Table of Contents

ACQUISITION OF PROPERTY............................................................................................................. 2

ESTATES.................................................................................................................................................. 8

FUTURE INTERESTS.......................................................................................................................... 11

CONCURRENT OWNERSHIP AND MARITAL INTERESTS........................................................15

LANDLORD-TENANT LAW............................................................................................................... 22

THE LAND TRANSACTION............................................................................................................... 30

NUISANCE............................................................................................................................................. 33

EASEMENTS, COVENANTS, AND SERVITUDES...........................................................................36

ZONING.................................................................................................................................................. 42

EMINENT DOMAIN AND TAKINGS................................................................................................. 45

ACQUISITION OF PROPERTY

I. First Acquisitiona. Johnson v. M’Intosh (1823)

i. Discovery + Possession = Ownership1. Native Americans retain right of occupancy only (aboriginal title) and

cannot transfer a title.2. Rationale: Native Americans are not people3. Rationale: Native Americans don’t put enough “labor” into land to

satisfy Locke’s theory. b. Locke Labor Theory

i. Natural Resource + My Own Labor = My Possession1. Caveat: must be “enough, and as good left in common for others.”

ii. Haslem v. Lockwood1. P raked manure in public streets into heaps, intending to carry it away

the next day. D removed the heaps.2. Held: judgment for P. P found the abandoned property and greatly

added to its value by his labor.

II. Acquisition by Capturea. Pierson v. Post (1805)

i. Post hunting fox when Pierson—knowing Post’s purpose—shot the fox and carried it away.

ii. Held: Post did not acquire property right to fox by his pursuit of it. 1. Property right over wild animal only acquired with possession of the

actual body. 2. Note: some courts allow wounding/trapping of the animal = property

right. iii. Dissent (Labor Theory): property right acquired when pursuer is within reach

or has reasonable prospect of catching the animal. 1. Rationale: allowing Pierson to steal the fox at the last minute

disincentivizes fox hunting, which is a public service. b. Rose Article:

i. Key question for acquisition: when is notice of possession given?

III. Trespassa. Elements: intent to enter + actual entry, but not knowledge that the land belongs to

someone else. b. Jacque v. Steenberg Homes (1997)

i. D delivered mobile home through P’s land, despite P’s protests. The road was substantially more difficult and expensive.

ii. Held: Nominal and punitive damages for P.1. Property rights are an interest in and of themselves; thus trespass

without more is still a harm in and of itself. 2. The punitive damages are allowed b/c without them, D could trespass

all of the time with no practical consequence.

c. State v. Shack (1971)i. Ds (gov aid workers) entered property to aid migrant farm workers employed

and housed there. Ds refused to leave when asked. Migrant workers had license to be on the land, but no property rights.

ii. Held: right to exclude does not extend to government aid workers. 1. Title to real property does not include dominion over the destiny of

persons permitted to come on the premises. 2. Progressive property rights: property rights serve other interest,

including human values. Migrant farm workers are particularly disadvantaged, so their rights here outweigh that of the property owner.

IV. Abandonment a. Elements:

i. (1) Intent to relinquish all interest and no intent that it be acquired by any particular person (subjective standard), and

ii. (2) Voluntary act by the owner effectuating that intentb. Hawkins v. Mahoney (1999)

i. P escaped from prison, officials packed up his stuff and put it in boxes with his name on it. P was recaptured, requested his stuff, but was denied. Prison sold his stuff.

ii. Held: P did abandon the property, but he then un-abandoned it. 1. Between P’s escape and return, no one asserted possession, and P

reclaimed his stuff (abandonment is a rebuttable assumption).a. Different from first acquisition b/c there is a right (or former

right) that the law is trying to protect. iii. Dissent (PROFESSOR):

1. Step #1: Does P effectively abandon the property?2. Step #2: Does P effectively reclaim the property?

a. Reclamation requires reasserting possession. c. Pocono Springs Civic Ass’n v. MacKenzie (1995): Cannot abandon real property

owned in fee simple. i. Rationale:

1. Real property comes with responsibilitiesa. Someone has to pay property taxes, and abandonment does not

ensure a new steward. 2. Real property exists forever

ii. Criticism: case for abandonment is stronger for real property since land is immobile and has comprehensive system for recording.

d. Abdul-Jabber v. GM: can’t abandon birth name.

V. Destructiona. Eyerman v. Mercantile Trust Co (1975)

i. Owner dies and her will directed the property to be razed and land sold. Ps seek injunction b/c razing will adversely affect property rights, violate terms

of subdivision trust indenture, produce a nuisance, and is contrary to public policy.

ii. Held: an estate cannot destroy property (so as to injure others) solely on the will of the deceased.

1. State grants property rights, so its interests matter. a. Only $650 of $40,000 asset would remain after razingb. Razing would decrease property values by $10,000/homec. Area has high architectural significance and is landmarkd. No one benefits from razing

2. Societal interests > Personal interestsiii. Dissent:

1. Don’t actually know executrix’s motives2. Main beneficiaries of this decision are not parties to action3. Vacant lots exist in the area and are not a nuisance4. No evidence of nuisance5. Public policy must be based on state’s policy expressed in law, not just

the opinions of the justices.

VI. Adverse Possessiona. Theories

i. Powell: Adverse possessor acquires title when action to eject is barred by statute of limitations.

ii. Ballantine: Purpose is NOT to reward trespasser of penalize owner, but to provide proof of titles and correct errors in conveyancing.

iii. Holmes: If you have used property for a long time, it takes root in you and can’t be taken without resentment.

iv. Rose: Adverse possession fits with signaling/notice theory—whoever signals to neighbors that they own the land, gets the land.

b. Elementsi. (1) Entry that is actual and exclusive

1. Rationale: entry creates cause of action (trespass) that triggers statute of limitations AND stakes out what is possessed.

a. Note: without color of title (written instrument), you can only claim land that you have actually enclosed or cultivated, but not surrounding land on same property (see Van Valkenburgh).

2. Rationale: entry demonstrates an interloper who is at least working the property and is thereby earning some rights.

ii. (2) Open and Notorious1. Rationale: give property owner notice of trespass.2. Standard: Reasonableness.3. Mannillo v. Gorski (1969)

a. If the encroachment can only be discovered by survey, then there is no adverse possession unless the owner actually knew the exact boundaries of the land.

4. Mistaken Improvers

a. If the adverse possessor would be unfairly burdened b/c of expensive improvements that end up being on neighbor’s land, then the court may order neighbor to sell the land to adverse possessor.

i. (1) P must show that it would suffer irreparable harm if removal were denied.

ii. (2) D must show its hardship if removal were granted.1. The court then compares the two hardships.

iii. (3) Continuous—but not necessarily constant—for the statutory period1. Ewing v. Burner (1837) & Howard v. Kunto (1970): type of

possession and entry requires is that of an average true owner under the circumstances.

a. Subjective analysis: courts go both ways. Ewing found adverse possession, but Pettis v. Lozier did not, in similar circumstances.

2. Note: statutory period extended for 5 years if there is a disability in the owner, e.g. minor, unsound mind, imprisoned, etc.

iv. (4) Adverse and hostile and under a claim of right/title, i.e. possession must be inconsistent with someone else’s ownership.

1. Adverse and Hostilea. Van Valkenburgh v. Lutz (1952)

i. Held: no adverse possession b/c no claim of title.1. Cultivating garden and building shed not claim

of title (??)2. D asked for right of way, thus showing he didn’t

assert claim to title. ii. Dissent (PROFESSOR):

1. Court’s analysis of “adverse and hostile” is inconsistent: claimed Ds knew shed was not on their land, but also claimed Ds thought they built garage on their own property.

2. Lutz made the right of way mistake after 30 years of possessing the property, so the mistake should be irrelevant.

b. Mannillo v. Gorski (1969)i. D built steps and walk that encroached on P’s lands up

to 15 inches, but D thought he owned the land. ii. Held: subjective intent of entry is not important

1. Rejects Maine Doctrine: must have knowing, tortious taking; a mistake is not “hostile.”

c. Howard v. Kunto (1970):i. X bought tract A, but mistake in survey led him to

occupy tract B. X1 bought tract B, but mistake in survey led him to occupy tract C. P bought A from X and had it for one year when mistake was discovered.

ii. Held: tacking allowed, i.e. P’s predecessors’ possession counts for P’s adverse possession, IF there is privity: reasonable connection between successive occupants. (P’s purchase must be in good faith, i.e. normal transaction, have a writing, parties reasonably believe the transfer is legitimate).

1. Policy: reward legitimate, but mistaken, occupation vs. illegitimate possession (squatters selling to squatters).

2. Claim of Right/Titlea. (1) Objective Standard: state of mind is irrelevant

i. Upon trespass, statute of limitations is triggered.ii. England.

b. (2) Good-Faith Standard: state of mind is “I thought I owned it.”

i. Halpern v. Lacy Inv. Corp: trespass cannot ripen into prescriptive title.

ii. Color of title helps distinguish good faith. iii. Some U.S. courts

c. (3) Aggressive Trespass Standard: state of mind is “I thought I didn’t own it, but I intended to make it mine.”

i. Pro: way fewer cases under this standard, so opponents of adverse possession might favor this standard.

ii. Some U.S. courts1. Some require adverse possessor to pay fair

market value upon acquiring title. v. Note: adverse possession relates back to the time the record owner first

acquired the land, so all rights possessed during that period transfer to adverse possessor (e.g. livestock born on land, even if AP did not possess land at time of the birth).

VII. Giftsa. Elements

i. (1) Donor must INTEND to make a present transfer of an existing interest in the property.

1. Intent need not be manifest at the time of delivery (Putin Super Bowl Ring Example)

ii. (2) Donor must DELIVER possession to the donee with the manifested intention to make a gift.

1. Requires objective acts (rationale: livery of seisen).a. Traditional Rule:

i. If object can literally be handed over, it must be.ii. If not, it must be constructively handed over (e.g. give

key to house).iii. If not, it must be symbolically handed over (e.g. not

saying “I give you X”).

1. Newman v. Bost (1898): there is no such thing as symbolic delivery. If it can be manual, then it must; otherwise, constructive delivery.

a. Rationale: symbolic deliveries make statute of wills of little value, and that statute protects against fraud. Gifts in contemplation of death are especially liable to fraud.

i. Criticism: the Court is concerned about the unconventional nature of their relationship (old man and young servant woman).

2. Modern Trend: enforce decedent’s intent even if there is evidence of some failure to comply with formalities IF there is clear and convincing evidence of donative intent.

iii. (3) Donee must ACCEPT the gift.1. Presume acceptance unless expressly refused.

iv. Note: gifts are irrevocable, except for gifts causa mortis, which are revocable before death.

v. Gruen v. Gruen (1986)1. Father gifted painting to son, but postponed delivery until his death.2. Held:

a. Intent: intended to make present transfer of some property interest, even though he intended to keep the painting until death.

i. This is distinct from a will b/c the present interest transfers immediately to the son, rather than after death.

b. Delivery: the present transfer is only of the title, so physical delivery is inconsistent with the terms of gift. Symbolic delivery therefore appropriate (letter).

i. Physical delivery would be a sham ceremony since son lives at home when not at college.

c. Acceptance:i. Son made statements to friends that he’d accepted the

gift. 3. NOTE: future gift of a present interest (a Promise) is not enforceable

unless there is reliance. The present gift of a future interest (Gruen) is enforceable.

ESTATES

I. The Fee Simplea. Features of Fee Simple

i. Alienable: can be sold, gifted, or transferredii. Devisable: can be put in will

iii. Descendible: if no will then heirs inheritiv. “To A and his heirs” = fee simple

b. Inheritance of Fee Simplei. Heirs = persons who survive decedent and are designated as intestate

successors if there’s no will.1. Living person has no heirs. 2. A will trumps all, except for the spouse.

ii. Issue = descendants, as many generations as there are.iii. Ancestors = parents take as heirs if decedent leaves no issueiv. Collaterals = all persons related by blood to decedent who are neither

descendants nor ancestors.v. Escheat = if a person dies intestate w/o heirs/ancestors/collaterals, then

real property is escheated to the state. c. Alienation of Fee Simple and other estates

i. Absolute restraint on a fee simple is void. Partial restraints are valid if reasonable in purpose, effect, and duration.

ii. For life estate, absolute disabling restraint is void, but forfeiture restraint is valid (b/c forfeiture induces life tenant to pay debts)

II. The Fee Taila. “To A and the heirs of her body” = A gets Fee Tail, O gets reversion

i. Only goes to issue (descendants). 1. There is a future interest b/c some link in the chain could have no

issue.ii. Used to keep land in the family, especially if parents fear children will try

to sell the land. b. Only DE, ME, MA, and RI allow fee tail today.

III. The Life Estatea. “To A for life” = A gets life estate, O gets reversion

i. Life estates can be based on someone else’s life, i.e. I sell my life estate to someone else, but the timing is still based on my life.

b. White v. Brown (1977)i. Lide left handwritten will requiring that house not be sold.

ii. Held: 1. Invalid to have restraint on alienation for a fee simple2. Invalid to have any absolute restraint on alienation. 3. Generally valid to have conditional restrain on alienation for a life

estate (e.g. “to A for life, but if she sells it then to B.”).

IV. Alienation of Property (see White v. Brown). a. Restraints on Alienation are Bad Because They:

i. Make property unmarketableii. Perpetuate concentration of wealth, making it impossible for the owner to

sell property and consume the proceeds of saleiii. Discourage improvements on land, since owners cannot sell.iv. Prevent the owner’s creditors from reaching the property, which works a

hardship on creditors who rely on the owner’s property in extending creditb. Types of Restraints on Alienation

i. Disabling restraint: withholds power of transferring his interestii. Forfeiture restrain: if grantee attempts to transfer his interest, it is forfeited

to another person1. Generally allowed.

iii. Promissory restraint: grantee promises not to transfer his interest, enforceable by contract remedies.

c. Modern Lawi. All estates and interests are alienable, devisable, etc.

V. The Law of Wastea. Relevant when two or more persons have rights to possess property at the same

time or consecutively. i. NOTE: does NOT apply to landlord-tenant relationship.

b. Rule: A cannot use the property in a manner that unreasonably interferes with the expectations of B.

i. Factors: nature of parties’ property interests, the conduct in question, the remedy sought, etc.

c. Affirmative Wastei. Injurious acts that have more than trivial effects, i.e. that substantially

reduce value of property. 1. Open Mines Doctrine: Minerals can be extracted, but only if mines

existed when life interest was created.d. Permissive Waste

i. Negligent acts that have more than trivial effects1. Kimbrough v. Reed: found negligent for failing to keep water

pump in repair, resulting in death of lawn, shrubs, and trees.e. Ameliorative Waste

i. Uses that increase market value of land, but are still prohibited b/c fee holder is entitled to take possession in substantially the same condition as when first transferred.

1. Most courts reject this view and allow substantial alterations if they increase market value.

VI. Defeasible Estatesa. Purpose: land use control and control of unrelated behavior on the land.b. Fee Simple Determinable

i. Fee Simple ends automatically when stated event happens, then fee reverts to O.

ii. Created by words with durational aspect (“so long as”, “while used for”, etc.)

iii. Marenholz v. County Board of School Trustees (1981)1. Deed said, “this land to be used for school purpose only; otherwise

to revert to Grantors herein.” School used for storage, not school.2. Held: grant is a fee simple determinable b/c of word “only”, and

b/c there is no mention of re-entry or a third party. a. Grantor’s intent is paramount.

c. Fee Simple Subject to Condition Subsequenti. Not automatic; MAY be cut short or divested at transferor’s election when

a stated condition happens. 1. This “election” is called right of entry/re-entry/power of

termination. ii. Created by words like “but if”, “provided, however, that when”, “on

condition that if”, etc.iii. Mountain Brow Lodge v. Toscano (1967): Form

1. Toscanos gifted land to Lodge for “Lodge purposes only,” else revert to Toscanos. If Lodge tries to sell or transfer, then revert to Toscanos.

2. Held: a. Intent of grantors is paramount. b. Restriction on alienation is void.c. Restriction on use of land is FSSCS and is valid.

i. The land could still be transferred (though likely no one would want it since it has to be used for lodge purposes).

3. Dissent:a. The effect of the language should be judged according to

what it does, and the limitation on land use is in effect a restraint on alienation.

iv. Cast v. National Bank of Commerce (1971): Effect1. FSSCS is unenforceable if it materially affects marketability

adversely, e.g. prohibits alienation of the property to an impermissibly small number of persons.

d. Fee Simple Subject to Executory Limitationi. Grantor transfers FSSCS and at same time creates a future interest in a

third party rather than herself. ii. Can be automatic or subject to 3rd party’s election.

e. Reversion vs. Possibility of Reverteri. Reversion happens when estate naturally ends (always reversion after

contingent remainder)ii. Possibility of Reverter happens when an estate ends on an artificial

condition.

FUTURE INTERESTS

I. Types of Future Interestsa. Interests Retained by Transferor:

i. Reversion: A reversion is created when the transferor conveys a smaller estate than the one she has.

1. Order of magnitude: Fee simple > fee tail > life estate > leasehold. 2. Reversions are transferable during life and descendible and

devisable at death. ii. Possibility of reverter: A possibility of reverter is the future interest

retained by the grantor when he conveys a fee simple determinable. iii. Right of Entry: A right of entry is the future interest retained by the

grantor who conveys a fee simple subject to condition subsequent. b. Interests Created in a Transferee:

i. Remainder: A future interest in a transferee that (1) is capable of becoming possessory immediately upon the expiration of the prior estate and (2) does not divest (or cut short) any interest in a prior transferee.

1. Indefeasibly Vested Remainder: A remainder is vested if a. (1) It is created in an ascertainable person, and b. (2) Is not subject to a condition precedent other than the

natural termination of the prior estate.c. NOTE: the law makes vested remainder the default.

2. Vested remainder subject to divestment: A remainder that is vested, but is subject to a condition subsequent.

a. Ex: “To A for life, then to B and her heirs, but if B does not survive A, to C and his heirs.”

3. Vested remainder subject to open: A vested remainder held by one or more living members of a class that may be enlarged in the future. This remainder can be partially divested if the group is enlarged.

ii. Contingent Remainder: A contingent remainder is a remainder that is either

1. (1) Given to an unascertainable person OR2. (2) Subject to a condition precedent.

a. Ex: “To A for life, then to B and her heirs if B survives A, and if B does not survive A then to C and his heirs.”

3. Destructibility of Contingent Remainders: (abolished)a. Any contingent remainder that has not vested at the

termination of the preceding freehold estate is destroyed.iii. Vested vs. Contingent Remainder

1. Vested accelerates into possession whenever and however the preceding estate ends. Contingent cannot become possessory so long as it remains contingent.

2. Contingent remainders destroyed if they do not vest upon termination of preceding life estate. Vested not similarly destroyed.

3. Contingent remainders subject to Rule Against Perpetuities. Vested remainders are not.

iv. Executory interest: A future interest in a transferee that must divest another estate or interest to become possessory.

1. Springing Executory Interest: the executory interest divests the transferor.

2. Shifting Executory Interest: the executory interest divests a transferee.

c. Freehold estates: fee simple (absolute and determinable), life estate, fee tail.i. Rule in Shelley’s Case: (abolished)

1. If a freehold estate is given to a person, and in the same instrument, a remainder is given to the heirs (or the heirs of the body) of that person, he takes both the freehold estate and the remainder.

d. Non-freehold estates: estate for term of years (leasehold).e. Life estate: Following a life estate, the grantor owns a reversion or a third party

owns a remainder.i. Doctrine of Merger: if life estate and next vested estate in fee simple come

into hands of one person, the lesser estate merges with the larger. f. Fee simple determinable: Grantor owns a possibility of reverter. (Not assignable

at common law).g. Fee simple subject to a condition subsequent: Grantor retains a right of entry.

(Not assignable at common law).h. Fee simple subject to executory limitation: the future interest that follows is an

executory interest. i. Doctrine of Worthier Title: (abolished)

i. In an inter-vivos conveyance, a grantor could not create a remainder or executory interest in his own heirs. The future interest in the heirs is void, and is converted to a reversion in the grantor.

II. Rule Against Perpetuities: a. No interest is good unless it must vest, if at all, no later than 21 years after some

life in being at the creation of the interest. The rule is applied when the conveyance happens.

b. Step #1: does RAP apply to this interest?i. Contingent remainder

ii. Vested remainder subject to open iii. Executory interest. iv. Note: Future interests in the grantor are never affected.

c. Step #2: can you prove that a contingent interest is certain to vest or terminate no later than 21 years after the death of some person alive at the creation of the interest?

i. 21 years + gestational period. If in utero at time of death, then 21 years from birth.

ii. Any scenario that might invalidate the interest DOES invalidate it.1. Red Flag Scenarios:

a. Grandchildrenb. Conditions tied to no one in particularc. Widow/Widower (b/c could always divorce and remarry

someone currently unborn)d. Time limits longer than 21 yearse. Note: RAP presumes that people can have children at any

time. 2. Example that Satisfies RAP

a. O transfers sum “in trust for A for life, then to A’s first child to reach 21.” A is the validating life. You can prove that any child of A who reaches 21 will necessarily reach 21 within 21 years of A’s death. The remainder must vest or fail within this period; it cannot possibly vest more than 21 years after A dies.

3. Example that Fails RAPa. O transfers sum “in trust to A for life, then to A’s first child

to reach 25.” A could have a child immediately before death, in which case the interest would not vest until 25 years after A’s death.

iii. Class Gifts1. All-or-nothing rule: if a gift to any one member of the class might

vest too remotely, the whole class gift is void. In other words, the class must be closed (every member in existence and identified) to satisfy the rule.

2. Class Closing Rule:a. Class will close as soon as one member of the class is

entitled to immediate possession or enjoyment, even if this means closing the class before it closes naturally or physiologically.

i. Closes the class to future persons born.b. This rule yields to evidence of a contrary intent, but that

rarely happens. iv. North Carolina Nat’l Bank v. Norris (1974)

1. D survived by widow, 3 daughters, and one grandchild age 6. Grandchild died 45 years later leaving 4 children.

2. Held: violates RAP. The possibility of violation is what matters, not what actually happened.

a. Vested remainder (in grandkids) subject to open (life estate):

i. Subject to RAP, but valid b/c we will know who the grandkids are once the named daughters die.

b. Contingent remainder (in great grandkids) in fee simple (reversion):

i. Subject to RAP. Invalid b/c daughters could have had

d. Modern Reforms: all go against marketability…interesting trend.

i. Wait and see1. Rather than invalidate at time of creation, we wait and see whether

contingent interest actually vests within some permissible vesting period.

2. Step #1: if unvested future interest is valid under common law rule, then that is the end of the matter.

3. Step #2: if invalid, then the interest is valid if it in fact vests or terminates within the permissible vesting period.

4. Criticism: how do you deteremine the permissible vesting period? ii. 90 years from creation (USRAP)

1. If at the end of 90 years following the creation of the interest, the interest is still in existence and unvested, then it is invalid.

a. If invalid, then court reforms it to match transferor’s manifested plan and still vest in 90 years.

2. Criticism: 90 years is too long.a. Response: most cases will vest or terminate long before 90

years. iii. Cy pres doctrine

1. Court reforms the will to conform to the rule of perpetuities in a way that adheres to the intent of the drafter.

III. Trustsa. Trustee holds legal title, beneficiary holds equitable title. b. O (settlor) to A (trustee) in trust, for the benefit of B (beneficiary). c. Spendthrift Trusts

i. Broadway Nat’l Bank v. Adams (1882)1. Founder of a trust can secure income of it by providing that it shall

not be alienable by him or be subject to be taken by his creditors. 2. Until payment made from trustee to beneficiary, the money

belongs to trustee, who is not subject to creditors. a. Rationale: creditors must do due diligence when extending

credit, including discovering the nature of a trust fund. ii. John C. Gray’s Opinion

1. How can creditors discover whether there is a will creating a spendthrift trust?

2. It is against public policy that a person should have an estate to live on, but not an estate to pay his debts with.

iii. Spendthrift Trusts are allowed in majority of states, and a few states allow creation of spendthrift trusts for oneself.

CONCURRENT OWNERSHIP AND MARITAL INTERESTS

I. Tenancy in Common (default unless expressly indicated otherwise)a. Separate but undivided interests in the property; the interest of each is

descendible, alienable, and devisable. No survivorship rights.b. Ex: T devises Blackacre “to A and B.”

II. Joint Tenancya. Joint tenants are considered a single owner, each owning undivided whole of the

property. Thus when one joint tenant dies, nothing passes to surviving joint tenant; rather, they are simply freed from participation of the decedent. Not devisable.

i. Joint tenancy is the equivalent of a will, but probate is avoided on death. Probate is costly and time-consuming.

1. Federal estate taxes still apply though. ii. Note: if creditors wait until after death, they will be out of luck since the

decedent’s interest is extinguished. b. Four Unities:

i. (1) Time: interest of each joint tenant must be acquired or vest at the same time.

ii. (2) Title: all must acquire title by the same instrument or by a joint adverse possession. Cannot arise by intestate succession or other act of law.

iii. (3) Interest: all must have equal undivided shares and identical interests measured by duration.

1. Equal shares requirement increasingly ignored by courts. iv. (4) Possession: each must have right to possession of the whole.

1. After creation, one tenant can voluntarily give exclusive possession to the other joint tenant.

c. Remedyi. If problems not solved by agreement, then judge can either physically

partition the land or order the land sold and the proceeds divided. d. Severance of Joint Tenancies

i. Destroying a unity destroys the joint tenancy. Conveying interest to a straw man for the purpose of destroying the joint tenancy is allowed in many states.

1. Riddle v. Harmon (CA, 1980)a. Riddle transferred share of joint tenancy to herself in order

to terminate the joint tenancy.b. Held: the transfer terminated the joint tenancy

i. Rationale: joint tenant should be able to accomplish directly what he or she could otherwise achieve indirectly by use of elaborate legal fictions.

ii. Can create an indestructible right of survivorship by creating a joint life estate with contingent remainder in fee to the survivor; tenancy in common in fee simple with an executory interest in the survivor; or

a fee simple to take effect in possession in the future.

c. Common law: have to transfer to straw man to break unity i. Feudalism history: livery of seisen.

2. Harms v. Sprague (1984)a. One joint tenant attached mortgage to his undivided share

in the property. b. Held (very formalistic):

i. Mortgage does not sever the joint tenancy b/c it’s a lien, not a title transfer.

ii. Mortgage does not survive death of mortgagor b/c surviving joint tenant is not a successor of the deceased. Both joint tenants owned the whole of the interest, so joint tenant B doesn’t get anything new when joint tenant A dies.

ii. If A and B die in same event, there must be clear and convincing evidence that one survived the other by 120 hours; otherwise, the interest is divided 50-50.

iii. Possibilities of conveyance of interest less than fee simple (A and B joint tenants, A conveys to X):

1. (1) Conveyance severs joint tenancy: X and B are tenants in common until interest ends, then A and B are tenants in common.

2. (2) Conveyance does not sever joint tenancy: if B survives A, B takes free and clear of X’s interest. If A survives B, A is subject to the interest.

3. (3) Conveyance does not sever joint tenancy: both parties take subject to the interest if the other dies.

4. (4) Conveyance results in partial or temporary severance: if A dies before B, proceed as in (1); if A survives B, proceed as in (2) or (3); if X dies first, there is no severance.

III. Tenancy by the Entirety (minority of states)a. Only created in husband and wife. Four unities required and surviving tenant has

right of survivorship. Both are seised of the entirety, and neither can defeat the right of survivorship of the other by conveyance; only joint conveyance can do so. Neither has right to judicial partition of property.

b. Divorce terminates the tenancy b/c marriage is required.

IV. Structuring Relations Between Concurrent Ownersa. Partition:

i. Partition in kind is still favored, but modern practice is to decree sales in partition in majority of cases b/c parties request it or sale is the fairest way to resolve the conflict.

ii. Delfino v. Vealencis (1980)

1. P and D own land as tenants in common, P with 99/144 and D with 45/144. D lives there and runs garbage removal business. P wants to develop land for residential housing.

2. Held: partition by sale only appropriate when:a. (1) Physical attributes of land make partition in kind

impracticable or inequitable; andi. Only 2 parties here and land is uncomplicated.

b. (2) The interests of the owners would better by promoted by partition by sale.

i. Weigh benefit to P vs. detriment to D. iii. Ark Land Co. v. Harper (2004)

1. 75 acres of farmland held as tenancy in common, P bought 2/3, family refused to sell the rest. P sought partition by sale and wanted to use proceeds to buy the rest.

2. Held: partition by sale denied. Ds have emotional attachments to the land, so selling it works a hardship on them. The millions in costs is relevant but not dispositive.

iv. Johnson v. Hendrickson (1946)1. Henry died and left 1/3 of 160 acre farm to widow, 2/9 to each of 3

children. Widow remarried and had twins, new husband bought farm across the road. Widow died and left interest to new husband. Henry’s children requested sale of farm.

2. Held: ordered sale b/c value of each cotenant’s share from partition would be less than share of money from sale; and partition in kind would require at least 4 parcels, which would depreciate its value.

a. Not relevant: benefit to new husband or his desire to stay in the original house.

v. Gray v. Crotts (1982):1. Court held that property should be divided into four parcels of

equal value, and then distributed based on random draw. 2. Refused to consider advantage to one cotenant of acquiring the

portion of the tract adjacent to his other land. b. Compensation or Owelty

i. Compensation: If partition results in one cotenant getting a more valuable part, then the court can order compensation.

ii. Owelty: In some states, if court finds that (1) partition in kind is impractical or wasteful and (2) sale would not protect interests of all parties, then the court can assign all of the property to one or more cotenants and require compensation to the others.

iii. Note: partition sales have worked against poor black farmers b/c white people buy one share out of thousands, then demand partition by sale.

c. Sharing Benefits and Burdens of Co-Ownershipi. Spiller v. Mackereth (1976)

1. P and D owned a building as tenants in common. When a lessee vacated, P entered and began using building as warehouse. D then

wrote a letter demanding P either vacate half or pay half the rental value. P did neither and D sued.

2. Held: In the absence of (1) agreement to pay rent or (2) an ouster of a cotenant, a cotenant in possession is not liable to his cotenants for the value of his use and occupation of the property. Neither condition satisfied here.

a. Ouster (conclusion) = beginning of running of statute of limitations for adverse possession AND liability of occupying cotenant for rent to other cotenants.

i. Examples: occupying cotenant refuses demand of other cotenants to be allowed into use of land, regardless of claim of absolute ownership. Occupying cotenant refuses demand of other cotenants to use land in particular way.

ii. Asking for rent is not the same as seeking to occupy the land.

iii. Locks on door were to keep everybody out, not D in particular out.

3. Some States:a. If other cotenant is in possession and you are not, you can

demand rent and be entitled to it. ii. Swartzbaugh v. Sampson (1936)

1. Husband and Wife own 60 acres in Orange County growing walnuts. Husband leased small fraction to boxing pavilion, wife objected.

2. Held: leases are valid and cannot be cancelled by wife. a. Wife could demand rent or demand to be let into property,

but cannot cancel the lease. b. A lease does not sever a joint tenancy; the joint tenancy is

just in abeyance until the lease expires.i. Sampson and Wife become the joint tenants for that

piece of property for the term of the lease. ii. Doesn’t matter that unity of interest technically

violated, since not enough of an interest was severed to warrant ending the joint tenancy.

c. If Husband dies before lease, Wife would have right of survivorship and leasehold would terminate.

d. Wife’s only remedy is to be really annoying on Sampson’s part of the land.

V. Marital Interestsa. During Marriage: Husband and Wife are One

i. Sawada v. Endo (HI, 1977)1. Ps injured by D’s car, Ds conveyed land to their sons after the

accident. P’s sued to set aside conveyance in order to get payment.

2. Held: neither spouse has separate divisible interest in the property that can be conveyed or reached by execution, so husband’s creditors could not have reached wife, even without the transfer. Thus the transfer is not fraudulent. (husband thus lowered to wife’s former level: no right to convey interest).

a. Tenancy by entirety can’t be broken by only one party, so husband’s debt is like trying to break the tenancy.

b. Policy: tenancy by the entirety protects spouse from the other’s improvident debts.

3. Sawada Possibilities:a. Group #1: husband can convey, but wife cannot. b. Group #2: either spouse can sell interest in property during

lifetime. This means the spouses interest can be levied by creditors.

c. Group #3: neither spouse can convey their interest. Creditors can’t access either interest.

i. Hawaii falls in this group. ii. Husband is lowered to wife’s former level: no right

to convey interest. d. Group #4: can alienate right to survivorship, but nothing

else. 4. Dissent:

a. Married Women’s Property Act means wives can do whatever husbands can do, and husbands used to be able to alienate right to survivorship. Wife takes both equal rights and equal disabilities.

i. Criticism: this is essentially a joint tenancy…b. Divorce

i. Equitable Division:1. Property divided by Court on equitable principles. Fault may or

may not be included as a factor. ii. Equal Division: (common property system)

1. This is the trend right now. Death or Divorce: 50-50 split of all property.

iii. Marital Property:1. Some states allow division of all property owned2. Some states only allow division of marital property:

a. Some states define this as property acquired during marriage

b. Some states define this a property acquired from earnings of either spouse during marriage

3. Rehabilitative Alimony: short-term commitment until spouse can reenter job market and become self-sufficient.

4. Professional Degrees:a. Approach #1: In re Marriage of Graham (1978)

i. An MBA is not marital property b/c it does not have exchangeable value, does not go to wealth (not transferrable, assignable, sellable, conveyable, pledge-able), and terminates upon death.

ii. When dividing other marital property or seeking maintenance, then spouse’s contribution matters.

iii. Dissent:1. Increase in earning power b/c of MBA is the

asset to be divided. a. Damages allowed for impairing

future earning capacity or for loss of spouse’s earnings.

b. Approach #2: Mahoney v. Mahoney (1982)i. Professional degree is not marital property b/c it is

too speculative to value and the concept of spousal investment in human capital demeans marriage.

ii. Held: reimbursement alimony. Supporting spouse should be reimbursed for financial contributions to professional training, including household expenses, educational costs, school travel expenses, etc.

c. Approach #3: NY Approach (and 2 other states)i. Medical license is marital property within meaning

of equitable distribution law. Its value is based on worth over a lifetime.

c. Termination of Marriage by Deathi. Dower:

1. Life estate in 1/3 of each parcel of land owned in fee simple by husband or a tenant in common during marriage. Dower is inchoate until husband dies and is extinguished if wife dies or divorces. Dower follows conveyance by husband.

a. Only 4 states still allow this, 3 extend dower to husbands as well, and only Michigan gives dower only to wives.

ii. Modern Elective Share/Spousal Share:1. Surviving spouse can renounce the will and elect to take a statutory

share, which is usually ½ or 1/3 in fee simple. Applies to ALL property, not just marital property.

a. Uniform Probate Code: surviving spouse entitled to keep any property that the will devised, which is credited against the elective share amount.

iii. Community Property System1. Earnings of each spouse during marriage owned equally in

undivided shares by both spouses. Thus there is no split of property on death or divorce.

a. Where separate and community property has mingled, the party contending for separate bears burden of proof.

i. Inception of Right: character of property is determined at time of purchase

ii. Time of Vesting: title does not pass until all installments are paid

iii. Pro Rata Rule: community payments buy in a pro rate share of the title.

2. Once acquired, community property does not change by changing domicile.

3. Cannot hold community property and tenancy in common or joint tenancy at the same time.

4. Only exists between husband and wife. a. No tenancy in entirety.

5. Neither spouse can convey their undivided share, except to the other spouse. No right to partition or ability to unilaterally change the form of estate.

6. Either spouse acting alone can manage community property, but real property requires both spouses.

7. Each spouse can dispose of ½ the community property at death. No survivorship feature.

8. At death of one spouse, the entire community property receives a stepped-up tax basis for fed income tax purposes.

VI. Non-Marital Couplesa. Only 10 state recognize common law marriage: (1) manifest intent to be married

and (2) hold out to public as married. i. Most abolished b/c:

1. Incentivized perjury2. No longer needed due to transportation innovations3. Certificated marriage makes proof easy4. Common law marriage dignified immorality among low-income

people, who were more likely than the well-off to have such an arrangement.

b. Cohabitating Couplesi. Marvin v. Marvin: contract for property division and support can be

implied from the conduct of the parties.1. NY rejects this and requires written or oral express contract.2. IL rejects any contract between unmarried partners b/c don’t want

to revive common law marriage.c. Palimony (Pal + Alimony)

i. Equivalent of a common law marriage, followed by equivalent of a divorce: some courts allow palimony if you can prove a contract or quasi contract.

LANDLORD-TENANT LAW

I. Types of Leaseholdsa. Term of Years

i. Lease for fixed period of time. No notice necessary b/c date stated from outset. Death of landlord or tenant has no effect.

1. Can craft unilateral power to to terminate, e.g. L to T for 10 years or until L terminates = term of years determinable.

b. Periodic Tenancyi. Lease for period of fixed duration that continues for succeeding periods

until either L or T gives notice of termination. (“To A from month to month”).

1. If notice not given, period automatically extended.2. Common law notice: 6 months for year-to-year, length of period

for less than year. a. Must terminate at end of tenancy, not in the middle.

3. Death of L or T has no effectii. Can craft unilateral power to terminate: L to T for 10 years or until L

sooner terminates = periodic tenancy determinable.c. Tenancy at Will

i. Lease of no fixed period that endures as long as L and T both want it. 1. If lease provides for unilateral termination, then termination by one

part is at the will of the other.2. Ends when one party terminates or dies. Some modern statutes

require a period of notice. d. Tenancy at Sufferance

i. Arises when tenant remains in possession (holds over) after termination of tenancy. Common law gives owner two options: eviction or consent to creation of new tenancy.

1. New tenancy usually subject to terms and conditions of original lease.

e. Garner v. Gerrish (1984)

i. Donovan lease to Gerrish for indefinite term, giving Gerrish option to terminate whenever.

ii. Held: estate created is a “life estate determinable” in order to honor the intent of the parties.

1. Lease clearly gives only lessee the right to terminate. At the very latest, it will terminate upon Gerrish’s death. That it could be terminated sooner does not make it indeterminate.

f. Philpot v. Field (1982)i. Least to T for 20 years and then as long as T used land for particular

purpose. T did so. L wanted to terminate after 20 years and argued that b/c uncertain term, therefore tenancy at will.

ii. Held: term is tied to use of land, which shows intent to create perpetual right to lease the land. The court must follow that intent.

g. Conveyance vs. Contracti. A lease is both conveyance (property interest) and contract (contract

interest). ii. Modern courts rely on contract principles in law of leases:

1. Material breach, mitigation of damages, warranty of quality, etc.

II. Fair Housing Act of 1968a. Can’t discriminate based on race, color, religion, sex, familial status, or national

origin, or handicap in the sale, terms, ads, etc.b. Exceptions:

i. Single family home exempt as long as owner doesn’t own more than 3 such homes and is not rented with use of real estate broker or agent and is there is no publication, posting, or mailing of any ads.

ii. Rooms or units in dwellings containing living quarters occupied by no more than 4 families living independently of each other, if the owner actually maintains and occupies on such living quarter as his residence.

iii. NOTE: no exemptions for ads; you can never discriminate in advertising. c. Civil Rights Act of 1866: protects only race and national origin, but has no

exemptions. Thus FHA exemptions do not apply to race and national origin.

III. Rights and Duties of Landlordsa. Delivery of Possession

i. Hannan v. Dusch (1930) (American Rule)1. D leased to P, but D refused to surrender possession on start date,

allowing former tenant to remain. D refused to kick them out, lease said nothing about delivery of premises.

2. Held: no implied covenant to deliver possession.a. L must ensure legal right of possession (no legal obstacles),

but not actual possession. b. P’s remedy is therefore against the tenant, not the landlord,

since the former committed the wrongful act.

c. Rationale: D has fee simple, gives leasehold to T1, then remainder in leasehold to T2, then reversion in D. Thus D has no possessory interest until reversion.

i. Unless there is a gap between T1 and T2, in which case the estate reverts to D until the lease with T2 begins.

d. Criticism: makes no sense in modern context. 3. Can contract for delivery of possession. A license is not an interest

in land. ii. English Rule: implied covenant to deliver possession

1. Does not extend beyond first day of lease. 2. Rationale: T would not have signed lease if he had known he could

not get possession on the date agreed upon, and D is in best position to know if T1 will get out or not.

3. Criticism: if you want deliver, contract for it in the lease!b. Subleases and Assignments

i. Ernst v. Conditt (1964)1. Majority Rule: if the instrument transfers the estate for the entire

remainder of the term, then it is an assignment, regardless of form or intention. If less than remainder of term, then it is a sublease, regardless of form or intention.

2. Minority Rule: intention of the parties is paramount. 3. Criticism of Court’s Analysis:

a. The Ernst Court looks at whether the parties intended to leave time on the lease, but the more relevant inquiry is whether the sublessor/assignor intended to be liable. If so, then sublease. If not, then assignment.

ii. Sublease: A lease to B, then B sublease to C (conveys an interest, not the whole)

1. A and B have privity of contract and estate2. B and C have privity of contract and estate3. Sublessor retains reversion.

iii. Assignment: A lease to B, then B assign to C (conveys the whole term)1. A and B have privity of contract2. B and C have privity of contract3. A and C have privity of estate. 4. Transfer of all interest in part of premises = partial assignment.5. Sublessor transfers entire interest, but instrument provides that if

transferee breaches any obligation, sublessor can terminate and retake possession:

a. Majority: assignmentb. Minority: sublease

iv. Privity = voluntary transactional relationship between two or more people or entities

1. Privity of Estate: conveyance of right of possession2. Privity of Contract: other promises in the lease

c. Reasonableness Requirement for Consent to Sublease/Assignmenti. Kendall v. Ernest Pestana Inc (1985)

1. Commercial lease with provision against assigning or subleasing w/o lessor’s prior written consent, but no requirement of reasonableness in providing consent.

2. Held: consent can only be withheld where the lessor has a commercially reasonable objection to the assignment.

a. Rationale:i. Privity of Estate: policy against restraints on

alienationii. Privity of Contract: duty of good faith and fair

dealing.b. Old Rule undermined b/c:

i. Lessors now have a duty to mitigate upon abandonment, so can’t just look to lessee for rent.

ii. Lessor’s personal selection rights are protected as long as they are commercially pertinent

iii. Good faith and fair dealing requirements do not rewrite contracts.

iv. Majority rule is far from universal, so no reliance.v. Lessor can’t get more than it bargained for in the

lease, so it has no right to increased property value gained by sublessor/assignor.

ii. Carma Dev. v. Marathon Dev. CA Inc (1992)1. Upheld a “termination and recapture clause” in commercial lease

between sophisticated parties with competent counsel. The clause provided that (1) T was to give L written notice identifying terms and parties of any sublease or assignment; (2) L could then terminate the lease with T and enter a new lease with T2; (3) T was not entitled to any profit realized by L as a result.

iii. No court has extended this reasonableness requirement to residential leases.

1. Rationale: public policy is different for residential leases, and it would create tons of litigation on whether refusal was reasonable.

IV. Defaulting Tenantsa. Tenant in Possession (Eviction)

i. Berg v. Wiley (1978)1. Common-law rule: landlord can use self-help measures to retake

the premises if a. (1) L is legally entitled to possession (T breached or held

over, e.g.) and i. Berg did breach by failing to get permission for

remodel, failing health codes, etc. b. (2) L’s means of reentry are peaceable.

i. Wiley’s reentry was not peaceable b/c he knew Berg was asserting possession, there was a history of vigorous dispute and keen animosity, and he locked Berg out. The only reason there wasn’t actual violence is that Berg wasn’t there.

2. Modern Rule (Majority): self-help measures are never peaceablea. L cannot be judge of own rights or take law into own

hands.i. Criticism: Ls pass on costs of litigation to Ts who

pay their bills on time. b. Summary procedure allows recovery of possession in 3-10

daysi. Criticism: it actually takes 114 days on average

ii. Criticism: summary proceedings generate public records, which damage tenants next time they try to rent.

ii. Almost all states prohibit self-help in residential settings, and 12 allow peaceable self-help in commercial settings.

1. Rationale: greater psychological impact in residential leases, plus there’s a need for immediate replacement for a residential lease. Commercial parties are also more likely on equal footing.

iii. ½ of courts allow contracting away prohibition against self-helpb. Tenant Who Abandons Possession

i. Sommer v. Kridel (1977)1. D made lease with P, then backed out after engagement fell apart

and sent letter asking to end lease in exchange for rent already paid. P did not respond. 3rd party tried to rent that apartment, D refused. P reentered 1.5 years later and rented to new tenant.

2. Held: L has duty to mitigate damages in residential setting b/c lease = contract. Rationale: basic fairness, efficiency, and prevention of vandalism.

a. majority: T must prove failure to mitigationb. minority: L must prove reasonable diligence to re-let the

apartment. 3. Minority view: no mitigation

a. Rationales: i. T cannot impose duty on L b/c of T’s wrongdoing

ii. T purchased interest in land and is stuck with itiii. L should not be forced into personal relationship

with T he does not want.iv. L should not be required to continually seek out

new Tsv. Abandonment is invitation to vandalism, and law

should not encourage abandonment by duty of mitigation on L

vi. Mitigation attempts might be held to constitute unwilling acceptance of T’s surrender (offer to end tenancy and terminate lease that extinguishes liability for future rent).

1. L’s acceptance turns on whether L’s retaking possession was consistent with continuation of the original lease. Factors:

a. Length of new tenancy, whether alterations were made, new rent, etc.

ii. Consequences of Failure to Mitigate1. Recover no rent after abandonment2. Recover difference between agreed rent and the amount of loss that

could have reasonably been avoidediii. Sylva Shops v. Hibbard (2006): upheld contracting away duty to mitigate.

V. Tenants’ Rights (if there’s a problem with the premises, do quiet enjoyment, constructive eviction, AND warranty of habitability)a. Quiet Enjoyment (timing more important here than WofHabitability)

i. Covenant of quiet enjoyment1. Implied covenant that tenant shall have right of possession,

occupancy, and beneficial use of the every portion of the leased premises.

ii. Village Commons v. Marion County Prosecutor’s Office (2008)1. Leaky pipes, mold, flooding, etc. Lease limited remedies to

damages or injunctive relief, but not termination of lease. 2. Held:

a. Exclusive Remedy Provision: Valid. T can’t terminate lease.

i. However, L evicted T here; T did not terminate. b. Wrongful Eviction

i. Actual Eviction: T deprived of material part of leased premises

1. Water intrusionsii. Constructive Eviction: L supposed to repair

(promised in lease), but didn’t. b. Breach of Covenant of Quiet Enjoyment:

i. Actual Eviction: deprived of material part of leased premises (see Village Commons).

ii. Constructive Eviction (ELEMENTS)1. (1) Condition of premises breaches covenant of quiet enjoyment

a. Based on character of property – dripping water may be constructive eviction for one use and not for another use of property.

i. In other words, look to L’s duty to T in the lease.b. Eviction is not necessary to constitute a breach.

2. (2) Breach is so substantial as to justify T absenting the premises.

3. (3) T leaves within a reasonable timea. If T stays too long, e.g. by signing another lease, then no

constructive eviction. b. Once T leaves, there’s no more obligation to pay rent.

4. Problem Areas: a. Are a long series of small events enough?b. Is one big event enough?c. How long is a “reasonable time” to fix the problem?

5. Note: some courts relieve tenant of all rent for a partial eviction.6. Dependent Covenants:

a. T’s covenant to pay rent is not dependent on L’s covenant to provide quiet enjoyment.

c. Implied Warranty of Habitabilityi. Warranty of Habitability

1. Covers all latent and patent defects in essential facilities of the dwelling. Look to housing code and whether defect has impact on safety or health of T. 1-2 violations not enough. T must inform L of breach and allow reasonable time for correction.

a. Criticism: hard to determine in practice2. T cannot assume the risk or waive the warranty.3. Standard contract remedies are available

a. T can withhold rent and need not abandon premises (b/c contract theory).

i. Must prove notice and that defect happened while rent was withheld.

b. T can, after reasonable time, fix the problem herself and charge L (out of rent).

4. Damagesa. Measure of damages options:

i. (1) = value of building as warranted – value of dwelling in defective condition

ii. (2) = agreed rent – fair rental value as kept during occupation

iii. (3) = agreed rent reduced by % equal to % of lease-value lost by tenant b/c of breach.

b. Damages allowed for discomfort and annoyancec. Punitive damages allowed when breach is willful and

wanton or fraudulent. ii. Some states don’t have the warranty, it doesn’t apply to all residential

leases, and most jurisdictions don’t extend the warranty to commercial leases.

1. Thus quiet enjoyment, constructive eviction, and illegal leases are still important.

iii. Hilder v. St. Peter (1984)1. P occupied apartment that had tons of problems so as to be

uninhabitable.

2. Held: D ordered to pay damages in reimbursement for all rent paid and additional compensatory damages for violating warranty of habitability.

a. Common law rule (caveat lessee) no longer applies b/c Ts don’t want land for farming, can’t fix their own problems, and have unequal bargaining power.

iv. Chicago Board of Realtors v. Chicago (1987)1. Posner and Easterbrook:

a. Warranty of Habitability only helps the middle class, not the poor:

i. Rules are so T-friendly that Ls will respond by raising prices, leaving poor Ts w/o housing. Ls will also screen applicants more thoroughly b/c cost of defaulting T is higher.

ii. Ls might decide to get out of the business, leading to housing shortage

iii. Ls might divert money from making repairs in order to compensate for increased costs

iv. When rent is eliminated as distinguishing factor between Ts, Ls turn to credit-worthiness, race, sex, or ethnicity in allocating scarce rental units.

b. Virtually all economists view rental controls as counter-productive

i. Forces poor into extralegal remedies b/c demand for cheap housing increases and people pay Ls to get on list for housing. Thus “rent” basically ends up where we started, except with more illegal activity.

d. Quiet Enjoyment vs. Habitabilityi. Habitability only applies to residential.

ii. Habitability has a higher standard. iii. Habitability doesn’t require moving out and allows you to repair things

yourself.

THE LAND TRANSACTION

I. Basicsa. Statute of Frauds

i. Except for leases under 3 years, no interest in property can be created or transferred except by written, signed instrument.

ii. Writing must be signed, describe the real estate, and state the price (usually).

b. Warranties of Titlei. Short Form Deed:

1. Grantor, grantee, words of grant, description of land involved, signature of grantor, attestation/acknowledgement.

ii. Types of Deeds:1. General Warranty Deed:

a. Warrants title against all defects in title, whether they arose before or after grantor took title

2. Specialty Warranty Deeda. Warranties only against grantor’s own acts, but not the acts

of others3. Quitclaim Deed

a. No warranties of any kindc. The Recording System

i. Functions:1. Establishes system of public recordation of land titles2. Preserves in secure place important docs that might be lost in

private handsa. Lis pendens: filing in any lawsuit affecting real property

that notifies subsequent claimants of the current claims

3. Protects purchasers for value and lien creditors against prior unrecorded interests

ii. Typically requires acknowledgement before a notary public or other official, some states require transfer tax.

II. Types of Recording Actsa. Race Statute (NC and LA)

i. First person to record the deed gets the deed1. Rationale: limits inquiry into matters off the record

b. Notice Statute (1/2 of states)i. If subsequent purchaser had notice of prior unrecorded instrument, he

cannot prevail over the prior grantee, since that would work fraud on prior grantee.

1. No notice = protected even if he didn’t record his deedii. Notice:

1. Actual notice: observed the transaction2. Constructive notice: searched the records properly

a. No constructive notice if there is a defect on the face of the deed.

3. Messersmith v. Smith (1953)a. Ms. Mess conveyed deed to Mr. Mess, who did not record

it until 1951. In the meantime, Ms. Mess assigned to Smith a mineral deed for same property, which was not signed in presence of notary public. Smith conveyed deed to Seale, who recorded it.

b. Held: deed Seale relied on was defective b/c not signed in presence of notary public; thus it did not give notice. Mr. Mess thus recorded first.

iii. Rationale:1. Fairness between two conflicting claimants

iv. Criticism:1. Less efficient, since notice depends on facts not on record.

v. Shelter Rule:1. A person who takes from a bona fide purchaser protected by the

notice statute has the same rights as his grantor.c. Race-Notice Statute (1/2 of states)

i. Subsequent purchaser protected against prior unrecorded instruments only if the subsequent purchaser (1) is w/o notice of prior instrument and (2) records before prior instrument is recorded.

ii. Rationale: 1. Eliminates lawsuits turning on extrinsic evidence about which deed

was delivered first2. Incentivizes recording, thus making public records complete

III. Chain of Title Problems

a. Chain of Title = period of time for which records must be searched and the docs that must be examined within that time period.

i. Standard title search requirement: from date of execution of deed granting title to date of recordation of the first deed by such owner conveying title to someone else.

b. Board of Education of MN v. Hughes (1912)i. D sent check to Hoergers along with deed to be signed, with the name of

grantee left blank. They signed it w/o filling in the grantee space and sent it back. D filled in name and recorded the deed in Dec 1910. In 1909, however, Hoergers gave warranty deed to same land to D&W, who recorded just after D. Ps got title from D&W and recorded in Jan 2010.

ii. Held:1. The deed from Hoergers to D was operative b/c D had implied

authority from grantor to fill in the blank. Why: good sense and equity.

2. Race-Notice Jurisdiction:a. (1) Notice

i. There was a record of transfer from D&W to P, but not of D&C ever having title; thus this was a wild deed. No notice for wild deeds b/c D is not required to search every deed ever created.

b. (2) Recorded Firsti. D’s conveyance dates from time of filling in blank

space, which happened after deed from Hoergers to D&W, but before it was recorded. D is therefore a subsequent purchaser, but recorded first.

c. Race-Notice Statute therefore protects D. iii. Note: it may be that the court gives preference to the person who paid

first, which in this case is D.

NUISANCE

I. Elementsa. Interference with use and enjoyment of land must be:

i. (1) Substantial and ii. (2) Either intentional and unreasonable OR the unintentional result of

reckless, negligent, or abnormally dangerous activity, and iii. (3) Not trespassory (trespass can be persons or objects).iv. Nuisance cannot be a class action.

b. Unreasonableness:i. Common Law Gravity of Harm Test:

1. Does level of interference cross some threshold that triggers liability? a. Jost v. Dairyland Power Coop: upheld exclusion of evidence

offered by D to show that utility of operations > gravity of harm.

ii. RST Standard: circumstances and nature of the area1. Balancing Test:

a. Gravity of harm > utility of conduct (public interest) ORb. Harm is serious and compensation won’t put D out of business.

2. Factors:a. Consistent with activity in the area?b. Priority in time

i. Not dispositive b/c don’t want to encourage development races.

c. Gravity of harm: frequency and seriousnessd. Public Interest: how many people are benefitted?

3. This standard is most used when deciding whether or not to grant an injunction, see Boomer.

c. Nuisance and Trespassi. Unintentional trespass essentially = nuisance

ii. Intentional trespass = same as other tortsiii. Intentional nuisance: reasonableness and gravity of harm

d. Morgan v. High Penn Oil Co (1953) (Gravity of Harm)i. Ps have house, restaurant, and space for 32 trailers. D oil refinery moved in

and emits noxious gases and odors, making people uncomfortable and sick. Ps asked D to stop.

ii. Held: Substantial b/c making people sick. Intentional b/c D knows about the problem and has refused to stop. Unreasonable b/c D moved to this area knowing that there were people around.

e. Fear and Loathing Nuisancei. Adkins v. Thomas Solvent: fear of contamination from toxic waste dump,

resulting in lower property prices, is not enough to be a nuisance where it is proven that there will not be a leak.

ii. Smith v. Kansas Gas Service: stigma damages recognized only where P’s property has sustained actual physical injury as a result of D’s conduct.

f. Light and Airi. Amphitheaters v. Portland Meadows: bright lights in amusement park

affecting drive-in theater—not unreasonable b/c drive-in is just particularly sensitive. Nuisance protects only ordinary use.

g. SMOKEi. Smoke is considered a nuisance in most jurisdictions, not a trespass.

II. Nuisance Remediesa. Estancias Dallas Corp v. Schulz (1973) (Gravity of Harm)

i. Ps wanted D to stop operating AC equipment next to residence, noise is permanent and continuous and like a jet engine.

ii. Held: permanent injunction, damages of $10,000 for discomfort, inconvenience, annoyance, and impairment of health.

1. Doctrine of necessity: if public benefit > gravity of harm = no injunction.

a. No shortage of housing even if D shuts down, so no public interest harmed.

iii. Dissent (Professor):1. What about people using the apartment? What about increased cost of

rent to tenants after damages? Are they really weighing public interest?

a. Court maybe thinking that D should have paid for better system in first place, i.e. they acted in bad faith by installing this system.

b. Court maybe thinking that proportion of damages is much higher for Ps than for D; D can afford it.

c. Court maybe thinking that people in apartment complex also suffering from noise

d. Court maybe thinking that cost to fix problem isn’t as high as D claims.

e. Court maybe thinking Gravity of Harm = $25,000 for noise + I love my house + I got here first + D is rich + etc.

b. Boomer v. Atlantic Cement (1970) (RST Approach)i. Held: grant injunction until permanent damages paid.

1. Injunction granted unless there is a large disparity in economic consequences. Here, damage to P’s land < cost of shutting down D’s plant.

ii. Court shifts a property right from P to D (servitude on land), i.e. now D has the right to put cement, noise, etc. onto P’s land. This is a forced sale of a property right.

c. Permanent and Temporary Damagesi. Temp: allow court to make more accurate assessment, but have high

administrative costs and are inconvenient. ii. Perm: difficult to make accurate assessment, low administrative cost and

convenient. 1. Not once-and-for-all if D increases its nuisance above expected levels.

d. Risks of Injunctive Relief:i. (1) Parties might waste enormous resources in bargaining over the surplus

ii. (2) They might not be able to reach any agreement at all given the tendency to bluff and bluster

III. Lateral and Subadjacent Supporta. If land unaltered: strict liabilityb. If land has improvements: negligence or prove land would have fallen even w/o the

improvements (e.g. structures)c. Right to this support can be waived, expanded, etc.

EASEMENTS, COVENANTS, AND SERVITUDES

I. Easementsa. Servitudes are agreements that created interests in land, binding and benefitting

not only the parties to the agreement in question but also their successors. b. Five Types of Servitudes

i. (1) Easement: A is given the right to enter upon B’s land1. Usually a right of way, but not necessarily

ii. (2) Profit: A is given the right to enter upon B’s land and remove something attached to the land

iii. (3) Easement, Real Covenant, or Equitable Servitude: A is given the right to enforce a restriction on the use of B’s land

iv. (4) Real Covenant or Equitable Servitude: A is given the right to require B to perform some act on B’s land

v. (5) Real Covenant or Equitable Servitude: A is given the right to require B to pay money for the upkeep of specified facilities

c. Types of Easementsi. Affirmative Easement: can do something on someone else’s land

ii. Negative Easement: someone else can’t do something on your landiii. Appurtenant Easement: gives to owner of land that the easement benefits a

right to make some specific use of land that they do not own1. Requires both dominant and servient estates. Easement attaches to

and benefits the dominant estate. 2. Can be transferred easily with the land.

iv. Easement in Gross: gives to some person a right to make some specific use of land that they do not own

1. No dominant estate, just servient estate. 2. Most modern courts allow EinG to be assignable if the parties so

intended.

a. Recreational easements, however, are not assignable b/c they are intended to be personal and courts don’t want to burden servient estate more than originally intended.

i. Ex: you can use my pool.

d. Creation of Easementsi. Express: execute a document and record it.

1. Willard v. First Church of Christ Scientist (1972): example of why express easements are best.

a. McGuigan gave easement to D for parking, then sold the lot to Peterson on condition that D be able to continue to use it for parking. Peterson sold to P, who did not know about the easement (although Peterson did mention that D wanted to park).

b. Held: easement upheld.i. Easement in favor of third party stranger allowed

b/c of intent of parties. 1. Deed declared intent2. Peterson paid less b/c of easement

ii. Easement in fee simple determinable:1. Easement: use rights2. Fee simple determinable: time rights.

c. Alternative Solutions:i. McGuigan sells land to D first, then D sells to

Willard.ii. McGuigan creates written easement with D, which

would then run with the land after she sold it. ii. By Prescription:

1. Requirements:a. (1) Open and notoriousb. (2) Adverse and hostilec. (3) Continuous for statutory period (statute of limitations)

2. Holbrook v. Taylor (1976)a. Ps bought land, gave permission for haul road to be cut for

moving coal in exchange for royalty, then they built a tenant house (which burned down) that used the road, then Ds bought the site and built a house, using the road with P’s permission.

b. Held: i. Prescription: no

1. No evidence that it was adverse and hostile b/c they had permission

ii. Estoppel: yes1. Used to get to home, to build the home, they

improved the road and maintained it, all with actual (or tacit) consent.

2. Not unfair b/c Ps knew that was the only way into the land they sold to D.

3. Miller v. Lutheran Conference & Camp (1938)

a. Frank and Rufus Miller made dam to get lake, leased lake to corp they owned and gave exclusive rights to water and its privileges. Deed gave to Millers right to fish and boat in ¾ (F) and ¼ (R) shares. Corp went bankrupt, Katherine Miller bought it. Heirs of ¼ interest sold camp to D, P objected b/c too many people bathing.

b. Held: conveyance to D invalid. i. F got boating and fishing by grant, and F&R both

got bathing rights by prescription. ii. F made valid assignment of ¼ interest in those

rights to Rufus. iii. None of the rights can be commercially used, and

licenses thereunder granted must be with common consent (one stock rule).

1. Rationale: the grant intended it to be so. c. Modern Rule:

i. Focus on how many rights are left in the servient tenement, i.e. what burden did parties intend to be on the servient tenement?

1. Probable analysis: Corp gave all the rights to F&R, so the burden of Camp bathers is not too great.

iii. By Estoppel1. Grantee relies on the easement.2. Lasts as long as any other easement, unless the parties intended or

reasonably expected something else. 3. See Holbrook.

iv. Prior Existing Use1. Requirements:

a. (1) Severance of title to land initially undividedb. (2) An apparent, existing, and continuing use of one parcel

at the time of severancei. Apparent = notice

1. Inquiry notice too, see Van Sandt. c. (3) Reasonable necessity for the use at time of severance

i. I.e. alternative access cannot be obtained w/o substantial expenditure of money or labor, or that there may be waste in duplicating facilities.

2. Van Sandt v. Royster (1938)a. Bailey put private lateral drain from her home on lot 4

across lots 20 and 19 to the public sewer. She then sold those lots with no exceptions or reservations. Lot 19 discovered the sewer line when it broke.

b. Held: appurtenant easement existed in lateral sewer, P enjoined from interfering with the drain or sewer.

i. Would have been an easy case if Bailey had sold lot 4 first, since the easement would have attached.

ii. (1) Severance: yesiii. (2) Inquiry notice: reasonable owner makes an

inspection, sees there’s plumbing, should assume that there’s an easement concerning it.

iv. (3) Necessity: yes. 3. Implied Reservation vs. Implied Grant

a. Implied reservation (easement implied in favor of grantor): reasonable necessity

b. Implied grant (easement implied in favor of grantee): strict necessity.

v. By Necessity:1. Landlocked parcel of land entitled to way of necessity over

remaining lands of the common grantor if:a. (1) There was a division of commonly owned landb. (2) The division resulted in creating a landlocked parcelc. Necessity = lack of reasonably practical access to a public

road for the reasonable enjoyment of land (includes a right to drive).

i. Easement remains as long as necessity exists. 2. Berge v. Vermont (2006)

a. Davis gave land to VT for state park and small portion to M&W, but with no express easement for access through state land. P bought from M&W and uses gravel road to get to land, but state put gate on the road. P could still get to land by water.

b. Held: access to property by water insufficient. i. P would have no access during winter and would be

subject to weather and water condition, thus no practical access.

II. Terminating Easements

a. Methods of Terminating Easementsi. Release:

1. Requires a writing, easement owner simply releases itii. Expiration:

1. Naturally ends upon reaching end of stated period2. For defeasible easements, when the stated condition occurs.

iii. Necessity:1. Ends when necessity that gave rise to it ends.

iv. Merger:1. Easement owner becomes owner of servient estate.

v. Estoppel:1. Servient owner reasonably relies on a statement or representation

by the easement owner

vi. Abandonment: Preseault1. Non-use usually not enough, but in some states a prescriptive

easement ends by non-use.vii. Condemnation:

1. Gov exercises eminent domain power to take title for a purpose inconsistent with the easement.

viii. Prescription:1. Servient owner wrongfully and physically prevents the easement

from being used for the prescriptive period. ix. NOTE: traditional law of easements does not recognize a “changed

conditions doctrine.” b. Preseault v. United States (1996)

i. Rails-to-Trails Act converted discontinued RR rights of way into public trails. Ps owned underlying land in fee simple, claimed that conversion was a taking.

ii. Held: it is a taking b/c underlying property right did not include use as public recreational trail.

1. D owns the land, and the RR had an easement (not a fee simple estate for right of way).

a. Ps agreed to the transfer w/gov looking over their shoulder2. Scope of Easement:

a. Limited to RR purposes: get from A to B. Recreational trail: frolic. (c.f. Miller: boating and fishing are different from bathing).

i. Trail is a bigger burden on servient estate: more people, more traffic, greater risk of trespass.

3. Easement had been abandoneda. Simple non-use alone does not extinguish easement: need

conduct by owner manifesting intent to relinquish or a purpose inconsistent with future existence.

i. Removal of all tracks and equipment was inconsistent with future existence.

ii. Collection of licensing fees not enough b/c Ps paid under protest.

III. Real Covenants (damages/injunction)a. Bargains among neighbors less likely if only original promisor is bound, so a

property right is required to make bargain run with the land. b. Formalities For Binding the Burden:

i. (1) Statute of Fraudsii. (2) Must have intent to bind successors

iii. (3) Must touch and concern the landiv. (4) Notice (i.e. recorded)v. (5) Horizontal Privity

1. Common law: landlord-tenant relationship only2. Some States: mutual interests in land

a. Ex: landlord-tenant, co-owners, servient owners3. Some States: successive interests in land

a. Grantor-grantee relationship (grantee is successor-in-interest)

4. Some States: no privity requirementvi. (6) Vertical Privity = assignment of all interests in the land

1. Runs only to parties that have succeeded to the SAME estate as the original promisor.

c. Formalities For Binding the Benefit:i. (1) Statute of Frauds

ii. (2) Must have intent to bind successorsiii. (3) Must touch and concern the landiv. (4) Vertical Privity: lower standard

1. Runs to parties that have succeeded to the original parties’ estates in the land (can be LESSER estate)

IV. Equitable Servitudes (injunction only)a. Traditional Requirements for Equitable Servitudes

i. Burden to Run:1. (1) Parties must intend the promise to run / bind successors2. (2) Subsequent purchaser must have actual or constructive notice

of the covenanta. Exception: successors who give no consideration (i.e. gift

recipients) are not protected against prior interests of which they have no notice.

3. (3) Covenant must touch and concern the land4. (4) Statute of Frauds5. Note: no requirement of privity!

ii. Benefit to Run:1. (1) Parties must intend the promise to run / bind successors2. (2) Covenant must touch and concern the land3. (3) Statute of Frauds

b. Theoryi. ESs burden the land itself, not the estate, so there is not privity

requirement. In this way they are like easements. c. Tulk v. Moxhay (1848)

i. P sold fee simple in ground with covenant for successors to maintain ground and garden and not build any buildings that covered horse statue.

ii. Held: if an equity is attached to a property by the owner, no one purchasing with notice can refuse to be bound.

1. No real covenant b/c not landlord-tenant.2. It would be unjust to buy land at price w/covenant, then get out of

it and turn around and sell it for more. d. Equitable servitude invalid if it: (see Nahrstedt)

i. (1) Violates public policy or

1. Discriminatory, no rational relation to protection, preservation, operation or purpose of affected land.

ii. (2) Is wholly arbitrary oriii. (3) Is unreasonable: burden on P vs. benefit to D

V. Discriminatory Covenantsa. Shelley v. Kraemer (1948)

i. Restrictive covenants prohibiting black homeowners in areaii. Real Covenant: no

1. No horizontal privity b/c being a neighbor does not create privity.iii. Equitable Servitude: yes

1. Reciprocal b/c burden and benefit run to all parties (can’t have black people, but neighbors can’t have black people either).

VI. Common Interest Communities

a. Condominiumsi. Each unit owned separately in fee simple by an individual owner

(mortgages separate, taxes separate). Exterior walls, land beneath, hallways, and other common areas are owned by unit owners as tenants in common.

b. Cooperatives (mostly in NYC)i. Title to land and building held by corp, residents own all the shares of

stock and control corp through board of directors. Each resident has a long-term renewable lease of a unil.

1. Thus residents are both owners and tenants of the corp.ii. One blanket mortgage; if one cooperator fails to pay, the others pick up

the slack.1. Strong incentive to screen applicants for finances (and other traits).

NY courts have allowed denial for any reason that doesn’t violate civil rights laws.

iii. Although condos are more efficient and desirable, coops persist b/c they offer greater selectivity and there is a high transaction cost in switching to a condo.

c. Nahrstedt v. Lakeside Village Condo Ass’n (1994)i. P sued to prevent HOA from enforcing restriction on pets.

ii. Held: upheld restriction.1. Restrictions in Originating Documents

a. Standard of Review: presumption for reasonablenessi. Rationale: protects general expectations of condo

owners, protects buyers who relied on a particular restriction, encourages shared ownership housing, discourages lawsuits, protects owners from fee increases to fund litigation.

1. Case-by-case analysis would be expensive and would destabalize communities.

b. Elements: equitable servitude invalid if it

i. (1) Violates public policy or1. Discriminatory, no rational relation to

protection, preservation, operation or purpose of affected land.

ii. (2) Is wholly arbitrary oriii. (3) Is unreasonable: burden on CIC vs. benefit to

CIC1. NOT burden on P vs. benefit on CIC.

2. Restrictions Later Enacted by the Boarda. Must have rational justification, i.e. reasonableness with a

higher standard.

ZONING

I. Step #1: Is the Zoning Ordiance/Amendment Constitutional? a. Zoning arose to prevent nuisances before they arose, rather than after.

i. Zoning is exercise of police power to protect health, safety, welfare, and morals.

ii. ½ of states require zoning ordinances to conform to a comprehensive plan: a statement of local gov’s objectives and standards for development.

b. Village of Euclid v. Ambler Realty Co (1926)i. Zoning ordinances took ¾ of value of P’s land. P claims violation of 14th

SDPC and EPC. ii. Held: ordinances are constitutional, apply RBR

1. No fundamental right (looks too much like Lochner)2. No heightened scrutiny3. Rational Basis Review:

a. Legit Gov Interest: prevent nuisancesi. Illegitimate only if general public interest >! interest of

municipality.b. Rationally Related: yes.

i. Being over-inclusive does not make the law invalid.4. Note: this is essentially nuisance writ-large.

c. Questions/Themesi. Is zoning the best way to deal with neighbors (vs. nuisance,

covenants/easements)?ii. When nonconforming uses are frozen in time, how could we or should we

allow those uses to change over time?iii. Power of local government vs. power of private property owners: does zoning

strike the right balance?

II. Step #2: Is there a taking? (categorical taking? Regulatory taking? Balancing Test?)a. Non-Conforming Uses

i. Principles1. Right to nonconforming use runs with land so it survives change of

ownership.2. Change of use:

a. Some jurisdictions allow nonconforming uses to expand to meet natural changes (e.g. increased demand)

b. Some jurisdictions allow one nonconforming use to change into another nonconforming use, but only if the change reduces the impact on the zone in question

3. Destruction or abandonment terminates the nonconforming use; some terminate after a period of nonuse.

4. Vested Rights Doctrine: pre-existing operation, but not fully established

a. Factors:i. How far developer has gone in obtaining gov approval

ii. How much money invested in good faithiii. What the money has been spent on

b. Amortization Provisionsi. 24 states allow it, ranging from 1 to 30 years.

ii. PA Northwestern Distributors v. Zoning Hearing Board (1991)1. P got permits and certificates to open adult book store, 4 days later,

Board amended zoning ordinances to regulate adult commercial enterprises and gave non-conforming businesses 90 days to amortize if they couldn’t meet standards.

2. Held: any provision for amortization of nonconforming uses is per se confiscatory and unconstitutional

a. A lawful nonconforming use establishes a vested property right that cannot be destroyed unless it is a nuisance, is abandoned, or is extinguished by eminent domain.

b. Restrictions on future uses are fine. 3. Concurrence: reasonable amortization fine if it balances public gain vs.

private loss:a. Factors:

i. Length of amortization period in relation to nature of nonconforming use

ii. Length of time in relation to the investmentiii. Degree of offensiveness of the nonconforming use in

view of the character of the surrounding neighborhood.iv. The amount investedv. Amount of time needed to amortize the investment

b. Rationale:i. Per se rule unnecessarily restricts police power and

prevents zoning operation. c. 90 days not long enough to close a business or get alternate

means of income and could prevent reasonable return on investment.

c. Variances: allow use in a manner otherwise prohibited (more “judicial” discretion)i. Zoning Board can allow variance from terms of ordinance if not contrary to

public interest and if special conditions would make enforcement an unnecessary hardship.

1. Compared to Cope: for variance, the standards have to be vague b/c we don’t know in advance what the problems will be.

ii. Commons v. Westwood Zoning Board (1980)1. W wanted to build house on lot in residential neighborhood, but lot did

not meet minimum size requirement.

2. Held: variance allowed. W/o variance, lot would be zoned into inutility, and no evidence that variance would impact zoning plan.

a. (1) Variance must be necessary to avoid imposing undue hardship on owner of land in question (i.e. no effective use could be made if variance denied)

i. Owner must have made reasonable efforts at compliance (tried to sell, buy more land, etc.).

ii. Hardship must not be self-inflictediii. PERSONAL hardship usually irrelevant

b. (2) Grant of variance must not substantially impinge on public good and the intent/purpose of zoning plan and ordinance.

d. Special Exceptions: allow use in a way permitted by the comprehensive plan (i.e. zoning for the area disallows it, but it’s consistent with the comprehensive plan) (less “judicial” discretion).

i. Definition: specific, permitted land use that is allowed when clearly defined criteria and conditions contained in the ordinance are met.

ii. Cope v. Inhabitants of Brunswick (1983)1. Zoning ordinance allowed Board to grant special exceptions if (1)

other requirements of ordinance were met, (2) the use would not adversely affect health, safety, or general welfare of public, (3) use would not tend to defeat purpose of comprehensive plan, and (4) use would not devaluate or alter essential characteristic of surrounding property.

2. Held: ordinance unconstitutional b/c it improperly delegates (2) and (4) to the Board instead of the legislature.

a. Board can determine whether (2) and (4) have been met, but there must be more guidance from legislature on how to do that (i.e. specific examples, thresholds, guidelines, etc.).

e. Zoning Amendmentsi. State v. City of Rochester (1978)

1. Rational basis review applies to zoning amendments. ii. Spot Zoning: creates island of nonconforming use within larger zoned district

and reduces value of uses in that district1. Invalid when some or all (usually all) of these factors are present:

a. Small parcel of land singled out for special and privileged treatment

b. Singling out is not in the public interest, but only for the benefit of the landowner

c. Action is not in accord with comprehensive plan

EMINENT DOMAIN AND TAKINGS

Do zoning first, then ask if it’s a taking.

I. 5th Amendment Requirements for Eminent Domaina. Condemnation

i. Public Use1. Kelo v. City of New London (2005)

a. D approved development plan intended to create 1,000 jobs, increase tax revenues, and revitalize economically distressed city. D delegated power to enforce plan to a nonprofit. D did not plan to open condemned land to general public and private lessees not required to operate like common carriers.

b. Held: public use = public purpose; this qualifies. i. “Ends Test” with deferential scrutiny

1. (1) Takings must be reasonably necessary to achieve intended public use

2. (2) Takings must be for reasonably foreseeable needs

ii. Private one-to-one transfers are unconstitutional, unless done for public purpose.

c. Concurrence (Kennedy): this was the deciding votei. Motive Matters: taking should not survive public use

test if its purpose is to favor particular private party with only incidental public benefits.

d. Dissent (O’Connor):i. Does taking directly serve the public use?

1. Berman: taking blighted property2. Midkiff: breaking up monopoly3. Kelo: redistribution….indirect, so not ok!

e. Dissent (Thomas):i. Public use does not = public purpose. Use = use.

ii. Just Compensation1. Fair Market Value

a. What does that mean?II. Regulatory Takings

a. Categorical Takingsi. 100% Diminished Value

ii. Permanent Physical Occupation1. Loretto v. Teleprompter Manhattan (1982)

a. A permanent physical occupation authorized by gov is a taking w/o regard to the public interests it may serve.

i. Not subject to balancing test b/c the taking is permanent.

1. Permanent = continuous

ii. PPO destroys bundle of sticks for the part occupied, i.e. it’s not a servitude: it’s fee simple.

1. Having no rights is very different from having only one right.

b. Dissent:i. What is permanent? The law could change, the

apartment could not be rented anymore, etc. ii. Analysis is too formalistic: physical vs. non-physical is

not a salient difference; non-physical can be much worse.

2. Note: if a fire escape were required, but you got to choose where to put it, then it would not be a taking.

3. Temporary Physical Occupationa. Arkansas Game & Fish Commission v. U.S. (2012)

i. Gov-induced flooding of temporary natureii. Held: not per se taking. Remanded for balancing test,

including factors such as duration of flooding, its foreseeability, and the character of the land in question.

iii. Exactions: gov allows some personal use in exchange for some gov useb. Balancing Test

i. Key to the Analysis: how do we characterize the property right being taken? 1. Penn Central: air rights vs. City of New York: air rights, rights to

GCS, etc. ii. Penn Central Transportation Co v. City of New York (1978)

1. Regulation prevented P from building large office building on top of Grand Central Station.

2. Held: the regulations are not a taking. Factors:a. (1) Economic Impact on P (e.g. built, but lost)

i. Regulation does not completely destroy right to the airspace; it just disallows the plans presented. Also, the regulation does not interfere with the present use of the Terminal, which gives P a “reasonable return” from its investment.

ii. Also, Transferable Development Rights (TDRs)1. Gov didn’t allow use of those air rights here, but

you can transfer those rights to nearby buildings (which they own).

b. (2) Distinct Investment-Backed Expectations (e.g planned, but not built)

i. For analysis of DIBE, see Lucas. 1. Some courts have ignored DIBE completely2. Some courts find DIBE only when regs interfere

with investments that have already been made (i.e. only look at (1)).

c. (3) Importance of Gov Action

i. Enhances quality of life for all, preserving landmark is a wonderful thing.

3. Dissent:a. Taking b/c NYC asks P to bear burden of maintaining

historical landmark, but the city should really bear that cost.b. TRDs are essentially just compensation

i. If the money part of the analysis happens during the takings question—instead of just compensation—then the gov can typically get away with paying much less.

iii. Lucas v. South Carolina Coastal Council (1992)1. Lucas bought beachfront property. After land zoned for individual lot

construction and most other parcels had been improved, state passed reg prohibiting building on the land.

2. Held: this was a takinga. To not be a taking, regulation must

i. (1) Substantially advance a legitimate state interest1. Preventing beachfront erosion is a legitimate

state interest b/c impact on environment, increase in hurricanes, etc.

ii. (2) Not deny the owner of ALL reasonably economically viable use of his land (Lucas Rule, i.e. no Penn Central analysis)

1. Denies Lucas of the entire economic value of his property.

iii. (3) Exception: the use of the land is prohibited by common law/is a nuisance. If the use was prohibited originally, then you didn’t have that property right to begin with and it can’t be taken.

1. Lucas’ use was not a nuisance or prohibited by common law.

3. Dissent:a. Is there really total loss of economic value?

i. No: could build a beach bar, could rent it out to campers/bonfire-builders, etc.