Property II
Landlord/ Tenant law
Step 1: Identify type of interest or tenancy
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Term of years
o Definite beginning and end (must contain numbers to signify when the contract ends to
qualify)
o Does not automatically renew
o Creation- express agreement between landlord and tenant for a term specified in the
lease
o Termination- automatically at the end of the period; no notice required
 Death of landlord or tenant does not terminate this lease
o Subject to the statute of frauds if it’s longer than one year
 This lease is voidable until the tenant takes possession and the landlord accepts
rent from the tenant
Periodic tenancy
o Definite beginning and continues from period to period until proper notice is given
 No predetermined termination date
o Automatically renews/ notice is required to terminate
o Creation- expressly or by implication with a holdover tenant
o Termination- landlord or tenant must give appropriate notice of intent to terminate
 Appropriate notice must be
 In writing if the lease specifies, otherwise it can be oral AND
 Equal to the rental period up to a max of six months if it’s not dictated
in the lease
o If it is said in the lease, it’s a contractual obligation that must be
followed
 Timing of notice
 Common law- notice has to be given at the start of the rental period
 Modern law- notice is good whenever given but does not take effect
until the start of the next rental period
 Death of landlord or tenant does not terminate this lease
o This lease is not subject to the statute of frauds
Tenancy at will
o Creation- Express agreement of the parties or by implication
 Implication is if the person is allowed to occupy the premises without the lease
terms being worked out
o May be in writing but it often is not in writing
o Termination- it terminates:
 Freely as soon as either party decides (no notice required)
 If either the landlord or tenant dies
 If either party attempts to transfer their interest
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Tenancy at sufferance (holdover tenant)
o Creation- a holdover situation
 The tenant does not leave at the end of the agreed-upon tenancy
 The tenant is still bound by the terms of the original lease unless the landlord
told the tenant about an increase in rent before the original lease ended
o A holdover tenant becomes a month to month periodic tenant if the landlord accepts
money and allows you to stay. The landlord also has the option to evict the tenant at
this point
o Determining factor is the landlord
 If the landlord wants tenant to remain on the land, tenant becomes a month to
month periodic tenant. The landlord is free to charge the fair market rental rate
 If the landlord wants the tenant to leave, the tenant becomes a tenant at
sufferance until the landlord can get tenant off the property (trespasser)
o Crucial factor- acceptance of rent
 If the landlord accepts rent, this is evidence that the landlord wants the tenant
to stay and it becomes a periodic tenancy
Step 2: Identify type of dispute
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Over rent
o Duty to pay rent upon early termination
 Term of years- liable for unpaid rent until end of term
 The landlord has a duty to mitigate. They must use reasonable efforts to
lease out the property to someone else to lessen their damages.
 Periodic tenancy- liable for unpaid rent until you deliver notice and the notice
term ends
 The landlord has a duty to mitigate. They must use reasonable efforts to
lease out the property to someone else to lessen their damages.
 Tenancy at will- liable if rent is fixed
 Tenancy at sufferance- liable for reasonable rental value
Over condition of premises
o Duty to maintain premises
 Common law- absent agreement, the landlord has no obligation
 Modern law- implied warranty of habitability (residential only)
 Ask yourself
 Is there a lease?
o No, common law applies
o If yes,
 What are the provisions of the lease?
o If the lease speaks to it, the lease governs
o If the lease is silent,
 Is it residential or commercial?
o If it’s commercial, common law governs
o If it’s residential, modern law applies
o Duty to repair
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Commercial lease
 Common law governs
o It is the tenant’s responsibility
 Residential lease
 Common law applies if the lease is silent. If there is a lease, the lease
governs unless it violates the implied warranty of habitability and the
covenant of quiet enjoyment
 Modern law says that the implied warranty of habitability and the
covenant of quiet enjoyment applies
o If the lease puts this obligation on the tenant, this particular
provision is not valid
o If the repair needed doesn’t violate these covenants, the tenant
is responsible if the lease is silent to obligation
Over possession of premises
o Give possession
 Majority rule- a tenant is relieved of the obligation to pay rent if the landlord
fails to deliver actual possession of the premises.
 Minority rule- only requires that the landlord delivers legal possession
o Constructive eviction
 An eviction construed from interference with the tenant's use of the premises.
Constructive eviction occurs when the premises are substantially unavailable to
the tenant as they were promised by the landlord in the lease. An interference
with the tenant's use caused by a person with title superior to the landlord or by
the landlord or an agent amounts to constructive eviction. THE TENANT MUST
LEAVE THE PROPERTY.
 Partial constructive eviction
 There is an interference with your use of a particular part of the
premises.
 WITH PARTIAL CONSTRUCTIVE EVICTION, YOU ARE ONLY DUE A RENT
ABATEMENT
 WITH A FULL CONSTRUCTIVE EVICTION, YOU HAVE THE RIGHT TO NOT PAY ANY
RENT
Over improvements
o Fixtures
Discrimination – Prior to creation of landlord/tenant relationship
o Civil Rights Act of 1866
 This applies to all racial discrimination but only as it relates to the sale or rental
of real property
 This statute didn’t work because it didn’t provide a remedy if a tenant was
discriminated against and it didn’t speak to discrimination regarding services
needed to purchase a home (loan officers)
o Fair Housing Act of 1968
 Covers race, religion, sex, national origin, handicap discrimination
 Spoke to the sale, rental, and elements needed to purchase or rent a home
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Limitations
 It doesn’t apply to a private owner who owns three or less homes and
does not use an agent to sell these homes
 It does not apply to a private owner that owns four or less homes and
the owner lives in one of them
Landlord/tenant duties after property damage occurs
o Tenant duties for commercial leases
 Rent
 Common law estate theory
o The tenant has a duty to pay rent and is not relieved from
paying rent even if the property is destroyed because it is a
contractual obligation
 Exception: if the tenant only occupied a portion of the
property that was destroyed
 Modern law estate theory
o The tenant’s duty to pay rent is directly tied to his access or
condition of the property
o If they cannot occupy the property for any reason, there is no
duty to pay rent
 Waste
 Voluntary waste- the tenant damages the property; intentional conduct
 Permissive waste- the tenant cannot allow the property to deteriorate
 Ameliorative waste- make improvements to the property and you don’t
put the property back to its original condition when you leave
 Duty to repair
 Common law estate theory
o The landlord has no duty to repair the premises and the tenant
cannot commit permissive waste, so they had the duty to repair
the premises
 Modern law estate theory
o The tenant is liable for certain repairs depending on the type of
lease it is
o Landlord duties
 Duty to deliver legal title
 Covenant of Quiet Enjoyment
Three types of situations
o No lease
 Common law will apply
o Lease is silent to obligation
 First determine if it’s residential or commercial
 Commercial, common law applies
 Residential, modern law applies
o The implied warranty of habitability
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The landlord must ensure that the property is habitable
and must remain habitable for the duration of the lease
from a reasonable person standard
Since it’s implied, it cannot be waived. Even if there is a
provision in lease that says otherwise, this provision
cannot be enforced
The tenant must
 Notify the landlord and give him an opportunity
to cure
o If the landlord does not cure the deficit,
the tenant is not required to move out.
They can fix the issue and deduct it
from the rent payment. The tenant can
also withhold the rent until the issue is
fixed. The tenant can also sue for
damages if the issue caused the tenant
to vacate the property
o Ex: Broken windows, defective locks,
leaky roof, lead based paint, broken
toilets, broken, pipes, faulty wiring,
mold,
o Ask yourself: Does this defect make my
house unhabitable under a reasonable
person standard?
o Constructive eviction (applies to
commercial and residential properties)
 An eviction construed from the
landlord’s interference with the
tenant's use of the premises.
Constructive eviction occurs
when the premises are
substantially unavailable to the
tenant as they were promised
by the landlord in the lease. An
interference with the tenant's
use caused by a person with
title superior to the landlord or
by the landlord or an agent
amounts to constructive
eviction.
 The tenant must vacate the
premises in a reasonable
amount of time
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There must be a
landlord/tenant relationship
o Elements of a Constructive Eviction
 There must be wrongful conduct by the landlord that
interferes with how the tenant uses and enjoys the
property
 The landlord affirmatively interferes with the
tenants use and enjoyment of the property
o Ex: changing the locks
 The landlord has an obligation via the lease, or
the implied warranty of habitability and he fails
to honor this obligation
o Must be a major interference that
causes the property to be uninhabitable
o Covenant of quiet enjoyment
If the lease speaks to obligations
 The lease controls! It is a legally binding contract unless it’s a residential lease
and the condition violates the warranty of habilitality
Actual Eviction v. Construction Eviction
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Actual eviction
o Summary proceeding (court order)
 This is the only way the law approves an eviction when there is a
landlord/tenant relationship
 When the tenant violates the terms of the lease and the landlord
decides to evict, the landlord must provide notice of his intent to evict
(default notice). Then there is a demand for possession (pay or leave). If
they do not comply, the landlord can start an eviction proceeding. The
landlord cannot accept any more money at this point. If they do, they
will have to start the eviction proceeding over. At this point, they can
put the eviction notice on the door. They tenant does not have to be
personally served. The tenant has seven days to respond to the court
and then there is a court hearing. The court will let the tenant and
landlord attempt to settle the claim. If they cannot settle the claim,
there will be a trial that day. If you are told to evict, you have seven
days to vacate. If you don’t leave in those seven days, the landlord will
file a writ of dispossession.
o Change the locks
o Fail in an obligation that forces you out
o Partial actual eviction
 You have been denied access to a particular part of the house
o WITH PARTIAL OR FULL ACTUAL EVICTION, YOU HAVE THE RIGHT TO STOP PAYING RENT
FULLY
Step 3: Has landlord/tenant transferred interest
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If the lease does not speak to the tenant needing permission, the tenant may assign or sublease
the property without permission.
Privity of contract and estate- every lease creates two forms of privity between the parties to
the lease
o Privity of contract
 The parties are liable for all promises and obligations under the lease
 The parties can sue each other about anything that is violated in the lease
 Ex: an arbitration clause
o Privity of estate
 The parties are liable for only the promises and obligations that run with the
land (touches and concerns the land)
 The parties can sue each other about provisions in the lease that affect how the
land is used and enjoyed
 Ex: no smoking on the premises, limitations to what color you can paint your
house
 There can only be one privity of estate in each lease
 Subleases have two separate leases
 Assignments are still only one lease with multiple parties
Assignment
o Transfer of entire interest
o With assignments, there is privity of contract between the tenant and the person he
assigned it to. Despite what happens after this, the landlord and the original tenant are
the only two that can ever be in privity in contract. The assignee becomes the new
tenant and the new landlord/tenant relationship is between the original landlord and
the new tenant. The new tenant is only liable to the original landlord under privity of
estate. If the new tenant violates privity of estate, he can be sued by the landlord,
however, the original tenant is still liable to the landlord under privity of contract unless
he is released.
o The Rule in Dumper’s case
 If there is a “no assignment” provision in the lease and the landlord gives
consent, he waives his right to consent to future assignments unless he specifies
this is a one-time consent.
 If the provision says, “no sublease” and the landlord gives consent to a sublease,
this rule does not apply, and he does not waive his consent to future subleases.
This rule only applies to assignments
Sublease
o Transfer of less than entire interest
o With subleases, the original tenant becomes the new landlord over any subsequent
tenants therefore, they are under privity of contract and estate. This creates a new lease
so now there are two separate leases. The original landlord can never sue any other
tenants because subsequent tenants are only liable to the landlord that they have a
lease with.
Assignment with an assumption
o Transfer of entire interest and the transferee accepts all obligations
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With assignments and assumptions, there is privity of contract and estate between the
landlord and the subsequent tenants because they assumed all responsibilities.
However, the original tenant is still under privity of contract to the original landlord until
he is released. The new tenant is under PK and PE to the original landlord and only PK to
the old landlord.
The lease may not speak to if assigning or subleasing the property is allowed, however, if it
speaks to if an assignment or sublease is allowed, it must speak to if the landlord has sole
discretion or just discretion
o If the lease is silent, the tenant does not need permission from the landlord to assign or
sublease the property in a term of years or periodic tenancy lease
 If it’s a tenancy at will, the lease will terminate as soon as the attempt to assign
happens which will make the assignment invalid unless the landlord approves
the assignment. If the landlord doesn’t approve the assignment, the new tenant
will have to leave. If the landlord approves the assignment, the new tenant will
be in a tenancy at will lease with the landlord.
o If the lease says that the landlord has sole discretion, the landlord can deny assignment
or sublease for any reason
o If the lease says that the landlord has discretion, he can only deny assignment or
sublease for commercially reasonable reasons
Creation of a lease
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A lease gives exclusive possession to tenant. ONLY USE IS NOT SUFFICIENT
o Oral- may be oral if one year or less
o Writing- if initial term is more than one year, must be in writing to satisfy the statute of
frauds
 Can be in more than one writing
 Must contain
 The parties
 A description of the premises
 The term, if one exists
 Rent, if a rent payment exists
 Writing must be signed by whom you seek to enforce judgment against
Delivery of Possession
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Majority view (English)
o Legal possession and actual possession
 No one has a legal superior interest to yours and you must have actual
possession of the property
Minority view (American)
o Legal possession
 No one has a legal superior interest to yours
 Covenant of quiet enjoyment
o Hannan v Dusch
Nuisance
Implied covenant of quiet enjoyment
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This is tied to the land
It’s a covenant that implies that the tenant will be able to possess the property in peace without
disturbance of their use of enjoyment from anyone
o The tenant is free to do whatever they want with the property as long as it does not
interfere with someone else’s use of their property
o Laws to protect this covenant
 Trespass laws
 Physical in nature
 Nuisance laws
 Nonphysical in nature
Private nuisance
o Someone uses their land in a manner that injures a private owner in how they use their
land
o A private landowner can bring this claim
 Loud music
Public nuisance
o Affects the general public at large
o The government brings these claims
 Meth labs
 Farm full of diseased cows
Elements of nuisance
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Intentional
o They act for the sole purpose of causing you harm OR
o The defendant knows or has reason to know what they’re doing is causing you harm
 Ex: The plaintiff puts the defendant on notice
o If your conduct is negligent, abnormally dangerous, or reckless, the element of intent is
satisfied
Non-trespassory/ nonphysical
o Sound, smells, vibrations
o If an action has physical and nonphysical attributes, you can bring a nuisance or trespass
claim
Unreasonable
o Balancing test
 The harm that is caused the plaintiff
 What is the extent of the harm?
 Character of the harm (how is it harming you? Length of the harm)
 What use is interfered with?
 What is the social value of the harm?
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 What is the burden of the plaintiff to avoid the harm?
The utility of the defendant’s conduct
 What is the social value of the defendant’s conduct?
 Suitability of the conduct to the location
 Ability of the defendant to avoid the conduct
o Cost to stop it
o If technology exists to stop it
Substantial
o More than a slight inconvenience or petty annoyance
o It is measured by a reasonable person standard
o A hypersensitivity would only be considered a substantial inference if it manifests
physically (causes bodily injury). If you’re the only person that experiences it due to your
sensitivities, it would not be considered a substantial interference because a reasonable
person that is there wouldn’t experience it
Interference is in respect to how you use and enjoy your property
o You must support with evidence that the conduct is interfering with your use and
enjoyment of the property
Permanent v. Temporary Nuisance
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With a temporary nuisance is, you’re more than likely entitled to damages
A permanent nuisance is likely to continue unless an injunction is granted.
Defenses
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Consent
Latches
o Failure to complain for an unreasonable amount of time when a reasonable person
would have already complained
Prescriptive easement
Statute of limitations
Coming to the nuisance
o When you come to the nuisance, the plaintiff must indemnify the defendant
Remedies
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When the plaintiff is entitled to an injunction
o It is likely a nuisance that will continue to happen
o The plaintiff will also get an injunction if it causes bodily harm or severe property injury
o Balancing test
 Will there be a greater benefit to the plaintiff if they receive the injunction v.
harm to the defendant?
 If the harm to the defendant outweighs the benefit to the plaintiff,
damages will be awarded and the nuisance will be allowed to continue
When the plaintiff is awarded damages
o It’s traditionally something that has already happened
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Must ask yourself
o Is what they’re doing considered a nuisance?
 If yes, what should my remedy be?
 Is the nuisance temporary or permanent?
o If temporary, damages would be a better remedy
o If permanent, an injunction would be a better remedy
Easements
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an interest in land that gives a person a right to use the land for a particular purpose
a non-possessory right to use the land in possession of another
Types of easements
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Express easement/ profit
o Only one that is voluntarily created by the parties
o Only one that has to be in writing subject to the statute of frauds
o Usually created in a will, deed, or similar writing that satisfies the statute of frauds
 Signed by party who enforcement is sought
 Parties
 Identify the easement
 Scope of the easement
o Can be done by grant or reservation
 Reservation means the landowner keeps a portion for themselves
o Profit
 The servient landowner allows someone to come on their property and remove
natural resources (in gross easement)
Implied from prior use/ implied
o Happen by operation of law/ may happen despite the landowner’s objection
o An easement can be granted by operation of law if these 3 elements are met
 Severance of title
 The land in question must have at one point been owned by a common
owner
 It was divided in two or more parcels and the original owner kept one of
the parcels
 Preexisting apparent use of the easement prior to the severance
 Continuous use at the time of the severance
 Apparent use- the landowner knows or has reason to know the
easement exists *VanSant case*
 Reasonable necessity for the easement at the time of the severance
 Does not mean absolute necessity
 If the landowner is grossly inconvenienced by finding an alternative
easement, the court will consider the easement reasonably necessary
Necessity
o Happen by operation of law/ may happen despite the landowner’s objection
o Generally arises in connection with land that is land locked
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Land locked- surrounded by land owned by other people and you don’t have
permission or legal right to access their land; no public right of ways attaches to
your land; no public access
Elements
 Severance of title
 The land in question must have at one point been owned by a common
owner
 It was divided in two or more parcels and the original owner kept one of
the parcels
 The severance must have caused the land to be land locked
 Strict necessity
 There can be no other possible way to access your property.
Inconvenience doesn’t matter
 You have to show the court some proof that you tried to be granted an
easement and the person declined
 You can’t be the cause of your land being land locked
 Transferring property without reserving an easement for yourself
Prescriptive
o Happen by operation of law/ may happen despite the landowner’s objection
o Very similar to adverse possession but instead of talking about possession, we are
discussing use
o Elements
 Actual use of the easement
 Use of the easement is exclusive of the original owner or general public
 Use has to be open and notorious
 If the owner was to inspect their property, they will know or have
reason to know you’re using it
 Use has to be adverse or hostile
 If the owner gives the user permission, it becomes a license
 Use has to be continuous for the statutory period
 If it’s not given, assume it’s 20 years
o Exceptions
 Tacking
o Difference between prescriptive easement and adverse possession
 After all of the elements are met, with a prescriptive easement you own the
easement. The other owner owns their property subject to your easement.
Irrevocable license/ estoppel
o This starts as a revocable license and becomes irrevocable
o Elements
 The original use must have been a license
 The licensee must have used substantial money, time, and labor in detrimental
reliance on the ability to use the land
 The licensor should have known or reasonably expect such reliance on use of
the land
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The easement lasts until the licensee recoups his costs. Once he sells the property, the
easement is destroyed. The new user will have to get an express, implied, or easement
by necessity. This could not be a prescriptive easement because it started as a license.
“Coupled with an interest”- makes it irrevocable
 Ex: you borrow money from me to purchase a stock. For security, I give you the
right to foreclose on the property if I do not pay the note. The stock will be
considered coupled with an interest. This is irrevocable until the interest it is
attached to is extinguished
Differences between lease, license, and easement
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A lease is the exclusive possession of a defined area
o In writing that satisfies the statute of fraud
o The language used may help determine if it is exclusive access
A license is the non-exclusive temporary use of someone’s land for a particular purpose
o Revocable at any time
o A license is personal to the person it is issued to/ it is not attached to the land
o It is permission to access the land for a limited period and a particular purpose
An easement can be exclusive or nonexclusive. It’s a permanent use of someone’s land.
o It is permission to use someone’s land permanently
o This is an interest in land
How to determine if it’s a lease, license or easement
o What was the language used to create it?
o Is there a defined area?
o Is it exclusive?
What is the purpose?
Definitions
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Dominant landowner- the person that benefits from the easement
Dominant land- the land that benefits from the easement
Servient landowner- the person that is burdened by the easement
Servient land- the land that is burdened by the easement
Affirmative easement- allows the holder of the easement to do some particular act on the
servient land that benefits the dominant land
Negative easement- allows the dominant landowner to prevent the servient landowner from
doing something on his land that he would otherwise be legally able to do
Appurtenant easement- benefits the dominant land no matter who the dominant landowner is
o The easement is attached to the dominant land
 Ex: access easement
o Must look at the intent and language when the easement was created. If it is difficult to
determine, courts tend to favor appurtenant easements so that it can stay with the land
o The easement stays with the land despite how many times property is transferred
In gross easement- the easement is personal to the holder
o The easement only follows the person; the easement is not attached to the land
 Ex: utility easement
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Must look at the intent when the easement was created. If it is difficult to determine,
courts tend to favor appurtenant easements so that it can stay with the land
Public trust document
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Creates an easement regarding beaches
There is no such thing as a privately-owned beach
No one owns the ocean, and everyone has access to the beach
There is a presumption that the parties of an express or implied easement, that the holder is
allowed to do anything reasonably necessary to enjoy and use the easement unless evidence
contradicts that this is necessary.
Ways that easements are terminated
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Doctrine of merger
o When an owner acquires the dominant and servient land, the easement is terminated
o Ex: conservation easement
Express easements can terminate due to the terms
o Ex: an easement for a specific period of time
The dominant landowner can agree to release the rights to the servient land
o Only the easement holder can end the easement
The servient land is transferred to a bonafide purchaser
o Generally, happens with easement that happen by operation of law because it hasn’t
been filed. Can also happen if the deed has not been filed or hasn’t been filed correctly
Abandonment
o The easement holder abandons the use of the property based on the subjective intent
of the easement holder
Misuse
o If you overburden the servient land, the owner can seek an injunction to stop this
o If after the injunction the misuse continues, the court can terminate the easement
Prescription
o If you do an action and the elements of a prescriptive easement is met, you terminate
their right to the easement
Real Covenants and Equitable Servitude
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A covenant is a promise pertaining to real property that burdens and benefits the original
parties and their successors and assignees. The promise is said to run with the land.
o Affirmative - promise to do something
o Negative – promise not to do something
Most covenants are negative and most easements are positive
The original promisor and promissee are under privity of contract so the elements below are not
necessary for this analysis. The issue only arises when one of the parties transfers its interest in
the land
There is a difference between a covenant being valid and enforceable
o If it violates the constitution, it may be valid but it’s not enforceable
o The covenant is per se valid
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Elements of a covenant
o Does the burden run?
 Writing
 Deed, etc
 Intent to bind successors and assignees
 Touch and concern the land
 Must affect how you use and enjoy the land
 Horizontal privity
 Between the original promissor and promissee
 The promise must have been in conjunction with the land transfer
 Vertical privity
 Between the original promissor and the successor
 Full transfer of the interest (assignment, not a sublease)
 Notice
 Actual, constructive, or inquiry
o Constructive notice that the promise exists, not that the action
exists
 A bonafde purchaser can extinguish a covenant
 Notice is measured at the time of the transfer
o Does the benefit run?
 Writing
 Intent to bind successors and assignees
 Touch and concern the land
 Vertical privity
 Between the original promissee and the successor
 Full transfer of the interest (assignment, not a sublease)
o Does the benefit and burden run?
 Must prove that the benefit and burden both run
Elements of an equitable servitude
o Does the burden run?
 Writing or common plan or scheme
 Common plan or scheme means it appears that the developer intended
to create a plan that everyone was to be bound to
 Intent to bind successors and assignees
 Touch and concern the land
 Notice
 If no writing, they must have inquiry notice
o Does the benefit run?
 Writing or common plan or scheme
 Common plan or scheme means it appears that the developer intended
to create a plan that everyone was to be bound to
 Intent to bind successors and assignees
 Touch and concern the land
o Does the benefit and burden run?
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 Must prove that the benefit and burden both run
Defenses to a covenant or equitable servitude
o Acquiescence
 The person that is entitled to the benefit of the promise ignores the violation by
some but enforce the covenant against others
o Estoppel
 The plaintiff manifests some intent that they will not enforce the covenant and
the defendant reasonably relied on it
o Laches
 There is an unreasonable delay in enforcing the covenant which causes a
detriment to the defendant
o Unclean hands
 Usually arises in an implied negative reciprocal covenant
 If a person makes a neighbor promise not to do something, through
implication the person agrees to not do the same thing as long as they
have not already done it or not in contemplation of doing it
o Discriminatory, unconstitutional
 These covenants may be valid, but the court cannot enforce them because it is
discriminatory or violates the constitution
Implied negative reciprocal covenant or Implied negative reciprocal equitable servitude
o If I promise not to do something to my property for the benefit of someone else, the
other party makes the same promise to not do the same thing by implication
o This stands unless there is contemplation
 The other party is already doing it or provides notice that they intend to do it
o Only applies to land adjacent to each other
o Covenant and equitable servitudes couched in the negative
Remedies
o Primary remedy for covenants is damages
o Primary remedy for equitable remedies is an injunction
 The court will enforce the promise
 The court will not issue an injunction if the burden to the defendant does not
outweigh the benefit to the plaintiff. They will only order damages.
Common interest communities
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Still dealing with covenants and equitable servitudes
First, a developer files a declaration. This declaration says that the developer is declaring all the
property contained in the declaration will be used for this property and they are subject to the
CC&R’s. The declaration will contain a CC&R (covenants, conditions, or restrictions)
o This CC&R is used to maintain the covenant of quiet enjoyment and to preserve the
property value
o They are usually couched in the negative (what you can’t do). Some are couched in the
positive (what you should do)
 You have to really analyze the positive ones to ensure that they touch and
concern the land. The negatives always touch and concern the land
o
o
o
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This is to produce harmonious living between people living in close quarters
This is the first document filed and the first document filed has priority over all other
documents filed
 Within the declaration, the developer creates a homeowner’s association that
owns all of the property within the declaration. The developer runs it first
 The HOA has the right to collect dues and enforce the covenants in the CC&R
Must determine if the covenant is valid
 It is deemed per se to be valid unless the covenant is arbitrary or violate a
fundamental constitutional right or violate public policy
 Arbitrary factors
o Does the covenant lack a legitimate purpose?
o Does the means adopted have any relationship for
accomplishing that purpose and is there less restrictive means
for accomplishing the same goal?
o Does the burden of the restriction outweigh the benefit?
 Constitutional right factors
o There are three types of scrutiny the law will analyze
 Rational basis scrutiny
 Is it rationally related to a legitimate goal?
 Regulating use
 The burden is on the plaintiff to show there is
no rational basis
 Medium scrutiny (intermediate)
 Is it important to a legitimate goal?
 Regulating people that are not of a protected
class
 The burden is on the defendant to show there is
a rational basis
 Ex: familial status, sexual orientation, familial
size
 Strict scrutiny
 When race, religion, national origin, or alienage
is involved
 The court will only enforce this covenant if
there is a compelling state interest that will be
advanced by the covenant
 In general, when strict scrutiny is applied, the
covenant will be struck down and nonenforceable
 Targets people of a protected class
o
Condo
o You only own what is within the four walls of your unit and are responsible for whatever
repairs of what is inside of your unit
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o
Everything outside of the four walls is owned by the HOA
o
Planned Unit Development
 subdivision/ townhome
Here, you own a little more than with a condo.
You own your unit and the portion of the land that your property sits on. The rest is
owned by the HOA
Pud
o
o
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Co-op
o Here, you own a share of the property. This share comes with rights. You have the right
to things due to owning this share
Zoning
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The local government’s limitations or restrictions on private land
o There are no federal zoning laws
Aims of zoning laws
o To protect the covenant of quiet enjoyment
o Promotes the health, safety, and public welfare of the general public by minimizing
nuisance like impacts and by preserving the economic and moral integrity of the
community
The power comes from the state sovereign powers (police power of the state)
o The state doesn’t enforce the zoning laws
o Standard State Zoning Enabling Act
 The state gives power to counties, cities, etc. for enforcement purposes
 The state uses its police power through legislation to give the counties and cities
the power to enforce zoning laws
Zoning is a way to divide up an area to promote the health, safety, and public welfare of the
general public by minimizing nuisance like impacts and by preserving the economic and moral
integrity of the community
Euclidean zoning scheme (cumulative zoning scheme)
o Divides its community up into the zones needed in the community
o Lower uses include higher uses
 While you can move to other areas that are zoned for other purposes, you may
not be able to file nuisance claims because you came to the nuisance. It was
zoned for another purpose
o State action- when the state does something that impacts a citizen. They cannot violate
the Constitution
 Arguments that can be raised
 14th Amendment Due process
o Took the property without giving the owner the opportunity to
dispute
th
 14 Amendment Equal Protection
o Not treating me the same as you treat others
th
 5 Amendment
o Taking- Took property without just compensation
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A zoning ordinance is presumed to be constitutional unless they are arbitrary or violates a
fundamental constitutional right
o They lack a legitimate governmental purpose, or the means adopted lack a reasonable
relationship to accomplish the purpose intended by the ordinance
o If it is deemed to be unreasonable if there is no substantial relationship between public
health, safety, and general welfare
 It does not have to be the entire purpose, it only has to be part of the purpose
 Don’t look at the impact. Look at what it’s intended to regulate
 Rational basis scrutiny
 Is it rationally related to a legitimate goal?
 Regulates/targets use
o Presumed to be constitutional unless
it’s arbitrary
o Exception: On its face, the ordinance is
constitutional but if a particular cannot
abide by the ordinance based on how
it’s written therefore, the person is due
a variance because their property is
useless without it
o (Nectow)
o The burden is on the plaintiff
o Ex: See Variance
 Medium scrutiny
 Is it important to a legitimate goal?
 A suspect class isn’t targeted but the zoning
ordinance wants to regulate more than use
 The burden on the state
 Strict scrutiny
 Targets people (suspect class), not uses
 When race, religion, national origin, or alienage
is involved
 The court will only enforce this covenant if
there is a compelling state interest that will be
advanced by the covenant
 In general, when strict scrutiny is applied, the
covenant will be struck down and nonenforceable
 The burden is on the state
 Difference between rational and intermediate scrutiny
 The burden is flipped
When a zoning ordinance is enacted, it only impacts future uses, not current or past uses
o Non-conforming use- doesn’t conform to the current zoning ordinances
 Your use is grandfathered in at the exact use that was currently happening at
the time of the zoning ordinances

Amortization principles- they make you terminate what you’re doing
within a period of time
o These principles are presumed unconstitutional unless the use
would otherwise constitute a nuisance
Mechanisms of flexibility with zoning ordinances
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Variance
o allows a person to use their property in a way that would otherwise violate the zoning
ordinance
 the violation cannot be of their own doing and they must attempt to mitigate
the issue
 the person can’t use the land in the way the zoning standards dictate due to
the condition of the land, not the preference of the owner
o requirements to seek a variance
 prove undue hardship that would result from the strict enforcement of the
ordinance
 hardships that stems exclusively from the nature of the property
o a characteristic associated with the property preventing you
from abiding by the zoning ordinances
o has nothing to do with ability or financial hardships
 if the variance is granted, whatever they intend to build must be consistent with
the overall zoning scheme
Special Use permit
o Allows you to use the land in a way already permitted, but there are conditions that you
must meet that are tied to the impact on the community
 The conditions are in the ordinance
 When you meet the conditions, then you get the permit for your building
o The constitutional argument comes in when the conditions are not specific enough to
determine when the conditions are met
 These conditions are unconstitutionally vague
 The zoning board would have to give an opinion in determining whether
the condition is met
Owner applies for a rezoning of the property
o Spot rezoning is unconstitutional unless the benefit is conferred on everyone else in the
area
When zoning does more than regulate use
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Esthetics- the way something looks
o Commons v. Westwood
 Can a zoning permit be denied purely on esthetic grounds?
 Yes, if there is a legitimate governmental goal in regulating esthetics
(preserve the value of the property) however, the legislature must
provide specific guidance as to what that means. If they can’t do this,
the provision is considered unconstitutionally vague
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Signs
o
Is there a legitimate state interest?
 Yes, reducing clutter, etc. but it doesn’t exclude all signs which implicates the
first amendment. You are not singling out signs, your singling out content. Due
to this, the state has the burden to show that this advances a state interest.
Exclusionary zoning cases
o Only regulates use but it has a discriminatory impact
 Becomes unconstitutional when the impact excludes a class of citizens
o The use controls, not the impact
 Rational basis scrutiny would be used, and the zoning clause will likely be upheld
o Cases
 Laurel I
 The regulation excluded people instead of congregating them in a
particular area. The Supreme Court said this was unconstitutional
because to zone an area, you have to provide options for everyone that
lives in your community. Not providing an option at all, regardless how
inconvenient the option is, is unconstitutional.
 Laurel II
 The regulation provided the options for every type of person in the
community, but it was too expensive for them to afford. The Supreme
Court said that this is unconstitutional because members of the
community are still excluded. The law requires that there is affordable
housing in every residential area.
Eminent Domain v. Taking
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Eminent domain
o The power exercised by the government through legal proceedings to take private
property with just compensation
 condemned
o The government has the power to take privately owned property and give it to other
private owners to develop the land
 It was originally intended for public use
 Schools, parks, etc
 After Kilo, the government was able to take the property for private citizens to
build hotels, etc
o Sovereign power of the federal government and states under the Fourteenth
Amendment. It is not in the constitution. The Constitution does limit the power in the
Fifth Amendment (the last line)
 You can’t take private property for a public use without just compensation
o Elements
 Private property
 Anything that can privately be owned
 Anything you can have an interest in
 Doesn’t have to be tangible, physical, real objects
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Taken (physical)
 Physically taking the private property for their own use and purpose
 Partial taking
o They only take a portion of the land
o If the portion of the land you keep increases, they offset the
amount they will pay you for the land they are physically taking
but if the severance diminishes the value of the property you
are keeping, they have to compensate you for the land they are
taking and the diminished value of the land you’re keeping
Public use (purpose)
 The framers intended that the end use be something the public could
use for free
 Pre-Kilo, they looked at the intended use to determine if the
government met their burden. Post-Kilo, they look at the purpose of
taking the property
o Is the purpose to benefit the community?
o Public purpose doctrine
Just compensation
 Fair market value at the time of the taking
o The amount that a willing buyer would pay in cash to a willing
seller
 The court will not take sentimental value into account when
determining fair market value of something that is frequently sold but
they will take it into account when it is something that is rarely sold
 Generally, when assessing FMV they access the highest and best use
(what it is zoned for), however, they assume the highest and best use is
what you’re currently using it for, not future use.
o Unless you can prove that you intended to use the land for the
highest and best use before you were approached
 With businesses, they don’t compensate for goodwill or sentimental
value
Taking
o Physical
 When the government physically takes your property without exercising the
power of eminent domain
 (1) Loretto
 NY enacted a provision that said that everyone must allow the cable
company to attach a cable box and wires to their property. Loretto said
that the government physically took his property by installing the box
and wires. The government argued that the box was small, and the
court said that doesn’t matter. The court held that any amount that is
taken violates the Fifth Amendment and the regulation violates the
constitution. The amount taken only goes towards the just
compensation element, not whether it was taken or not. The Court told

o
NY they had to either rewrite the provision or exercise eminent domain.
NY decided to exercise eminent domain and had to pay Loretto $1.
Does the regulation allow the government to take any portion of your
property? Then use Loretto
o Any permanent, physical occupation of land authorized by the
government is a taking
o The remedy is to amend the regulation or exercise the power of
eminent domain
Regulatory
 The government changes the zoning restrictions which diminishes the value of
your property
 Tests
 (2) Lucas (Total Loss test)
o If the regulation causes a total loss to the economic use of
your land, it will be a taking unless the taking is justified
through property or nuisance law (Palizolo v. RI)
o If there is a total loss, there is a presumption that there is a
taking then the burden shifts to show it is justified
o Temporary total loss
 Tahoe case says the total loss must have a permanent
effect to be a taking
 (3) Nollan/ Dolan (Exactions)
o An exaction is a conditional ordinance tied to the approval for
the betterment of the community
 These are requirements outside of what is required
through the zoning ordinance
 The requirement is specific to your project and area
 The zoning board predicts potential issues so they want
the developer to fix the issue before it occurs
o Nolan
 Nolan purchased a beachfront property to build homes.
He met the conditions, but the board also wanted an
easement for access to the beach
 (4) Penn Central (Ad hoc)
Sample Takings questions
1.
2.
3.
4.
Sweet Mango Cafe
Loretto- physical taking? Yes, but not permanent
Lucas- no total loss. Temporary total loss? Perhaps, maybe not
Nolan/ Dolan- No exactions
Penn Centrala. Huge economic impact on the claimant
b. The construction takes 6 years- huge interference
c. Does the actions relate to a legitimate state interest? Yes
5. Will the government have to pay compensation? Yes, because this is pretty extreme on the
claimant and constitutes as a taking. The claimant is due just compensation.
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Quincy County
1.