end of agreed period
b) If lease greater than 1 year, MUST BE IN WRITING, SoF

2. Periodic Tenancy- continues until landlord or tenant give proper notice of termination
a) Creation
i. Express- To A from month-to-month
ii. Implication
1. Leased w/ no mention of duration, but provision is made for payment of rent at regular
intervals
--Ex. A leases to B and no mention of duration, B pays rent each month to A
implied month to month
2. Oral Term of Years that Violates SoF implied period tenancy
--once rent payments begin, implied month to month created
3. Holdover
--if A elects to holdover B who has wrongfully stayed past conclusion of original
lease, implied periodic tenancy arises.
--Measured by way rent is now tendered

b) Termination- MUST GIVE NOTICE
i. Notice must be equal to length of period or interval itself, unless otherwise agreed upon
ii. EXCEPTION: if year to year or more periodic tenancy only six months notice needed
iii. EXCEPTION: parties agree otherwise to different notice period

3. Tenancy at will end- No Fixed period
a) Duration- lasts as long as either Landlord or Tenant Desire
i. Example To T for as long as L or T desire.
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b) At-Will Termination, HOWEVER:
i. reasonable notice must be given
c) Creation
i. Must be expressly agreed to
ii. If not, court presumes periodic tenancy

4. Tenancy at sufferance- Created By Wrongful Holdover
a) Wrongful holdover tenant still pays rent
b) Usually short lived until landlord evicts or new lease created


Kajo Church Square v. Walker (Ct. App. TX 2003) (Lease for Life INVALID)
Facts: Couple donated half land, sold the other to a Kajo. They thought they withheld a life estate in
one. Kajo then leased the property back to the couple until the last lessors deaththis the plaintiffs
thought created a lease for life. Kajo then sold the property to Grace.
Reasoning: Although when Kajo sold the property Grace they included a statement to the effect that
part of the land was subject to a life estate, the deed itself did not contain any language to that effect.
RULE: There are only four types of leases, people cannot create a lease for life



B. Tenants Duties
1. Duty to Repair
a. Responsible for keeping premises in reasonably good condition/repair
b. Maintenance: T must do no more and no less than to maintain the premises in reasonably good
repair
c. Waste: T must not commit waste
i. 3 kinds of waste: affirmative/voluntary, permissive, ameliorative
ii. FIXTURES: removing a fixture = voluntary waste
A. fixture is something that was once moveable, but objectively shows intent to
permanently improve the realty
- Example: furnace, heating systems, etc.
B. If tenant installs what is deemed to be a fixture, must leave it with premises,
even if T leaves.
- How to tell what is a fixture?
1. Does express agreement dictate?
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2. If no K, T can remove items from premises as long as it
does not cause substantial damage
-Objective Test: if damage when remove fixture

2. Duty to Pay Rent
a) T fails to pay rent and IN POSSESSION of premises (doesnt pay and still resides): 2 options
1. L can move to evict and is still entitled to rent from missed payments until vacates (T
becomes tenant at sufferance if stays)
2. L can continue relationship with T and sue for rent owed
3. EXCEPTION: L CANNOT RESORT TO SELF HELP.
- Example: change locks, forcibly remove T or Ts possessions civil penalties

b) T doesnt pay rent and is OUT OF POSSESSION of premises: 3 options S.I.R.
--T has wrongfully vacated with time left on term of years lease:
1. Surrender: L can take Ts leave as surrender terminates lease
a) If an unexpired term is over a year, need a writing to satisfy SoF
2. Ignore: ignore abandonment and hold tenant responsible for unpaid rent
a) Landlord must attempt to mitigate
3. Re-Let Premises: re-let premises and hold tenant liable for deficiency
a) Landlord has duty to attempt to mitigate

C. Landlord Duties
1. Deliver Possession of the Premises
a) L must legally and physically deliver actual possession
b) If a holdover T possesses while new T is supposed to possess, new T entitled to damages
EXCEPTION: minority rule- it is new Ts problem to deal with holdover (not very applicable today)

2. Quiet Enjoyment: Implied in EVERY residential and commercial lease
a) Can be implied or express in a K (express for quick suit resolution)
b) Waiver: Commercial-OK, Residential- CANNOT EVER BE WAIVED
c) BREACH: 2 ways
i. L actually and wrongfully excludes T from possession of whole or any part of premises
ii. L commits constructive eviction: 3 elements (SI.N.G.)
1. Substantial Interference
a) Quiet enjoyment has been substantially interfered w/ by some act or
failure to act attributable to L
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b) Can be a chronic or recurring problem
c) Can be man-made or natural event L has not addressed (flooding
that can be fixed)
d) Nuisance or conduct, even by TP
e) Doesnt maintain common areas
f) undertakes repairs, but they are shit
g) Statutory
2. Notice (Note D p.471)
a) T must give notice of problem to L
b) L must fail to act meaningfully w/in reasonable time
3. Goodbye or Get-Out
a) T must leave w/in reasonable time after notice and failure to correct
b) Cant remain in possession and claim CE
c) CANNOT LEAVE TOO SOON
4. Is L liable for acts of other tenants?- CL says NO, but 2 exceptions:
a) L has duty not to permit a nuisance on premises
b) L has duty to control common areas
5. EXCEPTION: 3
rd
party rule
a) landlord not responsible for the actions of 3
rd
parties
b) applies ONLY WHEN LANDLORD DOESNT PERMIT 3
RD
PARTY TO ACT
c) rejected in Kaminsky cuz landlord failed to act (lack of access)
6. Waiver of CE:
a) Remain on premises for unreasonable length of time after rise of untenantable
condition
b) CE cant exist where tenant doesnt surrender property
d) REMEDIES upon breach:
i. Breach of constructive eviction then tenant may:
1. Vacate the premises and end the lease
2. Sue for damages-
(1) past rent using FMV value difference between premises as is and as lease
expects
(2) they can also sue for the benefit of the bargain,
a) that is if they had to move to a new location, they can benefit f
rom the difference in rent between former place and new like
place they occupy
ii. For anything less than substantial interference:
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1. the tenant may still sue of damages (sue for the difference between the FMV of the
premises as is, versus the amount in rent one was paying).

e.) Percentage Diminution: the tenant recovers the percentage by which the tenant's use and enjoyment of
the premises has been reduced by the uninhabitable conditions. Asks the trier of fact to exercise broad
discretion. (pro: obviates the need for expert testimony on FMV)
f) Untentability: Exists when interference w/ occupancy is of such a nature that the property cannot be
used for the purpose for which it was rented
g) Conduct of Omission: Note 1 p. 471


3. Implied Warranty of Habitability- Residential ONLY
a) Only residential, not commercial
i. Applies to written and oral leases
ii. Applies to single and multi-family
b) Cant be waived, if attempted to waive by disclaimed waiver void
c) Must be fit for basic human habitation- low bar (ex. Provide running water, HEAT)
i. Ensure decent housing
d) IF BREACH, Ts 4 options/remedies: M.R.R.R.
i. Move Out- T can move out and terminate lease
ii. Repair and Deduct- T can make self repairs and deduct costs from future rent
iii. Reduce rent- T can reduce rent to fair rental value of premises in view of defects or
withhold all rent until court decides rent value
1. T must place rent in escrow acct
iv. Remain- T can remain in possession and sue for damages
e) EXCEPTIONS:
i. Landlord not liable for defects caused by tenant
ii. Not minor deficiencies
f) Special Damages
i. can be recovered when as a foreseeable result of the landlords breach, the tenant suffers
personal injury, property damage, relocation expenses, or other similar injuries
g) General Damages
i. recoverable in the form of rent abatement or reimbursement to the tenant are more difficult to
calculate
ii. Calculation
1. Fair rental value or premises warranted less fair rental value in unrepaired condition
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2. Contract rent less fair rental value of premises in unrepaired condition
h) Percentage Diminution
i. Subjective measure, but preferred
ii. Tenants recovery reflects the percentage by which the tenants use and enjoyment of the
premises has been reduced by the uninhabitable conditions

4. Refrain from Retaliatory Eviction
a) If T lawfully report a violation, L cannot penalize T
i. Cant: raise rent, end lease, harass T, etc.
ii. Usually a statutory period of time during which presumption of retaliation applies

5. Mitigation of Damages Upon Wrongful Vacation by Tenant
a) Normally upon breaching party, but LEASES ARE EXCEPTION
b) POLICY: Easier for landlord to show whether or not they took reasonable efforts to mitigate
i. Have access to more information
c) Burden of Proof- on landlord
i. show took reasonable efforts to re-let property
ii. Factors
1. Did landlord personally or through an agency offer or show the apt. to any prospective
tenants
2. Did they advertise property?
d) Tenant Rebuttal of landlords evidence
i. Tenant can rebut evidence by showing that tenant proffered suitable tenants who were rejected
e) Landlords Remedies
i. If landlord cant get fair market value & makes reasonable attempt to mitigate sue for value
ii. If landlord rejects fair market value because less than original lease value can sue for
difference

D. Professor Mitchell and Madison city ordinances -
1. Abandonment tenant leaves and defaults on rent
a) Landlord can sue for all rent keep premises vacant until end of lease term, sue for back rent
b) Landlord can terminate lease take back premise using abandonment as voluntary surrender
c) Landlord can mitigate damages and sue for rent release and sue for difference in rent



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Fidelity Mutual Life Insurance Co. v. Kaminsky (Ct. App. TX 1989) (Abortion Dr., Constructive
Eviction, and Quiet Enjoyment)
Facts: Doctor of Abortion clinic in building owned by insurance company abandoned their premises
citing the landlords failure to uphold their right of quiet enjoyment. The breach of quiet enjoyment
stemmed from protesters of the abortion clinic who disrupted working conditions. The landlord claimed
that they did not authorize or endorse, but court rejects their argument.
Holding: Landlord loses on appeal
RULE: the extent to which a landlord's acts or omissions permanently and materially deprive a tenant
of the use and enjoyment of the premises often involves a question of degree. Totality of
circumstances is test for constructive eviction.
NOTES: Failure to act in the fact of repeated requests for assistance despite having expressly
covenanted defs quiet enjoyment of the premises


JMB Properties Urban Co. v. Paolucci (App. Ct. IL 1992) (Waiver of Constructive Eviction & Third
Parties)
Facts: Jewelry store tenant complained for 5 years that neighbor stereo store was making his store
conditions untenable he signed new leases, but eventually left with two years left on his lease. He
won at trial, but on appeal the court reversed.
RULE: FOR P, Duty to surrender - The tenant bears the burden of proving that he did abandon the
premises within a reasonable time after the untenable condition occurred. If the tenant fails to vacate
within a reasonable time, the tenant is considered to have waived the landlord's breach of covenant.

Wade v. Jobe (S. Ct. of UT 1991) (Implied Warrant of Habitability)
Facts: Def, mom w/ 3 kids rented a house. The basement periodically flooded with sewage, heater
smelled bad, no hot water. Def notified landlord, P did nothing. The city threatened to condemn the
house after finding numerous violations. Def eventually moved out and withheld rent landlord sued
for back rent tenant counter sued for offset of unpaid rent less damages.
RULE: The warranty of habitability requires that the landlord maintain " bare living requirements and
that the premises are fit for human occupation (heat, hot water, etc.). Tenant can recover for breach of
warranty. See remedies above.

Teller v. McCoy (S. Ct. App. WV 1978) there will always be subpar housing, not every place can be like the
Ritz if we force landlords to accept this liability, affordable housing will vanish
RULE: Implied warranty of habitability actually harms poor tenants
i. Landlords will pass on costs to tenants
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Ending the Tenancy: Mitigating Damages (See sec. C(5) above)
Sommer v. Kridel (SCNJ 1977) (Landlord Duty to Mitigate Damages, Abandonment, Lost Volume Seller)
Facts: Tenant entered a 2-year lease. Two weeks in and after paying the first two months he sent a
letter to landlord that explained that his fianc left him and he could no longer afford the place. He then
abandoned the property and asked to be let out of lease. The landlord than turned away qualified
applicants and then at the end of the lease sued for 2-years of back rent.
RULE: "A landlord has a duty to mitigate damages where he seeks to recover rents due from a defaulting tenant."
i. Must make reasonable efforts to re-let the apartment. Has burden of showing as such in court.
(tenant responsible for any reasonable costs incurred in re-letting)

Security Deposit
A. Majority View
1. If landlord keeps some of deposit and doesnt itemize damages
a) Landlord cant keep $ even if tenant caused damageMUST ITEMIZE

B. Jurisdictions
1. Cali statute
a) Cap on what a landlord can seek
i. Distinction btwn furnished and unfurnished
b) Cap on what landlord can retain
i. Can only retain w/ respect to damage to property
ii. No pre-existing damage or ordinary wear and tear
2. Wisconsin
a) Similar to Cali
i. If can prove landlord retained deposit in bad faith can recover double damages
b) Exception to American Rule attorneys fees
ii. Allowed to recover attorneys fees from loser
3. Interest on Deposit
a) Time value of money
b) Some juris. Allow it



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EVICTIONS
A. Jurisdictions/Approaches
1. 21 states- Uniform Tenant Act
2. Iowa- retaliation cannot be grounds for eviction and will be presumed if the tenant has complained to management
within six months.
3. NH AIMCO case (Statutory Eviction)- end of lease isnt cause for eviction
a) essentially creates a life estate

B. Presumption of Retaliation
1. If landlord acts w/in certain period of time when tenant exercises a legal right landlord action will be presumed
retaliatory
2. If outside the scope of time Not presumed but:
a) tenant could still have a claim if tenant can prove it

C. Methods of eviction
1. Self-help: Landlord occupies unit, uses reasonable physical force to remove tenant. 2 prong test
a) the landlord is legally entitled to possession, such as where a tenant holds over after the lease
term or where a tenant breaches a lease containing a reentry clause,
b) the landlord's means of reentry are peaceable
2. Sue the tenant: Win a judgment, then court allows law enforcement to remove tenant

Hillview Associates v. Bloomquist (SCIA 1989) (Retaliatory Eviction, Burden of Proof)
Facts: Tenants at a trailer park formed a union; they went to management to complain about
conditions at the park. At the second of two meetings there was a physical altercation between
manager and tenant. After altercation the manager tried to evict 6 families who were part of the union.
Parties sue Mgmt. Iowa has a statute saying retaliation cannot be grounds for eviction and will be
presumed if the tenant has complained to management within six months.
HOLD: For parties who didnt fight; Evict party who got physical
RULE: Burden of proof is on landlord to prove eviction was for non-retaliatory reasons, if done then
trier of fact must weigh all evidence and determine by a preponderance whether retaliation was the
reason for eviction.
a) Conduct of one tenant was deemed improper and eviction upheld, others were
deemed retaliatory and thrown out.


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AIMCO Properties, LLC v. Dziewisz (NHSC 2005) (Statutory Eviction and Good Cause)
Facts: Tenants lease expired in a few months, the landlord wrote a letter informing of intent not to
renew, the tenant refused to vacate (becoming tenant in sufferance) and sued claiming that landlord
did not give a statutorily defined good cause for failure to renew.
Majority: Reading the statute, expiration of lease is not outlined as a good cause. Statute was
defined as protecting tenants from arbitrary or ill motivated evictions. The court finds that eviction
based on expiration of lease is an arbitrary eviction (WTF? Alienability anyone?).
Dissent: Majority creates a life estate unless good cause evictions occur (I agree!)


Berg v. Wiley (SCMN 1978) (Landlord Self-Help Eviction and Summary Process)
Issue: When has landlord used too much force to evict tenant (wrongful method)?
Facts: Restaurant-Tenant breached lease, ran afoul of health code. The landlord retook possession
by changing locks while the tenant was not there. The trial court found that this repossession was
wrongful as a matter of law.
Majority: For Tenant; In order for the landlord to use self-help to retake the possession of property, the
method must satisfy two prongs (1) the landlord is legally entitled to possession, such as where a
tenant holds over after the lease term or where a tenant breaches a lease containing a reentry clause,
(2) the landlord's means of reentry are peaceable.
a) Court finds that violence was only averted because tenant was not there, so
they cannot find that the reentry was peaceable
b) Public Policy also impacts the majoritys decision (growing trend across
states, etc.)
RULE: From now on, the only legitimate eviction process is the judicial process (aka summary
process- unfavorable to landlord)
POLICY: Curtail possible violence


Assignment and Sublease
A. Transfer of sublease
1. Unless express prohibition, T can transfer part or whole of sublease

B. Whole Transfer: Assignment
1. T2 is assignee
a) L and T2
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i. are in privity of estate same duties apply
ii. NOT in privity of K unless T2 has expressly assumed performance of promises in original lease
b) L and T1
i. not in privity of estate
ii. Remain in privity of K secondary liability on the K remains, but not duties
--If T2/etc. flee, T1 remains liable
c) L can claim from T2 (or subsequent Ts) based on privity of estate AND from T1 on privity of K unless
Sub-Ts expressly assume performance
i. Cannot get T2 if T1 T2 T3

C. Partial Transfer: Sublease
1. Ex. T1 has 1 year lease and transfers 3 months to T2
2. If sublease, relationship btwn L and T1 same and in full
a) L and T2
i. No privity of estate nor K
b) T1 and T2
i. T2 responsible to T1 and vice versa



PRIVAVTE LAND USE PLANNING
(Easements, RC, ES, CIC/HOA, Nuisance)
Profit: Irrevocable right to enter and take something from or of the land.
EASEMENTS
Agreement (non-possessory interest) granting access/use to land, either by contract or forced by the courts
Duration of Easement: Term of years, life estate, or fee simple
Buyer has a duty to investigate land for easements or possible uses requiring easements (inquiry notice)

A. Easements Defined: Dominant v. Servient
1. Property
a) Dominant Tenement/Land
i. Parcel that is owned by the Easement Holder
ii. Land Benefited (not the parcel being occupied/utilized across)
b) Servient Tenement/Land-
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i. land being used by Easement holder
ii. Land Burdened
2. Parties
a) Dominant owner- Easement Holder/Benefitted Party
b) Servient Owner - Owner of Servient/Burdened Land

B. Affirmative v. Negative Easements
1. Affirmative- gives holder right to do something on Servient land

2. Negative- gives holder right to compel Servient owner to refrain from doing something that would otherwise be
permissible
a) ONLY Recognized in 4 categories: L.A.S.S.
i. Light, Air, Support, and Stream-water flow
ii. Minority Juris: Some states recognize a 5
th
category (including CA)- Scenic View
b) Examples:
i. A owns blackacre (dominant land) and has negative easement over Bs land, greenacre,
for light. B can be compelled from building anything that would impede light to blackacre
---Blackacre- benefitted land
---Greenacre- burdened land
c) No Natural or automatic right to negative easement
d) Must be created by express and signed agreement: Deed of Easement


C. Appurtenant to Land or Held in Gross
1. Appurtenant: It Takes 2
a) benefits holder in physical use or enjoyment of his OWN land
b) 2 parcels must be involved to have appurtenant
i. Benefitted parcel: derives advantage (Dominant tenement)
ii. Burdened parcel: subject to restriction (Servient tenement)

2. Easement in Gross: ONLY 1 PARCEL INVOLVED
a) Confers upon holder only a personal or commercial gain, not linked to easement holders use and
enjoyment of his own land
b) ONLY 1 parcel involved, the Servient tenement
c) Easement holder deriving only a personal or commercial gain
Examples:
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1. Company gets easement to put billboard on your land.
i. Co. has no personal benefit for own land, only commercial
2. Power Co gets right to place line on some elses land.

3. Transferability
a.) Appurtenant:
i. From Sale of Dominant Land
1. passes automatically w/ dominant land in a sale of land
2. Passes even if no mention of easement to buyer
ii. From Sale of Servient Land
1. Also passes w/ sales of Servient land
2. EXCEPTION: doesnt pass if new owner is a bona fide purchaser and has NO notice of
easement
--Bona Fide Purchaser: 2 criteria
1. Buyer must purchase for value and
2. At time of purchase, Buyer had to be without notice that
another got there first or encumbrances
b) Easement in Gross
i. Not transferrable UNLESS for commercial purposes
ii. Personal to Holder
iii. Examples:
-A has EIG to swim in Bs pond. This isnt transferrable upon sale, transfer or
assignment to anyone else. Only resides w/ A b/c for personal benefit
iv. Commercial and transferrable EIGs
-Examples: A has an EIG for fish in Bs pond for As Tuna Co. This is easement for
commercial purpose and A can transfer it to anyone

D. Creation of Easements
1. Affirmative Easement: Right to Do Something-- 4 ways (P.I.N.G.);
i. can be Appurtenant. Or In Gross
ii. #1 is created by K,
iii. #2-5 Matter of Law & w/o Servient Owners Agreement

1. Express (grant): 2 types
a. grant: Arises when Servient owner grants an easement to the dominant owner
b. reservation: Arises when dominant owner grants the Servient land to Servient owner but retains
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or reserves an easement over that property
c. MUST SATISFY SoF if easement for more than year: Elements
(1) ID parties
(2) describe Servient land and dominant land (if any)
(3) describe exact location of the easement on the Servient land
(4) state the purposes for which easement may be used

2. NECESSITY:
a. Landlocked setting
i. Benefitted owner/land is landlocked by Servient land and has no other way around
Servient land
ii. Example
1. A grants B a landlocked portion of his 100-acre parcel. B gets easement by
necessity to cross As (Servient) land to get dominant land
b. Majority view: Strict Necessity
i. If there is any other possible way to get around potential Servient land, no matter how
inconvenient, it must be utilized and NO easement by necessity will be granted
c. Minority view: Reasonable Necessity
i. Inconvenience allows implied easement by necessity
d. Third View: Reasonably Practicable Access (Berge v. Vermont)
i. Middle ground of (b) and (c)
e. Elements
1. Division of commonly owned land
2. Division resulted in creating a landlocked parcel
f. Highly Unreasonable Division of Land
1. If choose a highly unreasonable location landlocked person can choose the location
of easement
h. POLICY
(1) the implied intent of the parties; and
(2) the public policy favoring the productive use of land.
COUNTER - serious consequences inherent in granting one landowner an
uncompensated interest in the property of a neighbor.
j. General Test: (1) severance of title to land held in common ownership; and
(2) strict necessity for the easement at the time of severance (no legal right of
access)
[minority of courts (and Restatement) require reasonably necessity - beneficial or
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convenient for the use of the dominant parcel]
k. Duration: lasts as long as there is necessity

3. IMPLICATION: implied from prior or existing use (p.663)
a. Use that occurs on land that should survive its division
b. Ct will imply easement if:
i. (1) use was apparent at time of land division AND
ii. (2) parties expected use would survive division BECAUSE:
iii. it is reasonably necessary to now dominant lands use and enjoyment
c. Elements:
1. Severance of Title to land held in common ownership
2. An existing, apparent AND continuous use of one parcel for the benefit of another at
the time of severance; AND
3. Reasonable necessity for that use
i. Majority use reasonable necessity
d. Example
i. A owns 2 lots (L1 and L2). L1 connected to sewer drain on L2. A sells L1 to B and
doesnt mention Bs entitlement to use the sewer drain. Ct will imply easement if 2
elements can be shown
4. PRESCRIPTION
a. Created if satisfy elements of AP (C.O.A.H.)
i. Continuous, Open & Notorious, Actual, Hostile
Example: A cuts across Bs lawn everyday to get to As land. A is technically a trespasser. b.
However, over time, A can get prescriptive easement appurtenant by showing elements of AP
(C.O.A.H.)
i. IF PERMISSION GIVEN: no easement by prescription, b/c not hostile
5. Estoppel (irrevocable license)
a. Someone makes detrimental change in reliance upon Servient owners remarks easement
given
6. Public Prescription
a. Can be fulfilled by AP elements of more than 1 person
b. Doesnt require one person to fulfill all elements for statutory period of time

E. Scope of Easement
1. Set by terms or conditions that created it
2. UNILATERAL EXPANSION by holder not permitted
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F. Termination of Easements: E.N.D. C.R.A.M.P.
1. Estoppel- Servient owner makes detrimental change based upon dominant owners assurances
2. Necessity- easement expires as soon as necessity expires, but if in grant expire
3. Destruction - if dominant owner destroys Servient land, easement ends
4. Condemnation- eminent domain; condemnation of Servient estate terminates
5. Release- writing by holder to Servient owner that its over
6. Merger- When title to easement and Servient land become vested in same person/owner
7. Prescription- Servient owner interferes w/ easement
a) Similar to easement by prescription (use elements of AP)
b.) EXAMPLE: B; builds fence to block As use of easement
8. Terms of Grant or Reservation: time on the K is up
9. Misuse- If Holder seriously misuses easement terminate
a) rarely recognized, minority view
10. Recording Conflict- if you lose the race to the court house (certain jurisdictions)
11. Abandonment- No intent to resume activity and abandonment extinguishment of easement termination
a) Non-use of easement doesnt necessarily mean abandonment

G. Notice
1. Actual
a) grantee, purchaser is literally told of servitude/easement.
b) grantee shouldve been aware.
Example: Exam with portfolio of documents/manuals.
2. Inquiry
a) appearance of the land should indicate an encumbrance/easement is present.
3. Record/Constructive
a) title is recorded and discoverable

H. Interpreting Easements
1. Interpreting Express Easements
a) Ambiguity
i. If a particular purpose isnt provided for in the grant, a use pursuing that purpose isnt allowed
b) Flexibility w/ Easement and Tech
i. The manner, frequency and intensity of easement may change over time to accommodate tech
development
ii. Changes must fall within the purposes for which the easement was created, as determined by
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the grants terms
iii. Uses must be reasonably necessary for specified purpose
c) Definite Language in Easements
i. If language is definite it is decided as a matter of law

2. Intensifying a Permitted Use
a) R3d 4.10: the manner, frequency, and intensity of the use may change over time to accommodate the
normal development of the dominant estate

3. Relocation of Easement
a) R3d. 4.8: A Servient owner may relocate an easement as long as the move doesnt significantly
lessen the utility of the easement, increase the burdens on the dominant owner or frustrate the
purpose of the easement


Milbrook Hunt Inc., v. Smith (SCNY 1998) (Easement in Gross, transferable express easement)
Facts: A parcel of land was conveyed with an easement protecting use for Ps fox hunting for
75 years. Def didnt approve of hunting and wanting to enjoin use. Def argued it was a
revocable license and that he had revoked it.
Majority: For P, An easement implies an interest in land ordinarily created by a grant and is
permanent in nature. A license does not imply an interest in land, but is a mere personal
privilege, subject to revocation. A definite period (here 75 years) is indicative of an
easement.
NOTES: Def had right to develop, not exclude.
- Def had actual and constructive (record) notice.
i. Actual = literal or shouldve known.

Van Sandt v. Royster (SCKA 1938) (Implied Easement By Prior Use)
Facts: P sues Def to enjoin use of a sewage and drainage pipe across his land
P discovered that his basement was flooded with sewage The pipe crossed a single property
encompassing both lots and the adjacent lot.
Majority: Citing Johnston v. City of Kingman, a quasi-easement can be transferred to the grantee in a
conveyance. Inference (of an easement) is drawn from circumstances of conveyance rather than the
specific language. Court looks at restatement.
Holding: For Def, Court recognizes the easement because P had notice (inquiry) could have been
known during the inspection prior to conveyance.
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RULE: An easement is implied to protect the probable expectations of the grantor and grantee that a
prior existing use will continue after the transfer.
An easement by implication is created where the grantee is aware of a reasonably
necessary use of his property for the comfortable enjoyment of the grantors property.
REASONABLE NECESSITY: Ct adopts it over strict, b/c easier to use pipe than own septic tank.
QUASI-EASEMENT- An owner can make use of one part of his land for the benefit of another part
a) Way to get around rule that a land owner cant have easement in his own land
b) The part of land benefited is quasi dominant tenement
c) The part of land being used is quasi Servient tenement

Berge v. State of Vermont (SCVE 2006) (Easement by Necessity- lack of reasonably practicable
access)
Facts: Lady donated most of her land to State, then a portion to private owner, but without a reference
to any easement across the donated portion. P then purchased two lots (after subdivision) from second
owner. State puts up a gate and blocks Ps land access to his property. But P could still access by
water, but was inconvenient. P filed for injunction.
P argument: Conveyance had an easement by necessity
D (State) argument: P can access his land via boat
Test for Easement by Necessity: (1) There was a division of commonly owned land, and (2) the division
resulted in creating a landlocked parcel." (Easement remains as long as necessity exists)
--Court looks at "extreme inconvenience" v. necessity [lack of reasonably
practical access]
Holding: For P, There is an easement of necessity. Ct finds middle ground between reasonable and
strict: lack of reasonably practicable access.
POLICY: Utilitarian

ODell v. Stegall (SC-WV) (Easement by Prescription)
Facts: Def property is landlocked and the only access to highway is across a gravel road that P claims
he owns by prescriptive easement. Def says P doesnt have easement.
Holding: For Def. P didnt prove his actions were hostile.
Minority View: Some Jurisdictions will presume adverse /hostile use

Kienzle v. Myers (Ct. App. OH 2006) (Easement by Estoppel)
Facts: Old neighbors agreed to allow sewer pipe across one another's property. New owners, def, of
one property didn't like that and told P,new owners of other property the license was revoked. In
response, P filed suit, claiming easement by estoppel.
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Court: Easement by estoppel may be found when (1) owner of property causes another to alter their
position for his or her benefit or prejudice.[reasonable reliance] and (2) if injustice can be avoided only
by establishment of easement (Servitude).
Holding: In favor of Plaintiff
General Test: (a) landowner allows another to use his land, thus creating a license; (2) the licensee
relies in good faith on the license, usually by making physical improvements or by incurring significant
costs; and (3) the licensor knows or reasonably should expect such reliance will occur
COUNTER: Policy of neighborliness is good, but support of permissive use should not subject
landowner to unintended consequences by their mere cooperation with a neighbor.


Marcus Cable Associates, L.P. v. Krohn (SCTX 2002) (Interpreting Easements, New Purposes &
Tech Advancement)
Issue/Facts: Whether an express easement that permits its holder to use private property for an
expressly agreed function allows easement to be changed/used for another function b/c of technological
advancements?
Facts: P gained an easement from original transferee to use easement on Defs land for an electric
transmission or distribution line or system. K didnt warrant or assure any right of way privileges or
easements and P had to acquire its own easements for new wires use. P ran wires through Def
property w/o valid easement and Def sued for trespass.
P Arg: Use is similar and has public benefit. Public detriment if not allowed.
RULE/Court: When looking at easement, court applies contracts approach - intent of the parties.
--Modification (manner, frequency, intensity) post easement, are allowed
only when uses are reasonably necessary for specified purposes
(Restatement).
--TEST: The threshold inquiry is not whether the proposed use results in a
material burden, but whether the grant's terms authorize the proposed use.
Holding: For Def, Easement does not provide for future "like" technology. Ct doesnt want to circumvent
intent of parties. Uphold K rights.
Dissent: Cable is literally transmitting an electric signal through a line, therefore the plain language of the
easement should include cable television.
Majority seems to be counter to the majority of jurisdictions.

Preseault v. United States (USCA 7th Cir. 1996) (Termination of Easement by Abandonment;
Railroad case)
Facts: Easement used by Def for railroad purposes and railroad stopped. Government passed Rail-to-
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Trails Act. They took over abandoned railways and converted them into hiking and biking trails. The
plaintiffs then sued claiming conversion constitutes a taking.
Court conclusions: For P, The trails were not intended in the original easement & abandoned
ABANDONMENT: For abandonment the easement owner must "unequivocally manifest, either a
present intent to relinquish the easement, or a purpose inconsistent with its future existence."
--The railways were abandoned, even though property owners paid licensing fees to state
for passage.
License
1. Principle: freely revocable and easily terminated
2. Not subject to SoF
3. Irrevocable License: Estoppel (unrevocable)
4. Examples of Licenses (all freely revocable)
o Tickets & Oral agreements
The Profit
1. Principle: holder can enter the Servient land and take a resource (usually natural resource) from it
2. SHARES ALL OF THE RULES OF EASEMENTS
o Can be appurtenant or in gross
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LAND USE RESTRICTIONS

CC&Rs:Traditional approach Owner would record a declaration containing covenants, conditions, and restrictions
(CC&Rs) against all lots before they are sold; if future owner tried to develop, other owners could enforce the
restrictions. (Today, enforcement, not creation is at issue).

A COVENANT THAT RUNS AT LAW: A servitude arises when:
1. The owner of the property to be burdened intends to create a servitude;
2. He enters into a contract or conveyance to this effect that satisfies the SoF; and
3. The servitude is not arbitrary, unconstitutional, unconscionable, or violative of certain pubic policies (e.g. it can not
reasonable restrain alienability).
4. Used over fee simple defeasible when the seller does not want to quiet title from persons when the covenant was
broken. Banks also would be less willing to lend if your collateral was subject to a defeasible condition.

REAL COVENANTS
a promise concerning the use of land that benefits and burdens both the original parties (current owners) and their
successors (future owners).
REMEDY IS MONEY DAMAGES
Principle: Promise to do or not do something related to land.
1. Not the grant of a property interest
2. Contractual limitation or promise
3. MUST be able to run with the land bind successors to original contracting party

A. Affirmative v. Negative
1. Affirmative: Promise to do something
o Example: I promise to paint my house yellow, paint my fence, maintain my yard, etc.

2. Negative/Restrictive: promise to refrain from doing something
o Most are RCs restrictive
Example: I promise not to put a batting cage in my backyard

B. The burden and the benefit
1. The burden the duty to perform the promise
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2. The benefit the right to enforce the promise

C. Running of the Burden: Does As promise to B, Run from A to A1?
For burden of the promise to bind the promisors successors, 6 elements must be met
Dont have to acquire whole estate
Can file suit if promise has been violated even if owns partial amount

1. W- writing
a. Original promise btwn A and B must be in writing
2. I-intent
b. Original promise must have been intended to bind successors
i. Low bar set by ct
3. Touch & Concern
a. The promise must be of and pertaining to land
i. RC to pay $ to be used in connection w/land (HOA dues) & non-competes satisfy
t&c
b. Promise to buy insurance can be invalid for T&C
4 . Horizontal & (5.) Vertical Privity (BOTH REQUIRED)
a. Requires A & B at time promise was made, were in succession of estate
i. Grantor-grantee, landlord-tenant, debtor-creditor; OR
ii. Shared some other servitude in common in addition to covenant in question
4. Horizontal Privity
a. A and B have to share 1 of the relationships or servitude in common (easement, profit,
license, etc.)
b) 3 Approaches:
(1) Mutual interest Some states require that the original parties have mutual
interests in the affected land;
(2)Successive interests: Some states require a grantor-grantee relationship
between original owners and successors;
(3) No requirement more and more states have abandoned this
requirement altogether.
5. Vertical Privity
a. Relationship between A and A1 must be non-hostile
i. Contract, blood relation, devise
ii. Cannot establish vertical privity through AP
b. Successor must receive entire estate
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6. Notice
a. A1 must have had some form of notice when he took
b. 3 kinds of notice: A.I.R. (Actual, Inquiry, Record)
i. Actual- informed literally and actually of covenant
1. Can be imputed, regardless of actual notice
2. If transferee should have known there was an RC notice
ii. Inquiry- if appearance of premises shouldve given notice of presence of covenant
(duty to inspect)
1. Can be imputed, regardless of actual notice
iii. Record- if covenant was recorded w/in As chain of title, A1 would be charged
w/notice, regardless if A1 did a title search

D. Running of the Benefit: Does the benefit of As promise to B, run from B to B1?
For the benefit to run to the successors, only 4 elements are required
Horizontal Privity and Notice Not Required
Fee simple and vertical privity
1. Writing
a) Same as Burden
2. Intent
a) Same as burden
3. Touch and Concern
a) Same as burden
4. Vertical Privity
a) Same non-hostile relationship between B and B1 (K, blood, devise)

E. Touch and Concern: In Depth
1. Bigelow Test
a. Burden touches and concerns only when it devalues promisors land
b. Benefit touches and concerns only when it increases value of promisees land
2. Not restricted to matters that actually physically impact land use,
a. the more that an agreement involves matters other than some type of physical restriction, the
more difficult it may be to satisfy touch and concern element

3. Matters that are not specific to physical impact of land use
a. Payment of money
i. Covenants to pay real estate taxes have been contested
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ii. Covenants to purchase property insurance
1. Some consider this a bare covenant
2. Others accept this as touching a concerning property especially if coupled with
other covenants
iii. Covenants to pay fees or assessments to homeowners association now universally
deemed to satisfy T&C req.
4. Burden T&C, but no Benefit
a. Example: Y sells property to X, X says I will never sell liquor on property

Other Stuff: reciprocal implied negative easement (developer did not expressly make the agreement, but same
restrictions made a grantee will be applied to all subsequent grantees) [Issue as to notice!]

Deep Water Brewing v. Fairway Resources (Touch and Concern Issue)
Rule: A covenant touches and concerns land whereby restricting use of one parcel, it enhances the value of
another.
a. A promise to refrain from doing something fulfills T&C
Facts: P owned a restaurant and value was view of water. Def wanted to build residential apts blocking
view. P sues for damages (real covenant)
Hold/Reason: For P. All elements of the RC satisfied.
a. T&C issue here valid. Height restrictions maintains view enhances value.
Notes: Elements of RC in WA (p. 707)

SUBDIVISIONS
1. Implied Reciprocal Restrictions Theory: allow restrictions across interconnected deeds:
implied Reciprocal
a. Michigan was the first- 100 parcels within a subdivision
2. You can allow restrictions from 1
st
parcel to be effective to others
a. But if new restrictions created after 1
st
parcel sold, 1
st
parcel wont be subject

Citizens for Covenant Compliance v. Anderson (Subdivisions & Supplement Case)
Facts: Def wanted to have llamas on land; restriction wasnt in their deed. But CCRs were recorded on
subdivision parcels. CCR recorded before anyone bought parcels in subdivisions.
Issue: In the deed the Defs received for parcels, deed doesnt mention restrictions on llamas. Is it enough
that CCR were recorded in subdivision registry process before parcel purchase?
Hold/Reason: For P. No Implied restrictions, it must be recorded
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EQUITABLE SERVITUDES
Principle: a promise in equity enforced and accompanied by injunctive relief (no $ damages)
REMEDY is injunctive relief

A. Creation of ES that Binds Successors: Elements
1. W-writing
a. In general, but not always, original promise must be in writing
2. I-intent
a. Same as burden: original parties must have intended promise would bind successors
3. T-touch and concern
a. Same as burden: Legal relationship between parties and pertain to land
4. N-notice
a. Assignees or successors of original promising parties had some form of notice of the promise
5. Not required to be binding:
a. Privity- only applicable to RC b/c it is law-based

B. Affirmative v. Negative ES
1. Affirmative: Promise to do something
2. Negative: Restriction to refrain certain actions

C. Implied Equitable Servitude:
1. Rules- Many courts allow implied ES even w/o writing
a. Minority disallow and require writing (SoF requirement)
2. Principle
a. Arises when sub-divider conveys lots through deeds that contain a common restriction, but
later conveys one or more of the remaining lots through deeds containing no such restriction
3. 2 Elements:
1. when sale of lots began, general plan was for residential/some form of general development that
includes lot in question
2. Defendant must have had some form of notice when he took property
a. A.I.R. (actual, inquiry, record)

4. DEFENSES/EXCEPTIONS to enforcement of Implied ES: CHANGED CONDITIONS DOCTRINE
a. ES no longer makes sense b/c neighborhood has changed
b. Burden/Elements: On Def
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i. Must prove essential character of neighborhood is irrevocably different/changed
ii. Piecemeal change is insufficient
5. Example
i. A sub-divides his lot in 50 lots
a. 1-45 have covenants restricting to residential purpose. A sells one of the 46-50 lots to
B, who builds a convenience store on the lot
b. Can A enjoin B? Yes, (via implied ES/reciprocal negative servitude)

Tulk v. Moxhay (Court of Chancery 1848, UK) (ES, Running of the BURDEN-NOTICE, Negative Cov.)
Facts: Owner of property on a popular square in London sold it with the provision that the square itself
be kept in a certain condition, (some equestrian statute and some gardening). A portion of the
property was then re-sold, without this provision and the new owner did not want to respect it.
Issue: Can provisions such as these survive where the language of a successive contract omits the
binding provision? YES
Holding: YES. Where the successive purchaser was on notice of the provision, he cannot
escape its contents after the land is conveyed to him, even without the express language. It
only applies to the negative covenant (development restriction). [Distinction has crumbled!]
a. POLICY: Pragmatic reasoning to hold otherwise would allow
purchasers to set up straw man buyers who washed the provisions of a
contract and removed binding clauses.
IMPLIED ES: Where there is evidence of a common plan (subdivisions) then restrictions on the majority could imply
restrictions on the rest


COMMON INTEREST COMMUNITIES (CIC)
PRINCIPLE: a planned residential development (a) where all properties are subject to comprehensive private land
use restrictions and (b) which is regulated by a homeowners association. Typically created by a written
instrument called a declaration (4 parts)
1. Homeowners association - It establishes the association that will administer the CJC,
specifies the association's powers, and provides for an elected board of directors or
similar group.
2. CC&Rs (Covenant, Condition, Restriction): It imposes CC&Rs or similar restrictions
on all land within the CIC. These restrictions may be enforced as real covenants or
equitable servitudes.
3. Assessments: It requires all unite owners to pay monetary assessments, which
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finance the operation of the association.
4. Ownership rights: It generally provides that each untied owner holds fee simple
absolute in his particular unit, an undivided interest in common are of the CIC (for
example, a swimming pool, tennis courts, and meeting rooms), and a membership interest
in the association.
a. Alternatively, title to the common area may be held by the association
on behalf of the unit owners.


A. CCR defenses: Asserted by those looking to avoid CCR
1. unreasonableness
2. abandonment
3. changed conditions, substantially linked to use of the property
4. Laches
5. Unclean Hands

B. Termination of CCR
1. Condemnation
2. Estoppel
3. Merger
4. Prescription
5. Release- 100% who have benefit of covenant must agree to release
6. Relative Hardship (some juris)
a. if cant amend, show the burden of covenant substantially outweighs benefit
b. (Rstmt approach)
i. Factors: Transaction cost of eliminating a restriction
7. Petition to Amend
a. If no 100% vote to release petition to amend w/ super majority
b. EXCEPTION: Older CCRs dont have options to amend
8. Changed Conditions
a. can only check nearby surroundings
b. change in character of neighborhood from original subdivision
c. IF NO BENEFIT to allowing change, dont change.

C. Restatement test for CCR validity:
1. A servitude is valid unless it is illegal, unconscionable, or violates public policy...it violates public policy if
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(1) it is arbitrary, spiteful, or capricious
(2) unreasonably burdens a fundamental constitutional right;
(3) imposes an unreasonable restraint on alienation;
(4) imposes an unreasonable restraint on trade or competition; or
(5) is unconscionable.

D. Racially Restrictive CCRs Shelly v. Kramer
1. Helped bring about end to racially restrictive covenants, by refusing to enforce one who attempted to assert the
benefit of the CC&R what it didnt stop: private racially restrictive covenants that are privately enforced the Jones
(Meyer) case was the death knell

E. Injunction v. Liability
1. Liability Rules
a. Enforce restriction by Pay out of damages
i. Damage Measures
1. Depreciation of property and fair market value
2. Restatement Approach- Transaction Cost of new rules/removal of restrictions
2. Injunction Rules
a. Traditional restriction measure

F. Condos and Homeowner Assn.
1. Standards of Evaluating Discretionary Actions of Homeowners Assn. (HOA)
a. Business judgment rule
i. Diff from reasonableness test
ii. If HOA feels it was justified, then can be allowed (BROAD SCOPE)
b. Reflects and exercises honest judgment
i. LOW BAR
c. 2 prong test
1. Did they have ability to close? (CHECK this prong)
2. Was it a reasonable exercise of power?


Nahrestedt v. Lake Village Condominium Association, Inc. (SCCA 1994) (CCR Against Cats;
Unreasonableness defense)
Facts: homeowner sued complex to prevent HOA from enforcing a restriction against keeping cats,
dogs, and other animals in the condominium development.
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Plaintiff argument: Unreasonableness - the casts were noiseless and created no nuisance
HOA argument: The restriction was properly declared
RULE: Restrictions shall be uniformly enforced as intended unless plaintiff can show that the
burdens it imposes on affected properties so substantially outweigh the benefits of the
restriction that it should not be enforced against any owner. (or is arbitrary, against public policy)
POLICY- Pragmatic reasoning: to hold otherwise would undermine goals of
stability and predictability (costs associated with legal defense of CC&Rs,
expectations, etc.)
Dissent: There are two means of refuge from the misery of life: music and cats

Fink v. Miller (Ct. App Utah 1995) (Roof Shingles and NO termination by abandonment)
Facts: Community Development Committee, in violation of the CC&R allowed 20 homes in a subdivision
to use asphalt shingles on their roofs. After discovering this error they refused to approve any other
plans with those shingles. One homeowner decided to do it anyway, the committee sued for an
injunction.
Issue: Is the CC&R provision valid if the committee inadvertently and temporarily abandoned it?
RULE: Yes - a covenant has been abandoned if "violations are so great as to lead the mind of the
average person to reasonably conclude that the restriction in question has been abandoned."
"Court considers the number, nature, and severity of the then existing violations, any prior acts of
enforcement of the restriction, and whether it is still possible to realize to a substantial degree the
benefits intended through the covenant."

Vernon Township Volunteer Fire Department v. Connor (SCPE 2004) (Changed Conditions;
Fire fighters want to sell booze)
Facts: Owners in a subdivision agreed to prohibit alcohol sales within its lots and boundaries. 50 years
later a fire department purchased a lot, with the intent to build a social hall, discovering this restrictive
covenant they gathered 68 of 77 release agreements from the owners. Six owners refused to budge
and sued for enforcement of the covenant.
P argues: CHANGED CONDITIONS- covenant no longer significant to owners (alcohol served nearby),
vast majority okay with release (only 6 holdouts), no reliance on covenant when current owners
purchased their property
RULE/Law: Generally disfavors restrictive covenants b/c restricting free use and enjoyment,
therefore they are strictly construed;
a. Burden on P to show: (both must be met)
1. that the original purpose of the restriction has been materially altered or
destroyed by changed conditions, and
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2. that a substantial benefit no longer extends to those seeking enforcement of
the restriction.
TEST: check immediate surrounding of area to see if conditions have changed. (they are willing to look
outside the subdivision; just nearby)
Holding: For def, Fire Dept. has not met its burden, the restriction stays (indicates, that as long as the
current owners could benefit from restriction, even if benefit is not sought, the restriction stays)


Schaefer v. Eastman Community Association (SCNH 2003) (Limits of HOA Discretion; Closed
Ski Lift, Business Judgment Rule)
Facts: A HOA decided to close a ski hill that it operated. Surveys found that 70% of owners had never
used the skiing ones. In response to the 8-1 board decision to close the ski hill, an owner sued claiming
the board acted ultra vires, beyond the scope of their discretion.
P argues: The declaration (creating the HOA), did not provide for the closing of an amenity
RULE/Law: When court asked to evaluate decision of HOA they inquire into:
(1) did HOA act within their scope and authority
(2) was the decision reasonable, not arbitrary or capricious
Provided that an HOA does not contravene either an express provision of
the declaration or right reasonably inferable therefrom, it will be found
valid, within the scope of the boards authority. (Broad interpretation of HOA
authority)
Holding: For Def, Court broadly interprets scope of HOA authority, P loses (they have other recourse
anyway the power to elect new board members)

As to reasonableness - Business Judgment Rule - actions taken by directors:
1. Have to be taken in good faith, and;
2. Be a business judgment, using ordinary care & prudence in the operation of the
business

Fountain Valley Chateau Blanc HOA. v. Dept. of Veterans Affairs (Ct. App. CA 1998)
Facts: Veteran was harassed by HOA, they threatened legal action to gain entry into his home and then
proceeded to demand of him various cleaning measures. Some as arbitrary and asinine as what books
he was allowed to keep on his bookshelves. They took all these actions under the veil of fire hazard,
which an independent body determined did not exist. He countersued and won, they asked for a new
trial.
Holding: The high-handed conduct by the HOA was unreasonable
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Reasonableness Measure

NUISANCE
Restatement 2
nd
sec. 821D
1. Private Nuisance a non-trespass invasion of others interest in the use and enjoyment of land
2. Public Nuisance an improper interference with a right common to the public. In order for a private person to file
a public nuisance they must demonstrate a special injury apart from the injury alleged to the public at large

A. Private Nuisance
1. plaintiff must establish that the defendants conduct resulted in an (1) intentional, (2) nontrespassory, (3)
unreasonable, and (4) substantial interference with the use and enjoyment of the Ps land.
1. Intentional if D acts for the purpose of causing the harm or he should know the harm is substantially
certain to occur
2. Nontrespassory Not involve any physical entry onto the land (noise, vibration, light, odors)
3. Unreasonable Jurisdictions differ about the meaning of this element: 3 types
1. Gravity of harm test: the Ds conduct is unreasonable if it causes substantial
harm, regardless of the social utility of the conduct.
2. Restatement test: unreasonable if the gravity of harm outweighs the utility of
conduct.
3. Multi-factor test weighing factors, somewhere in-between both standards.
4. Substantial There must be a real and appreciable invasion of the plaintiffs interests
4. Interference Use and enjoyment of land The Ds conduct must interfere with the use and enjoyment
of land, e.g. causing physical damage to the property or personal injury to occupants (can be emotional
health, physical damage to prop, personal injury to occupants)
Standing: Owner in fee simple, tenant, or even an adverse possessor; NOT licensees, (in some jurisdictions tenant
may file a nuisance action against a landlord, but must show that nuisance is outside the property?) (in others actions
are barred).

B. Tests/Factors: RESTATEMENT APPROACH (GREVE CASE)
1. Gravity of Harm
a. Harm to plaintiff/property owner
2. Gravity of Harm v. Utility Test (p. 762)
a. FACTORS: Harm to plaintiff by invasion of use and enjoyment (827)
(a) Extent of harm involved
(b) Character of harm involved
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(c) Social value that the law attaches to the type of use or enjoyment invaded
(d) The suitability of the particular use or enjoyment invaded to the character of the locality
(e) the burden on the person harmed of avoiding the harm
b. FACTORS: Utility of activity causing harm to plaintiff(828)
(a) the social value that the law attaches to the primary purpose of the conduct
(b) suitability of the conduct to the character of the locality
(c) impracticability of preventing or avoiding the invasion
3. Blend of the Two

C. Remedies/Damages
1. Injunction- Traditional remedy for nuisance
2. Permanent Damages (Atlantic Cement Case)
a. Past and future damages
b. Precludes future recovery by plaintiffs or their grantees
3. Negligent Infliction of Emotional Distress


Boomer v. Atlantic Cement Co., Inc. (Ct. App. NY 1970) (Permanent Damages, Cement Plant)
Facts: Cement plant caused a nuisance to neighbors; a car dealership had cars paint hurt due to the
dust, a private home had cracks in the walls due to blasting at the plant. The court becomes faced with
the issue of fleshing out the larger public concern, air quality, or acting on the private suits now.
Analysis: To bar the injunction on the basis that the plaintiffs injury is relatively small compared to the
scale of the operations and the economic impact of the closure would force the court to disregard
precedent that stipulates that whenever prima facie case is made injunction should be granted.
RULE/Holding: For P, but no injunction. Did get Permanent damages are allowed where the loss
recoverable would obviously be small as compared with the cost of the nuisance. Permanent damages
issued and the recovery becomes triggered by the servitude on the land.
Dissent: Nature of pollution is particularly bad; discomfort with the notion that the court is licensing the act of causing
a nuisance. Eliminates incentive to mitigate wrong

Spur v. Del E. Webb (Note c. P 758) Coming to the nuisance
Facts: people didnt like smell coming from feed area
Hold: Ct issues injunction saying that they will only enforce if the people pay defendant
relocation/abatement costs. Nuisance only occurred because people moved there


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Thomsen v. Greve (Ct. App. NB 1996) (Chimney Smoke, Cost-Benefit Analysis)
Facts: Neighbors had a falling out, subsequent to that, the Ds started burning wood for heat. P sued b/c
offensiveness of the odor and it made it difficult to live in their home.
RULE: Court uses restatement approach first gravity of harm factors:
Extent of the harm involved; the character of the harm involved; the social value of that the law
attaches to the type of use or enjoyment invaded; the suitability of the particular use or
enjoyment to the character of the locality; the burden on the person harmed of avoiding the
harm.
Court then looks at utility of conduct factors:
The social value that the law attaches to the primary purpose of the conduct; the suitability of
the conduct to the character of the locality; and the impracticability of preventing or avoiding
the invasion.
Holding: For P. Harm to P greater than utility of using stove. The facts supported a nuisance finding, and it must be
abated



LAND USE REGULATION: ZONING

ZONING
Rule/Euclid Standard: Police powers of the state/govt to enact ordinances to reasonably control land use for
protection of general health, safety and welfare (Euclid)

A. Standards of Zoning Reviews
1. Euclid/Rational Basis Test/Legislative Deference
i. having no substantial relation to the public health, safety, morals, or general welfare."
ii. Must be related to substantial advancement of legitimate government interests
a. Range of interests: Economic, residential, quiet enjoyment
iii. Give legislature huge amounts of flexibility- very low standard
2. Strict Scrutiny- Equal Protection
i. Was law adopted for purpose of exclusion of protected class or group of people?
ii. Grandma case


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B. TEST for Injunction Against Euclidian Zoning
1. First, whether some parts might be arbitrary and unreasonable.
2. Second, whether there was irreparable injury.

C. Typical zoning ordinance has two basic components:
1. the text of the ordinance; and
2. maps that implement the ordinance
3. Minority View: require that the ordinance and map be consistent with the comprehensive plan of the city
a. usually bars post facto implementation for already legal uses (nonconforming use)

D. Statutory Suits
1. Effect v. Purpose
a. What is the effect of the statute? If discriminatory invalid

E. Conditional Uses
1. Uses permitted as a matter of right
a. dont have to seek permission to use/build
2. Barred Uses
3. Middle Ground
a. use is permitted in some are of zone, other use not permitted


Village of Euclid v. Amber Realty Co. (US 1926) (THE GRANDDADDY)
Rule of Law: The ordinance must find its justification in some aspect of the police power, which is
asserted for substantial relation to the public health, safety, morals, or general welfare.".
Facts: The Ambler Realty Company/Appellee owned 68 acres of land in the village of Euclid and the
village council (def) passed a zoning ordinance dividing the village into several districts. The ordinance
defined the use and size of buildings permissible in each district. Ambler Realty's land spanned multiple
districts, and the company was therefore significantly restricted in the types of buildings it could
construct on the land.
Ambler claims: ordinance violated the Fourteenth Amendment's protections of liberty and property
described in the Due Process and Equal Protection clauses.
a. Def had no rational basis to pass this legislation considering the negative impact it
would have
b. Appellee challenged the enforcement of a zoning ordinance on the ground that the
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enforcement would constitute an unconstitutional taking by devaluing his land.
PH:A federal district court agreed and issued an injunction against enforcement of the ordinance.
Issue: Was the zoning ordinance unconstitutional?
Held. No, For Euclid. The decision of the lower court is reversed. The ordinance must find its justification in
some aspect of the police power, asserted for the public welfare. The line, which separates the legitimate from
the illegitimate exercise of power is not capable of precise demarcation. The court will use the doctrine of nuisance to
determine if the zoning ordinance is legitimate.
Rational Basis Test
i. Provisions are unconstitutional only if such provisions are
clearly arbitrary and unreasonable, having no substantial
relation to the public health, safety, morals, or general
welfare."
ii. Give legislature huge amounts of flexibility
Judicial Deference
i. Given the law's valid basis, the Court found that, although its
enforcement may ultimately cause some degree of hardship to
P/Amber, it could not overturn the ordinance based solely on:
"the broad ground that the mere existence and
threatened enforcement of the ordinance, by
materially and adversely affecting values and
curtailing the opportunities of the market, constitute a
present and irreparable injury."
Like a pig in a parlor pg 762

MT LAUREL Cases (NJ): Discriminatory Zoning
1. Town must provide fair share of regions demand for low income housing
2. Zoning cannot be used to keep out poor
3. But required to build low cost housing

Amortization & Nonconforming Use
A. Non-Conforming Uses (NCU) in Zoning

1. Use of property consistent w/ ordinance at one point in time, but organization amends the ordinance use no
longer conforms to amended ordinance; BUT ARE ALLOWED TO CONTINUE USE ANYWAY

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B. Reasons to allow NCU
1. Economic and Development
a. No one would develop if zoning rules were subject to regular change
2. Unconstitutional
a. Disallowance of use would be challenged as unconstitutional
b. Might be viewed as a taking against 5
th
amendment
3. Prosperous/Monopoly
a. If allow old business to stay, but new similar ones cant open gives nonconforming uses a
monopoly within zone
4. Some Juris:
a. Can transfer one non-conforming use to another
b. Give zoning regulators more power (AVR case; amortization provisions)
i. Enable regulators to push businesses out much shorter than expected or is reasonable


C. Terminating NCU:
1. Amortization
2. Destruction/Act of god: destroyed by act of god no right to rebuild nonconforming use
a. Some juris require total destruction
b. other require 50% FMV destruction
3. Abandonment
a. Some jurisdictions dont require intent to relinquish right to use
b. Sometimes just non-use w/o intent is abandonment
c. Some length of time of abandonment- 30 days 2 years
d. 2 prong test
1. landowner intends to relinquish his right to use
2. voluntarily ceases the use for a set period of time varying by juris
4. Discontinuation
5. Nuisance: if use becomes a nuisance
6. Eminent Domain

D. NCU and Vested Rights
1. Problem: Zoning changes before project is completed
2. Property owner is protected to continue operations via vested rights IF:
a. Property owner has already acquired necessary permits
b. Spent a substantial amount of money in good faith reliance
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E. Amortization
1. gradual elimination or phasing-out of nonconforming use.
2. Factors of Consideration for Amortization (p.784)
a. AVR FACTORS
i. How much value an asset has in the remainder of its useful life
ii. Depreciation of the asset
3. Amortization Periods
a. Industrial facilities: 20-40 years
b. Commercial: 30 days 7 years
4. Compensation and Amortization
a. No compensation for those being shut down
5. Valid amortization Factors to consider
a. Is the amortization a product of spot zoning?
b. For those who complain about a business within a zone:
i. Are the residents within the zone: if yes have legal weight
c. What is availability of other viable location/burden of moving?
i. If reasonably available alt. short amortization period


AVR, Inc. v. City of St. Louis Park (Ct. App. MN 1999) (NCU & Amortization- Cement Plant)
Facts: The city had conducted an amortization plan to convert area to residential (p. 783). City
adopted a plan, which rezoned and phased out the P/concrete plant, among other industrial items,
so that the area could be used for high density residential use. P objected, said it was
unreasonable and constituted a taking. City argued that because the plant had gained a sufficient
return on its investment that its useful life had run and that it should be closed.
a. Used a combination of (1) recoupment of investment and (2) tax
depreciation status as factors in determining the useful life for the plant.
b. In establishing the amortization period for the plant, the city considered each
of the 8 factors (p. 784) in its amortization ordinance and its findings regarding
those factors were supported by record.

Plaintiff argues:
Violates due process
Violates right to equal protection
Violates vested rights by eliminating legal use
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Constitutes and unconstitutional taking
RULE: two factors provided the city with a reasonable basis. legislative deference. Zoning
ordinance was not disparate treatment of similarly situated property owners

REZONING: Rigid or Flexible
The Standard State Zoning Enabling Act: (1) the amendment, (2) the variance, and (3) special
exception allows for changes to the city plan

1. Rezoning/Amendments
A. Rules of Rezoning
1. Supposed to be infrequent
2. Legislative deference
3. Cant be inconsistent w/ zone plan
4. Presumption of reasonable action unless those opposing rezoning can prove the rezoning was arbitrary and
unreasonable
a. Same standard as new zoning rules
5. Neighborhood Plans
a. If there is a comprehensive plan zoning MUST be consistent with plan
i. Exception in Smith plan was an advisory guide
6. Referendum to the Voters
a. Some zoning or rezoning ordinances must be subject to voter approval
a. Policy for not submitting to voters:
i. not every issue to voters b/c of Time and cost.
ii. Voting on every issue could block beneficial projects

B. Concerns of Rezoning
1. Frequent rezoning would undermine purpose of zoning
a. Threatens goal of comprehensive land
i. could become meaningless
a. Creates heightened risk of governmental corruption
i. creates economic incentive to influence rezoning outcomes through bribery or other
influence
a. Disparate Treatment
i. Spot zoning- rezoning of certain area that is unrelated to zoning of surrounding area
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C. Spot Zoning:
1. invalid b/c it amount to an arbitrary, capricious, and unreasonable treatment of a limited area within a particular
district
2. UNLAWFUL spot zoning exists when: (p. 796)
a. Singles out a small parcel of land for different treatment
b. Primarily for the benefit of the private owner, rather than the public- Smith Case
c. Use is in a manner inconsistent with the general plan for the community; or use is inconsistent
with general use of area and
3. Inverse Spot zoning: TRY to cause detriment to person/property being singled out (unlawful inverse spot zoning)

D. Rezoning Standards & Tests
1. Euclid Standard
a. No substantial relation to public health, welfare and safety, morals
b. Arbitrary Definition p. 792
2. Rigorous Euclid Test
3. Quasi-Judicial Standard of Review
a. Heightened standard of review
i. Higher than Euclidian review
i. Gives court much more scrutiny to review admissibility of zoning/rezoning
b. Applies to specific claims of spot zoning
i. Oregon- very serious about this
ii. Florida- more exacting, not required for legis to make finding of FACT
4. Change Conditions Test
a. Valid rezoning if: Conditions in particular zone have changed in substantial way
5. Mistake Doctrine
a. Valid if: A mistake was made in the original zoning ordinance

Smith v. City of Little Rock (SCAR 1983) (Rezoning, Spot Zoning, WENDYS!)
Facts: City rezoned residential land to allow for the building of a Wendy's. Residents appealed
Plaintiff argument: Rezoning was against city plan and would have detrimental effects on the
residential properties in the area. [However there are already numerous fast food, liquor stores within 3
blocks of rezoned land]
Holding: The court uses the clearly erroneous standard (they further presume that the board acted in a
fair and just manner) - rezoning was not arbitrary or capricious, it was within the plan
Dissent: Cries foul, says that this was arbitrary b/c it is clearly spot zoning (amendments which
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single out a particular lot or parcel and place it in an area inconsistent with land use pattern); only
economic concerns were used...just build the Wendy's someplace else!


2. VARIANCE

A. Rules of Variance
1. Permission to department from literal requirements of zoning ordinance
2. Used to avoid unnecessary hardship; overcome costly physical/parcel obstacles; allow the spirit of the zoning
ordinance to continue.

B. 2 kinds of Variances:
1. Area variance
a. concerns problems of compatible use but ill-fit b/c of dimensions of property (Detwiler)
b. Practical Difficulties Test
i Requires that land cannot practically be used given the existing zoning, even if a
permitted use is theoretically possible
b. 2 prong test:
i. undue hardship (not self-imposed)
ii. Grant of variance wont diminish surrounding property values
2. Use variance
a. user wants to depart from list of appropriate uses that are permitted w/in CCRs
b. High bar: Very special circumstances/Strict Hardship
c. Some juris prohibit all together

C. Tests/Factors
1. Most States Use the PA Test in Detwiler (5 Factors p. 800)
i. unnecessary hardship
ii. unique to specific property seeking variance
iii. not self inflicted
iv. granting of variance not adverse, to health safety and welfare
v. variance sought is minimum variance that will afford relief

2. Unnecessary Hardship
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a. Characteristics of the property in combination with literal enforcement of ordinance would leave
the property practically valueless (Detwiler)

3. Boil Down Test
a. 2 part test
1. If not granted, will result in Undue Hardship for property owner?????
2. If granted, will still protect the public interest
4. Variance v. Zoning Amendment
a. Variance- quasi judicial
I. SEE REZONING sec D(3)
b. ZA- not necessarily quasi judicial

Detwiler v. Zoning Hearing Board (DCPA 1991) (Area Variance, Terminal Sterility, 5 factors)
Facts: Owners wanted to change the set back requirement of their house so they could build a house on
their lot. Their neighbors, P, contested the variance citing that it would cause harm to their historic
home!; Def/Owners Met all requirements, no counter argument save for P's own interest
RULE: 5 requirements/factors of PA law met. Without Variance house could suffer terminal sterility
It is zoned residential/agricultural; the set back prohibits P from using his lot for one of its intended uses that is a de
facto hardship. Def sought dimensional variance.


AESTHETIC REGULATION
A. Rules
1. Aesthetic factors can be constitutional and valid factor in zoning
2. CANNOT BE SOLE FACTOR for regulation
a. Euclid standard: legitimate purpose

State ex. rel. Stoyanoff v. Berkley (SCMO 1970) (Pyramid House)
Facts: Plaintiff who wanted to build an ugly pyramid house. When they applied to the Architectural
Board for a building permit, the Board turned down their application. The Architectural Board was
authorized by a city ordinance to approve plans and specifications of designs.
Plaintiff argument: outside the aesthetics the house complied with all other requirements (height,
setback requirements, etc.). The ordinance relates to an unauthorized delegation of power. Nothing in
the ordinance allows them to evaluate a permit under aesthetic criteria (precedent).
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RULE: statute interpretation allows aesthetics to be considered when those designs impact the community. They
would like to make it about economic impact, but in reality they reaffirm the merit of basing permits on aesthetic
criteria.
NOTES: Arch. Board considered impact on property values (EUCLID Standard)

City of Ladue v. Gilleo (US 1994) (Home Protest Signs and First Amendment Rights)
Facts: A City of Ladue ordinance prohibited homeowners from displaying any signs on property except
for residence identification, for sale signs and signs warning of safety hazards. P tried to regulate the
political protest signs Def put up in her home.
RULE: Ordinance that was blanket prohibition on signs was a content-based restriction that abridged
homeowners First Amendment rights. It was not a time, place and manner restriction because there
was no viable substitute for this unique medium of expression.
Holding: The ordinance is an unconstitutional abridgement of 1st Amendment constitutional rights. The regulation
treated commercial speech more favorably than non-commercial speech and totally foreclosed a means of
communication with a sweeping definition of signs.
Discussion. A local government can regulate the physical characteristics of signs that pose public problems by
obstructing views, displace alternative use and distracting motorists.

GROWTH CONTROLS AND EXCLUSIONS
Cannot be over/under inclusive.
-overly restricting too many people. Or singling out a group of people.
Associated Home Builders of Greater Eastbay v. City of Livermore (SCCA 176) (NO
BUILIDNG MORATORIUM, Heightened Euclid)
Facts: Def enacted a no building moratorium ordinance and didnt allow any NEW apt buildings until 3
requirements met. P, housing dev Co. sued to enjoin.
1. Educational Facilitiesno double sessions in the schools or overcrowded classrooms as
determined by the California Educational Code.
2. SewageThe sewage treatment facilities and capacities meet the standards set by the
Regional Water Quality Control Board.
3. Water supplyNo rationing of water with respect to human consumption or irrigation and
adequate water reserves for fire protection exist.
Issue: Is an initiative ordinance enacted by the voters of this kind valid?
Is the said ordinance unconstitutionally vague in that it does not contain sufficiently specific standards for
the issuance or denial of building permits?
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Does the ordinance unconstitutionally attempt to bar immigration to Livermore?
Holding: For Def. Applied Euclid Standard. The ordinance affects everybody, not selective.
NOTES: Deviates from normal application of Euclid Standard (HEIGHTENED)
Differences from Traditional Euclid:
1. When will the city improvements be made to justify the moratorium
and have a timeline to lift the moratorium?
2. ID relevant policies and did legislature fairly balance them?

FAMILY ZONING

A. Tests/Elements
1. What interest is the ordinance trying to serve?
2. Does the ordinance do a good job in vindicating those interests?
3. Standards will either validate or invalidate those interests
4. Over-inclusive
5. Under-inclusive
a. People would be permitted to do something would actually cause more issues than those who
were not permitted to do something

B. Standards of Review/Tests
1. Rational Basis Test/Euclid
a. Is it a legitimate government interest?
i. legit govt interest: promoting health, safety, morals, general welfare of community
b. Will ordinance actually accomplish its purpose?
i. Ordinance valid unless relationship btwn classification and purpose of it is so weak, the
classification must be viewed as arbitrary or capricious
c. Ordinance DOES NOT have to be narrowly tailored (AMES)
2. Equal Protection/Strict Scrutiny
a. If answer no to below questions. Then no strict scrutiny
i. Any suspect class attacked by ordinance?
ii. Is there a fundamental right infringed upon?
3. Combo Test (AMES-dissent)
a. Over-inclusive
i. affects too many people
b. Under-inclusive
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i. unreasonable narrow, singles out a particular group
4. Moore Test (diif from Belle Terre)
2 prong test:
1. is there an important govt interst?
2. Extent that interest is served by ordinance?

C. Precedential Cases
1. Village of Belle Terre v. Boraas (SCOTUS)
FACTS: Family zoning ordinance upheld as constitutional against due process and equal
protection attacks
a. Aimed to prevent local college kids from living together
b. Defined family as 1 or more persons related by blood, adoption or marriage and up to
2 unrelated persons
RULE/HOLD: Valid. USED Rational Basis/Euclid Test
i. served legitimate municipal purpose
ii. ordinance says who cannot live together valid
Dissent: argued to apply a strict scrutiny test

D. Remedy- Injunction
Moore v. City of East Cleveland (US 1977) (Grandma cant live with family, STRICT SCRUTINY)
Facts Def had ordinance limiting family (see footnote 2), and it made it illegal for P, grandma, to live
with her grandsons in her home b/c she lived with her sons. She received a notice of violation that one of
her grandsons was an illegal occupant
Defendant Argument: Belle Terre set the precedent that a community ordinance could define who can
live together. Purpose was limit traffic, overcrowding of school system and area, etc.
HOLD: For P. Ordinance ripped apart family unlawfully and family is a core American value.
RULE: Belle Terre bore a rational relationship to permissible state objectives When an ordinance
divides family, CT will not give usual deference to legislature. Apply strict scrutiny
Pub POLICY: Constitution protects sanctity of family- national tradition
NOTES: this ordinance defined what a family is invalid.
a. Belle Terre and Ames defined as what it is not valid

Ames Rental Property Association v. City of Ames (SCIA 2008) (ISU College Students)
Facts: Def Passed a single family zoning ordinance as well as one that stated what a family is not
(related persons, or no more than 3 unrelated persons) to stop college students to moving into certain
areas. Plaintiff is landlord association and sued to enjoin.
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Plaintiff argument: That ordinance defining family violates equal protection of IA and Federal
constitutions. That the SCOTUS would reverse Belle Terre if given the opportunity.
HOLD: For Def. Ordinance served a legit public interest. Quiet enjoyment is legit.
RULE: Belle Terre is still good law, freedom of choice of residence is not fundamental interest entitled
to highest constitutional protection therefore lens of rational basis.
a. Goals of quiet neighborhoods, low traffic, that are safe for children, are valid goals.
b. Judicial Deference: can legislate based on life observations.
Dissent: Ordinance is over and under inclusive. Affects too many people, old and disadvantaged. Also,
Students dont drive cars, so traffic concerns are not rational basis. 20 males in a seminary could be
quiet neighbors, so quiet is not rational basis. Whose community is the ordinance promoting?



Eminent Domain

A. Rule:
1. Government can take title in someones property as long as it:
a. Elements
1. Is taken for public use; and
2. Just compensation is provided
b. Entity Holds Power to Take
1. Fed Govt, State Gov, Municipal Govt
2. Public universities
2. The Framers viewed the eminent domain power as an inherent attribute of sovereignty.


B. Limits of Eminent Domain
1. Not limited to property
2. Can include businesses

C. Defining Public Use:
1. Public Use can be qualified as 2 ways:
a. Narrow
i. Use must literally be for publics physical use
b. Broad (Similar to Euclid/Rational Basis)
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i. must be rationally related to public benefit.
ii. Kelo- Possible Economic enhancement of area.
iii. Hawaii Housing Authority (combo)- property values expected to decrease by taking
property.


D. Just Compensation
1. What is Just Compensation?
a. Fair Market Value- what a willing buyer would be willing to pay for similar property in similar
area
2. Measuring Market Value
b. Objective (comparable nearby sales)
c. Severance Damages (use of taken land renders remaining property less valuable)
i. If only a portion is condemned, owner gets comp. for severance damage to remaining
land
3. Critiques/Not included in Compensation
a. Doesnt include other damages
i. Consequential damages (moving expenses)
ii. Subjective or emotional attachment
iii. Added Compensation for elderly or poor
iv. Ongoing businesses
1. No damages for loss of goodwill
4. High End Property Owners
a. Compensation: Usually receive Market value-Plus
i. Higher worth people have resources to litigate, so property owners want to settle

E. OTHER TESTS:
1. Reasonable Return
a. If landowner is left w/ reasonable return on investment NO TAKING
2. Diminution in Value
b. If landowner left w/o reasonable return on investment TAKING

F. Standards of Review for Public Use Eminent Domain
1. EUCLID/Rational Basis/Legislative Deference
a. any conceivable purpose purpose not mechanics
i. Low bar
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ii. Legis deference
2. Kelo
a. Valid Public-use = private benefit and indirect public benefit
b. Needs:
i. Economic plan
c. Not needed: Economically blighted area

G. Exceptions to Public Use/Eminent Domain
1. Private party benefit
a. Forbidden from taking land for purpose of conferring a private benefit on a particular private
party w/o public use
2. Cannot have but mere pretext, must have carefully considered plan

H. State Statutes
1. State govs and municipalities can heighten standards for public use
2. MUST provide at least as much protection for property owners as federal Takings Clause requires
3. BUT CAN PROVIDE MORE PROTECTION

I. Future Interest and Eminent Domain
1. If vested interest, possible/likely compensation

J. Eminent Domain by Non-Governmental Parties
1. Many states allow nonprofits or regulated industries to have eminent domain powers
2. Sometimes an owner of a landlocked parcel can condemn a private easement- Easement by necessity

K. Undermining Euclid Policy
1. Vote people out of office, use political process

Berman v. Parker (DC Case; LEGISLATIVE DEFERENCE)
Facts: condemned blighted property in DC for use of streets, public schools and other public
facilities. Sell remainder to private parties for redevelopment and low cost housing
Rule: Upheld as valid; Standard: Legislative Deference: plan MUST be evaluate plan as a
whole, not piecemeal

Brothers Bar Case (Madison) (Just Compensation Issue)
Facts: UW Madison was delegated eminent domain power and took the bar
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Issue: (1.) was taking for public use? (2.) Would it set a bad precedent allowing UW to take whatever they
want?
Just Compensation Issue:
o UW offered $2.1M + $150k in relocation
Old Home Case:
Assessed value at $2.1M, offer from city was $1.1M
In using comparable sales, not supposed to use forced sales (foreclosures, auctions, etc.)
o Use willing buyer market value

Hawaii Housing Authority v. Midkiff (Taking for Public Use, Direct Benefit)
Rule: Any conceivable, rationally related public purpose justifies the exercise of eminent domain
a. Standards of Review: 2 approaches
1. Berman- Legislative Deference
2. Purpose not mechanics- purpose (ends) is important not the means
Facts: privately owned land owned by few people and the homes on the land were leased out by title
owners created inflated property values
a. Legis created act to condemn land and transfer/forced sale land in fee simple
Hold/Reason: For P. Taking by HHA was for public use/ direct public benefit, meant to bring values down
Notes: Public use requirement is coterminous with police powers
-Broad reading of public use requirement
-Promote health, welfare and of city/area/public

Kelo v. City of New London (Pfizer; Indirect Public Benefit/Use, CHANGES THE GAME)
Rule: Expansion of public use to private benefit and speculative public benefit is justified as public use
even for economic purpose if one property is not being used for its highest economic use
a. Rational Basis Standard- any conceivable purpose
b. The concept of the public welfare is broad and inclusive the values it represents
are spiritual as well as physical, aesthetic as well as monetary
c. Judicial Deference: Legislatures determination that area was sufficiently distressed to
warrant rejuvenation deserves the courts deference.
Facts/Issue: City wanted take giant parcel of private land/homes to give to Pfizer IN THE HOPES THAT it
would increase surrounding economic development
Issue1: Does taking qualify as a Public Use if only purpose is economic development?
Issue2: Also, is it justified if condemned area/property is not blighted?
Hold/Reason: For Def. The possibility that use would benefit public and majority of public not against it
made it legal. USED Low Standard by Euclid
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HOLD/Reason2: Blighted or not doesnt matter here. Its about using to maximally serve public.
Dissent: In Berman and Midkiff it was okay because each taking directly achieved a public benefit, it did not
matter that the property was turned over to private use. Basically the courts decision, neuters the for public
use requirement.
Notes: This case led to many state statutory reforms.
i. States can place further restrictions to define/narrow public use
a. Must be at minimum consistent w/ Constitutional Takings Clause
b. Footnote: CA has stricter constitutional standard (only takings in blighted areas)
c. Number of states enacted laws that said eminent domain only pertains to blighted
properties.
d. Other states acted to require the term blight to be defined very specifically, and only if
it met those requirements could eminent domain apply.
e. Other states said you have to do a blight analysis by a parcel by parcel analysis.

City of Norwood v. Horney (Ohio) (Post Kelo and Counter to Kelo)
--RULE: Heightened scrutiny standard when reviewing statutes that authorize eminent domain powers. Economic or
financial benefit, standing alone is not sufficient to satisfy public-use requirement.
a. Eminent domain is a power of last resort of the good of the public

Regulatory Takings

Property owner still owns and possesses property but, regulation by govt that causes severe reduction in (1) value or
(2) economically valuable use of property = TAKING. Owner must be compensated (Exception: noxious use)

A. 3 Categorical Rules of Regulatory Taking
1. Penn Coal v. Mahon (Nuisance no compensation)
a. Does regulation attempt to abate a nuisance? Is nuisance present?
i. Nuisance abatement shields gov from regulatory taking claim even if property stripped
of 100% of its value
2. Loretto (favors property owner)
a. Permanent physical occupation = taking (doesnt matter how big or how small) STRICT
LIABILITY
3. Lucas (favors property owner)
a. If deprived of 100% of value and not supported by nuisance or other background property law
TAKING
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B. Tests in Majority of Cases
1. Penn Central 3-Part Test (USE THIS)
Ad hoc factual inquiries the test
(1) Economic impact of the regulation on the claimant (similar to Penn. Coal Diminution of value
test)
a. Usually measured by diminution of market value
(2) Interference w/ investment baced-expectations
a. what were the owners reasonable expectations when he invested in the property
(3) character of government action
a. whether there was a physical invasion by the governmentwhen interference arises
from some public program adjusting the benefits and burdens of economic life to promote the
common good


2. Pennsylvania Coal Co:
(a) Freedom of K
(b) Diminution of Value Test- does it go too far

3. Transferable Development Rights (Penn Central)
a. compensation to be weighed against a finding of regulatory taking.
b. Allows for developer to use rights removed from one property to develop another against a similar
restriction somewhere else.

4. Average Reciprocity of Advantage (Penn Central Transportation)
i. All property owners in a designated area are placed under the same restrictions, not only for the
benefit of the municipality as a whole, but also for the common benefit of one another.


D. EXCEPTION: NOXIOUS USE/PUBLIC USE TEST (PENN RR v. Mahon)
1. If regulation is made to abate a nuisance/noxious use no taking & No compensation

2. Mugler v. Kansas: Def imposed ban on production of alcohol, P claimed it rendered his Co. and land usesless
RULE: a regulation/prohibition regulation, if reasonably related to a valid public interest, simply upon the
injurious use of property to public, cannot be deemed a taking. Even if it diminishes property value to zero.

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3. Hadacheck v. Sebastian: LA ordinance prohibits P from manufacturing bricks b/c it emitted fumes & smoke. Profit
fell 800k to 60k.
RULE: Ct upheld as valid: legislative deference; police power is one most important powers of state and is
not very limitable

E. Constitutionality and Regulatory Takings
i. Is regulation Consitutional?
ii. If regulation is not constitutional, then taking
iii. If it is Constitutional, can still be taking change regulation or provide just compensation.

F. Post Penn Central tests for regulatory takings
1. Loretto: If government authorizes a permanent physical occupation of land;
2. Lucas: If government adopts a regulation that causes the loss of all economically beneficial or productive use of
land, unless justified by background principles or property or nuisance law; or
3. Exaction: if government demands an exaction that has no essential nexus to a legitimate state interest or lacks
rough proportionality to the impacts of the particular project


G. Remedies of Regulatory Takings
1. Compensate property owner
2. Terminate regulation
a. Also pay for damages incurred while regulation was in effect

H. EXACTIONS:
1. Limits on Extorting developers for permits, easements, etc. - Supreme court has developed a number of rules that
limit the extortion that city ordinances can use
2. Essential Nexus test -Nollan v. California Coastal Commission there must be an essential nexus between the
permit cost/purpose and the harm sought to be prevented by its requirement.
3. Proportionality test Dollan even if there is an essential nexus between harm and requirement, the severity of
the requirement must be in proportion to the likely harm of the use/area variance

I. Other Tests
1. Reasonable Return
a. If landowner is left w/ reasonable return on investment NO TAKING
2. Diminution in Value
b. If landowner left w/o reasonable return on investment TAKING
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Pennsylvania Coal Co. v. Mahon (SCOTUS 1922) (Regulatory Taking: Coal Case, Diminution of
Value, Nuisance Exception)

Rule: When a regulation goes too far Regulatory Taking
a. A good way to determine what too far is, is the diminution of value test
i. considers the financial impact of the regulation on the value of the property.
b. Dissent (BRANDEIS): Advocated the noxious use test
Aftermath: Modern courts seem to agree with Brandeiss interpretation
Facts: Property owner brought suit to prevent Coal Company from mining under his property. But deeds conveyed
only gave surface land to P and expressly reserved Def right to remove the coal underneath.
a. BUT, State law, The Kohler Act prohibited companies in Pennsylvania from mining of coal in
such a way that Def wanted to mine on Ps land
Issue: was statute permissible under police power or was it instead a regulatory taking under eminent domain from
Def?
Hold: For Def (Coal Co.); regulation went beyond a regulation and constituted a taking (no mining allowed)
a. The Court considered the magnitude of diminution of the value of property and found that when a
diminution reaches a certain point the government must compensate for it.
b. Reg prevented Coal Co. from exercising K rights
Dissent (Brandeis): legislature should have the power to prohibit use of land that seriously threatens public welfare
without any just compensation and would be a public nuisance.
a. Noxious Use Test: a prohibition simply upon the use of property for purposes injurious to health, morals,
or safety of the community, cannot be deemed a taking


Penn Central Transportation Co. v. City of New York (SCOTUS 1978) (Tenant of Penn Station
not allowed to build on top of it b/c of law, To benefit the public)
RULE: Did not constitute a regulatory takingthe law did not allow the government to physically occupy
the property and owner still had it. It also, still had value (reasonable return test). therefore no taking.

Facts: New York City passed Landmark Preservation Law in 1965 to protect historic buildings in the city.
The owner of Penn Station then leased the building to new tenant who wished to build a
skyscraper on top or in place of the station. The city refused to approve the permit, citing the new
law. The owners filed suit claiming regulatory taking without just compensation. Appealed to the
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Supreme Court who dealt solely with the takings aspect.
Analysis: Ad hoc factual inquiries the test
(1) Economic Impact (similar to Penn. Coal Diminution of value test); (2); investment-backed
expectations; (3) character of government action.
HOLD: The CT looks at impact of reg as a whole & refuse to separate parts of a property. (CT rejects
Conceptual Severance Theory). Airspace is part of a whole and cannot be taken independently
from other aspects of the propertyergo, because the government did not physically occupy any
part of your property, who still have it, no taking has occurred. The court rejects finding a taking
solely due to inequitable effect on land owners of a regulation (regardless of severity).
a. Average Reciprocity Benefit Test/Disparate Impact: Braunstein (lawyer)
doesnt buy the argument that theres average reciprocity of advantage here.
Not everyone has same restrictions and benefit.
--Penn Central gets to enjoy their building and see how pretty it is just
like everybody else in New York. They also get the benefit of the 400
landmarks located around New York. This argument strikes Braunstein
as somewhat facile: Penn Central is bearing a huge cost that nobody
else has to bear.
--The Court says, however, that everybody in the city benefits, and thus
there is average reciprocity of advantage. Also with such regulations
there will always be some disparate treatment.
Economic Impact; Investment-backed expectations; Character of govt action:
DISSENT: TDRs dependent on them being valuable. Majority says P had TDRs.


Loretto v. Teleprompter Manhattan CATV Corp. (US 1982) (Regulatory Physical
Occupation = Taking; BLR)
RULE: A permanent physical occupation (regardless of size or public benefit) is a
takingcompensation!
a. This regulation/taking cuts across entire bundle of sticks, not just one
stick
Issue: whether a minor but permanent physical occupation of an owners property by Def, which was
authorized by government constitutes a taking? (YES, for P)
Facts: New York law authorized cable television company to install components on Ps property, who
cannot interfere and cant demand payment. The landlord may require Def or the tenant to bear the
cost of the installation and to indemnify for any damage caused. The compensation was determined
by City. The NY courts did not classify as a taking, SCOTUS reversed.
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Plaintiffs arg: Cable was a trespass and the NY law constituted a taking without compensation
Defendant Arg: It served a public purpose (community benefit and educational); it was barely if at all a
physical occupation; it did not have a negative economic impact on property
Dissent: (BLACKMUN, BRENNAN, WHITE): majority reduces takings question to whether or not the
physical occupation is temporary or permanent, not a good reduction.
a. Proffers that the test remains, not only whether the state has interfered in some way
with an owners use of space, but also whether the extent of the States interference is so
severe as to constitute a compensable taking in light of the owners alternative uses for
the property.

Prune Yard Shopping Center: Protesting at shopping mall. Owners of mall said statute allowing protests at mall
was a permanent physical occupation. Ct said no, b/c inviting general public allows for free speech/protesting at mall.


Lucas v. South Carolina Coastal Council (US 1992) (Total loss of value or use of property from
Regulation, 100% Rule)
Facts: P, Developer bought parcels on the ocean, then SC passed a preservation law which prevented
the developer-plaintiff from building permanent structures on parcels essentially reducing the value
from $1 million down to zero.
Defendant argues: That the SC Law was properly and validly designed, that when a regulation
respecting the use of property is designed to prevent serious public harm no compensation is owed
regardless of the economic effect on the owner. (Penn Coal Arg.)
Issue: Does destroying all economically viable use of property by regulation constitute a taking that
requires compensation?
Analysis:
RULE: Regulation that destroys ALL/100% economically viable use will be considered a taking (pay
up) unless rooted in background principles of State law nuisance or state property law.
IF LESS THAN 100%, THEN BACK TO PENN CENTRAL TEST
Background principles
Public Trust Doctrine : Peoples property rights more important than
court looking for new nuisance laws.
Dissent (BLACKMUN): Doesnt like any of it; law didnt prohibit all economic use of land
Dissent (STEVENS): Dislikes the all or nothing aspect of takings (95% taking and the owner doesnt
recover, thats BS!)

Lucas is a Per Se rule. Valuable to have per se rule b/c if it works, Govt has no retort.