Real and Personal Property Distinctions

Acquisition and Loss of Right or Title to Personal Property

I. Ownership—actual or constructive dominion and control over
property and intent to assert ownership
A. Wild animals
1. If trespasser kills on another’s land, animal is
landowner’s.
2. Mere pursuit does not constitute dominion and control
sufficient to give possession to the hunter
3. Give up possession if trap and kill/mortally wound,
then abandon pursuit
B. Human tissue
1. Individual does not have legal protectable property
interest in own body and its products, product removed
from body, cellular material excised from the body, or
cells removed from the body
II. Lost, Mislaid, and Abandoned Property
A. Concept—owner does not give up title when property is lost
or mislaid, only through intent to relinquish title does the
owner abandon
1. Lost property
a. Accidently and involuntarily parted with
possession
b. Dependent on where property was found (i.e.
wristwatch found on floor would be lost)
c. Can become abandoned if stop searching
d. True owner has best title
e. Non-trespassing finder has better title
2. Mislaid property
a. Intentionally placed property somewhere and
forgot where
b. Can become abandoned if stop searching
c. True owner has best title
d. Owner of premises has better title
3. Abandoned property
a. True owner intends to relinquish all rights to
the property
b. Non-trespassing finder has best title
c. Landowner has better title
 4. Treasure Trove
a. concealed gold, silver, or currency with the
appearance of antiquity, placed to be retrieved
later (**limited to these items only**).
B. Finders
1. Finders of lost property
a. Entitled to possession except against true owner
b. Possession is physical control with the intent to
assume dominion over the property
c. If finder is trespassing, possession transfers to
landowner (locus in quo).
2. Finder of mislaid property
a. Entitled to possession except against true owner
b. Owner of premises has better title
3. Finders of abandoned property
a. First non-trespassing finder has best title
b. Trespassing finder gives title up to landowner,
who has better title
4. Finders of treasure trove
a. Finder (trespassing or not) has best title
Treasure
Lost Mislaid Abandoned
Trove
Best title True owner True owner Non- Finder
trespassing
finder
Better title Non- Owner of Previous
trespassing premises owner
finder

III. Gift
A. Inter Vivos—an immediate, voluntary transfer of property to
another made gratuitously (no one is paying or getting
anything in return) and without consideration
1. Elements
a. Capacity—donor has mental state to make gift
and has the ownership to make the transfer of
ownership
 b. Intent—to make a present, irrevocable transfer
of ownership
i. Must be immediate and not future intent
ii. Intent can happen after delivery (keep
something you were borrowing)
c. Delivery
i. 2 ways
i. actual transfer of possession
(dominion and control) to the
point of no return
ii. Constructive/symbolic
1. Use piece of paper (joint
ownership)
ii. Completeness is based on the totality of
the circumstances
iii. Can happen before intent (someone
borrowing something)
d. Acceptance of donee
i. Presumed if donee accepts
ii. Has to want it
2. Replevin—action for the repossession of personal
property that was wrongfully taken or detained by D
a. want something returned to you
b. must show it is your property
3. Conversion—wrongful possession of another’s property
as if it were one’s own where one person is deprived of
the use of the property
a. give me damages
b. Must show it is your property (among other
elements)
4. Engagement rings
a. jurisdictional
i. treat as any other gift and cannot be
revoked OR
ii. conditional gift
i. What is the condition before
can determine ownership
1. Acceptance of proposal?
– acceptance of the ring
 a. Probably the same
outcome as
treating the ring as
a gift, but different
elements to prove
2. Occurrence of marriage?
b. Courts consider type of property, fraud,
conditions attached to the gift, and intent of the
donor.
B. Causa Mortis—given in contemplation of death Commented [LW1]: Did not go over this a lot.

1. Concept and elements

a. Present mental capacity
b. Must be property of donee
c. Delivery
d. Acceptance
e. Anticipation of death
f. Absence of revocation
IV. Bailments
A. Definition—temporary transfer of possession from bailor to
bailee for a specific purpose (i.e. dry cleaners)
B. Elements of bailment
1. Actual possession
2. Delivery of possession
3. Express or implied agreement between bailee and bailor
C. Bailment distinguished from other transactions
1. Intent of parties of property to be returned to the bailor
when the purpose of the bailment has been complete.
V. Adverse Possession
A. Definition - allows a non-owner who actually possesses land
without the permission of the true owner (i.e. the formal title
holder) to acquire ownership of that land
B. All elements must be must be met for the statute of
limitation period
C. Elements
1. Actual
2. Open and notorious;
3. Exclusive;
4. Continuous; and
5. Adverse and hostile
D. Actual
 1. Physically occupy in the manner an owner would make
of it
E. Open and notorious
1. True owner does not have to see it, but if owner was
diligent they would have
F. Exclusive
1. Sole possession, not joint possession with the true
owner or third parties
2. Exclude owner from dominion and control, but can
invite them on the property as guests
3. Exclude others, like a true owner would
G. Continuous
1. Uninterrupted possession of land as a true owner
would. Can still go to work or on vacation like an
owner would.
H. Adverse and hostile
1. Must possess the land against the interest of the true
owner and intend to remain on the land
2. Permission defeats a claim of AP
I. True owner’s state of mind
1. Did not give permission for use
2. Start with the presumption that the possession of
another’s real property is non-permissive
J. Adverse Possessor’s state of mind
1. Objective test;
2. Subjective intentional dispossession test; OR
3. Subjective good faith/mistaken belief test.
4. Objective test
a. Majority test
b. Don’t look into what the AP was thinking. All
that matters is that there was a lack of
permission.
5. Subjective intentional dispossession test
a. Disfavored because rewards wrong-dowers
b. AP aware they are occupying the property of
another and they intend to oust or dispossess
the true owner
6. Subjective good faith/mistaken belief test
a. Courts like this test
 b. AP has a reasonable belief they are the owner
of the property
K. Must be a trespasser
L. Only get the land actually possessed
M. Must prove to the court with clear and convincing evidence
you adversely possessed the land
N. SOL starts when the adverse possessor possesses the land
and does not restart if the true owner sells the land
O. Causes of action (can be raised as):
1. Defense to trespass;
2. Defense to ejectment; or
3. An action to quiet title
4. Defense to trespass – I now own it because of AP
5. Defense to ejectment – Owner has trespasser removed
6. Quiet title – court establishes who has the title to the
property
P. Tacking
1. Definition: add on successive period of adverse
possession by different trespassers if they are
continuous and have privity
2. Privity is where one adverse possessor purports to
transfer title to successor (puports to transfer because
title cannot be given as it is not theirs to give)
3. Cannot dispossess prior adverse possessor and tack
their adverse possession period
4. Only get land actually possessed
5. Relationship
a. Sold property
b. Heir (inherited)
6. Cannot dispossess the prior AP and then tack
Q. Color of title
1. AP acquires title when a written conveyance appears to
pass title, but does not do so. Claimant must meet all
elements to prove AP.
2. Defective deed
a. Person selling land does not actually own; or
b. Document lacks signature
c. Document contains a mistaken description of
the land it purports to convey
3. Unlike AP, get all the land described in the document
 R. Quiet Title
1. Community property state – requires both parties of
marriage must sign deed for it to be valid
VI. Improving Trespasser
A. Old Rule: property owner has the right to sell the land
improver ????
B. New rule: relative hardship
1. Court will weigh
a. If the encroachment is innocent;
b. The interference to the true owner; and
c. The cost to remove the improving structure.
2. Pay damages to compensate for the decrease in market
value of the owner’s land; or
3. The court can order a forced sale from the landowner to
the owner of the encroaching structure equal to the
value of the land taken.
VII. Right to Exclude
A. THE most important right of being a property owner
B. Helps show dominion and control over property, privacy.
C. Protects all other rights by keeping people from interfering
with rights of land use by owner
D. Trespass
1. Definition: the unprivileged intentional intrusion on
property possessed by another
a. Good faith or intentional trespasser
2. Harm is the infringement on the right of possession.
3. Privileged to enter without consent????
a. Consent
b. Necessity
i. Necessity to enter the property of another
without permission because it was
necessary to avoid danger (Hurricane
Katrina)
c. Public policy
4. Consent is a license and can be taken back.
E. Right to exclude
1. Not absolute
a. Non-owners of your land may have a right to
access your property
 2. Common carrier/innkeeper rule: owners have a duty to
provide reasonable access to the public, and can only
exclude with reasonable grounds OR
3. Amusement place rule: owners have an absolute right to
exclude, thus can arbitrarily exclude or eject any person
(not absolute because have to take civil rights laws into
consideration)
4. Balancing the right of access with the right to exclude
a. The more open a property is to the public, the
more likely they have a duty not to act in an
arbitrary or discriminatory manner towards
persons on the premises
b. Reason for coming on the property
c. Purpose of the invitation
d. Civil rights
VIII. Concurrent Estates

Tenancy in Joint Tenancy Tenancy by the

Common Entirety
Each tenant has the right Yes Yes Yes
to possess the whole
Equal shares Presumed, but Yes Yes
not necessary
Right of survivorship No, devised to Yes, rights pass to Yes (to spouse)
heir co-tenants
Benefit: Require consent No, if lease they No, if lease they Yes
to lease, sell property? have to share have to share with
with co-tenants co-tenants
Benefit: Entitled to invite Yes Yes Yes
others on property, even
without consent of other
co-tenants?
Burden: Duty to share in Yes Yes Yes
maintenance and upkeep
expenses
Burden: Duty to share in No, unless No, unless agreed No, unless
improvement expenses agreed upon upon agreed upon
A. Tenancy in common (TinC)
1. Presumption if no other tenancy is specified
B. Joint tenancy (JT)
 1. Formalities
a. Time, title, interest, possession
b. Must be created at the same moment in time
c. On the same title (document)
d. Of equal fractional interest of the property
e. Where all joint tenants have the right to possess
the entire parcel of land
2. Right of survivorship
a. Rights cannot be devised (passed to heirs)
b. Rights divide amongst remaining co-tenants
3. Severance and Conveyance
a. Joint tenant who transfers property interest
destroys the joint tenancy because the
formalities are not met, destroying the right of
survivorship between them and the other co-
tenants BUT not between all the other co-
tenants
C. Tenancy by the entirety (TbyE)
1. Type of joint tenancy
2. Must be married at time land is bought
3. Property can only be partitioned through divorce
proceedings
4. Individual interests cannot be sold, transferred or
encumbered by debt without the consent of the other
spouse
5. Right of survivorship
6. At creation
a. Held by parties who are married
b. Own whole not percentage
c. Four formalities of JT are established
d. Right of survivorship exists
7. During marriage
a. Interest cannot be sold or transferred without the
consent of both spouses
8. At divorce
a. Most courts adopt (equitable distribution)
b. One time distribution
c. All property acquired during marriage is marital
property, even if it is held separately during
marriage.
 9. At death
a. Surviving spouse own the property solely
because of the right of survivorship.
b. Statutory shares (most states): surviving spouse
is entitled to a certain amount of estate (either
1/3 or 1/2 depending on the jurisdiction)
i. If the will only leaves 1/6 to the surviving
spouse, can claim statutory shares for the
jurisdictional share.
10. Rule choice for creditors
a. Creditors cannot attach property held through
TbyE to satisfy debts of one of the spouses
(most states)
b. Contingent right of survivorship pertaining to
either spouse is separately alienable by him and
attachable by his creditors during marriage
i. If debtor dies, debt dies
c. Interest of the debtor spouse may be sold or
levied upon for his or her separate debt, subject
to the other spouse’s contingent right of
survivorship
i. If debtor dies first, debt dies
ii. Credit steps into debtor spouse’s shoes
while alive (very little). Puts cloud over
property so may have trouble selling
D. Benefits of JT and TinC
1. See chart
2. Co-owners are entitled to the profits by their fractional
interest in the property
3. Can use property as wishes as long as property is not
wasted
E. Burdens of concurrent estates
1. See chart
2. Courts determine if improvement or
maintenance/necessary repair
F. Ouster
1. Definition: act by which one co-owner excludes other
co-owners from the property by an affirmative act
2. 2 requirements
a. Ousted must ask to be let in
 b. Person in possession must say or indicate no
(change locks, say no)
3. Constructive
a. Character of the property makes joint
occupancy impossible or impracticable
b. Impracticable-when relationship b/t co-tenants
is strained. However, if hostility from the
ousted, constructive ousting usually has not
occurred
c. Impossible-20 people in 1 bedroom house
d. Marital context-when the emotions of a divorce
make it impossible for spouses to continue to
share residence pending property division, the
departing spouse may be entitled to rent.
i. If spouse willingly leaves when there is
no hostility, there is no constructive
ousting
G. Adverse possession and ousting
1. One co-tenant cannot obtain adverse possession against
another unless the possessing tenant makes clear to the
nonpossessory tenant that he is asserting full ownership
rights in the property to the exclusion of the other co-
tenants.
2. Very hard to prove because one does not have to live on
the property in concurrent estates.
H. Leasing the tenancy in common
1. Each co-tenant may lease his interest
a. Without the consent of the other co-tenant and
b. Without that co-tenant joining in the lease
2. Non-joining (tenant not part of the lease) co-tenant may
not demand exclusive possession against the lessee, but
may only demand to be let into possession
3. Non-joining co-tenant is not bound by the lease.
a. Only tenant leasing gets the money, not non-
joining tenant.
I. Leasing the joint tenancy
1. 2 types of jurisdictions
a. Lease does not sever joint tenancy
i. Lease survives death of lessor
ii. Lease severed at death of lessor
 b. Lease severs joint tenancy
J.Partition (for JT and TinC)
1. Definition: Division of land held by co-tenants
2. Voluntarily
3. Involuntarily
a. Co-tenants can’t agree about something
regarding the property
b. Partition in kind (preferred method)
i. Definition; co-tenants are given equal
shares of the land
ii. Owelty-cannot easily divide property so
one pays the other for the disproportionate
piece of land
c. Partition by sale
i. Co-tenants receive payment equal to their
fractional share of the property
ii. Must look at effect on both parties
iii. Can consider sentimental attachment,
long-standing ownership, and economic
value
iv. Must show
i. Property cannot be conveniently
partitioned in kind
ii. Interest of one or more of the
parties will be promoted by the
sale; and
iii. The interest of the other party
will not be prejudiced.
IX. Future Interests
A. Future interest: an interest in land in which the privilege of
possession is in the future, not the present; the interest exists
at the moment of creation, but possession is to take place in
the future.
B. If a conveyance if ambiguous, a court will find the closest
match dependent on the intent discerned from the deed or will
and from surrounding circumstances.
1. A fee simple absolute or defeasible is preferred because
there is no future interest
C. Present estates (6)
1. Fee simple absolute
 2. Fee tail
3. Fee simple determinable
4. Fee simple subject to a condition subsequent
5. Fee simple subject to an executory interest
6. Life estate
D. Fee simple absolute
1. No future interest at all
2. O to A or O to A and his heirs
a. ‘And his heirs’ does not give the heirs any
interest
E. Fee tail
1. O to A and the heirs of his body
a. Most states have abolished and consider this fee
simple absolute
F. Fee simple determinable
1. O to A so long as used for residential purposes
a. O has the possibility of reverter
b. If the condition is violated, the property is
automatically reverted back to O or O’s heirs if
O is deceased
c. Condition must be upheld by all of A’s heirs,
giving O dead hand control.
G. Fee simple subject to a condition subsequent
1. O to A on the condition that the property be used for
residential purposes and in the event it is not, O shall
have the right of re-entry.
a. The right of reentry is not automatic.
H. Fee simple subject to an executory interest
1. O to A, but if the property is used for commercial
purposes, then to X
a. X has an executory interest
2. Automatic shift of interest to third party when the
condition is violated.
I. Life estate
1. Future interest goes to the grantor as a reversion or a third
party as a remainder.
J. Alienation
1. Definition: transfer of title of a property from one person
to another by conveyance
 2. Cannot put a restraint on a fee. (O to A for life, as long
as A never sells the property).
K. Waste
1. If you own a life estate, you have a fiduciary duty to your
future interest holders not to waste the property.
2. Voluntary/affirmative waste: deliberate acts of
destruction by the life tenant.
3. Permissive: negligent; failure to exercise ordinary care;
omission of acts which would prevent injury
4. Ameliorating waste: improvements to land; fundamental
changes to the character of the property that may
increase the value or the utility of the property (future
interest holder may not like this because they may have
wanted the property in the original condition)
5. Remedies for future interest holders (3)
a. Sue the life tenant to stop the waste;
b. Sue for damages, loos, or money spent to protect
it: or
c. Sue for the termination of the life estate, which
is an extraordinary measure and courts do not
like it).
6. The courts will look at the kind of waste
a. Destroying or neglecting?
b. Appropriate type of remedy
L. Rule against the creation of new estates
1. Conveyance that doesn’t fit within any established
categories must be put into the most closely analogous
estate.
2. Limitations are not allowed, but conditions are
a. Ex “and her heirs on her father’s side”
M. Rule against perpetuities (RAP)
1. Future interest is invalid unless it is certain to vest within
the lifetime of someone who is alive at the creation of the
interest or no later than 21 years after death of all lives
in interest
2. Does NOT apply to the following future interests:
a. Reversion;
b. Possibility of reverter;
c. Right of entry;
d. Absolutely vested remainders; and
 e. Vested remainders subject to divestment.
3. RAP does apply to the following future interests:
a. Executory interest;
b. Contingent remainder;
c. Vested remainder subject to open.
4. Life in being – all those who are given a future interest
and are alive at the time of conveyance.
5. Remedy if RAP applies
a. Strike back until you are left with an identifiable
and recognizable standard estate.
6. How to apply the rule
a. 1. Identify the interests and determine if the
future interest is subject to RAP
b. 2. Identify the lives in being at the creation of the
interest
c. 3. If the future interest is subject to RAP, test the
interest to see if there is any possibility it will
vest 21 years into the future.
d. 4. If the interest violates RAP, apply the remedy
for violation of RAP.
X. Landlord/Tenant Law
A. Lease: document by which the landlord transfers his
possessory interest to the tenant
1. A reversion is created in the landlord, because he gets the
interest back at the end of the lease.
2. Essential elements to include:
a. Parties
b. Premises
c. Rents and other charges (rent does not have to be
monetary)
d. Length of lease term
3. Categories
a. Term of years/fixed term tenancy
i. Fixed for a definite period of time at the
time of the lease execution
ii. Ends automatically on an agreed upon
date
iii. Death of either party does not terminate
the tenancy.
b. Periodic tenancy
 i. Renews automatically until one party
gives notice to end.
ii. At common law, the notice of termination
must be given before the equal length of
the lease period (if month to month it
would be the last date of the next month.)
iii. Death of either party does not terminate
the tenancy
c. Tenancy at will
i. Can be terminated without notice at any
time by any party.
ii. Death of either party terminates the
tenancy
iii. Abolished in most states
d. Tenancy at sufferance/holdover tenant
i. Stay after term of lease expires
ii. Cannot use self-help to remove the tenant
(who is not a trespasser because they were
originally in possession)
4. Tenant can be evicted for non-payment of the rent, but
not for other charges. Sometimes the other charges are
included in the rent to avoid this problem.
B. Statute of frauds
1. Leases of more than 1 year is required to be in writing,
under 1 year can be enforced, but does not need to be in
writing.
XI. License
A. License: limited right to use land, which is generally
revocable at will.
B. Duty to deliver possession
1. The landlord has the duty to deliver actual possession at
the beginning of the lease term and must remove
someone who may be in the unit.
2. If the possession is not delivered, the lease can be
terminated or the tenant can sue for damages incurred.
XII. Lease v. License
A. Courts look for dominion and control amounting to
possession by all parties
B. Factors:
1. Intent and expectations of the parties
 2. Services and amenities provided
a. The more that are provided the less it looks like
a lease.
3. Limits on use
a. The more the use is limited, the less it looks like
a lease and more it looks like a license.
4. Control each party has over the premises
a. The more the landowner has control, the less it
looks like lease and the more it looks like a
license
5. Shared use of the facilities on the premises
6. Length of the stay
7. Pattern of payment
a. If the tenant pays ahead, it looks more like a
lease.
8. Purpose of the invitation
a. If you are living in a dorm, it is a lease because
you are staying there for the purpose of school
9. Connection of the housing with other activity to which
the invitation was extended
a. The more separate these are, the more it looks
like a lease and the less it looks like a license.
10. Label on the document
11. Designation of specific physical space by the landowner
a. The more the space is limited, the less it looks
like a lease and the more it looks like a license.
XIII. Fair Housing Act
A. Prohibits discrimination based on:
1. Race
2. Color
3. National origin
4. Religion
5. Sex
6. Handicap/disability
7. Familial status
B. It is unlawful to refuse to rent or rent on different terms based
upon these factors.
C. What a landlord can consider is dependent on the jurisdiction,
but can include the following:
1. Criminal background
 2. Income
3. Smoking
4. Credit score
5. References
6. Past rental history
7. Occupation
D. Two types of suits
1. Disparate treatment: D intentionally discriminated
against members of a statutorily protected category
because of their membership in that group
2. Disparate impact: D’s facially neutral policy has a
disproportionate effect on a statutorily protected
category.
XIV. Transfers of the landlord’s interests
A. The landlord may transfer their interest by gifting, devising,
and conveying.
1. The new owner inherits any leases attached and the
rights that come along with that.
B. Tenants transferring their interest
1. If the lease is silent, the tenant has the right to transfer all
or a portion of their interest. (bad for landlord)
C. The landlord can limit the tenant from transferring
1. This is alienation, but does not bother the courts
D. The landlord can allow transfer through a sublease or
assignment.
E. Sublease
1. Transfer of less than the full remaining term of the lease.
2. Subtenant carves out part of the relationships from the
tenant, who has both privity of contract and privity of
estate with the landlord.
3. Subtenant has no direct relationship with the landlord,
only the tenant.
4. Landlord can only sue the tenant because they have no
relationship with the subtenant at all.
F. Assignment
1. Transfer the full remaining term of the lease.
2. Assignee has privity of contract with the tenant
3. Assignee has privity of estate with the landlord
4. Tenant does not have privity of estate with the landlord
or assignee
 5. Landlord can sue the tenant or assignee because they
have a relationship with both.

G. Consent Clause
1. The landlord puts conditions on the transfer.
2. This is good for the landlord because they have control
over who the tenant transfers interest to and also allows
them to continue the lease.
XV. Breach of the lease by nonpayment
A. If the tenant does not pay and leaves the premises, the
landlord may:
1. Accept the tenant’s surrender of the lease;
2. Re-let on the tenant’s account; or
3. Wait and sue for the rent/mitigate damages
B. Accept surrender
1. Terminate the lease early and the lease is over.
2. The landlord can still sue tenant for the rent and any
damages.
C. Re-let on the tenant’s account
1. Landlord gets someone in the unit, but does not terminate
the tenant’s lease.
2. The tenant is liable if the landlord must accept a lower
rent payment.
D. Wait and sue/mitigate damages
1. A landlord has a duty to mitigate damages.
a. Look at many things, including order of actions,
to determine if landlord mitigated damages.
2. During a lawsuit, the landlord must prove they use
reasonable diligence in attempting to re-let the premises.
XVI. 5 Doctrines of Eviction
A. Actual eviction
1. Landlord interferes with physical possession of the
premises
2. Change locks
B. Partial actual eviction
1. Landlord interferes with physical possession of part of
the premises
2. Remedy is to reduce rent
3. Rent single family home with garage, but landlord puts
his car in the garage
C. Constructive eviction
1. Landlord (1) substantially interferes (2) with the tenant’s
quiet enjoyment of the premises (3) such that the tenant
stops paying rent and then moves out within a reasonable
period of time.
2. Burden is on the tenant
3. Substantial noise by something or someone with a
connection to the landlord
D. Partial constructive eviction (minority rule)
1. Landlord’s actions have substantially interfered with a
portion of the property
2. Remedy is to reduce rent
3. Noise is really bad in half the apartment
E. Implied warranty of habitability (residential only) (IWH)
1. Landlord must repair any defect that deprives the tenant
of any essential living.
2. Essential living are services that are vital to life, health,
and safety. This is based on the circumstances.
3. Two standards
a. State or local housing code (preferred by
landlords); or
b. General community standard of suitability
4. Factors:
a. Existence of a housing code violation, even if a
housing code violation is not required to
establish breach;
b. Nature and seriousness of the offense;
c. Length of time for which the defect has
persisted;
 d. Effect of the defect on safety and sanitation; and
e. Age of the structure
5. Remedies (9)
a. Cancellation of the lease without further
obligations; may vacation premises without
further duty to pay;
b. Rent withholding;
c. Defense to non-payment of rent and to an action
for possession;
d. Rent abatement;
e. Repair and deduct;
f. Affirmative cause of action by tenant, including
compensatory damages and IISED;
g. Injunction of specific performance;
h. Punitive damages;
i. Criminal penalties.
XVII. Doctrine of retaliatory eviction (jurisdictional)
A. Landlord cannot:
1. Increase rent;
2. Fail to renew lease;
3. Decrease services provided; or
4. Bring an action for possession
B. May not retaliate for:
1. Complaining to a governmental agency;
2. Complaining to landlord; or
3. Organizing or becoming a member of tenants’
association.
C. Must be related to the activities of the tenant incidental to the
tenancy.
XVIII. Nuisance
A. RS: Private nuisance is the substantial and unreasonable
interference with the use or enjoyment of another’s land.
1. RE: Unreasonable if the gravity of the harm outweighs
the utility of the actor’s conduct.
2. Must be a substantial harm
B. Factors
1. Extent of harm;
2. Character of harm;
3. Economic and social value of the conflicting activities;
4. Suitability of the activities for the location;
 5. Ability of either party to avoid the conflict and
practicability and fairness of making the party do so.
C. Defenses
1. Who was there first?
2. Eggshell P
D. Remedies
1. D is determined not to be a nuisance so D can continue
conduct;
2. P can get an injunction to make D stop conduct;
3. P get damages from D for committing harm;
4. P can stop D’s conduct if P is willing to pay damages as
determined by a court to compensate D for its loss
(purchase injunction or pay off D)
E. Nuisance v. Trespass
1. Trespass is the intentional invasion while nuisance is the
interference with the use and enjoyment
XIX. Zoning
A. Separate out uses to particular locations
B. 2 kinds
1. use zoning
2. area zoning
C. Use zoning
1. Land use regulation that divides municipality into
districts that regulate the uses in each district
D. Area zoning
1. Regulation of the size of lots, heights of buildings,
setback, etc.
E. Non-conforming use (aka grandfathered in)
1. Must prove that the use of the land, buildings, or
premises:
a. Lawfully existed prior to new zoning
b. Is maintained after the effective date
2. Use cannot change or else will no longer be non-
conforming
F. A discontinued use may not be resumed. An abandoned use
may be terminated. Sale does not terminate.
G. Vested Rights
1. Precludes a municipality from changing zoning to a
particular parcel of land when a property owner, in good
faith, makes a substantial change or has incurred
 expenses to the land that it would be highly inequitable
and unjust to destroy the right he acquired
2. Rule choices to become vested (4)
a. Substantial investment made in regard to the
building permit
b. Issuance of the building permit
c. Substantial costs incurred in the absence of a
building permit
d. The filing of a valid and fully complete building
permit application, without the need to
demonstrate substantial expenditures.
**Never when purchase parcel!
H. Variance
1. Authority to a property owner to use the property in a
manner forbidden by the ordinance
2. 2 kinds
a. area variance
b. use variance
3. Area variance
a. Modifies site development requirements
4. Use variance
a. Permits zoning use other than what is allowed by
ordinance