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Real Property Outline: Real Property and the Public Interest by David Callies

Defining Property: Some Basic Notions About Rights and Rights in Things
Bundle of Sticks of Property Rights: fee simple (absolute) ownership of property
 Right to exclude
 Right to use
 Right to transfer
Property rights is relational concept: rights in relation to others
 The rights one has in relation to another with respect to assets
Real property = land (real estate)
Personal property = everything else
States determine their own property rights and laws but they cannot violate 5th and 14th
Amendment rights
 Look at the source of power: there must be constitutional or statutory basis for a
governmental action
 Moral responsibility is not important unless they are enshrined in a statute
Pierson v. Post
 Facts: Post was fox hunting, Pierson intercepts and takes away the fox right before Post
was going to take it
 Rule: property in wild animals and physical things is obtained by physical capture or
actual possession (you own what you possess)
 Policy: custom affects the legal realism of property law; property law is human created;
custom creates the basis for determining property rights
“Custom” v. “usage”?
 Custom: public (non-commercial context)
 Usage: commercial
Ghen v. Rich
 Facts: whalers kill whales at sea and wait for them to wash onto shore where they will
eventually retrieve them, custom has it that whatever whale is on shore is the property
of the hunter
 Rule: alternatives to physical capture or possession can be established through
commercial usage where physical capture is not practical
 Policy: usage guides courts in unfamiliar commercial fields
Sentell v. New Orleans & C.R. CO.
 Facts: Sentell’s dog was hit by an oncoming electric car owned and operated by NO
 Rule: the states are able to define their property rights but must do so in a way that
does not violate the U.S. Constitution
 Policy: definition of property is a local issue that stems from state police power
Allred v. Brown
 Facts: bailment case
 Rule: for bailments, the right of return is absolute
 Policy: the transactions that occur between individuals should be respected
Bailment: the delivery of personal property by one person to another in trust for a specific
purpose with a contract, express or implied, that the trust shall be faithfully executed, and the
property returned or duly accounted for when the special purpose is accomplished, or kept
until the bailor reclaims it
 Think: dry cleaning, valeting your car
 The right of return is absolute (the item must be returned)
 Possession but not title is transferred to another for a specific limited purpose
 Return must be of item that is exactly the same (no damage)
 Conversion: bailee commits an act of dominion (refusing to return property)
 Breach: if property is returned damaged, bailee has burden or proving it is not the result
of its own negligence
 Disclosure: you could recover for items you disclose when you bail an item to another
o Think: when you leave your coat for dry cleaning but leave a diamond ring in the
pocket, the dry cleaner loses it, are they responsible?
 If the diamond ring was disclosed, dry cleaner is liable
 If item is reasonably expected in the bailed item, recovery is possible
Supplemental Readings:
 Trust fights habitat plans
o The Queen Liliuokalani Trust is fighting plans by the federal government to
designate part of the Trust’s land as “critical habitat” to preserve plants
 This would curb land development and affect the financial health of the
o Earthjustice wants the federal government to rezone the land from commercial
to “critical habitat” to protect plants located there
 Playing Darts with a Rembrandt
o Private ownership of culturally or historically significant artifacts that ought to be
open for access by the people
o Real property: states can protect properties from destruction from private
individuals by buying that property (5th amendment just compensation required)
o Consider: if the government has good enough reason, are your private property
rights void?
Property Rights, Prosperity and 1,000 Years of Lessons
At Long Last, the Sports Mortgage
o Financing for stadium renovations or expansions will be done by selling seats
o Consider: is it possible to own something that ought to be open to the public?
14—15 years for development in Hawaii
 Long duration of development adds to the price of homes
 Homes in Hawaii are made more expensive by the state’s regulatory regime
Rights in Things: Gifts and Finds
Gifts require:
 Intent
o Donor (grantor) must intend to make transfer effective upon death that is
believed to be impending
o If there is no intent at time of delivery, there is only a gratuitous promise to
make a gift in the future
 Delivery
o Actual: physical transfer of possession of object
o Constructive: transfer of something that gives donee physical access or control
over the object intended to be a gift
 Allowed only if actual delivery is not possible because the object is not
present or the object cannot be practically delivered manually
o Symbolic: transfer of something that symbolizes the object of intended gift
 Acceptable depending on jurisdiction
 Acceptance
o This is usually presumed (who would not accept a gift?)
Types of gifts:
 Inter vivos (during life): gift made during life (when living)
o Creates an immediate and irrevocable interest in an object
 Causa mortis (because of death): gift made in anticipation of imminent death for a
specific reason
o Creates a future interest
o Purpose: usually done so the donor can escape probate when no estate planning
was properly done: give away assets to whomever they want to instead of
leaving it up to the state and the estate to do this
o Ineffective if
 Donor revokes gift
 Donor recovers from ailment
 Donor dies from a cause not anticipated when the gift causa mortis made
 Donee dies first
o Effective if
 Intent, delivery, acceptance satisfied
 Donor dies from specific cause contemplated
Testamentary gift (testamentary disposition): leaving a gift at one’s death
 Generally frowned upon by the courts
 Much required to authenticate or verify the gift (will, witnesses)
 Intestate: a person who dies without a will
 Always write a will
o Intestate succession law: blood relatives, descendants of blood relatives will
succeed the intestate’s estate
o Laws of intestate do not include non-blood relatives or descendent of non-blood
Hock v. Jeremiah
 Facts: brother gives sister a bunch of gifts placed in a safety deposit box
 Rule: conditional gifts are usually invalid; gifter is supposed to release all right, title,
possession to gift
 Policy: a gift would not be so if the gifter still retains some possession of it
Newman v. Bost
 Facts: elderly man gives gift causa mortis to housemaid of a vanity that has a huge
insurance policy inside one of the drawers; estate of the man do not want to give the
insurance policy (or anything for that matter) to the housemaid
 Rule: gift causa mortis requires intent, delivery, and acceptance
 Policy: courts generally frown upon testamentary gifts or gifts causa morits
Found Property
 Where was the item found?
o Attached, embedded: landowner
o Public land: finder unless mislaid
o Private land: landowner
 Who found it?
o Employee: goes to employer
o Trespasser: goes to landowner unless treasure trove
o Landlord v. tenant: tenant as occupier favored, unless tenant didn’t have access
 What was found? (Classification)
Classification of found property (law of finds): who has possession?
 MALT: Mislaid, Abandoned, Lost, Treasure Trove
 Mislaid: owner of premises item was found unless true (original) owner claims
o The owner voluntarily placed an item in a certain place who then overlooks or
forgets where the property is
 Owner has no intention of parting possession with the item
 Abandoned: finder against all others
o The owner no longer wants to possess the item and voluntarily relinquishes all
right, title, and interest in the property
o Some courts might require some public exclamation of abandonment
 Lost: finder unless true (original) owner claims possession (difference between lost v.
o The owner unintentionally and involuntarily parts possession with an item and
does not know where the item is
o Stolen property found by someone who did not participate in theft of that
property is lost property
 Treasure Trove: finder against all but the true owner
o Consists of coins or currency (but usually gold, silver, jewels) concealed by owner
o Property must have been hidden or concealed for a long period of time and
owner is probably dead or undiscoverable
o Law of salvage may apply here: the true owner of the salvaged property could
retain possession
Law of Salvage?
 True (original) owner entitled to ownership interest but finder (salvor) can get very
generous recovery award (generally could be up to 90% award)
Benjamin v. Lindner Aviation, Inc.
 Facts: employee finds a stack of cash while making repairs on an old airplane; employer
is entitled to the money because the court classified the find as mislaid (rather than lost)
 Rule: classification of property matters (mislaid, abandoned, lost, treasure trove)
 Policy: if property is found, it should be returned to the original owner unless the
original owner intentionally and voluntarily parts possession with the item
Columbus-America Discovery Group v. Atlantic Mutual Insurance Co.
 Facts: law of salvage; Columbus-America goes on underwater expedition and finds gold
in a shipwreck; Atlantic Mutual Insurance Co. asserts possession
 Rule: the true owner of the property must maintain interest (and proof of interest) in
order to be entitled to lost property found as salvage
 Policy: the true owners for property that was lost during a shipwreck should be entitled
to the found property but there could be many exceptions
Some policy to consider from this section: at what point does the Legislature interfere where
common law already applies?
 If a legislative body does decide to act, at what level should it act: federal, state,
Nuisance: an unreasonable interference with another’s use and enjoyment of land
 Private nuisance: an invasion of the interest in the enjoyment of land
o Example: operating a Coke plant next to a grocery/residential area (Bove)
 Public nuisance: an interference with the rights of the public
o Example: activity that endangers the public safety
 Nuisance per se (at law): conduct that is a nuisance itself
o Example: operation of an illegal drug manufacturing house
 Nuisance per accidens (common law nuisance): conduct that is otherwise legal but is
wrongful because of the circumstances
o Example: halfway houses, operating a pig farm near a residential zoned area
 Weigh the gravity of the harm to the plaintiff against the utility of the defendant’s use:
is it reasonable for the defendant to be doing what he is doing where he is doing it?
o Precisely identify the nuisance is and what it is causing on another’s property
o Character of the harm
o The social value of the use invaded
o The suitability of that use to the character of the area
Bove v. Donner-Hanna Coke Corp.
 Facts: coke (coal) plant located next to a mixed use grocery and residential; the owner
of the mixed use structure is complaining of dust, soot, smoke, and vapor from the coke
plant and files a common law nuisance claim against the operator of the coke plant
 Holding: the defendant’s conduct was not a nuisance
 Rule: to file a successful nuisance claim, you must clearly identify the harm suffered
 Policy: you are subject to the court’s interpretation of the circumstances; the court
held no nuisance to protect industry and commerce
Spur Industries, Inc. v. Del E. Webb Development Co.
Facts: development next to a feedlot; homes were sold already
Holding: the feedlot must move but the developer will pay all associated relocation costs
Rule: if you come to the nuisance, you will not be able to claim damages or claim a nuisance
(“coming to the nuisance” defense)
Policy: equitable relief is always discretionary and depends largely on the circumstances
Defenses to nuisance actions
 The conduct is not unreasonable
 Statute of limitations
 “Coming to the nuisance”
Some policy considerations: under what circumstances is a private owner of property required
to undermine the use of his own property?
For the good of society and the public as a whole, what should the owner of private property
do/don’t do with regard to his property and his property rights?
Nuisance usually gets handled by federal or state regulations for environmental protection
Nuisances are actually not that common because they usually involve an individual fighting
against a corporation: the corporation will destroy the individual who has inferior resources
Reasonable Use by the Owner: Support and the Right to Exclude
Right to Support
Right to support: absolute right for landowners living atop a hill
 Strict liability is limited to land in its natural state; there is no obligation to support the
added weight of buildings or other structures that the land cannot naturally support
o The land must have been able to support the land in its natural state
 One is strictly liable for compromising or eliminating support unless
o Act of God: some natural occurrence beyond the control of the individuals
o The weight of the property owner’s structure caused the collapse
 Lateral: right to have land supported in its natural condition by adjoining parcels of land
 Subjacent: right to have land supported in its natural condition by the earth below
o Absolute unqualified right to have subjacent support
 Can’t dig underneath neighbor’s house and remove house’s foundational
Noone v. Price
Facts: Noone lives atop the hill above Price; a supporting wall on Price’s property that was
constructed long ago began deteriorating; Noone’s house suffered damage because of lateral
Rule: the right of support is a absolute but is only limited to land in its natural state
Policy: people should be able to life safely on hills
Right to Exclude and Limitations: Custom, the Public Trust Doctrine, and the First Amendment
Right to exclude: fundamental property right; one of the most important rights in the AngloAmerican tradition
 Tenants, fee-simple landowners are able to assert the right to exclude
 If the government takes or infringes upon this right to exclude, they must give just
Kaiser Aetna v. United States
 Facts: Kaiser Aetna, principal leaseholder of the subdivision of Hawaii Kai, redevelops a
pond to create a marina; the United States Army Corp of Engineers declare that the
marina is now a navigable water and should be open to the public
Holding: the marina does not need to be open to the public
Rule: there is a fundamental individual right to exclude that cannot be infringed
without just compensation
Policy: the right to exclude is part of the bundle of sticks and is arguably the most
essential stick within the bundle
But the right to exclude is not absolute (limits to the right to exclude)
 Custom
o Common law (Blackstonian) elements to determine whether a common consent
or uniform practice is a legitimate custom (OCRAPER)
 Obligatory
 Not left to the option of each landowner whether or not he will
recognize the custom
 Certainty
 Must be clear boundaries that limit the use
 Reasonable
 Use must be reasonable
 Ancient
 Long and general usage is sufficient
 Peaceable
 Free from dispute and peaceable
 Exercised without interruption
 The interruption would be caused by anyone possessing a
paramount right
 Not Repugnant (or inconsistent with other customs or laws
 Callies requirements (additional 2 elements)
 Must apply only to a small group of people
 Must apply only over a relatively small area
o Custom: usage by common consent and uniform practice that has become the
law of the place, or of the subject matter to which it relates
 Broadly applicable blanket rule
 Unique lands with clear history of customary use
 Based on OCRAPER
o Prescriptive easement
 Prescriptive rights are tract by tract
 Prescriptive rights are personal; can only be exercised by one individual
who can demonstrate sufficient/continued use of the property
 Must show
 An individual is undertaking to use the property in a certain way
that was not legally interrupted by the owner of the private
 Not technically legal because it was an adverse use of the
o Implied dedication
 The private owner must’ve known that the land was used in a specific
way and dedicated the land for that use
o State of Oregon, ex rel. Thornton v. Hay
 Facts: defendant wants to fence in the dry sand area (area between the
mean high tide and visible line of vegetation)
 Holding: private use of dry sand is acceptable as long as access to the
beach is not infringed; the issue is that of access but the court decides
this on custom and decides that the dry sand area has been used in
specific ways based on custom
 Rule: private use of dry sand area is acceptable as long as access to the
beach for the public is not infringed; custom must be based at least on
Blackstonian principles (OCRAPER)
 Policy: custom is the background for property law; in Oregon, it is custom
to allow the people to have access to the beach
o Exam tip: look at who is trying to assert the right to use/travel through someone
else’s property
 If individual is arguing that she personally has been using the property in
a particular manner: prescriptive easement
 If group of people (hui seeking public access to something): custom
o “Hawaiian history leads us to the conclusion that the western concept of of
exclusivity is not universally applicable in Hawaii” (PASH)
 The ali‘i intended the land to be open and accessible for Native Hawaiians
to practice their customary rights
 This was intended since the Great Mahele by Kamehameha III
o When thinking of Native Hawaiian customary rights, think: right to access and
the right to gather
o It is important to note that while Native Hawaiian customary rights are
recognized by all branches of the Hawaii State Government, much uncertainty
 What is “reasonable regulation” of Native Hawaiian customary rights?
 What is “less than fully developed” property?
o Ahupua’a: institutionalized land management system (think: subdivision)
o Moku: consolidations of ahupua’a (think: district)
o The Great Mahele (King Kamehameha III)
 Created private landownership (with distinct Native Hawaiian
characteristics) in Hawaii in response to foreign residents and gunboats
 Reserved the traditional and customary rights of the maka’ainana
to the land
 Divided the land based on three classes of persons who have vested
rights in land: 1) government, 2) landlord, 3) tenant
 Crown lands (reserved for the monarchy): 984,000 acres (23.8%)
 Lands granted to 245 chiefs: 1,619,000 acres (39.2%)
 Government lands (distinct from crown lands): 1,523,000 (37%)
 Total lands: 4,126,000 acres
 Consequences of Great Mahele
 Fundamentally changed the relationship between people—chiefs
o Became a landlord-tenant relationship
 Foreigners had no interest in land in Hawaii
o This changed with the 1850 Foreigners Land Law
o 1850—1860: auction of government lands (144,000) acres sold
 64% to foreigners
 36% to Native Hawaiians
o 1862: 75% of Oahu lands were owned by foreigners
o Protections of Native Hawaiian customary rights
 HRS § 1-1
 Common law is recognized in Hawaii except where “Hawaiian
usage” applies
o If something was practiced in 1892?: it is Hawaiian usage
and protected by HRS § 1-1
 HRS § 7-1 (1850 Kuleana Act, Sec. 7)
 Recognized the right to gather and access various resources for
cultural purposes
o Firewood, house-timber, aho cord, thatch, or ki leaf
 For “private use” only, can’t sell items for profit
 Art. 12, § 7 of Hawaii State Constitution (amended in 1978)
 Broadly recognized constitutional protections of Native Hawaiian
customary rights (in response to Supreme Court’s tendency to
narrow and constrict the definition of Native Hawaiian rights)
o “The State reaffirms and shall protect all rights,
customarily and traditionally exercised for subsistence,
cultural, and religious purposes by people who are
descendants of Native Hawaiians who inhabited the
Hawaiian islands prior to 1778”
 The Supreme Court subsequently did not extend
Article 12, § 7 to non-Native Hawaiians
 Public Access Shoreline Hawaii v. Nansay Corp & Hawaii Planning
 Facts: Nansay Corp. applied for a building permit for a resort
development on the Big Island; the Hawaii Planning Commission
granted the building permit
 Rule: Native Hawaiian customary rights cannot be regulated out
of existence; any land in the state is accessible for Native
Hawaiians to exercise their customary and traditional practices
 Policy: “Hawaiian history leads us to the conclusion that the
western concept of of exclusivity is not universally applicable in
Hawaii”; the state must respect and uphold Native Hawaiian
customary rights; set the foundations for recognition of Native
Hawaiian customary rights in the modern era of Hawaii
o Foundational case: acknowledgement of Native Hawaiian
customary rights in modern era of private ownership of
State of Hawaii v. Hanapi
 In order for a defendant to establish that his conduct is
constitutionally protected as a native Hawaiian right, he must:
o Qualify as a “Native Hawaiian”
 A descendant of Native Hawaiians who inhabited
the islands prior to 1778
o Establish that his claimed right is constitutionally
protected as a customary or traditional native Hawaiian
 Possible to establish using testimony from experts
or kama’aina witness
o The exercise of the right occurred on undeveloped or “less
than fully developed property”
 Fully developed: lands zoned/used for residential
purposes with existing structures
 “Less than fully developed”: unclear
Pele Defense Fund v. Paty
 The Native Hawaiian rights protected by the Hawaii State
Constitution Article XII, § 7 extends beyond the ahupua’a in which
a Native Hawaiian resides
 Only requirement to exercise Native Hawaiian rights: must be
Native Hawaiian (descendant of an inhabitant of Hawaii from
o Application of Art. 12, Sec. 7 of Hawaii State Const.
Kalipi v. Hawaiian Trust Co
 Narrow acknowledgement of Native Hawaiian customary rights
o Resulted in Art. 12, Sec. 7 of Hawaii State Const.
 Lawful occupants of an ahupua’a are able to exercise their
customary gathering rights
o Recognition of traditional Hawaiian gathering rights based
upon residency in a particular ahupua’a
 HRS § 7-1: firewood, house-timber, aho cord, thatch, ki leaf
o These enumerated items are the only things that can be
collected as part of Native Hawaiian gathering rights
 Must live in the ahupua’a where an individual is attempting to
exercise their customary rights, but the court does not foreclose
on the expansion of this rule
Public Trust Doctrine
o Public Trust Doctrine: submerged and submersible lands are preserved for public
use in navigation, fishing, and recreation and the state, as trustee for the people,
bears responsibility of preserving and protecting the right of the public use of
the waters for those purposes
 Submerged and submersible lands: tide lands, coastlines, harbors, and
navigable bodies of water
 Includes public use (use publicum) and private use (use private) of public
trust land and water
o Created to prevent private parties from excluding public use of natural resources
o Intended to allocate rights of public and private and protect public rights
o Whenever public trust land is involved, always question the transfer: what is the
transfer of the land for?
o Imposes limits on the sovereign’s ability to transfer them to private owners
 Illinois Central Railroad Co. v. Illinois
 Facts: Illinois Central received a conveyance of property from the
state that was actually held by the state in public trust
 Holding: state could not have transferred property to Illinois
Central because land held in public trust cannot be transferred
 Rule: the sovereign is unable to transfer property held in public
trust but can be leased if it’s in line with the purpose of the
public trust
 Policy: Public Trust Doctrine seeks to protect natural resources
and allow the public continued and uninterrupted access to such
resources (especially water)
o Public trust land and access (especially relevant in Hawaii)
Dry sand area: area between the mean high tide and visible line of vegetation
 Matthews v. Bay Head Improvement Association (New Jersey)
 Facts: the Association owns beachfront property that it wants to
close off and restrict access and use of the beach to members
only and to the public during specified times
 Holding: the Association cannot restrict public access to the beach
 Rule: the dry sand area can be used for private purposes but the
private use of the beach must not infringe upon public access
(public right-of-way is needed)
 Policy: in line with the Public Trust Doctrine but this ruling could
create issues with 5th Amendment rights (juxtapose with NH rule)
 Opinion of the Justices (New Hampshire)
 Rule: the government must pay private landowner if the state
wants to create a public right-of-way
 Policy: balancing the interests of the private landowner and the
public interest by requiring just compensation for dedication of a
public right-of-way across a privately owned beach or dry sand
First Amendment
o Pruneyard Shopping Center v. Robins
 Facts: Pruneyard Shopping Center prohibits the defendant from passing out
propaganda within the shopping mall
 Holding: Pruneyard must allow Robins to continue to distribute the
propaganda in the mall
 Rule: an exercise of some right within another’s private property 1) must not
adversely affect the commercial use of the property (most important), 2)
must not adversely affect business, 3) must be invited
 Policy: if free speech and property rights conflict, speech wins (speech will
always win but there are also limitations to free speech)
“Property Rights at the Water’s Edge”
 Florida’s beach renourishment program has hit some legal trouble
 Beach renourishment program: intended to deter erosion of the beach
o The government brings in sand to make the beach bigger
o But instead of extending the newly created beach property to the owner, the
state declares itself owner of the sandy addition
 This separates waterfront homeowners from the water
o Slippery slope argument: the state can seize land from private owners without
compensation in the name of beach renourishment
 Consider
o Public Trust Doctrine: ensuring public access to the beach
o Constitutionality: just compensation for taking of private property
 But is the beach renourishment (which just means adding more sand to
the beach), really a “taking?” (regulatory taking?)
“Gated housing ban called illegal” & “Kauai mayor slams gated communities”
 Kauai Mayor wants to ban gated communities and housing because it “violates the
island spirit”
 The Mayor wants to foster a greater sense of togetherness and interaction between
various people; gated communities creates an “us and them” mentality
 Consider:
o Constitutionality: banning gated communities infringes a property owner’s right
to exclude and in order for the ban on gated communities to pass constitutional
muster, the property owners must be provided just compensation
o Public Trust Doctrine: public right to access the beach might be encroached upon
by construction of gated communities
Involuntary Transfers: Adverse Possession and Airspace
Elements of adverse possession
 Possession must be (CAVEHO)
o Continuous possession (for the statutory period)
 Common law: 15-20 years
 Depends on jurisdiction
 Consecutive, continuous periods of adverse possession can be “tacked”
together if there is privity between the successors in adverse possession
 Privity: the previous adverse possessor transferred his “interest”
to the successor with a deed or similar document, or the
successor was the heir or devisee of the previous possessor
 Exceptions to the Time Period (Note 11, p. 158-59)
 Disability statutes: minors, those in prison, insane or incompetent
people are given a period of years to eject those who are
adversely possessing land to which they claim title by record
o HRS § 657-34
o Add 5 years after disability ends to eject or 20 years
(whatever it longer)
 5 year-old kid: turns 18 in 13 years + 5 years = 18
years (this is fewer than 20 years so use the 20
years period)
o Add 5 years after record holder turns 18, is it 20 years?
 If no: 20-year statutory period is used
 If yes: +5 years is used
o Actual possession
 Possession must actually be held by the adverse possessor (claimant)
 Examples: pay rents, erects fence
o Visible
 Actually being able to see it (can’t see an underground cave)
 Must be visible and open to the common observer so that the owner or
his agent on visiting the property would obviously see that the owner’s
rights are being invaded
o Exclusive
 Not possible that two or more persons hold one tract of land adversely to
each other at the same time
o Hostile
 Possession must be hostile or adverse to the original owner of the
 Permission kills this element and impedes adverse possession
 Once the property owner gives to the adverse possessor
permission to be there, hostile element is unsatisfied
o Open and Notorious
 Mere possession is not enough: the possession must be so open,
notorious, and visible as to warrant the inference that the owner must or
should have known about it
 The possession must be so open that the
Title transfers immediately after all the requirements have been met
o New owner who acquired land through adverse possession should file an “action
to quiet title” which will result in issuance of a new deed
Policy underlying adverse possession:
 People should make efficient use of their land in a lawful manner
 Rewards people who make use of property
o Person making use of real property should obtain title to that property if the true
owner does nothing during the statutory period
 Assumption that if you don’t visit or know what’s going on with your land, you don’t
care about it
Hawaii: adverse possession is only possible on parcels of 5 acres or less
 This “shut the barn door after all the horses escaped”
o Prevented Native Hawaiian families and large corporations to acquire by adverse
possession land they lost during the overthrow or throughout Hawaii’s history
Subsurface ownership
 Fee simple ownership: ownership of everything from the surface to the subsurface all
the way to the center of the earth
 Hawaii (as in many other states): all natural resources beneath the surface is held in
public trust
o Public Trust Doctrine applies to natural resources beneath the surface such as
gold, oil, natural gas, etc.
Marengo Cave Co. v. Ross
 Facts: parties are landowners of adjoining properties; Marengo Cave Co. operates a cave
exploration company for tourists through a cave that is underneath their property; turns
out that this cave extends to underneath Ross’ property as well through the entrance to
the case is on Marengo Cave Co.’s property
 Holding: Ross would not have been reasonably able to discover his property was being
trespassed because it is underneath his property (open and visible element is an issue)
o If both sides were sinking oil wells into the ground, open and visible element
may not be such an issue since underground exploration of this sort would
readily allow someone to discover caves underneath the surface
 Rule: established the elements of adverse possession (CAVEHO)
 Policy: when does ownership interest end beneath the surface?
 Could also be a trespass issue: courts have protected the surface owner’s unrestricted
right to control access to the subsurface
 Hypo: what should happen if an adverse possessor meets the requirements of adverse
possession on a parcel of land in which the subsurface mineral rights have been
transferred to a third party prior to the start of adverse possession?
o Possession of the surface alone does not divest the owners of the subsurface
estate of their ownership interests
Campbell v. Hipawai Corp.
 Facts: long chain of transferred property throughout a family’s generational line
 Holding: remanded to determine whether title was truly acquired through adverse
 Rule: very important to trace back the transfer of property to determine whether the
person who first conveyed the land is even able to convey it
 Policy: this was a Hawaii case; crown lands and ceded lands are held in public trust and
cannot be transferred
 How to show you claim title:
o Fence is good
o A letter is not enough
o Lawsuit is good, win or lose
 Statutes are not retroactive if they change the statutory period
o What if the statutory period was 10 years and on year 11 the leg changes the
applicable period to 20 years?
 Adverse possessor wins because the statutes are not retroactive
 If there was a retroactivity provision, Chun still gets it because title
changed automatically at year 10. Chun would have a vested right in fee
Very fact-sensitive: lots of room for lawyering
Geller v. Brownstone Condominium Association
 Facts: defendant is doing work on a condominium that rises above plaintiff’s house;
plaintiff is claiming that scaffolding
 Holding: there is no invasion because Geller does not show that he uses the airspace
above his building that is currently being invaded by the scaffolding
 Rule: a property owner owns only as much air space above his property as he can
practicably use
o Must use the airspace to have a right to it
 Policy: airspace is treated like real property; there must be actual use of the property to
have a right to it
o Takings and just compensation may apply: if government builds highway above
you, the government must pay just compensation for invading airspace
 This is an easement: easements require just compensation
Eminent Domain, Regulatory Takings, Judicial Takings
Relevant Constitutional Amendments
5th Amendment: only applies to federal government
Policy: “private property shall not be taken except for public use and with just
 Purpose: protection of private property from physical acquisition by the government for
private purposes
14th Amendment: 5th Amendment applies to the states
 Policy: “no state shall… deprive any person of life, liberty or property without due
process of law
 Purpose: assurance that if property is taken by the government, it is done fairly, openly,
and promptly
o Procedural due process
o Substantive due process
10th Amendment: police power
 Policy: the powers not delegated to the federal government by the Constitution are
reserved to the states respectively, or to the people
 Purpose: empowers states to establish and enforce laws protecting the public’s health,
safety and general welfare
o If purpose of a state action (in taking) is based on police power clause, then it is
o Federal government has no police power, police power is only a state power
Transfer to the Sovereign: EMINENT DOMAIN (Physical Taking)
Eminent domain is based on 5th Amendment
 Eminent domain: a natural right of sovereignty; the right of the government to seize
private property
 5th Amendment: “nor shall private property be taken for public use [PUBLIC PURPOSE]
without just compensation
o Public use (public purpose)
o Just compensation
The Public Use Doctrine (Public PURPOSE)
1. The government action must be for public use (purpose)
a. Public purpose: where the exercise of the eminent domain power is rationally
related to a conceivable public purpose, the Court has never held a
compensated taking to be proscribed by the Public Use Clause (KELO)
i. Taking must be part of a valid PLAN
1. A plan is touchstone: it is essential for a redevelopment project to
have a general plan to pass constitutional muster
a. Assumption: having a plan indicates that an action was
thought-out and well planned
ii. Opened the way for government endorsed social engineering programs
1. Urban redevelopment projects: city condemns land from private
owner and conveys to another private owner at below market
cost (or no cost at all) for redevelopment/revitalization
2. Regulating oligarchic control of land (Hawaii: Midkiff)
3. Economic revitalization programs
iii. Opened the way for a wide array of government seizures of private land
as long as the seizure is for a public purpose
iv. No defense to eminent domain unless
1. Exception: pretextuality (Kennedy concurring in Kelo)—defense to
a. Professing that there is a public purpose when there is a
true ulterior motive of taking the land
i. Public use/public purpose must be conceivable and
b. Example: saying that Costco should be moved as part of an
economic revitalization plan but really is an attempt to
eliminate competition for some other wholesale retailer
c. Pretexutality is generally difficult to prove: evidence and
i. Hawaii is only state to recognize pretextuality
2. Exception: states are able to define “public purpose” however
they choose to
a. Many states have opted to, through statute, define “public
purpose” with a heightened definition
2. There must be just compensation
Kelo v. City of New London
 Facts: development plan for economic revitalization of an area (definitely not blighted
area) which involves condemning private lands and transferring them to a private
development corporation
 Holding: eminent domain applies and the
 Rule: a government action of seizure of land must be rationally related to a
conceivable public purpose; states are able to define “public purpose” however they
choose to do so
 Policy: expanded the public use test to public purpose test
 Consequences: the government has so much power to take lands for whatever reasons
it may find as long as there is a plan, just compensation, and is rationally related to a
public purpose
o O’Connor (dissent): Motel 6 to Ritz Carlton is now going to be allowed; she
switches her stance from Midkiff because she realizes how severe the
consequences are of expanding to 5th Amendment and public purpose too far
o The area that was taken was not blighted
 Callies’ commentary
o After Kelo, nothing is left of the Public Use clause (but states have passed
statutes that increased protection of private property owners
o Public use transformed into public purpose: this is not in line with the
o Kelo is the standard in Hawaii
Berman v. Parker
 Facts: Washington, D.C. plan to redevelop Southwest quadrant includes taking land that
was significantly blighted
 Holding: eminent domain for a redevelopment plan is constitutional
 Rule: showing that a plan exists is essential
 Policy: the Court will defer to the respective Legislatures to determine what they see as
“public use” or “public purpose”
Hawaii Housing Authority v. Midkiff
 Facts: constitutional challenge of the Hawaii Land Reform Act which allows a state
agency to condemn a leasehold interest and then convey fee title to the lessee
 Holding: Hawaii Land Reform Act is upheld
 Rule: where the exercise of the eminent domain power is rationally related to a
conceivable public purpose, the Court has never held a compensated taking to be
proscribed by the Public Use Clause
o In this case, the public purpose was: to reduce oligarchic ownership of land
 Consequences: the Court thought that the Hawaii Land Reform Act would reduce
the cost of homes and living in Hawaii; this would never happen
o Benefit only to: lessees of Kahala, Hawaii Kai, Waialae; Bishop Estate (wanted
to get rid of underperforming properties)
Consequential Damages
Pumpelly v. Green Bay Company
 Facts: the State of Wisconsin built a dam that caused water to overflow onto Pumpelly’s
property; the State caused Pumpelly’s property to be damaged
 Holding: consequential damages that resulted from a taking of property is evidence of a
 Rule: where real estate is invaded by water, earth, sand, or other material, or by having
any artificial structure placed on it so as to effectually destroy or impair its usefulness, it
is a taking (within the meaning of the Constitution) and just compensation is needed
Limitations on Highway Access
State of Indiana v. Dunn
 Facts: access to the Dunn’s property was impaired because the state built a median on
the road which redirected the flow of traffic to Dunn’s business
 Holding: state’s action that makes traffic more circuitous is not a taking
 Rule: there must be a taking of some physical property in order to have a claim for
inverse condemnation/eminent domain just compensation
o Inverse condemnation: when a private citizen sues the government to ask for
just compensation, claiming that an eminent domain taking has occurred
 Policy: Dunn should’ve plead nuisance instead of inverse condemnation for pleadings;
must show that your physical property has been actually taken without just
compensation to win on an inverse condemnation proceeding
“HART renews blood bank condemnation”
 HART has restarted condemnation proceedings for Blood Bank of Hawaii’s headquarters
in Kalihi on Dillingham
o Blood Bank relocated its permanent donor facility to Young Street in Moilili due
to the rail construction
 They will have to move all their operations as well
o HART offered $422,000 for the 4,451-square foot property in front of the Blood
Bank’s Dillingham property
 Consequential damages due to the Taking: Blood Bank say this offer
doesn’t cover the damage that will be done to their operation
 Be able to analyze whether HART is able to condemn the property owned by the Blood
Bank using the analysis established by Kelo
o Kelo and Dunn (limitations on highway access) have relevance here
 Dunn is not applicable because Blood Bank is actually getting their
property taken away
 Blood Bank doesn’t appear to have many remedies left since there is no
stopping eminent domain unless pretextuality
 Hawaii recognizes Kelo as law
“Bill would help businesses in rail path”
 Is the bill a good idea?
“Bills forcing land sales are tabled”
 Law that would be similar to Land Reform Act has been tabled by the Legislature
o It would’ve required owners of commercial lands to sell those lands to leasehold
 Justification: the government wants to protect locally owned shops,
stores, and other small businesses who have been forced out of business
by landlords who dramatically and suddenly raised rents on commercial
 Is this a valid and constitutional exercise of eminent domain
under public purpose test?
Sovereign Restrictions, Land Development and Police Power: REGULATORY TAKINGS
Issue in all regulatory programs: the extent to which the government may permissibly restrict
private action
1. Did the regulation deprive all economically beneficial use of the land?
a. Yes: the regulation goes too far (Mahon)
i. A regulation that requires a permanent physical invasion of property
requires per se compensation (Loretto)
1. It is not possible to condition a landlord’s ability to rent his
property on his forfeiting the right to compensation for a physical
occupation (Loretto)
ii. Just compensation is required (Lucas)
b. No: there is still some economically beneficial use of the land
i. Just compensation might be required, but move to partial takings
2. There must be some economically beneficial use of the land despite the regulation to
constitute a partial taking
a. Apply the Penn Central 2-step test
i. Economic impact of the regulation on the property owner based on
whether the regulation frustrates the property owner’s reasonable and
distinct investment backed expectations (lots of lawyering)
1. The investment back expectations are frustrated: just
compensation needed
2. The investment backed expectations are not frustrated: move to
step 2
ii. The character of the governmental action
1. Lots of room for lawyering: is the regulation sufficiently based on
police power?
a. Yes: no just compensation
b. No: just compensation needed because it appears to be a
physical taking of the property
10th Amendment gives to the State (not the federal government) basic governmental police
 Police power: the power of the State to regulate on behalf of the health, safety, and
general welfare of the public
14th Amendment: limits the police power of the State
 Regulation must not deprive citizen of life, liberty, or property without due process of
o Procedural protections
 A fair process (notice and hearing) accompany deprivations
 The government must follow a process or procedure when taking
o Substantive protections
 Protection against arbitrary state action
 Imposes a requirement that the regulation “substantially advance” a
legitimate state interest in a rational manner and is not unduly
oppressive upon the affected class
 Claim: the government has acted in a way that is arbitrary, capricious, or
unreasonable that does not advance a substantial state interest
The government has no business regulating the conduct in
question no matter the justification
o Equal Protection Cause protections
 A class or fundamental right have been adversely affected by the
governmental regulation
42 U.S.C. § 1983 (Civil Rights Act of 1871)
 This federal statute protects property rights (as well as personal civil rights)
 Provides a vehicle enabling one to sue based on federal constitutional or statutory rights
o Allegation that local government has deprived a landowner of:
 Taking of property without just compensation under the 5th Amendment
 Denial of procedural or substantive due process or equal protection
under the 14th Amendment
 Denial of freedom of speech or religion under the 1st Amendment
 Immunity from land use litigation
o Quasi-judicial entities or individuals
 Land use commission, land use commissioner (quasi-judicial capacity),
judge (judicial capacity)
 No immunity from land use litigation if action brought under § 1983
o Local governments (city, village, county)
o Individuals not acting in quasi-judicial/judicial capacity based on whether:
 The municipality “officially sanctioned or ordered” the government
official’s acts
 The government official is a municipal official who has “final policymaking
 The government official has “final policymaking authority as a question of
state law”
 The challenged action must be in accordance with the policy adopted by
the particular official for that official’s designated area of the city’s
Remedies for a regulatory taking that “goes too far” (a regulation can go too far)
 Just compensation (per the 5h Amendment)
o 5th Amendment applies to the states via the 14th Amendment
 Invalidation of the ordinance or statute
 Total regulatory taking (Lucas)
o If regulation deprives a landowner of all economically beneficial use = taking
(just compensation is required)
 “Economically beneficial use”
 Lucas v. South Carolina Coastal Council: land was purchased with
the purpose of eventually constructing a beachfront house but a
statute prohibited this; the economically beneficial use is to build
a house to live in or rent out
Pennsylvania Coal Co. v. Mahon: loss of economically beneficial
use could be a regulation that prevents coal mining
o Exception: reciprocity of advantage
 If a regulation prevents removing a pillar of coal
that provides subsurface support for a property,
this is not a regulatory taking that goes too far that
requires just compensation
 But remember: there could always be an economically beneficial
use since land is always valuable
o Difficult to argue that land has absolutely no value
anymore because of some regulatory statute
 Exceptions
 Nuisance
o If the regulation is intended to stop a nuisance or prevent
a serious public harm: no just compensation required
 Background principle in state property law
o No just compensation required if the government is
exercising a power based on custom or public trust
o Rarely occurs anymore because it is difficult to prove that land has been
deprived of all economically beneficial use
Partial regulatory taking (Penn Central): no total taking because there is still some
economically beneficial use
o Penn Central Test: (just compensation might be needed)
 Economic impact of the regulation on the landowner
 Considers: reasonable and distinct investment back expectations
o The regulation must not place serious economic burden on
the landowner or economically adversely affect the
o The regulation must not prevent a landowner from using
his property profitably and receiving an expected return
on his investment in the property
 The regulation must not prevent the landowner
from making money as he initially expected to
 Character of the regulation
 Consider whether the regulation is aesthetic, health/safety,
historic preservation, or a naked physical invasion of the property
 The regulation must substantially advance a state interest
 The regulation must not be discriminatory such that it singles out
one particular parcel for different, less favorable treatment than
adjacent or neighboring ones
o Penn Central: the preservation law is spot zoning and
unfavorably targets the Station
Court disagrees: the preservation law applies to a
vast number of structures in the City
Judicial Takings (Ariyoshi)
o Judicial decisions that divest or take a person’s land without just compensation is
o If landowner can prove he has vested rights by prior appropriation, he can
continue to hold an interest in that land
 Any judicial decision depriving this interest requires just compensation
 Land Development Conditions (Nollan, Dolan, Koontz)
o Nollan rule: there must be an essential nexus between the impact of the
development and the land development conditions
 Land development conditions must be related to addressing, mitigating,
preventing a likely impact of a development
 If no essential nexus: just compensation required
o Dolan rule: the land development conditions must be proportional to the likely
impact of the development
 Land development conditions must not be too burdensome or strict
compared to the impact of the development
 If no proportionality: just compensation required
o Koontz rule: Nollan/Dolan rules applies regardless of whether the government is
seeking an interest in land (easement), dedication, or fees (impact fees, in lieu
Two issues that remain
 What is the “relevant parcel?”
 Ripeness: does the court have enough information to render a judgment?
Regulatory takings (and zoning) can implicate claims based on an infringement upon First
Amendment rights
 Regulating or preventing sexually oriented businesses, billboards and other signs, and
religious uses
Regulatory Takings
Pennsylvania Coal Co. v. Mahon
 Facts: the state passed a law significantly restricting the amount and location of the coal
company’s coal drilling activity
 Holding: the state law triggers eminent domain and just compensation is required
 Rule: a regulation goes too far (and requires just compensation) if it destroys a wellrecognized value or use of land
 Policy: recognition that police power has limits and regulation can go “too far”;
regulatory takings that go too far are the intersection between Police Power and
Eminent Domain, so just compensation is needed
Penn Central Transportation Co. v. City of New York
Facts: New York Land Preservation Law prevents Penn Central Transportation Co. from
constructing a skyscraper directly above Grand Central Station
Holding: New York Land Preservation Law (a regulation) does not go too far to require
just compensation
Rule: 2-step test (economic impact (investment backed expectations) character of
o The regulation does not present significant economic impact
 The regulation does not frustrate investment backed expectations
 Penn Central is able to transfer and sell air rights
 Penn Central is able to continue to use the property as is—the
regulation does not interfere with expectations because it ensures
the same revenues and profits for a fixed period
o Penn Central can still make money from train ticket sales
and the commercial uses currently in place at the station
o The character of the regulation is not discriminatory against Penn Central only
 The law applies to many properties across NYC
Policy: regulatory taking claims are always all about money; lawyering: think about how
regulation will inhibit a private landowner from making money off his land
Lucas v. South Carolina Coastal Council
 Facts: new law passed preventing Lucas from constructing on a beachfront parcel
 Holding: taking occurred that requires just compensation
 Rule: compensation needed if regulation deprives all economically beneficial use of land
unless the regulation is based on background principles of state property law or
 Policy: regulatory taking claims are all about money; Lucas successfully argued that his
property is worthless and he won’t be able to profit like he expected to but-for the
Lingle v. Chevron
 Facts: Hawaii legislature passed a law capping the rental fee/lease rent for gas service
 Holding: whether the regulation “substantially advances” a legitimate state interest is
not an appropriate test for 5th Amendment takings
 Rule: the 14th Amendment substantive due process test includes a consideration of
whether a regulation “substantially advances” a legitimate state interest
 Policy: reaffirms the existing test as correct for regulatory takings; the argument that
the government’s action does not substantially advance a government interest is no
longer arguable under the 5th Amendment and is rather arguable under the 14th
o If a policy substantially advances a government interest  due process
Judicial Takings
Robinson v. Ariyoshi
Facts: water distribution case; Robinson built irrigation systems to redirect water flow
away from another’s property; Hawaii Supreme Court acted sua sponte and changed
Hawaii from prior appropriation state to riparian state; this changed law divested
another landowner’s right to water
Holding: judicial takings are theoretically possible but if the judicial taking deprives a
landowner of a vested right, just compensation is required
Rule: Hawaii is now a riparian state but this change of law divested another property
owner’s right to the water
o Riparian: water can only be taken by private property owner if his property is
adjacent to the body of water
 Cannot take water to another property if that property is not adjacent to
the body of water
 People have no right to water flow
o Prior appropriation (Hawaii’s original law until changed by Robinson)
 Whoever got the water can take it, claim ownership, and move it
Policy: judicial takings are generally unconstitutional
Hawaii does not have much litigation based on regulatory takings despite the government
imposing significant and heavy regulations on buildings and development projects
 Do these regulations deprive all economically beneficial use of property and require
just compensation?
Zoning; Special Controls; Subdivision, Planning, and Land Development Conditions
Local Land Use Controls: ZONING
The Basics
 There is no inherent right of local governments to zone
o Enabling Act is required
 The zoning must be based on police power (public health, safety,
general welfare)
 State delegation of zoning power to units of local government
 Zoning must be reasonable, not arbitrary, and not capricious and must have a
substantial relationship to the state’s police power
o Zoning issues are usually very fact-specific
 Important to show expert testimony to establish the character of the
neighborhood or to establish the possible implications of rezoning
 Zoning is usually the last phase before development
o Zoning/subdividing is a process
 Zoning is a legislative act, zoning board is a legislative body (but it can be judicial)
o Zoning Board of Appeals (or equivalent): is a quasi-judicial body
 Zoning is conducted by a legislative action: text or map
o Text: “the what”
 Lists what uses are permitted in each district/zone
o Map: “the where”
 Shows what property is zoned in what district
Village of Euclid, Ohio v. Amber Realty Co.
 Facts: the village council created a comprehensive zoning plan for Euclid; facial attack
on the ordinance (facial attack: attacking whole ordinance as being unconstitutional,
application attack: attacking just the application of the ordinance as being
 Holding: the zoning ordinance is a constitutional exercise of police power and not a
violation of the 14th Amendment
 Rule: the zoning ordinance must have a substantial relationship to the state’s interest
in protecting the health, safety, and general welfare of the public
o Unconstitutional and violates 14th Amendment: if there is no substantial
relationship between the zoning ordinance and police power
 Policy: growing cities require sophisticated plans so that the public welfare is protected
during times of incredible growth; this case ushered in zoning everywhere
Pierro v. Baxendale
 Facts: issue over whether a motel is preferable over a boarding house
 Holding: the zoning ordinance that prefers boarding houses over motels is not
 Rule: in order for a zoning ordinance to be unconstitutional, it must be clearly arbitrary
and unreasonably with no substantial relation to the protection or advancement of the
health, safety, and general welfare of the public
 Policy: reveals how difficult it is to determine what can be included and excluded in a
particular zone; if two things are alike and one of them is excluded, it is likely that this
exclusion will be deemed arbitrary and in violation of the 14th Amendment
Bartram v. Zoning Commission of City of Bridgeport
 Facts: spot zoning; Bartram wants to build a strip mall in a residential area because the
“community needs it”
 Holding: the spot zoning in this case was upheld
 Rule: spot zoning is generally not constitutional unless it is 1) done in furtherance of a
general plan, 2) serves the best interests of the whole community and does not give
special privilege to one individual over the rest of the community
 Policy: zoning must be within the police power to be enforceable; spot zoning must not
benefit solely one person as it must benefit the rest of the community, but often times
spot zoning inevitably benefits the person who receives the spot zone
1. what agency
2. what kind of actions
3. What standards apply
Exceptions to Zoning
1. Amendments: Text and Map
a. Very heavy handed approach: if amendment is granted then it applies to the
entire zone
i. Text: legislative decision that changes the text and definitions of what is
included in a zoning ordinance
1. Generally, very difficult
2. Legislative decision because in theory the legislative body that
grants the zoning is acting according to police power
ii. Map Amendment: legislative decision that applies part of the text of the
ordinance differently to a certain area by amendment
1. Generally, very difficult
2. Legislative decision because in theory the legislative body that
grants the zoning is acting according to police power
2. Special Use Permit: seeking permission for one specific use that is not otherwise
allowed “of right”
a. Standard: granting the special use/conditional use permit must not adversely
impact the neighborhood
i. Granting the special use/conditional use permit should be based on
police power
b. Provides more flexibility than a map or text amendment
c. Usually granted or denied by an administrative board or hearing officer
d. Best way to get an exception to zoning
e. Runs with the land
f. Consider: how specific should the standards be for dealing with permit requests
so that the process is guarded from unbridled discretion but maintains
3. Conditional Use Permit: rezoning of parcel is made subject to the developer’s
compliance with certain conditions that will protect neighbors
a. Standard: granting the special use/conditional use permit must not adversely
impact the neighborhood
i. Granting the special use/conditional use permit should be based on
police power
b. Provides more flexibility than a map or text amendment
c. Usually granted or denied by an administrative board or hearing officer
d. Best way to get an exception to zoning
e. Runs with the land
f. Consider: how specific should the standards be for dealing with permit requests
so that the process is guarded from unbridled discretion but maintains
4. Variance: seeking special exception to build something that is not otherwise allowed “of
right” or use the land in a way that is not otherwise allowed “of right”
a. Standard: there is unnecessary hardship that requires a variance
i. Practical difficulty or unnecessary hardship
1. Landowner is deprived of reasonable use of his land
2. There are unique circumstances on this lot that requires variance
a. Landowners’ lot if smaller than adjacent lots, landowners’
lot is on a hill whereas others are not
3. The variance, if granted, must not alter the neighborhood
a. Lots of lawyering: differing views of “homes” and how a
neighborhood should “look” like according to how
“homes” should look like
i. Immigrants’ “home”: apartment
ii. WASP’s “home”: single family house with fence
ii. Hardship must not be self created
iii. Hardship must be tied to land itself, not the economic status of
1. The economic status of the landowner has nothing to do with
whether a variance will be granted
b. Bulk variance: alters the physical characteristics of the area
i. Court must balance benefit of landowner v. harm to public
ii. Examples: height, setback modifications
c. Use variance: alters the permissible use of the area
i. Examples: commercial use in agricultural zone
d. If the change sought is substantial, the applicant has a heavier burden of
demonstrating that the variance, if granted, will not be contrary to the intent of
the ordinance and not be contrary to the public good and general welfare
expressed in the ordinance
e. Granting a variance is a quasi-judicial or judicial action because it is decided by a
board after a hearing and renders an appealable decision
Special use/conditional use permit v. variance
 Special use/conditional use: large scale changes
 Variance: intended to be a small escape valve for small changes that are sought
 Both: seek changes or exceptions to a zoning ordinance
5. Nonconforming uses
a. A use that has been grandfathered in
b. A use has that was lawful when initiated but the zoning ordinance or exception
renders that use unlawful)
c. Legislatures have the authority to eliminate nonconforming uses
i. Elimination of existing uses within a reasonable time does not constitute
a taking of property that requires just compensation
1. Amortization period: the time that the government allows a
nonconforming use to stay in existence
a. Determined with consideration of the nonconforming
user’s investment, the lease interest, and other private
losses compared to the public gain
6. Spot Zoning: singling out a certain parcel or lot for different treatment from the rest of
the zone (Bartram)
a. Usually unconstitutional unless
i. It is done in furtherance of a general plan
ii. It serves the best interests of the whole community without giving special
privilege to one individual over the interest of the rest of the community
b. Example (Hawaii): Manoa Marketplace (located in a completely residential area)
Surfrider Foundation v. Zoning Board of Appeals
 Facts: Kyo-ya Hotel seeks a variance to construct a hotel tower that exceeds the limits
for height and setback; Zoning Board granted the variance
 Holding: the variance was not granted
 Rule: the elements showing unnecessary hardship were not satisfied
 Policy: variances are generally very difficult to get, although that may not seem so in
Gorham v. Town of Cape Elizabeth
 Facts: application to built a multi-family dwelling was rejected
 Holding: the variance should not be granted because it would alter the neighborhood
 Rule: remember the three elements of proving undue hardship
 Policy: the character of the neighborhood element has the most space for lawyering;
remember the judge’s biases and how they view and value certain types of homes over
others (WASP view of “home”: single family homes with white picket fence, immigrants
view of “home”: multi-family apartments)
 Aesthetic zoning: use of police power to regulate the way a
building/development/neighborhood looks
o Must be based on advancing public welfare
o Standard to determine whether aesthetic zoning will apply
 Whether a building conforms to the existing character of the
neighborhood and
 Not cause a substantial depreciation of neighboring property values
o Aesthetic considerations alone are sufficient justifications for the exercise of
police power
 Factors can include: how a proposed development would look in contrast
to the rest of the neighborhood; the image of what an an “American”
home ought to look like (Reid)
 Most courts: aesthetic considerations alone justify an exercise of police power
 Others courts: aesthetic considerations are a valid auxiliary consideration but the sole
Reid v. Architectural Board of Review of City of Cleveland
Facts: a very boxy and unique shaped development was proposed for a suburban
neighborhood with “American, stately” homes
Holding: the law for aesthetic controls is upheld
Rule: aesthetic reasons alone cannot justify the use of police power but it can be a
Policy: aesthetic and historic preservation must be based on the police power
“Citizens aim to preserve Mt. Fuji view”
how much would you pay to preserve a view?
War memorial on private property affects the property value of all the surrounding homes
Historic Preservation
 Process
o Designation (board/commission)
 Determined by a preservation commission/board (appointed “experts”)
 Once designated, very difficult to contest
 Historic districts: ordinances directed towards preservation of a
historic district are generally valid and more readily upheld
o Reciprocity advantage: by burdening all the property in the
area, your property is benefitted
 Individual landmarks: buildings deemed historically important but
not in a district often raise environmental protection and taking
problems under 14th Amendments
 Pro (of designation): tax break for property owners
 Con: property owners must maintain property and are subject to
restrictions on land use
o Regulation (board/commission)
 Upkeep required
 But there are significant restrictions on the use of land
o Must be open to the public a certain number of times a
year, and/or
o Property must be visible to people driving by
 Changes (construction) permitted based on certificates
 Certificate of no effect on protected architectural features
o Gold standard certificate: the work will not affect the
exterior in anyway
 Certificate of appropriateness
o What does “appropriate” mean? Not determined
 Certificate of appropriateness on the ground of insufficient return
o The owner is losing money because the designation
removes all economically reasonably use of the land
 Major elements in modern historic preservation programs
o Regulation to prevent damage or destruction of private sites
o Rehabilitation to encourage reuse of private sites
o The protection of sites from federally funded redevelopment or public works
projects through “listing” and the associated mandatory consulting process
 Must be based on public welfare and the programs must
o Use defensible criteria (or experts) in identifying historic sites
o Provide fair procedures for landowners to seek permits for alteration
o Leave some economic use of the site
Penn Central revisited (Penn Central is a historic preservation law)
 A property must be designated as historic on the register before it is subject to historic
preservation regulations
o Landowner can object to designation but not likely to win
o Once designated, there are restrictions on the use of property
 Designation is usually determined by an agency/board comprised of
architects, historians, realtor (experts)
 The owner has a duty to keep the exterior of the property as is (using his own money)
o Certifications owner can get to do work
Historic preservation in Hawaii
 Historic preservation is written into the state constitution
 Largely left to the counties; Honolulu has the strongest preservation of buildings in his
historic districts
 At the state level, the historic preservation law could be stronger but are not because of
the intersection between Native Hawaiian rights and historic preservation
o Finding Native Hawaiian artifacts or ancestral remains underground
Subdivision and Planning
Represent one of the most relevant land use control techniques
Process of subdivision approval
1. Preliminary Plat: submitted to Local Planning Commission for review
a. Plat: a whole subdivision area; master plan of what the subdivision will look like
b. Local Planning Commission: quasi-judicial/administrative act; subject to review
for abuse of discretion
2. Interim step: the plat is approved with modifications (conditions, dedication
requirements, or rejected
a. Approval (without modifications): right is vested (Youngblood); the subdivision
according to that plat is approved
i. Construction may begin unless in Hawaii
1. Hawaii: last discretionary permit rule
a. Developer’s rights do not vest until the last discretionary
permit is granted; construction may not begin yet
b. Approved with modifications: develop will modify plat and resubmit final plat for
3. Final approval: submitted to City Council for final approval
a. City Council approval: ministerial act
Youngblood v. Board of Supervisors of San Diego County
 Facts: Youngblood submitted subdivision plan that appears to contradict the county’s
master plan for the area
 Holding: the developer can build according to his plat
 Rule: the rights of the developer have vested after the tentative approval
 Policy: establishes the concept of vested rights
Land Development Conditions
1. Must be a valid exercise of police power
a. Public safety, health, and welfare
2. There must be an essential nexus between the harm caused by development and the
condition sought to be imposed (Nollan)
a. The condition must actually alleviate the harm caused by development
b. Can be proven using a study (Commercial Builders of Northern California)
3. The nature and scope of the condition must be proportional to the harm caused by the
development (Dolan)
a. The condition must alleviate the harm caused by development and do no more
b. Can be proven using a study (Commercial Builders of Northern California
If the elements are not met, the condition may be unconstitutional and the condition will either
have to be removed or just compensation must be given if a dedication was required
Type of conditions:
 Dedication: government requires the developer to dedicate land to the government as a
condition on the permit
o E.g., Nollan (public easement across dry land); Dolan (15 ft. bike pathway); land
for traffic, parks
 Exaction: when the government requires the developer to pay a certain amount to
support a public facility infrastructure as a condition on the permit
o Occurs when the government needs money to expand or increase capacity of
some public facility because it is suddenly going to be burdened by the
o E.g., fee to operate a waste water treatment plant for a neighborhood
Impact fee/In lieu fee: government gives the developer a choice to either (1) build
certain infrastructure or public facility himself, or (2) pay a fee “in lieu” of the
infrastructure or public facility so the state can build it elsewhere
o Imposed at the end of the development
o E.g., developer of high-end condo doesn’t want to include low income housing
within their development so they will pay the impact fee so the state has money
for affordable housing
Land development conditions cannot be attached to a change in zoning
 Land development conditions must be development-driven
o Must be attached to the permit only (permit that allows the landowner to
Nollan/Dolan applies to quasi-judicial acts
 If legislative act imposes land use conditions
o Split states: half say that Nollan/Dolan applies, the other half says it does not
Nollan v. California Coastal Commission
 Facts: Nollan submitted a building permit request for construction of a large beachfront
property; the Commission granted the permit subject to the condition that a public
easement be created
 Holding: the condition is good and does not constitute a taking
 Rule: essential nexus test
 Policy: the easement is otherwise a taking that requires just compensation, but since it
is condition for development, compensation is needed if there is no essential nexus
Dolan v. City of Tigard
 Facts: conditions for development were to dedicate a portion her property to improve a
storm drainage system, dedicate a strip of land as a pedestrian/bicycle pathway
 Holding: the conditions are disproportionate because requiring a dedication of property
seems unfair and disproportionate to the harm trying to be addressed
 Rule: proportionality test
 Policy: the regulation must be proportional; if the condition takes too much property, it
may be a taking that requires just compensation
Commercial Builders of Northern California v. Sacramento
 Facts: Sacramento passed a law conditioning development on payment of a fee; based
its statute on a study it commissioned
 Holding: the fee passes Nollan/Dolan
 Rule: external evidence and studies can be used to support an argument for essential
nexus and proportionality
 Policy: more tools to ensure a condition is good
Save Sunset Beach Coalition v. The City and County of Honolulu
Callies’ commentary: the Hawaii Supreme Court have so broadly construed the
Environmental Impact Statement (EIS) law that any land use project that so much touches
state land, however minimal the effect, triggers a time-consuming and costly EIS review
 This adds to the cost of development in Hawaii
Private Ownership of Natural Resources
Environmental protection restricts an outright ownership and use of land, water, air,
and other natural resources or components
o Particularly sensitive ecological resources (coastal zone, wetlands, public lands)
are treated separately
Remember: ad coelom principle (“owner of land owned everything from the heavens above his
land to the center of the earth below”)
Rights to Water
 Today: water codes regulate most uses of water
Ownership of water:
Riparian owners
 Riparian owner: water can only be taken by as private property if it is taken by someone
who has property that is immediately adjacent to or adjoining the body of water
 Riparian owner is entitled to the reasonable use of water so long as it does not injure
any other riparian owner (Evans v. Merriweather)
o Riparian owners must personally use the water generally, so some states will not
allow you to sell your water rights
o Very fact sensitive analysis: “reasonable use”
 The water must always be allowed to flow in a specific direction
Prior appropriation
 Whoever appropriated or used the water first has the rights to it
 No ownership of property adjacent or adjoining the property is required
 Diversion is permitted as long as it is for a beneficial use
Diffuse Water
 Relates to diffuse water (run-off water, water that is not wanted on a property)
 Common enemy rule
o A landowner can do whatever means necessary to rid from their property diffuse
water; any subsequent landowner can do the same and take any means
Permissible even if it flows with more force and greater volume as long as
it does not cause injury
o Favorable to developers
Reasonable use standard (New Jersey)
o Reasonable measures can only be taken to rid from property diffuse water
Civil law rule: owner of higher land has a natural servitude to the lower land to
accommodate natural flow, those living on lower land must deal with the diffuse water
from the higher land on their own
Excess surface water and ground water are held in public trust
Evans v. Merriweather
 Facts: a dam was built that diverted water away from downstream resident
 Holding: the construction of the dam is impermissible
 Rule: establishes riparian ownership
 Policy: riparian ownership overturns prior appropriation rule
Yonadi v. Homestead Country Homes
 Facts: Yonadi owns and operates a golf course from which diffuse water came onto
Homestead Country Homes
 Holding: no liability for Yonadi
 Rule: establishes common enemy rule
 Policy: developers are often favored with regard to water usage and runoff
Rights to Oil and Gas
Rule: you do not have possession of oil and gas until it is extracted
 By its nature, gas is fugitive—constantly moves around
Barnard v. Monongahela Natural Gas Co.
 Facts: gas company drilled two wells on different properties very close together so that
when gas was pumped from one side, it inevitably also pumped up gas from underneath
the other property owner
 Holding: neither Barnard nor this neighbor can claim gas that is beneath them when it is
 Rule: gas is not possessory until it is extracted
 Policy: gas is fugitive; think about gas and oil in terms of wild animals
Syngenta Seeds, Inc. v. County of Kauai (more an administrative law case than an
environmental one)
 Facts: Kauai County passes ordinances that strictly regulate and control GMO crops and
pesticide use
 Holding: these ordinances are not permitted because it is preempted by state law
 Rule: statutory preemption
Policy: the state gives counties the power to govern and pass laws; county ordinances
are not able to supersede state laws; state laws are not able to supersede federal laws
Wallach v. Town of Dryden
 Facts: town passes a zoning ordinance banning fracking
 Holding: the town has home rule authority to ban fracking outright; the statute does not
preempt an ordinance banning fracking but rather an ordinance limiting the extraction
 Rule: look to the constitution of the ordinance to determine whether a local
government has home rule authority; if it does, there could be many additional powers
Rights to Land
Rule: you can only buy as much property as the seller could have held with title
 Analyze chain of title: could a transfer or conveyance have been possible?
 Plume v. Seward & Thompson
Rights to Persons
Rule: no rights to persons anymore but was recognized during the era of slavery
Commonwealth v. Aves
Rights to Vegetation
Can vegetation overhanging into your property be cut?
Rule: absolute right to cut overhang
 Overhanging branches or protruding roots constitute a nuisance only when they
actually cause, or there is imminent danger of them causing, sensible harm to
property other than plant life
 At his own expense, a landowner can always cut away vegetation to his property line
o The endangered neighbor may require the owner of the tree to pay for the
damages or actually cut the overhanging portion if the overhang causes sensible
harm to person or personal property
Whitesell v. Houlton
 Facts: banyan tree overhangs onto neighbor’s property
 Rule: you have an absolute right to cut trees that overhang onto your property
Rights to Sunlight
 Generally, American courts have been hostile to the assertion of rights to sunlight
(acquiring an easement to sunlight and air)
o Doctrine of ancient lights: if a landowner had received sunlight across adjoining
property for a specified period of time, the landowner was entitled to continue
to receive unobstructed access
 Landowner could acquire negative prescriptive easement and could
prevent the adjoining landowner from obstructing access to light
 Based on English law
o “Reasonable use” doctrine: access to sunlight must be reasonable
 Landowner does not have an absolute or unlimited right to use the land,
even if that means having access to light
 Landowner may have continued access to light as long as such access
does not unreasonably interfere with another’s enjoyment of his
property (the use must not be a private nuisance)
o Spite Fence Doctrine (Prah): the malicious obstruction of sunlight is an
actionable nuisance
o Solar energy: where a landowner requires sunlight for solar panel use, a private
nuisance can be claimed against those who obstruct the sunlight (Prah v.
Coastal Zones and Wetlands
Coastal Zone Management Act (CZMA)
 National program for coastal zone management intended to encourage states in coastal
areas to plan, manage, and regulate coastal lands
o Population growth and development in coastal areas resulted in destruction of
marine resources, wildlife, open space, and important ecological, cultural,
historic, and aesthetic values
o Federal government has no police power with respect to land use
 Congress gives to the state money for resource protection program
development and implementation
 Created a regulatory management and framework and appropriated money for
development and implementation of state run coastal one management programs
o Three permissible options for state implementation
 State establishment of criteria and standards for local implementation,
subject to administrative review and enforcement of compliance
 Direct state land and water use planning and regulation
 Hawaii chose this in HCZMA
 State administrative review for consistency with the management
program of all development plans, projects, or land and water use
regulations, including exceptions and variances thereto, proposed by any
state or local authority or private developer, with power to approve or
disapprove after public notice and an opportunity for hearings
 States uses its police power to implement the CZMA
1. Coastal areas are zoned “Special Management Areas (SMA)”
 E.g., building a house in a federally designated floodzone: the lowest
habitable floor must be 1-feet above where the flood rise to in a
theoretical 100-year flood
 Very difficult to build in floodzone
o Need SMA permit; flood hazard permit
 You won’t be able to get insurance on your mortgage
The federal government offers money to states to implement the CZMA
 States can demand consistency review to require federal review
Development in SMA is possible with Special Management Area Permit
 SMAP will be granted and development permitted in SMA if
o Development will not have any substantial adverse
environmental or ecological effect
 Exception if
 The substantial adverse effect can
practicably be minimized
 The substantial adverse effect is
outweighed by public health, safety, or
o Development is consistent with the objectives, policies,
and SMA guidelines of the CZMA
o Development is consistent with the County General Plan
and zoning
 Types of SMAP
o Special management area emergency permit
 Granted in cases of emergency requiring
immediate action to prevent substantial physical
harm to persons or property or to permit the
construction of structures damaged by natural
hazards to their original form
o Special management area minor permit
 Authorizes development that does not exceed
$125,000 and has no substantial adverse
environmental or ecological effect
o Special management area use permit
 Authorizes development that exceeds $125,000 or
may have a substantial adverse environmental or
ecological effect
 Development is defined as:
o Placement or erection of any solid material or any
gaseous, liquid, solid, or thermal waste
o Grading, removing, dredging, mining, or extraction of any
o Change in the density or intensity of use of land, including
but not limited to the division or subdivision of land
o Change in the intensity of use of water, ecology related
thereto, or of access thereto; and
o Construction, reconstruction, demolition, or alteration of
the size of any structure
Topliss v. Planning Commission
 Facts: development permit for SMA
 Rule: the CZMA can be intended to protect public views of the shore
Solid Waste Agency of Northern Cook County v. United States Army Corp of Engineers
 Facts: 533-acre parcel of land purchased for disposal of baled nonhazardous solid waste
that is now a forest with various ponds
 Rule: there needs to be a nexus between the government
 Policy: limits federal government’s ability to regulate “navigable waters” as part of its
CZMA policy
Clean Air, Water, Endangered Species, and Public Lands
The Commerce Clause is used by the federal government as a means of exercising police
power; specifically getting states to comply with federal regulations or laws
Any federal regulation that regulates the environment must not be arbitrary, unreasonable,
or capricious
Clean Water Act (CWA): the principal purpose is to clean and maintain the nation’s waters
 Federal Water Pollution Control Act (FWPCA) based on CWA
 Mechanisms to clean the nation’s waters by eliminating discharge of pollutants into
o Structural techniques: financing and construction of wastewater treatment
plants and ancillary facilities
o Nonstructural techniques: regulatory mechanisms (planning and land use
 Anybody (public or private) who discharges waste into a water needs a
National Pollution Discharge Elimination System (NPDES) permit that
determines the standards for discharge and effluent discharge
 EPA checks for 1) water quality and 2) what goes into water (point
source pollutants), runoff (nonpoint source pollutants)
 NPDES permit not needed if you water is running through a POTW
(Publically Owned Treatment Works)
 Federal government forces compliance with environmental standards using the
Commerce Clause
o Commerce Clause largely used by the federal government as a way to exercise its
police power (though they don’t actually have them)
Homestake Mining Co. v. United States Environmental Protection Agency
 Facts: Homestake Mining Co. wants to discharge waste into a waterway
 Rule: any entity (public or private) wishing to discharge waste into a waterway must
obtain an NPDES permit
Clean Air Act (CAA): command-and-control environmental scheme that seeks to achieve clean
 EPA and the states set emission limits for specific pollutants, issue permits, and punish
the noncompliant
o EPA develops National Ambient Air Quality Standards (NAASQ) for specific
pollutants that are deemed hazardous to public health and welfare
 Primary ambient air standards: designed to protect public health
 Secondary ambient air standards: designed to protect public welfare
 Ecological concerns: heavy vegetation, wildlife, damage to
property, general prevention of environmental degradation
 NAASQ enforced through state-created State Implementation Plans (SIP)
 They must conform to federal regulations but are largely
autonomously state-run
o Regulates land use in specific ways to ensure compliance
with NAASQ
 Example: offset policy is acceptable
 Reduce a type of ambient pollutant in one
area to continue pollution in another area
 Source of pollutants: stationary (plant), mobile (car)
Citizens Against Refinery’s Effects, Inc. v. United States Environmental Protection Agency
 Facts: CARE opposes a refinery from being built and the offset policy that is being
 Rule: offset policies are permissible in the context of compliance with clean air
Endangered Species Act (ESA): restricts land use activities on federal, state, and private land by
prohibiting activities that may affect endangered or threatened species
 In order for a species to be protected, it must be listed
 The Fish & Wildlife Service (FWS) designates habitat
 Burden is on the claimant in proving a violation of the ESA; this burden is not on the
o Burden to: show that the endangered species’ habitat is in that area
Defenders of Wildlife v. Bernal
Facts: school district wants to construct a new school but it will affect an endangered
Holding: the school district is able to construct
Rule: the claimants failed to satisfy their burden in showing that the owl’s habitat is in
that area being proposed for construction
Public Lands: the federal government holds property as if they were fee simple owner
 Property Clause of the U.S. Constitution: Congress shall have Power to dispose of and
make all needful Rules and Regulations respecting the Territory or other Property
belonging to the United States
 The power over the public land entrusted to Congress is without limitations
o Congress exercises the powers both of a proprietor and of a legislature over the
public domain
 The Property Clause permits an exercise of the complete power which
Congress has over a particular public property entrusted to it; this cannot
be abridged or limited by the state
 The Property Clause does not authorize an exercise of a general control
over public policy in a State
Kleppe v. New Mexico
 Facts: federal government trying to regulate horses within an area
 Holding: the law regulating horses is permissible because it is appropriately based on
the Property Clause and pertains to public lands held by the federal government in fee
 Policy: supremacy of the federal government
Future Interest
Interest in
Strangers (3rd
Possibility of
Right of Reentry
Future Interest
Third Parties (Strangers)
1. Reversions (divestable)
1. Remainders (almost always follow L/E)
2. Possibility of reverter
a. Vested (subject to open)
3. Right of re-entry or power of termination
b. Contingent
2. Executory interests
Rule/Shelly’s Case
O to A/Life, then to heirs of A; O = nothing, A = Fee Simple Absolute
Doctrine of Worthier Title
O to A/Life, then to the heirs of O; O = reversion in fee simple, A = L/E
Estates in Land: Present and Life Tenants
The Estate Concept
Joint ownership of land is regulated through the concept of the “estate” and corresponding
future interest
Ownership of land can either be divided between multiple owners with simultaneous claims to
title or divided over time with one owner being entitled to present use and another to its future
Forms of estates/land ownership
Non-Defeasible Fees: present possessory interest that cannot be extinguished without
permission of the owner/possessor
 Fee simple absolute: highest form of estate ownership
o “Fee”: duration of ownership is (potentially) infinite
o “Simple”: no restrictions on inheritability of property
o “Absolute”: nothing will divest the owner of his interest
o Words of limitation: O  A and his heirs = transfer to A in fee simple absolute
 “And his heirs” transfers no interest to A’s heirs; A’s heirs cannot make a
claim to fee simple absolute based solely on that phrase
o Today, an estate in fee simple will be recognized if evidence suggests that the
parties intended the estate to be so
o Owner of a fee simple absolute may:
 Alienate his entire estate to another owner
 Alienate only a portion of it and retain possessory right to it at a future
 Transfer a portion of the estate to one party and the future interest in it
to another
 Life estate: present possessory interest that lasts for the life of the grantee OR some
other person
o Normal life estate: O  A for life
o Pur autre vie (for the life of another): O  A for the life of B
o Duration is for the life of the grantee or is measured by the life of another
o When the grantee (or third party) dies: the estate either reverts back to the
grantor or may vest in a third party who carries a remainder interest
 Estate for years (leasehold): an estate that establishes present right of possession in a
person for a specified period of years; when the specified period expires, the estate
either reverts or may vest in a third party who carries a remainder interest
o O  A for 10 years
 A = estate for years
 O = reversion
o O  A for 10 years, then to B
 A = estate for years
 B = vested remainder
 O = nothing
 Estate in fee tail: designed to ensure that land stays within the family, automatically
passing it down to living heirs although fee simple absolute is never achieved
 Restrictive fee simple estates that are subject to conditions or limitation that if violated
will result in the forfeiture of the estate
There are some estates that can be terminated by the holder of the future interest with little or
no notice
 Periodic tenancy
o An estate for a fixed period of time which continues for periods equal to the
original one unless either the landlord of tenant gives notice of an intention to
terminate the estate
 Traditional rule on notice
 Notice must be given prior to the beginning of the next period
(e.g., week to week lease, one week’s notice required); year to
year tenancy may be terminated by 6 month’s notice
 Most jurisdictions: notice period has been shortened by statute
Tenancy at will
o The landlord of the tenant can terminate the estate at any time
Tenancy at sufferance
o When an estate holder remains on the land after the expiration of his or her
o Tenant at sufferance (the person remaining on the land) is also called a holdover
tenant and can be evicted at any time
Reversion (in fee simple absolute): O  A for 5 years; O  B for remainder of B’s life
 A reversion occurs when, at the end of the term, the estate reverts back to the grantor
Remainder (in fee simple absolute): O  A for life, then to B and his heirs
 A remainder occurs when, at the end of the term, the estate goes to a third party
(stranger) rather than reverting back to the grantor
 After a contingent remainder, there is always reversion to O
o There will always be a reversion to O
Life Estates:
 Life estate: present possessory interest that lasts for the life of the grantee OR some
other person
o Normal life estate: O  A for life
o Pur autre vie (for the life of another): O  A for the life of B
o Duration is for the life of the grantee or is measured by the life of another
o When the grantee (or third party) dies: the estate either reverts back to the
grantor or may vest in a third party who carries a remainder interest
 Life estate can be transferred but cannot be conveyed to something more than a life
 Holder of the life estate has the exclusive right of present possession and use of the
property and can exclude all others
 Holder of the life estate does not have the right to change the fundamental character or
to diminish the economic value of the land subject to the life estate (Brokaw—holder of
life estate cannot “waste” property)
Brokaw v. Fairchild
Facts: George Brokaw thought he had a life estate but he actually had a life estate
determinable because his mom had a preceding life estate unless she dies or remarries;
the defendants have remainder interests; plaintiff wants to demolish an ornate mansion
to construct a condominium that he could rent out; the cost of maintaining the mansion
was too much and plaintiff could not make any additional profit from the mansion
Holding: plaintiff is unable to demolish the mansion because of the doctrine of waste
Rule: doctrine of waste applies because the defendants, who hold remainder interests,
will eventually have their interests vested; it’s important to ensure that subsequent
interests vest appropriately
Policy: the life tenant has some restrictions on the use of a life estate; legislatures have
changed this by statute and plaintiff was able to demolish and construct a very plain and
ugly high-rise condominium to replace the ornate mansion
Doctrine of Waste (Brokaw)
 Limitations on the rights of those who hold any estate less than fee simple
 Policy: intended to protect future interest holders who, while not having the present
right to use the land, have a substantial interest in it
o Prevents the holder of the present estate (whether it be a life estate or an estate
for years) to exhaust the economic potential of the land during the term of his
 If waste occurs: the holders of future interest can enjoin the conduct and recover
Rule: any act of the life tenant which does permanent injury to the inheritance is waste
 “The law intends that the life tenant shall enjoy his estate in such a reasonable manner
that the land shall pass to the reversion or remainderman as nearly as practicable
unimpaired in its nature, character and improvements” (Brokaw)
 Using or changing the inheritance in a way that constitutes “waste” is an act of
o The life tenant has no right to exercise an act of ownership
Two types of waste: affirmative and permissive
 Affirmative (voluntary) waste: involves the destruction of buildings or structures on land
or the exploitation of natural resources
 Permissive (involuntary) waste: occurs when the present estate holder allows the
property to fall into disrepair or fails to make reasonable measures to protect the
property from harm
Limitations on the life tenant’s liability for waste
 Buildings destroyed by fire, storm, natural disaster not the doing of the tenant
 Cutting down trees to convert unimproved and to farmland
 Doctrine of estovers: gave the life tenant the right to cut trees for purposes of repairing
existing structures and building necessary new ones
 Doctrine of emblements: gave the representative of a deceased life tenant the right to
enter the property to harvest annual crops planted by the life tenant
 Doctrine of ameliorating waste: waste that actually increases the value of the land
Estates in Land: Conditional and Determinable Estate
Qualified forms of fee simple estate: the holder of the estate had all the right of a fee simple
owner so long as he did not violate a specific limitation or condition attached to the estate at
the time of its creation
Defeasible Fees: present possessory interests subject to limitation, which may divest the
present possessory interest regardless of the owner’s desire to transfer such interest
 Fee Simple Determinable: present interest where the estate will automatically end
when a specific event (called a “limitation on the fee”) occurs
o The specified event is known as a “limitation on the fee” and may or may not be
within the control of the estate holder
o Created only using clear, unequivocal durational language: “so long as,” “until,”
o Future interest: possibility of reverter
o Example: O  A so long as land is used for agricultural purposes
 A = fee simple determinable
 The fee simple depends: it is a fee simple until a limitation occurs
 O: possibility of reverter (future interest)
 The future interest may or may not occur—it is unclear because it
depends on whether A will violate the condition
 Fee Simple Subject to Condition Subsequent: estate is present interest where the
estate does not automatically terminate upon breaching a condition or limitation
o Distinguished from FSD because right of re-entry will be reserved
o Future interest: right to enter/re-entry
o Created with language that attaches words of condition to the estate in fee
simple and reserves the right or option to re-enter and re-take in the event of
breach of the stated condition
 E.g., “but if”
o Example: O  A, but if the land is used for anything other than agriculture O has
the right to re-enter and take possession
 A = fee simple subject to condition subsequent
 O = right of re-entry
 Note: when the grantor or grantor’s successors must exercise the right to
re-enter, this does not automatically transfer
 Fee Simple Subject to Executory Limitation: present interest extinguished immediately
and automatically upon failure to meet condition (same as FSD)
o Future interest: executory interest
 If condition is violated, the estate interest goes to a third party (not to
 Does not follow a naturally ending estate
 Takes effect when proper owner does something to divest himself of the
estate interest
 Subject to Rules Against Perpetuities
o Example: O  A so long as she does not get married, but to B if she does
 A = fee simple subject to executory limitation
 O = nothing
 B = executory interest
Storke v. Penn Mutual Life Insurance Company
 Facts: covenant prohibiting saloons
Reversionary Interests
Rule Against Perpetuities does not apply!
 But relevant statute establishing a statute of limitations will apply instead
Reversion: future interests that follow a naturally expiring estate (e.g., life estate or tenancy for
 Interests will automatically vest at the expiration of the preceding estate
 Will follow a life estate
 Example: O  A for life
o A = life estate
o O = reversion
Possibility of Reverter: follows an estate that has been cut short due to a condition subsequent
 If there is some condition, the future interest will be a possibility of reverter
o Possibility of reverter will only follow a fee simple determinable
 Example: O  A unless premises is used or the sale of liquor
o A = fee simple determinable
o O = possibility of reverter
Right of Re-entry: follows an estate in fee simple subject to condition subsequent
 Should be reserved in transferring document
o Some courts will require specific language indicating a right of re-entry
 Permits the grantor to re-enter the land when the grantee has broken a condition of
 Grantor must actually exercise his right to re-enter before grantee’s right to possession
Word Problems to illustrate reversionary interest
 O  A so long as the property is not used for a tavern
o A = fee simple determinable
o O = possibility of reverter
 O  A so long as the property is not used for a tavern, but if it is, O has right of re-entry
o A = fee simple subject to condition subsequent
o O = right of re-entry (O has the power of termination)
O  A so long as the property is not used for a tavern in A’s lifetime, if it is used, then to
o A = fee simple subject to executory limitation
o B = executory interest
o O = nothing
O  A so long as the property is not used for a tavern, if it is used, then to B
o Violates the Rule Against Perpetuities!
Remainders: Contingent Remainder, Vested Remainder, and Perpetuities
Almost always follow a Life Estate; interest will always go to a third party
Subject to Rule Against Perpetuities!
Contingent Remainder: future interest that follow the natural expiration of a preceding estate
because there is an unsatisfied condition precedent
 Example: O  A for life, then if B graduates from law school to her
o A = life estate
o B = contingent remainder (vests only upon graduation from law school)
o O = reversion
 There will generally be a contingent remainder if
o There is an unsatisfied condition precedent
 Condition expressly stated creating the remainder which must be
satisfied before the remainder interest can become possessory
o If it is not yet possible to ascertain the identity of the remaindermen
 If holder of contingent remainder predeceases preceding holders, contingent
remainder interest passes to heir or devisee
Alternate Contingent Remainder: exists when there are two mutually exclusive contingent
 When either of the alternative remainders must vest a fee simple interest, the grantor
still carries a reversion until one of the remainders actually vests
 Example: O  A for life, then to B, then if she is not 21 years old, to C
o A = Life Estate
o O = reversion
o B = contingent remainder
o C = (alternate) contingent remainder
Contingent Remainder and Reversions: where a remainder has not vested, the grantor will
keep a reversionary interest even when there is no question a fee simple absolute will vest at
some point in the future in someone other than the grantor
Destructibility of Contingent Remainders
Traditional rule: all contingent remainders were required to vest at or before the
termination of the preceding estate (or else they were destroyed)
o Most jurisdictions do not follow this traditional rule
Modern rule: when a contingent remainder has not yet vested even though the
preceding estate has terminated, the grantor will take possessory interest until the
contingency is satisfied
These two rules applied: O  A for life, then to B when she is 21
o Old rule: B would not get the property if A dies before B turns 21
o New: If A dies before B turns 21, O would take possession of property until B
turns 21
Abo Petroleum Corp. v. Amstutz
 Abolishes the doctrine of destructibility
Rutherford v. Keith
Vested Remainders: future interests which follow the natural expiration of the preceding
estate; there are no conditions precedent which may prevent the owner of the interest from
taking possession
 Example: O  A then to B
Vested Remainder Subject to Divestment (Defeaseance): vested remainder that can be taken
away by the action of another
 Example: O  A for life, then to B, but if B stops growing corn on the land, then to C
o A = Life Estate
o O = nothing
o B = vested remainder subject to divestment (defeasance)
 B does not need to meet any condition to get the estate from A but B can
divest his own interest by growing something other than corn
o C = contingent remainder
 Contingent on B growing corn
Vested Remainder Subject to Open: when a future interest vests in a class or group of people
whose membership may change
 Example: O  A for life, then to the children of B
o A = life estate
o O = nothing
o Children of B = vested remainder subject to open
 B might have more children after the time this conveyance was made
 Example: O  A for life, then to the children of A who reach age 25; A has 3 children:
aged 31, 26, 21
o A = life estate
o O = nothing
o Children of A aged 31, 26 = vested remainder subject to open
o Children of A aged 21 and all unborn children: contingent remainder
 They need to turn 25
Word Problems
 O  A for life, then to B
o A = Life estate
o B = vested remainder
o O = nothing
 O  A for life, then to B provided, however, if B dies under 25, then to C
o A = life estate
o B = vested remainder subject to defeasance (divestment)
o C = executory interest
o O = nothing
 O  A for life, if B survives A then to B
o A = life estate
o B = contingent reminder
o O = reversion
 O  A for life, then if B is 25, to B
o A = life estate
o B = contingent remainder
o O = reversion subject to divestment (wait and see)
Trusts and Executory Interests
Executory Interest: future interests created in a transferee that become possessory by
prematurely terminating a preceding estate or vested future interest
 Follows a fee simple subject to executory limitation or vested interest subject to
 Cuts short a prior estate upon the occurrence or non-occurrence of an event
 Example: O  A and his heirs, but if the property is ever used for other than residential
purposes, then to B and his heirs
o A and his heirs = fee simple subject to executory limitation
o B and his heirs = executory interest
o O = nothing
 Shifting executory interest: cuts short the preceding estate in favor of another grantee
o Example: O  A for life but if A become bankrupt, then to B and his heirs
 A = life estate subject to an executory shifting interest in B
 B = executory interest
 O = reversion
o Example: O  A and his heirs but if A marries X then to B and his heirs
 A = fee simple subject to an executory shifting interest
 B = executory interest
 O = reversion
Springing executory interest: ownership passes from grantor to grantee, then there’s a
lapse of time before it goes to another grantee
o Example: O  A and his heirs but if A marries X then one year after this
marriage, to B and his heirs
 A = fee simple subject to an executory shifting interest
 B = executory interest
 O = nothing
Trust: divided ownership
 Settler or grantor (party establishing the trust) transfers property to the trustee who
holds the property for the benefit of another (the beneficiary or cestui que trust)
 Trustee holds legal title; beneficiary holds equitable title
 Trust res: property that is the subject of the trust
 Advantages
o Group of individuals can derive economic benefits of land ownership without
having to worry about exercising control over the land itself
o Savings in probate costs, guarantee of smoother transition of ownership
between generations
o Easy to sell land in the trust
 When settlers die, the beneficial ownership interest in the trust will pass automatically
to their children upon death
o Land is distributed free and clear of trust only after all mortgages are paid off
 Until then: the land remains with trustee
Words of limitation: define the estate to be received (WHAT)
 Example: “to A and his heirs”; “and his heirs” are words of limitation because they
define the estate as being a fee simple absolute but do not create an interest for the
heirs of A
Words of purchase: define who receives an interest (WHO)
 Example: “to A for 10 years, then to the heirs of B”; “heirs of B” defines the owner of the
remainder created by the transaction and not the size of their estate
Rule Against Perpetuities
Only applies to third parties/strangers (not reversionary interest)
 Contingent remainder (NOT VESTED REMAINDER because the interest has already
vested), executory interest
Rule against perpetuities: “no interest is good unless it vests, if at all, not later than 21 years
after some life in being at creation of the interest”
 Example: O  A, but if land is used for purposes other than agriculture, then to B
o Traditional application of RAP: B’s interest would be void ab initio (from the
o “Wait and see” application of RAP: court will not divest B of his future interest
until 21 years after A died; court will actually wait it out and wait 21 years after
death of A
Fletcher v. Ferrill
 Facts: Fletcher conveyed property to Masonic lodge to be used as an orphan home and
school; if it is not used for this purpose, it would revert back to heirs of Fletcher
 Policy: the distinguish between “words of purchase” or “words of limitation” are
Deiss v. Deiss
 Facts: relates to the creation of a trust that allegedly will violate RAP
 Policy: trusts are subject to RAP; the Campbell Trust was reformed as the Campbell
Corporation because of the RAP
Word Problems
 O  A for life then to B, provided however if B dies under 25, then to C
o A = life estate
o B = vested remainder subject to divestment
o C = executory interest
o O = nothing
 O  A for life and if B survives A, to B
o A = life estate
o B = contingent remainder
o O = reversion
 O  A for life, remainder to B but if B dies in A’s lifetime, then to C
o A = life estate
o B = vested remainder subject to divestment
o C = executory interest
Concurrent Estates
Concurrent owners: two or more individuals owning land together; they have equal rights to
possess and use the same parcel of property
Types of Co-tenancies
 Joint Tenant (J/T)
 Tenancy in Common (T/C)
 Tenancy by the Entirety (T/E)
Joint Tenancy
Tenancy in Common
Right of survivorship: surviving party
absorbs dying party’s share of property
Identical fractional interests needed
To create: 4 unities must be satisfied
1) Unity of time
2) Unity of title
3) Unity of interest
4) Unity of possession
Can be created by will, deed, or adverse
Cannot be created by inheritance
No right of survivorship
No requirement for identical fractional
interests but they can be
To create: only unity of possession needed
Judicial partition: both tenants in common and joint tenants have the right to terminate the
concurrent ownership relationship by forcing the judge to sell the property and even split the
Rights of Co-tenants (in general for all types of co-tenancies, but it might be different for
marital estates)
 Right to charge co-tenants rent using property
o Common law: a tenant who occupies all or more of his proportionate share is not
liable to his co-tenants for rent, use, or occupation unless:
 An express or implied agreement exists
 The tenant kicked out the other tenant
o Minority states: co-tenant in possession must pay reasonable rent to other cotenants because there is no reasonable argument that can be advanced for
allowing one in possession to reap a financial benefit by occupying property
owned by co-tenants (Sheridan v. Gill)
 Right to contribution
o If co-tenant pays purchase price, taxes, cures a lien, etc., on property, he has a
right to contribution from other co-tenants
 If improvements are made by one of the co-tenants without the other cotenants’ consent, here may not be a right of contribution
 Very difficult to prove adverse possession because each co-tenant has an interest in the
property (McKnight v. Basilides)
Joint Tenant
Joint Tenancy: 2 or more people own a single unified interest in property; each owner owns an
entire interest of land equally with the rest of the co-tenants
 Creation: will, deed, adverse possession
o Will: when property transferred to 2+ people equally, law assumes recipients are
joint tenants
 If there is no will, they will take as tenants in common
o Deed: should say “land is conveyed to A and B jointly or as joint tenants”
o Joint adverse possession: both parties must satisfy CAVEHO analysis
New trend on creation is to look more at the intent of the parties rather than the
specific elements
Right of survivorship: if one joint tenant dies, the interest disappears and the interest
held by the other joint tenant expands accordingly
o This will supersede a will: even if a joint tenant leaves their interest to someone
else via testamentary disposition, the interest in the land automatically
disappears and flows to the other joint tenant
o Main difference between joint tenant and tenant in common
Created by: (TTIP)
o Time: same duration
o Title: same document
o Interest: same amount
o Possession: equal right to use property
Severance or termination of the joint tenancy
o Usual way to severe a joint tenancy is for one joint tenant to sell his interest
o Lease
 Common law: the lease severed the joint tenancy
 Nodern trend: lease does not necessarily severe the joint tenancy
o Agreement: if all joint tenants agree to convert to tenancy in common, there is
no need to memorialize it
o Murder: if you murder one of your joint tenants, the tenancy severs and right of
survivorship does not apply
o Simultaneous death: if both (or all) joint tenants die at the same time, the
property is in half (or accordingly) and will go to heirs and devisees
Tenants in Common
Tenants in Common: 2 or more tenants have same right to possess the entire property subject
only to the rights of their co-tenants
 Unequal shares are allowed
 No right of survivorship
 No four unities needed (TTIP not needed)
Condominium Ownership
Special application of concurrent tenancy: condominiums (many people living in separate units
sharing common areas)
 Common areas: tenancy in common ownership
o But unit owners cannot force a partition of the common areas or transfer their
interest in the common area separately from their interest in their primary unit
Individual unit: fee simple absolute
Liability in condominium ownership: proportional, pro rata liability (1.572%)
o You are fully liable for whatever you own in fee simple
o Whatever you owe as tenants in common with others, liability is proportional
based on the percentage that you own
Some basic terms to know in the condominium context:
 Cooperative: a residential building owned by a corporation (not individual residents)
whose shareholders are residents of the building
o The building is run for the benefit of the owners who lease their units from
 Time-sharing: division of property ownership into a number of fixed periods of time
o Each purchaser has exclusive right of possession of property during the period
 Transfer during the period of possession is possible
 Party wall: common wall constructed on the property boundary line between adjoining
o Owners of adjacent property can either
 Joint ownership of the wall as tenants in common or
 Individual ownership of the wall and allow an easement for the neighbor
Dutcher v. Owens
 Facts: fire in the common elements of a condominium damaged Owens’ individual unit
 Holding:
 Rule: liability for owners in a condominium is pro rata and based on proportionality
Marriage Property: Tenancy by the Entirety
Tenancy by the Entirety: concurrent property ownership of property between married
 Joint right to: use, control, incomes, rents, profits, usufructs, and possession of property
 Created by: TTIPM
o Time: same duration
o Title: same document
o Interest: same amount
o Possession: equal right to use property
o Marriage: the parties must be married
 Cannot be severed by the actions of one party (must be both)
 Termination: death, valid divorce, or mutual agreement
o At termination, the T/E converts to J/T or TIC depending on the jurisdiction
 No right of either party to request judicial partition
 Land held as tenancy by the entirety is beyond reach of creditors of either husband and
wife (Sawada v. Endo)
o SCOTUS recently held that land held as tenancy by the entirety is subject to
federal tax lien (but not to any other lien or debt that may exist individually)
Right of survivorship: even if one kills the other
Transfer: both parties must sign to transfer property
o One spouse can transfer his own right in the property (the right of survivorship)
 E.g., if the husband tries to transfer his ownership to the debtor, the
debtor gets nothing until the husband dies first. If wife dies first, debtor
gets it (Robinson v. Trousdale County)
 Professional degree cannot be held as T/E (Hoak v. Hoak)
o But wife (or husband) can get reimbursement alimony
 Reimbursement alimony: spouse is entitled to her contributions to
husband’s advancement
 Factors considered: expectation that the degree would increase standard
of living for family
Some marital concepts
 Community property: communal property regimes require that all property acquired
during the marriage be divided 50-50 during a separation nor divorce
o Does not include:
 Property owned by spouse before marriage and brought into the
 Separate property acquired by either spouse by gift, devise, or
inheritance during the marriage
o Creditor cannot go after community property if it has a lien against one spouse
(same as T/E)
Robinson v. Trousdale County
 The common law disability of coverture (upon marriage, a woman’s legal rights and
obligations were subsumed by those of her husband) does not apply to T/E
 The transfer of fee simple in T/E cannot be done T/E
Sawada v. Endo
 Parents transferred property they held as T/E to sons in order to avoid getting their land
taken by creditors (a lien was placed on their property by creditors)
 The family is more important than the interests of creditors (courts may a value
Hoak v. Hoak
 Facts: wife supports family and helps her husband earn a medical degree; they divorce
and the wife is claiming that she is also entitled to the medical degree because it is
property that has been accumulated during the course of their marriage
 Holding: the medical degree is not property and cannot be held in T/E
 Rule: reimbursement alimony
Landlord and Tenant
The Landlord-Tenant Relationship
Transferring Lease: Sublease and Assignment; Relationships and Obligations
Privity of K
of K +
of E
Privity of K+E
of K
Lease: conveyance of an estate for a term of years
 Leasehold: the lease itself
 Leaseholder: tenant
The landlord-tenant relationship has evolved significantly
 It is derived from old English common law when leases were primarily for farmland and
the leaseholder was a farmer who intended to farm the land
 Modernity: leases are for residential or commercial uses, not primarily for agricultural
o It eventually became necessary for the law to evolve because the landlordtenant relationship today is not the same as it was before
Landlord-tenant relationship in commercial v. residential context
 Always remember: the law tends to be harsher in the commercial context against a
commercial leaseholder
Lease for Intended Use: Warranty of Suitability for Intended Use
Caveat emptor: no duty on the landlord to ensure that a commercial tenant would be
able to use their leased land in a way they intended to; no duty on landlord to disclose
but he must not make affirmative misrepresentations
o Presumption that if a lease is for commercial purposes, the tenant will exercise
its due diligence to ensure that they will be able to profit and maximize use of
the land
 Does not apply to residential leases: landlord has more bargaining power
than the residential tenant; circumstances differ
Courts will almost never interfere in a commercial lease transaction
o Presumption: for a commercial transaction, parties will use due diligence and
ensure that everything will be okay
 If parties didn’t use due diligence: caveat emptor
Anderson Drive-In Theatre, Inc. v. Kirkpatrick
 Facts: farmers lease land to corporation wanting to use land for a drive-in theatre; the
land turns out to be mushy and completely unable to used for a drive-in theatre
 Holding: Anderson (leasee) loses
 Rule: in commercial transaction, leasor has no duty to disclose, leasee has a duty to
inspect and use their own due diligence
 Policy: harsh rule for commercial transactions; no warranty of suitability for intended
use exists for the leasor
The Duty to Put the Tenant into Possession
Majority rule (English): lessor has a duty to ensure that the tenant has actual and legal
possession of the property at the start of the lease
o Holdover tenants must be removed by the lessor before the start of the new
lease with a new tenant
o Duty ends once the landlord places the new tenant in actual and legal possession
 If the old tenant comes back and kicks out the new tenant, there is no
cause of action against the landlord
 New tenant’s duty to ensure he remains in possession of property
o If tenant is unable to take possession at the start of the lease
 The tenant may terminate the lease and have a cause of action against
the lessor
 Landlord has a cause of action against the person wrongfully in
possession (holdover tenant)
Minority rule (American): lessor only has a duty to ensure that the tenant has legal
possession of the property at the start of the lease
o Holdover tenants must be removed by the new tenant
o If tenant is unable to take possession at the start of the lease
 The tenant may not terminate the lease
 The tenant has a cause of action against the holdover tenant for
possession and damages
 Tenant has no cause of action against the landlord
o Justifications
 The tenant has an adequate legal remedy against the wrongful occupant
 It is unreasonable to hold the landlord liable for a party’s independent
 The landlord has no duty to deliver actual and exclusive
Some terms to note:
o Actual possession: a tenant who is in physical possession of the property
o Legal possession: a tenant who is entitled to possession
Adrian v. Rabinowitz
Facts: Adrian leased an office unit from Rabinowitz for a shoe business but was unable
to take possession because of a holdover tenant
Holding: majority (English) rule applied for duty to put lessee in possession
Transferring the Lease: Sublease and Assignment (VERY LIKELY TO BE ON THE EXAM)
Privity of K
of K +
of E
Privity of K
of K
Assignment: the outright transfer of all or part of a tenant’s existing lease to a third
party (no reversionary interest exists)
o Trigger: “all remaining right, title, or interest”
 This indicates an assignment: tenant conveys its entire remaining interest
to subtenant
o The assignee (person receiving the assignment) steps into the shoes of the
assignor (person giving the assignment and in contract with the landlord)
 Creation of privity of estate between landlord and the assignee (person
receiving the assignment)
 If breach, landlord has action against assignee
 Assignee is bound by the original lease
 Assignee’s duty is directly to the landlord
o Liability of tenants after an assignment has occurred
 The original tenant (T1) has privity of contract with the landlord
 T1 has a privity of contract and surety with the third party receiving the
assignment (T2)
 T2 has privity of estate with the landlord
 If the third party does not pay rent: the landlord has a choice between
suing T (on privity of contract) or T2 (on privity of estate)
 Release: for T1 to escape from privity of contract with landlord
 Novation: if landlord release original tenant and gets contractual
rights against he assignee
 The fact that the landlord has consented to the assignment and
accepted rent from the assignee does not release the original
tenant from his contractual liability with the landlord (privity of
Sublease: the tenant transfers less than entire remaining time or interest in a lease to a
third party
o Results in the creation of a new tenancy between the sublessor and the
sublessee (sublessor becomes both landlord and tenant)
 No privity between subtenant and landlord: terms of the original lease
cannot be enforced by the landlord against the subtenant
o Trigger: reservation of some interest (a reversionary interest exists)
 This indicates a sublease: tenant reserves some interest
o Liability of tenants after a sublease has occurred
 Subleasor: bound by the obligations of the original lease with the
 Landlord has no cause of action against the sublessee (T2) for a breach
(failure to pay rent)
 Landlord continues to have a cause of action against the original tenant
Intent of the parties matter in determining what has been transferred (Jaber v. Miller)
o In Jaber, the parties intended an assignment because the document was so titled
and the language clearly indicated an assignment
Restrictions on the right to transfer
o Right to transfer is presumed unless
 Landlord specifically restricts a tenant’s transfer rights
 Contractual clause or provision requiring a landlord to consent a sublease
or assignment action
 This is generally disfavored by the courts each tenant ought to
have a right to alienation (the right to convey land freely to others
without restraint)
Duty to Repair (Warranties): Constructive Evictions and Abandonment
Abandonment: Duty to mitigate damages of breached lease
 Traditional rule: landlord has no duty to mitigate by re-letting the premises when a
tenant breached and vacated
 Trend rule: the landlord who seeks to hold a breaching tenant liable for unpaid rent
has an obligation to take commercially reasonable steps to mitigate its losses by reletting or taking steps to actually seek out another tenant
o Reid v. Mutual of Omaha Insurance Co.
 Facts: insurance company rents an office space from Reid but later leaves
because their neighbors are too loud; insurance co. relets the office
space to a new tenant
 Rule: duty to mitigate damages by reletting
 Periodic tenancy
o An estate for a fixed period of time which continues for periods equal to the
original one unless either the landlord of tenant gives notice of an intention to
terminate the estate
 Traditional rule on notice
Notice must be given prior to the beginning of the next period
(e.g., week to week lease, one week’s notice required); year to
year tenancy may be terminated by 6 month’s notice
 Most jurisdictions: notice period has been shortened by statute
Tenancy at will
o The landlord of the tenant can terminate the estate at any time
Tenancy at sufferance
o When an estate holder remains on the land after the expiration of his or her
o Tenant at sufferance (the person remaining on the land) is also called a holdover
tenant and can be evicted at any time
Implied Warranty of Habitability:
 The landlord has an implied duty to keep and maintain the premises in a habitable
o Foundational case: Javins v. Frist National Realty Corp.
 Exceptions: if the inhabitable condition is largely the tenant’s fault
 To determine whether a violation occurred, courts will look at:
 If the landlord violates the implied warranty of habitability:
o Tenant can
 Withhold rent
 Repair and deduct rent for those repairs only if tenant notifies landlord
and the landlord still doesn’t repair within a reasonable statutory time
o Landlord may not
 Retaliate: evict tenant for reporting (Edwards v. Habib)
 The tenant reports the landlord and he is evicted for reporting
 Waive/reduce rent and continue to violate the housing code
 Tenant’s obligation to pay rent is no longer independent of the landlord’s duty to keep
and maintain the premises in a habitable condition
o Tenant can withhold rent until landlord repairs defects or
o The cost of repairs done can be deducted from rent
 Must be based on an existing residential housing code for establishing an implied
warranty of habitability
o Housing codes require the maintenance of housing in good condition, the
provision of necessary facilities, and limit occupancy by requiring a minimum
amount of space for each occupant of a dwelling
 Landlord’s have the duty to repair (no longer the tenant’s duty)
 Applies only to residential leases, does not extend to commercial leases
 Can now be a sword and a shield
o Consider: which is better, the implied warranty of habitability or doctrine of
constructive eviction?
 Some history
o Common law
The landlord was not liable in tort for injuries on the premises unless
 Fraud
 Concealment
 An express assumption of liability in a lease
 Justification
 The lessee assumed the risk of injury because the lease gave him
possession and control of the premises
 Tenants could inspect the premises before signing the lease to
discover any defects
 During lease term: tenants in better position than the landlord to
know what repairs might be needed
 Would only make most sense if the land leased is for agricultural
 The physical land is very important when being used for
agricultural purposes
o Courts gradually became uncomfortable with the common law rule
 Majority of landlord-tenant leases are now for renting a building or space
in a building (rather than leasing the entire land)
 The land on which the space being leased occupied became
secondary and less important
 Tenants no longer able to discover defects by inspecting the
premises because the tenants would not be able to inspect the
entire structure
o Landlords in better position to inspect and make necessary
 Court wanted to bring landlord-tenant law in line with consumer
protection law and provide protection to lower-income tenants in urban
housing markets where they are often at a disadvantage and vulnerable
Implied warranty of habitability does not extend to security: Landlord Responsibility for Crime
 Walls v. Oxford Management Co.
o Facts: lady was raped in parking lot and sued landlord claiming violation of
implied warranty of habitability
 No general responsibility unless
o Special relationship
 Innkeeper-guest, common carrier-passenger
 Landlord-tenant is not a special relationship
o Assumed duty to protect
 Provided security but later took back
 Provided security based on contract
o The landlord knew of a physical defect that would enhance the likelihood of a
crime but did nothing about it
 Landlord brought on the criminal act
o Crime was foreseeable
 Crime history, high crime neighborhood
No liability for crime based solely on landlord-tenant relationship and foreseeability
o Must be the other factors too
Constructive Eviction:
1. Identify a breach of some covenant or warranty
 Covenant of quiet enjoyment
 Warranty of habitability
 Refer to housing code
2. Tenant must leave the premises (Petroleum Collections, Inc. v. Swords)
1. Continued possession or occupation is de minimis for constructive eviction
2. Landlord must attempt to mitigate by releting
Holdover tenant:
If holdover tenant, landlord can:
 Common law: landlord can evict the tenant and sue for damages OR consent to creation
of a new lease
 Trend rule: landlord can charge double rent during holdover period or allow a holdover
period without a penalty
o Crechale & Polles v. Smith
 Rule: landlord can treat holdover tenants as a trespasser or a renewed
tenant or evict the tenant;
o If landlord accepts rent from holdover tenant, landlord has consented
to the renewal of extension of the lease
o If landlord treats the tenant as a trespasser but accepts rent, landlord
has agreed to an extension of the lease on a month-to-month basis
Housing Codes and Rent Control
Housing code sets standards for habitability
1. Mechanics
a. Created and enforced by the government
i. No private right of action
b. Represents a police power to protect the health, safety, and welfare of people
living in their homes
Modern Housing Code
 Establishes standards for habitability
 Usually relies on private reporting of infractions
o Problem is that when tenants report of them, they will get evicted from their
landlord so they will not actually end up reporting infractions
 Retaliatory evictions not allowed for public policy and statutory intent
 Public policy: tenant has a right to report violations
Statutory intent: congress intended reports to be allowed as part
of its housing code statute
o Issues with code enforcement
 Code enforcement probably works best in areas of the city where there is
some decline but code enforcement can prevent further decay
 Very bad condition area: tenants are poorer and cannot afford to pay
increased rents that code enforcement may bring, landlords are also not
generally rich so they can’t afford to repair dwellings
 Very good condition area: no need for code enforcement because
conditions are good
Retaliatory eviction defense (Edwards v. Habib)
o Eviction as a result of tenant reporting housing code violations
o If proven, it does not give a tenant indefinite tenancy
 Landlord can evict once the remedy has been made for any or no reason
o Defense available even though the tenant moves out
o Does not apply to commercial tenancies
Uniform Residential Landlord and Tenant Act (note 3, p. 569)
Rent Control
 “Rent regulation” rather than “rent control”
o Due process requires that landlords earn a fair return and are entitled to profit
 Most ordinances meet this requirement by allowing for periodic
increases fixed by statutory amount or a discretionary amount
determined by a local agency that determines what the increase should
o Some laws allow landlord to charge only a portion of the permitted increase
o May be provisions allowing individual adjustments for landlords who require
exceptional rent increase because of extraordinary operating expenses or other
o Adequate maintenance required as condition of rent increase
o Vacancy decontrol: housing unit is decontrolled once it become vacant
 Subject to abuse: landlord triggers vacancy decontrol by evicting tenant
and re-renting the unit at a higher rent
 Rent control laws
o Economic impact of rent controls is to prevent excessive rent-charging
o Protections for tenants in the form of controls on evictions and other protections
may be as important as restraints on rent levels
 Evictions only for just cause
 Regulate or restrict the demolition of rent-controlled units or conversion
to owner-occupied condominiums
 Constitutionality of Rent Control: Mobile Homes
o Mobile homes: housing unit that is manufactured off-site and shipped for site
Mobile homes seldom moved
Can be located on individual lots or placed with others in mobile home
o Tenants who place their mobile home in a park must pay monthly rental for the
mobile home “pad” to the park owner
o Rent control determines the amount of rent a mobile home park owner can
charge for a pad
 Zoning regulations limit the amount of land available for mobile home
parks so owners of parks can charge monopoly rent
 Rent controls are intended to prevent this monopoly
o The rent control caps the rental price for the “pad” and restricts eviction from
the park
 Benefits of owning a mobile home in a park: price locked in for pad and
tenured in the park
 Mobile home owners charge a premium because of these benefits
Rent control is a regulatory taking
 Rent control ordinances are designed to shift wewalth from landowner to tenant
o Rent controlled unit or “pad” (mobile homes) have a premium that allows the
tenant to make money if he or she sells
 This control of the premium is supposed to be with the landlord, not the
tenant (so this is a regulatory taking)
 Rent cap law does not substantially advance a legitimate public purpose
o Remember: Lingle eliminated this requirement that a law must substantially
advance a legitimate public purpose under a 5th Amendment claim
 Yee v. Escondido
o Facts: rent control ordinance affected the price that could be charged for mobile
homes in California
o Holding: upheld rent control ordinances but did not hear whether such an
ordinance is a regulatory taking
o Policy: regulatory taking was not raised in certiorari petition so SCOTUS refused
to hear it (lesson: raise all issue at court below so you’ll be able to include it in
the certiorari petition)
Housing Discrimination
Relevant federal statute that recognize housing as a fundamental right
 Fair Housing Act (Title VIII of the Civil Rights Act of 1968)
 Civil Rights Act of 1866 (42 U.S.C. § 1982)
1. Establish a prima facie case for housing discrimination
a. Show that you are a member of a protected class
i. Race, color, religion, national origin, gender, familial status, handicap
ii. Important: economic status is not a protected class, so to prove a claim
for discrimination based on economic status you must prove that the
economic status is really connected with another protected class listed
1. Must show that economic status is really a proxy for
discrimination against a protected class
b. Show violation
i. Disparate treatment: requires proof of intent
1. Equal protection clause: claims under EPC must show proof of
ii. Disparate impact: proof of disparate effect on a protected group that is
not a direct act of discrimination (e.g., systemic discriminatory practices)
1. SCOTUS recognized this as falling within FHA in Texas Department
of Housing and Community Affairs v. The Inclusive Communities
Project, Inc.
2. Government must show legitimate and genuine purpose
3. Plaintiff must show that there is a less discriminatory method of achieving the legitimate
government policy
a. Note: generally if the government is able to prove that their policy, though
discriminatory, is for a legitimate and genuine purpose, the government will win
Affirmative Marketing and Steering
Steering: real estate brokers and agents preserve and encourage segregation in available
housing by steering members of racial or ethnic groups
 Benign steering: steering that attempts to achieve greater racial diversity in a
neighborhood (South-Suburban Housing Center v. Greater South Suburban Board of
 Non-benign steering: real estate brokers direct potential buyers away from homes or
neighborhoods because their race or other protected status
o Can be proven by evidence obtained from “testers” (people who pose as
prospective buyers but really are investigating the defendant’s practices; they
will ask the broker accused of steering and ask for assistance in looking for a
o E.g., black homebuyers are steered away from all-white neighborhoods
South-Suburban Housing Center v. Greater South Suburban Board of Realtors
Affirmative marketing and benign steering is not a violation of FHA
1. Protected class: race
2. Legitimate purpose or policy: integration and equal opportunities for housing to all
3. No identification of a better policy that achieves the above goal because the “black”
town had empty lots that could not be sold
Larkin v. State of Michigan Department of Social Services
Facts: zoning ordinance prevents adult foster care home from being within 1,500-feet
radius of an existing facility
Holding: the ordinance is not enforceable because it violates FHA
Rule: handicapped persons are a protected class so the government must show that the
ordinance that discriminates against them is has a legitimate and genuine purpose
Servitude: a non-possessory ownership interest that another has over a property
 Easement in gross: only benefits the right holder personally rather than enhances the
right holder’s use and enjoyment of his own land
o No dominant estate, yes servient estate
o Easements in gross are usually not transferrable but can be shared for
commercial purposes only
 One stock rule: all those who share an easement in gross must act as
“one stock” (everyone who is sharing the easement must agree and act
as if they are one entity)
 One stock rule prevents fragmenting an easement in gross
 Appurtenant: created for the use of the owner of an adjacent parcel of land
o Dominant and servient estates
Easements in Gross: Licenses and Profits, Commercial
License: temporary permission to enter the land of another for some narrow, delineated
 Examples: grocery shopper, ticket holder to a baseball game
 Does not need to be written
 Temporary and revocable at any time, automatically revoked upon death of licensor or
attempt to transfer the interest UNLESS
o Estoppel
 The licensee invested substantial money and/or labor reliance on the
reasonable expectation that the license would not be revoked
o Coupled with an interest
 Irrevocable for a reasonable period of time
 A license that allows retrieval to chattel/personal property located on
the land with respect to which the license exists
 If A sells to B a car sitting on Whiteacre, B has a license coupled
with an interest to go on Whiteacre to remove the car
 Benefits of a license
o Defense against trespass
 Get a license if you are only going to use or access the land a few times
Profit: servitudes which entitle the right holder to enter the land of another and to remove
something from the land that is generally commercial in nature
 Example: permission to enter the land and remove trees, timber, coal, animals (hunt)
 Does not need to be written
Commercial easement in gross
 Example: utility company’s entitlement to place a power line on privately owned land
 Can be assigned
 Miller v. Lutheran Conference & Camp Association
McCastle v. Scanlon
 Facts:
St. Helen Shooting Club v. Mogle
 Facts: hunting rights were reserved
Holbrook v. Taylor
 Court finds an easement by prescription even though it was a license
Appurtenant: Easements
Appurtenant: two adjacent parcels of land; one is benefitted (dominant) while the other is
burdened (servient)
 Illustration of “appurtenant”:
o A, the owner of Blackacre, grants B, the owner of Greenacre, a right-of-way
easement across Blackacre so that B can more easily reach Greenacre
 The right of way easement enhances B’s use and enjoyment of Greenacre
 Greenacre is the dominant or benefitted land
 Blackacre is the servient or burdened land because the easement
diminishes A’s use and enjoyment of Blackacre
 B: right holder
 Right of way: appurtenant to Greenacre
Types of easements appurtenant: affirmative, negative
 Affirmative: entitles the right holder to make use of the servient land
 Negative: restricts the ways in which the servient landowner may use the servient land
Creation of an Affirmative Easement: PINE
 Prescription (implied in law): CAVHO (same as adverse possession but “exclusivity”
element is not needed)
o Parties did not intend to create an easement but the law for public policy
reasons implies an easement under the circumstances as a matter of law
o Continuous
o Actual
o Visible
o Hostile (adverse)
o Open and notorious
o Case: MacDonald Properties, Inc. v. Bel-Air Country Club (house on golf course)
Implied in fact (Hellberg v. Coffin Sheep Co.)
o Quasi-easement existed
 Must be a defined and existing route or right-of-way
 A former unity of title and subsequent separation
 The land was held together under one title and later separated by
sale or lease
 An apparent and continuous quasi easement existed for the
benefit of one part of the entire estate to the detriment of the
other during the unity of title
o An easement existed when the land was held in unity of
 A certain degree of necessity (reasonable necessity) that the easement
should continue to exist after severance of the property to ensure the
quiet enjoyment of the land
o Strict Necessity
 Landlocked landowner has the right to condemn (via the court, not
himself because private landowners cannot condemn property) a private
way of necessary for ingress and egress
o Palama v. Sheehan
 Hawaii: “strict necessity” is same as “reasonable necessity”
 There was an easement and another route, but that other route would
flood and be impractical to consistently use so the court recognizes an
easement by necessity
 Necessity because: the other way unreasonable and impractical; the
direct route is reasonable and convenient
o Implication
 Quasi-easement existed
 Former unity of title
 During which an apparent and continuous quasi easement existed
for the benefit of one party and the detriment of another
 In other words: an easement existed during this unified title
 Subsequent separation by grant of the dominant tenement
 Sale or lease
o Easements implied in fact from subdivision plats
 Purchasers of lots in a subdivision usually acquired easements of access
through the “common” areas (roads, streets, alleys, parks, open areas) of
the subdivision—the extent of their access depends on jurisdiction
“Narrow” rule: the purchaser is entitled to access to the streets
bordering his lot and to whatever streets are necessary for the
purchaser to have access to public roads
o This applies even though the deed is completely silent on
these issues
 “Beneficial” or “full enjoyment” rule: owners have implicit access
to all such areas that are reasonably beneficial to the use of his lot
 “Broad” or “unity” rule: owners have access to all common areas
represented on the plat
o Modern trend is in this direction
Express or Reservation
o Statute of frauds applies: must be in writing on a “deed of easement”
o Careful drafting (don’t be like the attorney in Cushman)
 Must implement the parties’ intent
 Will avoid future litigation
 Failure to carefully draft lets the court interpret the transaction and “fill
in” the details that were overlooked
 This may or may not actually implement the parties’ intent
 It will be very expensive and wasteful because it could have been
an easily avoidable mistake
 Should include
 Scope and nature of the right created
 Identity of those holding the right
 Transferability and divisibility of the right
 Duration of the right if other than perpetual
 Physical location of the burden of the right on the servient land
 Maintenance obligations
 Allocation of liability for injuries or damage resulting from the
exercise of the right
o Reservation: express easements reserved in a grantor in favor of himself or over
to a third party
 Reserved in himself: A sells to B Whiteacre but reserves in himself an
easement of right of way across Whiteacre
 Reserved “over” to a third party: easements are reserved to a third party
 Traditional rule: not possible because courts disfavored
transferring an easement to a “stranger to the deed”
 Modern trend: allow easements to be reserved to third parties
Termination of an Easement: (PERU COALM)
 Prescription
o An easement will terminate when the owner of the servient tenement interferes
with the use of the easement in a manner that is continuous, actual, visible,
hostile (adverse), and open and notorious
o Example: A constructs a fence blocking B’s access to an easement; B (the
dominant owner) can terminate the easement if A holds out long enough
o The servient owner materially acts in reasonable reliance on the easement
holder’s assurances or acts that the easement will no longer be enforced
 Easement owner will be estopped, in equity, from enforcing the
o Written release from the owner of the easement to the servient tenement
Unity of title
o When title to the easement and title to the servient estate vest in the same
o Not possible to hold an easement against yourself
Condemnation of servient estate
o Government taking of servient estate
o Just compensation needed
Own terms
o Express agreement in which is states when the easement will end
o Nonuse and
o Affirmative acts by the owner of the dominant tenement conclusively and
unequivocally manifesting either a present intent to relinquish the easement or
a purpose inconsistent with its future existence
 Look at the past, not what could possibly be done in the future
Lack of necessity
o Easements created specifically out of necessity expires once the necessity ends
o Only applies if the original easement was created by implication in law
 If express grant, it is not terminated once the necessity ends
Misuse (not really termination—more injunctive relief)
o If the owner of the easement exceeds his rights under the easement, the owner
of the servient estate is entitled to injunctive relief to stop the misuse
o Some states: if injunctive relief is ineffective  easement may be extinguished
Negative Easement
Negative easements restrict the ways in which the servient landowner can use his land or
requires someone to do something to their property
 Always appurtenant: can only be enforced by the dominant tenant
 Equitable remedy: injunction
o Main difference:
 Remedy for negative easement: monetary damages
 Remedy for covenant: injunctive relief or equitable relief
1. Creation: only be express writing
2. Types of negative easements recognized by common law (LAFS)
 Light (can’t block light)—Prah v. Maretti
 Air (can’t block the flow of air)
 Flow of an artificial stream (can’t block a neighbor’s right to use a flowing water)
 Subjacent or lateral support
3. Types of negative easements recognized in U.S. (CVS)
 CONSERVATION EASEMENT: created when a landowner relinquishes the right to use
a particular parcel of land in some specified way that would detract from, diminish,
or extinguish its natural qualities
o Can severely restrict and impact the use of land
o Used either to
 Prevent development
 Prevent people from even walking/accessing on that land
o It is necessary that there is an enforcement entity/organization that wants
the conservation easement for a particular area or parcel of land
o The easement holder is generally a public agency or a charitable organization
(or Donald Trump—see article handed out in class)
 They own no dominant tenement but has the power to enforce the
restriction against the servient landowner
o Nonpossessory interest
o Exists in perpetuity if done right
 The perpetual nature of the conservation easement inevitably creates
some land use problems: what if a state needs the land held under
conservation easement for a school? This is a policy question
o Why would anyone want to hold land with a conservation easement when it
can’t be developed?
 Tax exemption/deduction
 Some golf courses have conservation easements so they can get
the tax exemption from the IRS
 The enforcing organization/entity is usually private
 The purpose/mission is in line with the conservation easement
o United States v. Blackman
 Recognized conservation easement as a negative easement
 View
 Solar energy
Appurtenant: Restrictive Covenants
Covenant: promise to do or not do something with respect to the use of land
 Used by private landowners (individuals or homeowners’ associations) to restrict or
facilitate a particular use of land
o Restrictive covenants are a form of private land use control
 Contrast with zoning ordinances
Restrictive covenant: imposes a restraint on another’s use of land
Affirmative covenant: imposes an obligation or duty on a burdened landowner
Remedy: injunctive relief, other equitable relief
o Main difference between covenant and easement is remedy
Types of restrictive covenants: equitable servitudes and real covenants (running with the land)
 Possible to enforce a restrictive covenant as an equitable servitude and a real covenant
running with the land for remedy purposes: if you want injunctive relief in addition to
money damages
o Enforcing as equitable servitude: remedy is injunctive relief
o Enforcing as real covenant running with the land: money damages
Equitable servitude: real property interest
Policy and purpose: Intended to address the problem that subsequent owners of land would
not be bound by a contract that restricts some usage of the land
Equitable servitude: applied because it is fair to enforce a restriction on the use of land
Negative reciprocal servitude: writing is not necessary but notice is absolutely necessary to
Creation: express or implied
 Express: real covenant that can’t run at law
 Implied: when landowner sells 2 or more parcels as part of a common plan
Elements: for a covenant to be enforced as an equitable servitude against subsequent owners
1. Identify the restriction
a. General plan or common scheme doctrine
i. The restriction will be enforced against a lot owner who lacks reference
to a restriction in his chain of title if
1. It can be established that there was a consistent use of covenants
to control development
2. This general plan was in place during the time the lot was
b. Common grantor
2. Original parties to the covenant must have intended that the agreement bind later
a. “Heirs and assigns,” “permanently maintain”
3. Later owners must have had notice of the restriction
a. Constructive notice
i. Record notice: the agreement creating the restriction is recorded within
the current owner’s chain of title
1. Traditional rule: “chain of title” included only those deeds in a
direct line from the original private grantee from the sovereign to
the current owner
2. Modern rule: chain of title includes prior deeds from a previous
grantor to other purchasers of lots in the same subdivision
ii. Inquiry notice (Sanborn v. McLean)
1. The strictly uniform appearance of a neighborhood would cause a
homeowner to “inquire” into whether a covenant exists
2. There is no covenant stated on the deed
3. Sanborn: McLean wanted to build a gasoline station but all around
there are only single family detached homes
b. Actual notice
i. Stated on the deed
4. The covenant must touch and concern the land
Remedy: injunctive relief
Real Covenant: contractual limitation
Creation: express—must be in writing
Elements: a covenant will run with the land if
1. Identify that a promise exists
o Express only
2. Covenantors intended for the covenant to run to heirs and assigns
3. The covenant must actually touch and concern the land
4. Privity of estate
o Vertical privity of estate: devolution of an estate burdened or benefitted by a
covenant from an original covenanting party to a successor
 Must prove that
 Party claiming benefit from the covenant is a successor in
 Party claiming burden from the covenant is a successor in
o Horizontal privity of estate: covenant created in connection with a conveyance of
an estate from one of the parties to another
 Disregard! Horizontal privity of estate does not need to be proven
Remedy: money damages
Remedies for Breach: Limitations on Private Land Use Controls
Public Policy Limitations on Covenants
Unlawful restraints on alienation
Unclean hands
Public policy
Abandonment (selective enforcement)
Balance of the hardship test
Any analysis for equitable enforcement of a covenant must start with looking at the language
of the covenant
Equity will not enforce a covenant if (equitable defenses apply)
 A violator has been led to believe that the covenant has been abandoned or
 If the party benefitted by the covenant has failed to assert his rights within a
reasonable time
Unlawful Restraints on Alienation
Alienation: conveyance or transfer of property to another
Absolute restraints on alienation are per se void
Partial restraints are generally invalid unless they are reasonable and limited to a specific
period of time
 Examples of partial restraints on alienation that have been held to be reasonable
o Rights of first refusal to repurchase
o Restraints on transfer for brief periods of time
o Sale approval rights for condominium boards
o Agreements on the part of co-tenants that they will not partition property during
a specified period
o Forfeiture or promissory restraints on life estates
o Restrictions on land use
Types of restraints
 Forfeiture
o The estate will be forfeited to an identified party if the grantee attempts to sell
or transfer it
o The beneficiaries can theoretically release the restraint
 Disabling
o Prohibits the grantee from selling or transferring his interest
o Nothing about forfeiture is stated anywhere
o There are no direct beneficiaries who can release the restraint (as in forfeiture
and promissory restraints)
 Promissory restraints
o Arises when a grantee promises on behalf of himself and his successors not to
transfer his interest
o The beneficiaries can theoretically release the restraint
Lauderbaugh v. Williams
 Facts: lady wants to convey a property by the lake to someone who is not a member of
an association
 Holding: the agreement that creates this condition that a person who buys property by
the lake must be a member is not valid
 Rule: partial restraints on alienation will only be valid if they are reasonable and limited
to a specific period of time
 Policy: private property owners ought to be able to sell their property to whomever they
Change of Circumstances
Courts will not enforce a restrictive covenant where a fundamental change has occurred in the
intended character of the neighborhood that renders the benefits underlying imposition of the
restrictions incapable of enjoyment (Town of Bethany)
 Change must be so pervasive that the entire area or subdivision’s essential character
has been altered
 The benefit that has been conferred by the covenant is no longer relevant and so
beneficial because of the change of circumstances
 Party violating the covenant must demonstrate more than piecemeal or border lot
change; change in the character of the surrounding community is insufficient
o As long as the restrictive covenant limiting land to residential uses remained of
“real and substantial value to those homeowners living within the subdivision,”
increased commercialization and significant border lot change would be
insufficient to extinguish the covenant
o Nearby avenues may become heavily travelled roads but if the single-family
residential character of the neighborhood has not been significantly thwarted:
covenant is still enforceable
Change in circumstances is an equitable defense
El Di, Inc. v. Town of Bethany Beach
 Facts: restrictive covenant banning the sale of alcohol and commercial uses in the Town
 Holding: covenant has been invalidated because of change of circumstances
 Rule: see above
 Policy: change in circumstances as an equitable defense
Abandonment and Selective Enforcement
To determine whether abandonment of selective enforcement have occurred: look at the CCR
CCRs: document that is recorded before any units are sold and thus become part of the chain of
title of all unit owners
Eminent domain: if a parcel of land subject to restrictive covenants is condemned by the state
through eminent domain, the owner of benefitted property is entitled to compensation
Mountain Park Homeowners Association v. Tydings
Other equitable defenses
 A common owner comes into possession of the burdened property and all the lots
benefitted by the covenant
o If he then resells some of the lots, the original covenants do not automatically
come back to life
 Release agreement between the parties
Unclean hands (approval clauses)
 Covenants requiring submission of renovation plans must be exercised in good faith
 Lapse in time for plaintiff to bring an enforcement claim
 That delay was not reasonable under the circumstances
Relative hardship
Covenants in Violation of Public Policy
Courts will not enforce a covenant if to do so would contravene a “long-standing” public policy
What does “public policy” even mean? Not sure.
 Covenants that require the performance of an illegal or unconstitutional act or prohibits
all uses of land are clearly unenforceable
Restatement approach: (but no court really follows this)
 Section 3.1: “servitudes that are invalid because they violate public policy include
o A servitude that is arbitrary, spiteful or capricious
o A servitude that unreasonably burdens a fundamental constitutional right
o A servitude that imposes an unreasonable restraint on alienation
o A servitude that imposes an unreasonable restraint on trade or competition
o A servitude that is unconscionable
Crane Neck Association, Inc. v. New York City/Long Island County Services Group
 Facts: “community home” for mentally disabled people was to created in a subdivision
with a covenant restricting dwellings to single-family homes
 Holding: public policy prevents enforcement of the covenant
Rule: courts will not enforce a long-standing state policy; a state regulation is justified
although it constitutes a substantial impairment of a contract if it is reasonably
necessary to further an important public purpose and the means taken to effectuate
that purpose are reasonable and appropriate
Unreasonable Covenants
Covenants must be “reasonable” to be valid
 But courts will not ordinarily invalidate a covenant on reasonableness grounds unless
it appears to run afoul of some larger public policy concern
Restrictions are generally presumed to be reasonable and will be enforced uniformly against all
residents of the common interest development unless
 The restriction is arbitrary
 Imposes burdens on the use of lands it affects that substantially outweighs the
restriction’s benefits to the development’s residents
 Or violates a fundamental public policy
Restriction is presumed reasonable when
 A restriction is contained in the declaration of the common interest development and
 Is recorded with the county recorder
 Rationale: residents freely made the choice to buy into a particular community and that
the restrictions were a matter of public record at the time of purchase
Subsequently adopted rules
 Rules subsequently adopted must also be “reasonable” but courts will scrutinize the
reasonableness of the covenant more significantly
o But whether it will be enforced depends on the state
 Courts are largely unwilling to enforce subsequently adopted rules that apply only to a
minority of unit owners
Common interest communities (CIC)
Defined: real estate developments or neighborhoods in which individual units are burdened by
a servitude that requires either
 Payment for the maintenance of property held in common
 Payments to an association which either maintains the common property or enforces
other servitudes burdening the property
To qualify as a CIC: (additional requirements)
 Unit owners must also be unable to avoid the obligations under the servitude by
nonuse or withdrawal
 Each owner occupies a distinct dwelling unit
 Entire community is governed by a private ownership association
o Membership in the association is mandatory
o All members are obligated to comply with the restriction
 All units are subject to restrictions applicable only within the development
Common areas are owned by the unit owners as concurrent tenants or by the
 Association rules derive their authority from the law of restrictive covenants
Examples: planned unit developments (gated communities), condominiums, cooperatives
Nahrstedt v. Lakeside Village Condominium Association (can’t have cats in condo)
Procedural Fairness
Covenants providing for consent before construction or remodeling are generally upheld even
where they vest broad discretion in a homeowners association, committee, or board through
which it acts so long as the authority to consent is exercised reasonably and in good faith
 But a consent to construction covenant cannot result in a lot being imposed with
restrictions that are more burdensome than restrictions that are otherwise placed by
specific covenants
Riss v. Angel
Asia-Pacific Property Law: Japan, Hawaii, China, Korea
Korean Property Law
Civil law system
 Does not have the binding nature of case law in making their decisions
o Role of judges is really to interpret the statute over and over again rather than
relying on judicial precedent
 Everything is codified and found in statute
o Heavy reliance on statute rather than common law
 That justice will be served is codified and ensured on
 will be done through court proceedings
 Heavy reliance on written law
o It is the most important legal source
 Reliance on statute because there is no precedential principle
Korean civil law—largely based on German tradition which itself is based on Roman law
 Broad range of laws on a citizen’s everyday life
 Contracts
 Torts
 Some aspects of business law
 Agency
 Some corporate law
 Property
 Family law
 Great influence of European law in spite of America’s strong socio-economic presence
Civil law and common law systems are converging: civil law is doing more case law and common
law is doing more interpretation of statutes
Topics covered:
 Law of property
 Forms of ownership
 Adverse possession
Memorizing is important part of legal study in Korea
 Legal education in Korea is largely based on studying and knowing the law
Basic principles of civil law
 Article 1: source of law
o If no provisions applicable to certain civil affairs exist in the statutes, customary
law shall apply, and, if no applicable customary law exists, sound reasoning shall
Article 2: trust and good faith—this codified law ensures that the system will base their
decisions on trust and good faith (the court is huge in civil law system)
o The exercise of rights and the performance of duties shall be in accordance with
the principle of trust and good faith
o No abuse of rights shall be permitted
A construction contract is very short (1 page for a huge project sample in slide)
 The role of the court is huge
o If there is something missing, the courts will fill in the gaps based on what the
statute states
o Article 2 ensures fairness
 But contracts are now tending to get longer because there are more lawyers in Korea
Significant emphasis on ownership and what ownership means
Ownership v. possession
 Common law: possession is more important
o Possessing something is the most important right
 Civil law: ownership is more important
o An owner has the right, within the scope of law, to us, take the profits of, and
dispose of, the article owned
o Within the scope, where a justifiable profit exists, the ownership of land extends
both above and below its surface
Real rights v. fee simple
 Relationship between ownership and possession
 Is the ownership an equivalent of fee simple absolute?
In civil law system, registration with the court is absolutely important
 If you do not register your title in court, you have no real right to the property
 Similar to Hawaii’s dual system in terms of recording
o Regular system
 Notice system:
o Land court system
 Race notice system: looks at whether someone has notice of the state of
the title AND looks at whether it has been registered in the court
Korean property law has no “future interests”
Adverse possession in Korea
 Subsequent registration is necessary
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