Uploaded by cbaylor18

Real Property Outline

Property Outline: 3/28/20
A. Protect first possession
Describes how rights arose but not why should be recognized.
Pierson v. Post- possession = mortal wounding or deprivation of liberty. But
inefficient in terms of labor?
B. Labor (John Locke)- if work at something, will use law to protect it.
Jefferson- protect agrarian interests
White v. Samsung- labor White put into her image should be protected.
Moore v. Regents of U of CA- Hospital won b/c labor put into discovering cell line.
Johnson v. M’Intosh- Court rewarded federal grantee for reliance on government.
Certainty produces investment in land/ labor. (Utility concerns too)
C. Utility- greatest good to greatest number in long run, maximize social happiness
Utilitarian approach- define property rights in a manner that promotes welfare
of all citizens. Greatest good to greatest number in long run.
Law & economics variant- Particular facet of societal happiness = wealth. Tends
to ignore non-monetary benefits to land ownership.
Moore v. Regents of U of CA- Hospital won b/c of utility of scientific discovery
they made with Moore’s cell line.
D. Personhood- everyone needs property to be a viable, vital person. Without property,
one is not a full individual, can’t realize one’s potential. Close emotional connection
to tangible things should merit special protection.
White v. Samsung- White had personal relationship to image she cultivated.
E. Civic republican- idea that property facilitates democracy.
If don’t have certain amount of property, not fully invested in community.
Promotes personal security and independence from government.
A. Generally speaking, American property law has a constructional preference for
promoting the alienability of land while disfavoring restrictions on alienability
B. Johnson v. M’Intosh- Native Americans had right to possess and limited right to
alienate (US government had monopsony) based on discovery doctrine (Great
Britain discovered, transferred to US federal government). So, land speculator had
no right to eject federal grantee.
C. US v. Pereheman- Spanish grantees in FL have enforceable titles against subsequent
federal grantees, also b/c of discovery doctrine (Spain discovered).
A. Jury can award punitive damages for intentional trespasses (see Jacque v Steenberg
where owner was awarded punitive damages for the intentional trespass by
defendant after previously refusing them permission to cross land)
B. Some see as centerpiece of property. Makes owner gatekeeper/ mini-sovereign à
Blackstonian, absolute right to exclude.
C. State v. Shack- employees are tenants and therefore have right to entertain visitors, so
landlord does not have right to exclude those visitors.
A. Sundowner, Inc. v. King- landowners cannot erect a structure on their property for
the sole purpose of annoying their neighbors when it serves no other purpose.
Utility of conduct and use of land v. gravity of adjacent harm.
B. Fontainebleu Hotel Corp v. Forty-Five Twenty-Five- utility of new hotel found to be
greater than gravity of harm to other hotel (sunbathing area shaded).
C. Prah v. Maretti- COA exists when neighbor erects structure obstructing solar panels
on adjacent property. Use of solar panels is recognized property right
A. Pierson v. Post- possession = occupancy (control) = mortal wounding or deprivation
of animal’s liberty. Mere pursuit doesn’t count.
B. Intent + control- B/c Popov couldn’t prove control and Hayashi could and had not
been part of criminal swarming, both had rights to ball. Sold, profits split.
A. While landowners do have a right to destroy, courts generally do not want to
promote the destruction of land that could otherwise be productively used
B. Eyerman v Mercantile Trust, where the executor of a will could not destroy a historic
home pursuant to a will, because it would have a detrimental effect to the
neighborhood, the defendants, since the property owner’s interest is less tangible
when deceased
C. Historic preservation ordinances were not found to be a taking of private property
under 5th Amendment in NYC.
D. Artists retain right to destroy, even when artistic piece owned by another (See
Banksy’s shredder)
E. Destruction of animals- courts don’t enforce provisions in wills directing killing of
an animal.
A. Elements shown by adv. possessor
Actual Possession: Must physically use the land
Exclusive Possession: Cannot be shared with another owner/the public
Open and Notorious: Must be visible and obvious so that owner, if making a
reasonable inspection of land would be aware
Adverse and Hostile: Cannot be authorized by owner, but good faith vs bad
faith intention on behalf of adverse possessor varies based on jurisdiction
1. Owner can defeat this element by giving permission to adverse possessor
to use land
2. Most jurisdictions = state of mind irrelevant (focus on obj conduct)
3. Tioga Coal v. Supermarkets General- conduct, not state of mind,
determines hostility. B/c of lock on gate controlling entry to the road,
Tioga showed its intent to take land from world at large.
Continuous: Must be continuous as a reasonable owner’s would be, given
location and local context (eg diff def of continuous in resort town vs urban
residential area)
1. Gurwit v. Kannatzer- Court says what is continuous depends on how
reasonable landowner would use land and nature of land. ps sporadic use
of land to cut firewood, allow friends to do so, clean downed trees and
brush, and cultivate small portion to feed wildlife continuous enough.
2. Howard v. Kunto- intermittent use of summer vacation home together
with continued existence of improvements on the land and beach area =
sufficient continuous use due to nature of property.
B. Policy Arguments Behind AP:
Correcting title defects: Resolves clerical mistakes in deed by protecting the title
of person who actually occupies it
Preventing frivolous/stale claims
Encouraging development: Rewards those who “earn” land through productive
use and punishes lazy owners of record
C. Proving AP:
AP normally arises from two procedural situations; either they file a quiet title
action to confirm their title or they use it as a defense to an owner’s lawsuit to
recover possession
AP periods of two or more successive occupants can be combined under a
doctrine called tacking: all other AP conditions are met, the second occupant
may include the time of the other (see Howard v Kunto)
A. Riparian Doctrine
Landowners next to bodies of water can be assigned water rights
Mostly Eastern states, follows a reasonable use doctrine w/c allows riparian
owner to take water for reasonable uses but not to “unreasonably interfere”
with the use of other owners
No water right separate from property
Not dependent on first in time
Permit system in eastern states ie regulated riparianism
B. Prior Appropriation
Location of owner’s land is irrelevant, water rights allocated to first person to
divert water for beneficial use, functions similar to reasonable use doctrine
First in time/possession (typically through filling w/ state agency)
Lost by non-use (approx. 5 years)
Coffin v. Left Hand Ditch- water scarce so land values based on how much water
have access to. Riparian rights don’t work in arid land, never exist in first place.
Prior appropriation encourages productivity/ labor.
C. Groundwater
Treated differently than surface water
Ground water reasonable use rule: Can use as much as you like SO LONG as it is
being used on the surface
Logic being that excess with return to the aquifer
Disputes between riparian and groundwater users, a court will enjoin a
groundwater user’s use of water if that user’s interference with riparian users is
unreasonable (Michigan Citizens vs Nestle Waters)
D. Public trust doctrine- state’s authority as sovereign to exercise continuous state
supervision and control over navigable waters
Includes waters that affect navigable waters. B/c streams flow into lake, which is
navigable, affect navigable waters, fall within public trust doctrine- Mono Lake
Purposes previously served were navigation, fishing, water-borne commerce.
Mono Lake case extends to include ecological and recreational use.
A. Ad coelum (to the heavens) and ad inferos (to the depths) applies to the verticality of
property rights, that owner possesses rights to everything above and below his land
B. United States v Causby: Causby, a chicken farmer, can recover from the defendant,
the federal government, for a taking of his land under the 5th amendment because
the frequent military flights had a “direct and immediate interference” with his
enjoyment and use of the land
C. Generally for flights over private land do not constitute a taking unless they are “so
low and frequent” that they cause a “direct and immediate interference with the
enjoyment and use of the land”
D. Chance v BP Chemicals: Chance et all, a group of concerned property owners, cannot
recover from BP chemicals, the defendant, for the subterranean disposal of chemical
waste because the plaintiffs were unable to show any damages from the subsurface
trespass, occurring far too deep to interfere with a “reasonable or foreseeable use”
of their property
-An estate = one particular temporal slice of ownership rights in relation to a plot of
-Three types of transfer:
Transfer by deed: A living person (grantor) may transfer by deed to a grantee,
complete transfer is conveyance or a grant
Transfer by will: Completed transfer is a devise (also verb form), person’s whose
will it is = testator/testatrix, recipient is a devisee
Transfer by intestate succession: If person dies without will property distributed by
state statute (completed transfer is intestate succession), verb is descend, recipient is
-Escheat —> return of land to the state presuming there are no heirs/relations/etc
Future interest
Right of entry
Possibility of reverter
Reversion (implied)
Present interest
Future interest (3rd party)
Fee simple absolute
Fee tail
Defeasible fees
• fsscs
• fsd
• fssei
Life estate
Executory interest
Remainder (expressed) fsa
A. Fee Simple Absolute “and his/her heirs”
Fee simple absolute (over 99% of land in US) embodies the largest group of
private rights (eg largest bundle of sticks)
Has potentially infinite duration
Fee Simple is alienable (can be sold), devisable (can be transferred by will),
and descendible (can pass without will)
Only free hold with no future interests (hence prevalence in US b/c they are
more alienable)
Constructional preference where ambiguity in deed/instrument of transfer is
thought to create a fee simple
B. Life Estate “for their life”
Duration of life estate measured by lifetime of a particular person
Only created by language which clearly indicates this intention (eg “for life”) via
words of limitation
1. See White v Brown 1977 (an ambiguous will is resolved in favor of a fee
simple contrary to devisee’s wishes)
Cannot be created to benefit entities (corporations, partnerships, etc) since they
have potentially infinite lifetimes
Property disputes often arise between a life tenant and future interest holders
(tenant may be motivated to maximize short term gain while future interest
holders wants prop preserved)
1. Common law doctrine of waste —> imposes duty on life tenant to use the
property in a manner w/c doesn’t significantly injure rights of future
interest holders
2. See Woodrick v Wood (Future interest holder, may not prevent the life
tenant from destroying an old barn with rotten wood, because the waste
doctrine does not apply to alterations which do not reduce the property’s
value) for example of how ameliorative waste isn’t enjoinable
C. Fee Tail “heirs of body”
Almost extinct (only permitted in 4 states)
Allows for property to be transferred by bloodline (can also be via only male
offspring/relations) a perpetual life estate
D. Fee Simple Determinable “so long as” “while” “until” “during”
Contingent fee simple construed via words of limitation which indicate a length
of time/condition
Future interest is always a possibility of reverter and happens automatically
once the stated condition occurs/ceases (retained by transferor and heirs)
1. Possibility of reverter is typically implied not express
Fee simple determinable is alienable, devisable, and descendible but the
durational condition applies to any transferee
E. FS Subject to a Condition Subsequent “provided that” “but if” “on condition that”
A fee simple estate created in a transferee that may be terminated at the
election of the transferor when a certain condition occurs
Favored over FSD b/c marginally larger/bigger bundle of rights
Estate does not end automatically but transferor has power to terminate the
estate “by taking action”
1. Only retained by transferor and heirs, “action” = formal writing/suit
Words of limitation allow estate to be divested upon a specified event (eg
“provided that”, “but if”, “on condition that”
1. Typically accompanied by a clause stating “transferor may re-enter and
Freely alienable, devisable, and descendible but condition applies to any
If a condition subsequent is breached, the grantor’s right to declare forfeiture
expires if he fails to exercise it within a “reasonable time” (see Metropolitan
Parks District v Heirs of Rigney)
F. FS Subject to an Executory Limitation “but if” “provided that” “on condition that”
A fee simple created in a transferee that is followed by a future interest in
another transferee (not held by transferor or initial transferee but a third
Created by same words of duration or condition as noted above but rather than
language involving transferor, it names another party
Future interest is an executory interest; all transferees are subject to it and an
executory interest is alienable, devisable, and descendible
A. Future Interest Retained by Grantor
Reversion: Transferor retains a reversion when they convey a smaller vested
estate than the one they have, a future interest remaining due to potential
1. E.g. O gives B a life estate, still have reversion due to fee simple being
longer than a lifetime
Possibility of Reverter: Transferor grants a fee simple determinable from their
fee simple absolute. Fact that the vested estate might end gives them the right of
Right of Reentry: Transferor possesses a fee simple absolute and grants a fee
simple subject to a condition subsequent, necessitates affirmative action on part
of the transferor (or heirs)
B. Future Interests in Third Party Transferees
Vested Remainder: (1) created in an ascertainable person (2) is not subject to
a condition precedent (other than natural termination of prior estate)
Vested Remainder Subject to Divestment: Vested remainder (above) but subject
to a condition subsequent
1. E.g. O conveys to “B for life, then D but if D dies then to B, D has remainder
subject to divestment
Vested Remainder Subject to Open (sharing): Vested remainder which may be
enlarged in the future
1. E.g. to B then their children —> number of kids could change
Contingent Remainder:
1. Either (1) given to unascertainable person (to B for life then to the heirs
of D)
2. or (2) is subject to condition precedent (eg “To B for life, and then if D is
president to D)
Executory Interests: A future interest in a third party (someone other than
transferor or transferee) that takes effect only when the preceding interest is
divested or “cut short” by a condition subsequent
1. Typically follows interest held in some type of defeasible fee simple
2. If future interest is able to divest and “cut short” another estate à EI
C. Rule Against Perpetuities
“No interest is valid unless it must vest, if at all, no later than 21 years after some
life in being at the creation of interest”
1. Limits duration of contingent interest by making it void unless it can
logically vest or forever fail within 21 years of the death of a life in being
Contingent interest valid only if you can logically prove that it will either vest or
fail to vest within a life in being plus 21 years (perpetuities period)
Only applies to contingent remainders, executory interest, and vested
remainders subject to open (contingent because individuals might be added to
the class)
Many jurisdictions have replaced Rule against Perpetuities with the US R.A.P.
which is 90 years (includes Oregon)
Courts [almost] always favor marketability of estates over dead hand control
(hence disfavoring fee tails and other restraints on alienation
D. Doctrine of Waste
Imposes duty of life tenant/present interest holder to use property in a manner
that does not significantly injure the rights of the future interest
Every future interest holder can bring waste COA against present possessor
May be available for concurrent ownership/cotenants
Voluntary waste: Cut down trees/extract resources à affirmative voluntary
action that reduces value
Permissive waste: Results from failure to take reasonable care to protect estate,
failure to perform maintenance
Ameliorative waste: Affirmative voluntary action which increases prop value,
“unamerican” to recognize such a doctrine (see Woodrick v Wood)
E. Numerous Clauses Doctrine
Limits types of recognized estates, can’t create a new type of estate that isn’t
A. Tenancy in Common (If O conveys to “A and B as tenants in common”)
Each tenant has undivided, fractional interest in property
Each may transfer to another person (alienable, devisable, descendible)
Each has right to use and possess whole property even if frac int small than
other (proceeds from sale divide proportionately)
Constructional preference for this form of concurrent ownership à default
B. Joint Tenancy w/ Survivorship (“A and B as joint tenants w/ right of survivorship”)
Undivided right to use and possess whole property
Right of survivorship means if A dies —> A’s property interest is removed and B
is sole owner (non-divisible or descendible but can be sold)
At common law (and in some jurisdictions) joint tenancy is created only when 4
unities are present:
1. Time: Must acquire interest at same time
2. Title: Must acquire title by same instrument (deed, will)
3. Interest: Must have same shares (equal size and duration_
4. Possession: Must have equal right to use/possess
If one is missing —> tenancy in common created
1. Must jurisdictions focus on intent rather than satisfying 4 unities but
could use straw conveyance if necessary
If an instrument of conveyance does not show specific intent to create a
survivorship then it cannot create a joint tenancy (see James v Taylor)
Transfer of interest —> joint tenancy is severed (no right to survivorship)
destroyed by enter vivos transfer
A lease does not severe a joint tenancy but expires on death of lessor (majority
rule) (See Tenhet v Boswell)
Mortgage does not sever joint tenancy, upon death of joint tenant who executed
mortgage à transfers to surviving joint owner
1. Only true if state implements lien theory (dominant); mortgage as lien on
property still owner by mortgagees
2. “Title theory” is that mortgage is a conveyance to mortgager w/c severs
unities of time and title
C. Partitioning
Standard of proof to overcome presumption in favor of partition in kind:
1. property cannot be conveniently partitioned in kind
2. interests of one or more of the parties will be promoted by the sale
3. interests of other parties will not be prejudiced by the sale
a. Can be sentimental, not just economic interest
b. Home has sentimental value, less likely to be partitioned by sale.
Businesses, though often location-specific, are more about money, so
more likely to be partitioned by sale than homes. Delfino
Anti-fragmentation- if get too small of interest, depending on location can cost
everyone overall. i.e. farmlands bought in certain size, less value overall if
partition in kind so often partition by sale. Johnson
Agreements not to partition are not enforced b/c restrain alienation
1. If not cabined (by time and purpose) = impermissible restraint on
2. If limited temporally, would be temporary restraint on alienation, which
is tolerable to most courts.
Force partition sales can unfairly disadvantage poor and minority communities
D. Tenancy by the Entirety (O conveys to “A and B as husband and wife and tenants by
the entirety”)
Only married couples are eligible to hold property in this manner (essentially a
“5th Unity” making it similar to joint tenancy)
Undivided right to use and possess whole property and right of survivorship
1. Each spouse owns whole estate and does not have an individual, divisible
interest in the property
Only ends by death, divorce, or agreement by both parties (cannot be
Allows for partial shielding of assets from creditors
1. Interest of a husband or wife in a TBTE not subject to claims of individual
creditors during the joint lives of the spouses (See Sawada v Endo)
Most jurisdictions (41) use separate property system, 9 use community property (stems
from Spanish legal tradition so mostly western states)
A. Separate Property System
Rights during marriage
1. Basic rule: property owned by spouse who acquires it
2. Creditors can only pursue separate property of that spouse
Rights at divorce
1. Equitable distribution of property owned by each spouse (any property
acquired with earnings of either spouse during the marriage)
2. Property which predates the marriage remains that spouse’s
3. Judges have large discretion in determining equitable distribution
(considers income, standard of living, contributions during marriage, age
and health, etc)
Rights at death
1. Most states offer surviving spouse a forced share (or elective share) of
decedent’s estate
2. Survivor can either (a) accept their share under the will or (b) receive a
defined portion of decedent’s estate (usually 1/3 or 1/2)
a. Usually determined by which is most beneficial to party in question
b. Guard against disinheritance of surviving spouse, which would leave
them a pauper (against public policy)
A professional degree obtained by a spouse during marriage is not marital
property (See Guy v Guy)
B. Community Property System
Used in Arizona, California, Nevada, New Mexico, Texas, Louisiana, Idaho,
Washington, Wisconsin (wtf)
Comes from Spanish and French civil law traditions
Rights during the marriage
1. All earnings during marriage, and all assets acquired from those
earnings, are owned equally by both spouses
2. Equal undivided share in community property, neither can transfer that
share to a third party
3. No right of survivorship (since everything is already shared between
4. Property acquired before or after marriage is separate
Rights at divorce
1. All community property is divided between the spouses; some states they
each receive an equal share, others use equitable distribution (discussed
2. Community property’s emphasis on equality rather than fair and
equitable (the former being the greater)
Rights at death
1. At death, their half of community property may be devised however they
desire; remaining half belongs to surviving spouse
2. No forced share; unnecessary since survivor already owns half of property
C. Unmarried Couples in “Marriage Style Relationship”
Palimony = alimony for unmarried couples
Many states enforce both express and implied agreements b/w unmarried
cohabitants about how their property will be divided on separation or death.
A. Lease as ancient non-freehold estate à modern era has seen complete revolution in
tenants’ rights as lease analysis has shifted from property-based analysis to contract
law focus
B. Commercial tenancies are considered an equal playing field (sophistication of
Not the same in residential leasing (where an inequality of sophistication is
C. Leases governed by immutable rules (supersede contrary terms in lease) and
default rules (fill in the gaps parties did not explicitly address)
A. Landlords have broad latitude to decide who they rent to (Unbridled at common law
-- implicit in the right to exclude). Landlord could refuse to rent to anyone for any
B. Fair House Act of 1968: refusal cannot be based on religion, race, color, gender,
national origin, familial status (protected classes)
Subsection A: applies to dwellings, not to commercial properties.
Subsection B: outlaws discrimination in terms, conditions, or privilege of sale or
rental of dwelling, based on above protected classes
Subsection C: Can’t advertise sale or rental of dwelling that indicates
discrimination. Not subject to exemptions (below) b/c advertising is offensive to
more than just rental market, discriminatory to anyone who reads it
Subsection F: new kind of discrimination against handicapped people.
1. Rooms or units in dwellings containing living quarters occupied by no
more than 4 families living independently of each other, if the owner
occupies one of such living quarters as his residence; and
2. Any single-family house sold or rented by an owner if he owns less than
3 houses and does not use a real estate broker or agent in the sale or
3. Purpose of exemptions?
a. Wouldn’t be wise to force people to share their homes with others.
b. Sanctity of home/ privacy right of small landlords and economic
interest. Costly to go after all those people, maybe don’t have
enforcement resources.
Statutes on state and local level that go further than federal FHA- fetter landlord
rights by barring discrimination, banning retaliatory eviction, banning eviction
other than for cause.
FHA applies to discrimination based on medical disability (HIV+ considered
handicap in Neithamer but not sexual orientation).
p establishes prima facie case of discrimination (when no direct evidence exists)
by showing:
1. #1- Member of protected class and Ds knew
2. #2- He applied for and was qualified to rent property
3. #3- D s rejected application
4. #4- property remained available thereafter.
5. If proves this, burden shifts to D to show had legitimate reason.
Built on Civil Rights Act of 1866, p. 445
1. All citizens to enjoy same rights as white citizens to inherit, purchase,
lease, sell, hold and convey real and personal property.
2. Intent is racial discrimination. Does not have any exemptions.
3. If can show disparate effect on minorities that is result of discrimination,
don’t need explicit statement of landowner that racially discriminating.
C. Discrimination based on economics/ credit worthiness is fine.
A. Terms of years tenancy- gives notice of end of tenancy
Fixed duration agreed upon in advance
Once term ends tenant’s rights expire automatically
Commonly used in commercials leases and often in residential leases.
Some limits depending on jurisdictions (CA to 50 years, other to 99 years) but
mostly up to parties to determine length.
B. Periodic tenancyi.
Automatically renewed for successive periods unless landlord or tenant
terminate the tenancy by giving advanced notice. Must give notice sufficient to
give other party a period to know.
Year-to-year periodic tenancy- would automatically renew after a year unless
one party terminated it.
1. At common law, wouldn’t have another full year if failed to terminate;
would just have another 6 months under common law.
2. Effective notice corresponds to period of tenancy- advanced notice of 6
months may be required for year-to-year lease but only 1 month for
Frequently used in residential leases
C. Tenancy at will
No fixed ending point. Continues “only so long as both parties desire.”
1. One party can terminate freely- destabilizing.
2. If 3rd party buys lessor’s property, can terminate lease. Kajo Church
Often arises by implication, without express agreement
Common law- no advance notice required
Most states require advance notice to terminate tenancy today
Terminates automatically if either party dies, tenant abandons possession,
landlord sells property
D. Tenancy at sufferance- -Blum says not really a tenancy at all (can stay until
ejected). Represents options/remedies that landlords have to deal with holdover
Created when person who rightfully took possession of land continues to
possess after that right ends.
Arises from occupant’s improper conduct, not agreement. Wrongful occupancy.
Holdover tenant = wrongful occupier
Common law, landlord could treat as trespasser and evict or renew tenancy for
another term.
Today can still evict but renewal is abolished or limited to protect tenant.
1. Most courts limit holdover to how rent was paid- shorten it.
E. License ≠ lease, license = personal privilege to use land of another for some specific
purpose. Lease transfers exclusive right of possession.
A. Statute of frauds- mandates that a lease of real property for a term of more than one
year cannot be enforced unless in writing.
Must contain key lease terms and be signed by the party against whom
enforcement is sought.
B. Standard forms- typical tenant asked to sign preprinted standard lease form without
any meaningful opportunity to negotiate other terms.
Forms favor landlord’s position. Limits bargaining by increasing bargaining
power of drafter.
Tenant can propose changes, but most think they can’t so don’t try. Allow for
predictability of system and reduce uncertainty.
C. Rent control- local ordinances may limit amount of rent that a residential landlord
can charge, especially in large cities. Limit landlord’s ability to vary rent or charge
too much.
Duty of repair on landlords is costly, so landlords would raise rent to reduce
costs. Difficult to raise rents that aren’t justified by increased costs. Idea is to
ensure that landlords have enough money for repairs but that doesn’t use it as
an excuse to jack rent really high.
Where it operates, it supersedes the liberty of parties to agree on rents/ to
increase rents. Public policy position that imposes on wills of contracting
A. LL required to deliver legal right to possession when lease terms begins. Under
majority rule, also required to deliver physical possession at same time.
B. American rule- landlord has no duty to deliver physical possession. Only has duty
to deliver physical possession of lease/ legal right to possession.
Arose out of traditional view of landlords and tenants where leases at common
law were for 20+ years. Saw tenants as able to bargain with landlords.
C. English rule- burden on landlord to deliver physical possession as well.
See Keydata for RST factors for going with English rule.
A. At common law, duty to repair placed on tenant. Implied warrant of habitability
places on LL
B. Tenants can shift duty to repair but have to put it in lease. Often don’t b/c of housing
shortage, bad market, poverty, form leases. If don’t, tenant responsible for making
repairs under doctrine of permissive waste.
C. Housing codes often ineffective b/c imposed only small fine on LLs for violations,
much less $ than actual repairs/ compliance with code would cost. Modern trend
toward enforcing higher penalties. Cases like In re Clark shift duty of upkeep to LL.
D. Tenant’s remedies
Constructive eviction- wrongful conduct by landlord that substantially
interferes with tenant’s beneficial use and enjoyment of leased premises.
1. Wrongful conduct
a. Landlord 1) fails to perform obligation of lease, 2) fails to adequately
maintain common area, 3) breaches statutory duty owed, 4) fails to
perform promised repairs (i.e. promised in K), or 5) allows nuisancelike behavior (can attribute failure to stop 3rd party nuisance to LL)
2. Enables tenant to vacate premises and end lease.
3. Still important in commercial leases
4. Common law acknowledged implied covenant of quiet enjoyment- promise
by LL that would not wrongfully and substantially interfere with T’s
5. Developed as functional equivalent to actual eviction, only breach by
landlord that excused tenant’s performance under common law
6. Inaction can count as constructive eviction. LL can constructively evict if
fail to provide security, which is called for in lease, to get rid of 3rd party
interference with tenant’s business and quiet enjoyment. Fidelity Mutual
7. Tenant must abandon, trigger constructive eviction within reasonable
time of act or omission by landlord depriving tenant of use or enjoyment.
8. Test for constructive eviction, Fidelity
a. landlord intended that tenant no longer enjoy premises, which intent
the trier of fact could infer from circumstances;
b. LL committed a material act or omission which substantially
interfered with use and enjoyment of premises for their leased
c. LL’s act or omission permanently deprived tenant of use and
enjoyment of premises; and
d. tenant abandoned the premises within a reasonable period of time
after act or omission.
E. Implied warrant of habitability- protects tenants from defective housing
conditions, requires LL to maintain premises in habitable condition. Residential
leases only.
Need substantial compliance with housing/ building code but code violation is
not necessary to establish a breach so long as the claimed defect has an impact
on the health or safety of the tenant. Wade v. Jobe
Gives more options to tenant than constructive eviction (which simply allows
tenant to leave).
Can be offensive (make repairs!) or defensive (negate back rent sought by LL).
Remedies for breach
1. Withhold rent- often most effective b/c gives LL incentive to repair
premises. Some courts recommend rent be paid into escrow fund.
2. Repair and deduct- tenant may withhold rent and use funds to repair.
3. Sue for damages-may sue for damages while remaining in possession or
after vacating premises.
Habitability = defined by scope of building/ housing codes, or general tests such
as “clean, safe, and fit for human habitation.”
Waiver usually held invalid against public policy.
Procedure- tenant must notify LL of defects and allow reasonable time for
A. Sublease- transfer of less than entire term
Only creates privity of K, not privity of estate.
If sub-lessee, by definition not in privity of estate so can’t sue sub-lessee.
L to T- privity of K and estate.
Sublease from T to T1- no transfer of privity of estate.
B. Assignment- transfer of T’s entire remaining lease to 3rd person
Creates privity of K AND privity of estate
L to T- privity of K (and estate). T liable for duration of tenancy. T will always be,
if nothing else, a surety. If assigns, given all rights and duties to another.
If assignment to T1 by T, T has passed to T1 privity of estate. If T1 breaches, L
has option to sue either T or T1 or maybe both. Privity of estate b/w L and T1.
T1 assigns to T2- privity of estate transfers to T2. T still has privity of K for
entire term. T1 no longer has privity of estate. If T2 breaches, landlord can sue T
or T2.
C. Privity of K- bound by promises you make
D. Privity of estate- some people who don’t make promises are bound by their status/
by who they are.
E. Language not necessarily determinative.
F. Lease may prohibit transfer.
G. Landlord may reserve right of approval of transfers.
Sole discretion clauses- lease may provide LL may refuse consent for any reason
whatsoever in his sole discretion.
1. Majority rule = lessor may arbitrarily refuse to approve proposed
assignee no matter how suitable assignee appears to be & no matter how
unreasonable the LL’s objection.
Reasonableness clause- lease might provide LL may refuse consent only on
commercially reasonable basis. Consider (Kendall):
1. Financial responsibility
2. Suitability of use for particular property
3. Legality of proposed use
4. Need for alteration of premises
5. Nature of occupancy
No standard in lease- lease might require LL’s consent but contain no standard
to guide LL’s decision- silent consent clause.
1. Modern trend for silent consent = LL may withhold consent only if has
commercially reasonable objection. Kendall v. Pestana
2. Factors re: reasonableness:
a. Financial responsibility (if T2 worse off than T1)
b. Suitability of use for particular property
c. Legality of proposed use
d. Need for alteration of premises
e. Nature of occupancy
3. Adverse effects on other tenants and ability to collect rent make it
commercially reasonable to refuse.
A. Abandonment
LL’s duty to mitigate damages- after abandonment, LL must either terminate
lease or show mitigated damages if wants to collect from tenant. Sommer
1. Works best in large situations, maybe even in commercial settings- not so
much in smaller tenancy situations (where LL lives on premises- personal
stuff going on that might be reasonable in terms of rejecting people).
2. Applies to commercial tenancies as well.
3. Standard = what normal LL would do to rent vacant place.
4. Tenants may have to bear reasonable costs of LL in attempting to relet.
B. Surrender = when both parties mutually agree to terminate lease early and tenant
surrenders property interest to landlord
C. Eviction- LL may terminate for any reason other than discrimination.
Good faith reason for eviction- followed in a few states, by statute.
1. Expiration of lease does not count as good cause for eviction. AIMCO
2. Safeguards for LL include failure to pay rent, damage to property, failure
to comply with terms of lease.
Defense: retaliatory eviction- defense in most states
1. Iowa statute Hillview- most states have, scope varies widely.
2. Often more difficult for LL to evict tenant than to select one.
3. Generally available only for residential leases.
Retaking possession/ method of eviction
1. Only lawful means to dispossess a tenant who has not abandoned nor
voluntarily surrendered but who claims possession adversely to a LL’s
claim of breach of a written lease is by resort to judicial process. No selfhelp to evict b/c dangerous. Berg v. Wiley
2. Some states still follow traditional self-help view of retaking possession.
Leasehold covenants not found to be constitutional issue, so tenants couldn’t sue
for injunctive relief against FED statute allowing LLs to evict tenants more
quickly. Lindsey v. Normet
A. Land cannot be used unless owner has adequate access to it, which may require an
easement across land owned by another.
Right of way which is usually agreed upon but sometimes imposed by courts
Prioritizes productive use of land as policy goal; conflict between right to
exclude and right to use
B. A non-possessory right to use land of another person
Can also include profits; which include the right to access (the easement) and
the removal of a resource (timber, gravel, fish, etc)
C. Key Terms
Property: Dominant land (or tenement) is land benefited by easement,
servient land/tenement is burdened by easement
Parties: Dominant owner (holds easement) and servient owner
Appurtenant or in gross: Appurtenant easements benefits holder in use of
specific parcel of land (dominant tenement); easement in gross is tied to
personal holder not specific land (rare)
Affirmative or negative: Affirmative easement allows holder to perform act on
servient land; negative easement allows holder to prevents servient owner
from performing act on servient land (rare)
D. Unwritten easements
Implied easement by prior use1. 3 elements:
a. Severance of title to land held in common ownership
i.e. Van Sandt, who installed sewer system before severed
property by conveying certain parcels.
b. An existing, apparent, and continuous use of one parcel for the benefit
of another at the time of severance; and
Van Sandt- underground sewer system is apparent b/c π
purchased house with notice that house had plumbing, even
though not visible should have been aware or askedconstructive or inquiry notice.
c. Reasonable necessity for that use.
Van Sandt v. Royster- reasonably necessary for dominant
owners to connect to neighbor’s sewer line b/c couldn’t
dispose of waste otherwise without high costs
Must be beneficial or convenient for use of dominant
tenement, but need not be essential.
d. If use pursuant to permission and then permission revoked, may be
easement by estoppel (if granted permission to you) or revocable
license (if granted permission to your predecessor but not you).
2. Prior use can be quasi easement = one part of property services another
part (single owner of entire property), quasi easement becomes easement
when land severed.
Easement by necessity
1. Elements
a. Severance of title to land held in common ownership; and
b. Strict necessity for easement at time of severance- landlocked parcel
Strict necessity traditionally found when owner has no legal
right of access to own land.
Some say reasonably necessity- beneficial or convenientRestatement approach, minority of courts.
Berge court says reasonably practical necessity- lack of
reasonably practical access
2. Justifications = implied intent of parties and public policy favoring
productive use of land.
3. Traditionally about access (not things like utility lines)
4. Lasts only so long as necessity continues- defeasible/ determinable.
5. Many states have dispensed with this b/c get right of way didn’t pay for.
Replaced with private condemnation in several states.
Prescriptive easement- functional equivalent of adverse possession
1. Crossing another’s land openly and notoriously for sufficient period
creates prescriptive easement
2. Policy reasons for justifying prescriptive easementa. Rewards the person who has made productive use of land
b. Fulfills expectations fostered by long use
c. Conforms titles to actual use of the property
3. Elements, p. 677
a. Open and notorious;
b. Adverse and hostile; see O’Dell
Most states presume adversity if meet other reqs. Some
presume consent.
c. Continuous;
d. For statutory period.
In most states, this period is same as for adverse possession
e. Some jurisdictions also require exclusive use.
Easement by estoppel/ irrevocable license
1. May be found when an owner of property misleads or causes another in
any way to change the other’s position to his or her prejudice.
2. Required elements:
a. A landowner allows another to use his land, creating a license;
b. The licensee relies in good faith on the license, usually by making
physical improvements or by incurring significant costs; and
c. Licensor knows or reasonably should expect such reliance will occur.
3. Main rationale = fairness
Unwritten easements are tougher to enforce. Reflection of societal valuesovercome right to exclude when recognize easements. Recognize nonpossessory use rights of non-owner.
E. Express Easements: voluntarily created by servient owner, requires writing that satisfied
statute of frauds.
By grant- servient owner grants easement to dominant owner
By reservation- dominant owner grants servient land to servient owner, but
retains or reserves an easement over that property.
Scope- An express easement encompasses only those technological
developments that further the particular purpose for which the easement was
granted. Marcus Cable
License- personal privilege to commit some act or series of acts on the land of
another without possessing any estate therein.
1. Informal permission to use land of another for a particular purpose.
Revocable non-possessory use right. Particular location.
2. Millbrook Hunt v. Smith- term for 75 years + landowner’s right to
develop/ redirect hunters but not to exclude + hunters absolute right to
use and duty to maintain own trails = easement, not license.
Profit = right to enter the land of another to remove minerals, gravel, timber,
game, or other natural resources. Restatement § 1.2 defines the profit as a
specialized form of easement.
1. Right to hunt foxes likely a profit. Millbrook Hunt v. Smith
F. Interpreting Easements
Scope- An express easement encompasses only those technological
developments that further the particular purpose for which the easement was
granted. Marcus Cable
1. Depends on intention of parties. Manner, frequency, intensity may change
over time as technology evolves if further particular purpose of easement.
Intensifying a permitted use- manner, frequency, and intensity of the use may
change over time to accommodate the normal development of the dominant
estate. So if grant easement to X and he builds subdivision, homeowners have
easement, too.
1. Can expand if normal development but cannot overburden servient estate.
Locating an easement- up to servient owner to locate, but can’t unduly burden
use/ purpose
Relocating the easement- servient owner may relocate an easement as long as
this does not significantly lessen the utility of the easement, increase the
burdens on the easement holder, or frustrate the purpose of the easement.
1. Traditionally, location could only be changed if servient & dominant
owner agreed.
2. States follow both modern and traditional rule
Using an easement to benefit other land- if X has other land and creates 2nd
subdivision, can those homeowners use easement even though new subdivision
is not part of dominant land? No, unless servient owner consents. Can’t use
easement to benefit non-dominant land- in some states can for nominal
damages if not expanding use.
G. Terminating Easements
Abandonment = non-use + intent to abandon.
1. Presault- removal of RR equipment showed intent to relinquish easement
Operating outside scope of original easement
1. Presault- Easement granted for RR operation and transportation
purposes cannot be used for recreational purpose (public bike and hiking
Express easement terminates by own terms
Condemnation- easement holder entitled to just compensation.
Estoppel- if servient owner substantially changes his position in reasonable
reliance on holder’s statement that the easement will not be used in the future.
Merger- if one person obtains title to both the easement and the servient land,
then the easement terminates.
Misuse- in some jurisdictions, if the holder seriously misuses the easement, it
may be ended through forfeiture.
1. If overuse profit (over-fish, over-mine) some believe penalty should be loss
of profit. Damage supply if overuse.
2. If overuse easement, remedy could be stopping overuse / injunctive relief.
Release- the easement holder may release the easement to the servient owner
by executing and delivering a writing that complies with the Statute of Frauds.
A. Real covenants- promise concerning the use of land that benefits and burdens both
the original parties to the promise and their successors. Remedy = money damages.
B. Duty to perform the promise = burden
C. Right to enforce the promise = benefit
Easier to see benefit run than burden.
D. Negative covenant = covenant to not do something.
E. Elements
Compliance with Statute of Frauds
Intent to burden “heirs + assigns” = intent to run with land/ bind successors
Notice of burden- actual, inquiry (should ask some questions), record
1. Transferability of easements to people who didn’t agree to them
originally is easy b/c only need intent and notice.
2. Not required for benefit to run.
Privity1. Traditionally in England = LL/T
2. U.S. expanded to any grantor or grantee (establishing right and imposing
on someone else- respective successors bound)
a. Horizontal privity = relationship of original parties to each other.
Grantor/ grantee.
Requires some transfer of interest in land other than
covenant itself- satisfied for grantor/ grantee or lessor/
Does not include neighbors (unless transfer of some interest
in land other than covenant itself.)
Not required for benefit to run.
b. Vertical privity = must succeed to same estate that original parties
had. If predecessor agreed to particular burden and transferred to
someone else and you lease property from that someone else, no
vertical privity b/c do not have same estate (fee interest)
“Touch and concern” the land
1. Means must be important- must diminish part of estate burdened or
enhance benefited estate. If had to pay $, that might be personal
obligation so might not run to successors.
2. Gave courts opportunity to quiet silly requirements like delivery of roses
on particular day- personal obligation.
3. Talking about burdening, benefiting people that didn’t agree to it
F. For burden to run, need all elements.
G. For benefit to run, need statute of frauds, intent to bind successors, touch & concern,
and vertical privity (no notice or horizontal privity required).
H. Hard to enforce real covenants.
A. Promise concerning use of land that benefits and burdens both original parties to
the promise and their successors. Remedy = injunction.
For burden to run need:
1. Statute of frauds compliance;
2. Intent to bind successors;
3. Touch & concern the land; and
4. Notice.
5. Horizontal & vertical privity NOT required.
For benefit to run need:
1. Statute of frauds compliance;
2. Intent to bind successors; and
3. Touch and concern the land.
4. Notice, horizontal & vertical privity NOT required.
Easier to enforce equitable servitude.
Common plan exception- When developer has manifested a common plant to
impose uniform restrictions on subdivision, all lots are burdened and benefited
by the restrictions even if they do not appear in the chain of title to every lot.
1. Common plan can be substitute for writing, intent, notice.
B. Restatement approach
Restatement is attempting to consolidate negative easement, real covenant &
equitable servitude into covenants that run at law = type of servitude that arises
1. Owner of property burdened intends to create servitude- intend to bind
successors/ running covenant or servitude;
2. Enters into K that satisfies statute of frauds (but then restatement
endorses common plan so may substitute for that. Common plan may also
supply notice and intent); AND
3. Not arbitrary, not unconstitutional, not unconscionable, against public
policy, does not impose unreasonable restraint on alienation
a. Restatement additions
b. High bars- most won’t run into these problems
Statute of
Intent to
bind succ.
Touch and
Covenant at law- $
Equitable servitudeinjunctive relief
A. Common interest community = a planned residential development
(a) where all properties are subject to comprehensive private land use
restrictions; and
(b) which is regulated by a homeowners association.
B. CICs typically created by a written instrument called a declaration. Four basic parts:
CC&Rs- restrictions on all land within CIC. May be enforced as real covenants or
equitable servitudes.
Assessments- monetary assessments paid by each owner, finance operation of
Ownership rights- owners typically have fee simple absolute in particular unit,
undivided interest in common area, and membership interest in HOA.
1. When buy into condo unit get tenancy in common in public areas,
governed by HOA, and fee simple in individual unit.
C. Non-enforcement justified if
1. CC&Rs come about in two ways:
2. #1- master deed, done by developer
a. Strong presumption of validity. Rational test- non-enforcement proper
only if such restrictions are arbitrary or in violation of public policy or
some fundamental constitutional right or impose burden on use of
affected land that far outweighs any benefit
Nahrstedt- CC&R prohibiting pets is enforceable b/c not
wholly arbitrary (rationally related to sanitation, health,
noise) and found in master deed so strong presumption of
validity. Look at application to entire development, not
specific homeowner alleging restriction is unreasonable.
b. Notice issue- in deed, so should have known
3. #2- HOA created in master deed & can create additional rules or
a. Subject to reasonableness test. Can be shown to be unreasonable.
b. Notice issue- happen after purchase, can participate in elections, etc.
4. Restatement- servitude is valid unless it is illegal or unconstitutional or
violates public policy. Violates public policy if:
a. (1) it is arbitrary, spiteful, or capricious;
b. (2) unreasonably burdens a fundamental constitutional right;
c. (3) imposes an unreasonable restraint on alienation;
d. (4) imposes an unreasonable restraint on trade or competition; or
e. (5) is unconscionable.
Abandoned- intent + non-use
1. Intent might be more liberal in this context- fairness issue- easier to imply
intent to abandon in this situation.
2. Miller test: Party opposing restrictions must prove violations are so great
as to lead mind of average person to reasonably conclude that restriction
in question has been abandoned, no longer in effect. Notice issue.
a. First tier- number, nature, severity of violations
Only if questions remain do you move to second tier
b. Second tier- prior enforcement efforts, possible realization of benefits
c. Considering test, does burden to owner substantially outweigh
remaining benefit to community (b/c of lack of non-enforcement)?
3. Travsos v. Stoma- if violation is not visible, not abandoned b/c ordinary
person would suspect abandonment
Changed conditions- high standard- everything must change
1. p has burden of proof
2. High standard = no benefit from enforcement, purpose of restriction
materially altered or destroyed by changed conditions.
3. Vernon Township Volunteer FD- conditions have not changed within
community b/c alcohol establishments (prohibited in restriction) exist
outside subdivision, not within, so still some purpose to be served by
4. Western Land v. Truskolaski- changed conditions only found when
changed for all beneficiaries/ throughout entire area, not just outer lots.
D. Shelly v. Kramer- judicial enforcement of CC&R prohibiting occupation by black or
Mongolian persons is state action and violates the 14th amendment.
E. Governing the development
Typical CIC declaration provides that HOA will
1. Maintain common area of CIC;
2. Enforce CC&Rs;
3. Adopt and enforce rules to supplement CC&Rs;
4. Collect assessments from the unit owners; and
5. Take such other actions as are necessary to administer the CIC.
Powers of HOA governed by elected board of directors. Reviewing decisions:
1. Business judgment rule- HOA not liable if board made decision in good
faith and rationally believed it was appropriate.
2. Reasonableness standard- RST requires an association to act reasonably
in the exercise of its discretionary powers. Most courts use this rule.
a. Shaefer- ECA acted within its authority under the declaration when it
voted to close Snow Hill b/c decision does not contravene express
provision of declaration and several provisions reserve such decisionmaking to ECA.
b. Fountain Valley- HOA’s application to his individual circumstances
that is unreasonable, not ordinance itself, b/c essentially a nanny
state- no good faith belief in fire danger by HOA, CCRs do not dictate
amount of clutter in which person chooses to live, beyond purview of
interest in preventing undesirable external effects, way out of
proportion to interests.
A. Rational basis test- zoning unconstitutional only if it is “clearly arbitrary and
unreasonable, having no substantial relation to the public health, safety, morals, or
general welfare.” Euclid
High bar to overcome not easy to successfully attack police power regulation.
Key assumption underlying Euclidian zoning is that separation of uses is
Must be rational in relation to those both inside and outside the community
(nonresidents as well)- reasonable accommodation b/w residents and
nonresidents required. Assoc. Home Builders v. Livermore. CA court.
B. Strict scrutiny test- law is constitutional only if it is narrowly tailored to
accomplish a “compelling state interest”- higher standard.
Used instead of rational basis test if law discriminates against a suspect class
(such as one based on race) or impairs a fundamental right (such as freedom of
C. Police power = pre-existing right sovereigns have to protect their people
D. Can challenge facially or “as applied”
Facially discriminatory ordinances get stricter review, may not survive.
“As applied” = law unconstitutional as applied to individual property.
1. In practice, courts are reluctant to invalidate zoning ordinances on this
E. Zoning tries to be anticipatory to avoid conflicts (nuisance is after the fact)
F. Elements
Zoning ordinance has two basic components:
1. (a) Text of ordinance
2. (b) Maps that implement ordinance
Creates different types of zones where particular uses are allowed.
Imposes height, bulk, and related restrictions on all structures or those devoted
to a particular use.
G. Standard State Zoning Enabling Act- contemplated that zoning would be two-step
(1)- city or county will adopt a comprehensive plan that sets forth its general
planning goals; and
(2)- enact a specific ordinance to implement that plan.
Only a minority of states follows this approach.
Under this approach an ordinance if valid only if it is consistent with the
preexisting comprehensive plan.
In most states, not necessary for city or county to adopt a separate plan before
adopting a zoning ordinance- ordinance is effectively also the plan.
H. Nonconforming uses = uses that predate ordinance’s adoption but that don’t
New zoning ordinances almost always provide that does not apply to lawful uses
that already exist. Regulates future development, not existing uses.
Tend to prosper b/c of artificial monopoly ordinance affords
Generally, nonconforming use cannot be expanded. Ordinary repairs are
allowed, but major repairs that would extend the duration of the use are barred.
Vested rights- owner who is in middle of new project when zoning changes has
vested rights in current zoning and is protected under nonconforming use
doctrine if has already:
1. #1- acquired necessary permits and
2. #2- spent substantial amount of money in good faith reliance.
3. In some jurisdictions, arise from substantial expenditures regardless of
whether permit was obtained.
Termination of nonconforming uses:
Structure is destroyed;
Use is abandoned or discontinued;
1. Abandonment
a. #1- intends to relinquish right to use land and
Nonuse enough to show intent.
b. #2- voluntarily ceases use for a set period of time (30 days – 2 years
depending on jurisdiction)
c. Some jurisdictions don’t require intent.
2. Discontinuance- In other jurisdictions, mere discontinuance of use is
sufficient for termination, regardless of owner’s intent.
Use is a nuisance;
Municipality acquired property through eminent domain (paying FMV)
Amortization = timeline for operation to go away/ change into what zoning
calls for. Use stops, but fee simple ownership does not.
1. Puts on notice- noncomforming use with limited life expectancy
2. Some jurisdictions reject amortization entirely.
3. Factors- AVR v. City of St. Louis Park
a. Information relating to structure located on property;
b. Nature of the use;
c. Location of the property in relation to surrounding uses;
d. Description of the character of and uses in the surrounding
e. Cost of property and improvements to property;
Benefit to public by requiring the termination of non-conforming use;
g. Burden on the property owner by requiring the termination of the
nonconforming use.
h. The length of time the use has been in existence and the length of time
the use has been nonconforming. Investment returned?
Blumm said to focus on last 2 (3?)
Special exception = use that is permitted under certain conditions specified in
K. Aesthetic regulation- see City of Ladue
City may limit time, manner, place of free speech, but ordinance goes too far b/c
forecloses distinct medium of expression with no adequate substitute.
Aesthetic regulation widely accepted, most common justification = protection of
property values.
1st Amendment restricts scope of regulation.
L. Growth controls and exclusion
Growth control ordinance- makes it more difficult for residents to move into
community by restricting number of housing units available.
Exclusionary zoning- land use regulation that has the effect of excluding
minority or low-income groups from a community.
Temporary moratorium on development will be upheld when supported by a
rational basis. Courts are increasingly limiting ability of local governments to
adopt land use regulations that have the effect of excluding minorities or the
a. See above under rational basis for Assoc. Home Builders case.
A. Evolution of mechanisms to control land use:
Servitude law < 18th century
Nuisance law < 19th century- changed in 19th century to accommodate industrial
Zoning law- 1910s
Environmental regulations- 1970s
1. Broader governmental control than other land regulations.
B. Ecological perspective- under this perspective, the right of an owner to change the
natural character of his land is not absolute.
C. Public trust- navigable waters and related lands are held in trust by federal and
state governments for the benefit of the public. Traditional uses of public trust lands
are navigation, commerce, and fisheries. Some states have expanded to serve new
Nat’l Audubon/ Mono Lake case- court expands scope of public trust doctrine to
any waters that affect navigable waters.
NJ cases expand to recreational purposes and not just effect on navigable waters,
but also access to navigable waters.
D. Clean Water Act- discharge of a pollutant into “navigable waters” without a permit is
a violation of the Act. Adjacent wetlands are included within the meaning of
navigable waters.
Pollutant includes dredge soil and fill material
Deep ripping constitutes pollutant even though no addition of new materials
b/c transforms wetland vegetation. Borden Ranch
Permit exception for normal farming declares that even normal plowing can be
regulated if it falls under the recapture provision:
1. Any discharge of dredged or fill material into the navigable waters
incidental to any activity having as its purpose bringing an area of the
navigable waters into a use to which it was not previously subject, where
the flow or circulation of navigable waters may be impaired or the reach
of such waters be reduced, shall be required to have a permit.
2. i.e. When it involves new use of land that affects flow and circulation of
Navigable waters include freshwater wetlands, such as swamps, bogs or
marshes that are adjacent to other waters covered by the Act.
1. Wetlands include waters that are only periodically saturated with water.
2. Isolated wetlands don’t count.
a. How do you show difference b/w isolated v. adjacent?
Nexus to navigable waters- ecological connection
1. 4 justices wanted surface water connection (not that easy to
EPA came out with regulations defining the nexus.
E. Endangered Species Act- modifying the habitat of a protected species may be an
illegal “take” under the Act. Habitat conservation plans are used to avoid the
“take” = to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such conduct. Defined in statute.
“harm” = May include significant habitat modification or degradation where it
actually kills or injures wildlife by significantly impairing essential behavioral
patterns. Defined by Dept. of Interior, agency charged with promulgating
Chevron two step
1. Has Congress spoken on the issue? If any ambiguity, move to:
2. Agency’s interpretation of regulation permissible? Arbitrary, capricious,
or manifestly against statute? Babbitt court uses reasonableness
A. Definition: inherent attribute of sovereignty. Constitution didn’t create power of
eminent domain or state police powers. 5th Amendment. Restrictions on use:
The government may take property only for a “public use;” and
1. Clearly satisfied when government takes land so may be physically used
by public or government employees.
2. Satisfied if taking serves public purpose- Public use requirement is
coterminous with scope of sovereign’s police powers.
a. Economic development counts (see below)
b. Government does not itself have to use property for it to be a public
use. It’s only the taking’s purpose- not its mechanics- that must pass
Public Use Clause scrutiny.
c. Midkiff- Statute designed to create more fee simples and aid the
residential market to eliminate oligopoly qualifies as valid public use.
The private owner must receive “just compensation.”
1. Generally defined to mean fair market value- the amount that a willing
buyer would pay a willing seller on the open market. Inherent problem in
calculating FMV in condemnation action is that the government seeks to
buy from an unwilling seller.
2. Consequential damages, like moving expenses? Nope.
3. Include emotional stuff/ subjective value? Nope.
4. Greater compensation for the elderly or poor? Nope
5. Greater compensation for loss of good will? Generally not.
B. Condemnation = when government physically take private property for public use
and pays just compensation.
C. Economic development- taking private property for primary purpose of economic
redevelopment pursuant to a comprehensive plan satisfies public use requirement.
Berman v. Parker allowed taking of shop owner’s store located in slum, which is
bad for public- revitalization of area provides public benefits, has public
purpose. “Public” read figuratively.
Kelo- economic development = traditional and long accepted function of
government. Counts as public use even if individual property isn’t blighted.
D. A state may interpret its constitute as requiring a more narrow definition of public
use than is used to interpret federal Takings Clause.
Some states do not allow condemnation of private land for economic
State may enact legislation that provides property owners with more protection
against condemnation than the Takings Clause requires.
Some states give RR and other regulated industries/ utilities authority to take
property by eminent domain.
E. Legislature owed heavy deference in matters of police power. When legislature has
spoken, public interest has been declared conclusive. Rational relation test.
Berman v. Parker
F. Court plays a role reviewing legislature’s judgment of what constitutes public use,
even when eminent domain power = police power.
G. Rationale for eminent domain = without it, governments at mercy of monopoly
control/ holdouts. Kelo
A. Takings Generally:
Taking = inverse condemnation, government is not acknowledging that it is
taking anything.
5th Amendment mandates compensation when private property is “taken”
1. “Nor shall private property be taken for public use, without just
B. Physical taking- government seizes possession of land for a public purpose
19th century cases that looked like takings:
1. Mugler v. Kansas- State statute prohibited manufacture of alcohol.
Brewer sued, but court found not a taking b/c owner not entitled to inflict
injury upon the public by a noxious use of his property.
2. Hadecheck v. Sebastian- brickyard factory emitted fumes, smoke, and
soot, which sickened nearby residents (Blumm said give off haze, bad for
movie industry). Ordinance said no brickyards within city limits. Court
upheld ordinance, said police power is one of most essential powers of
government, one that is least limitable.
3. Noxious use/ nuisance test- a regulation adopted under the police
power to protect the public health, safety, or welfare was not a “taking”
as defined by the 5th, even if it reduced the value of the property.
C. Regulatory taking
While government may regulate an owner’s use of her property under the police
power, a regulation that goes “too far” is an unconstitutional taking. Takings
Clause is designed to prevent government from forcing certain owners to bear
public burdens that in fairness and justice should be shared by the public as a
1. Penn Coal v. Mahon- “too far” test- question of degree
Three categorical tests/ exceptions to Penn Central ad hoc balancing. Per se
1. Permanent physical occupation authorized by government is a taking
regardless of the reason for the government’s action.
a. Cables on LL’s roof that involved minimal/zero interference with use
of property = taking. Interference with owner’s property rights.
Directive to LLs to provide mailboxes, sprinkle systems,
entrance lights for tenants are not takings b/c LL does work
as opposed to 3 rd party, so less intrusive. BUT done at own
expense, which Blumm thinks LL wouldn’t like, so doesn’t
buy this argument.
b. Permanent – effectively destroys or impairs usefulness.
c. Pumpelly- dam waters permanently flooded p ’s property = taking.
d. Personal property can be physically occupied- i.e. Nixon papers.
2. Loss of all economically beneficial use-if regulation eliminates all
economically beneficial or productive use of land, a taking will be found
unless the regulation is justified by background principles of state
property or nuisance law. Small world.
a. Denominator = entire property, not just burdened portion.
b. Background principlesi.
Can’t be newly enacted.
Lucas- Scalia says must be common law principles (like
nuisance), not statutory nuisance. Stevens’ concurrence says
what is important is how old principle is, not source
(common law v. statutory).
c. Palazzolo- 94% reduction in value of land does not leave property
economically idle, so not a Lucas taking. p could build 1 $200k house,
enough to take out of Lucas b/c not a complete economic wipeout.
May still have a taking but under Penn Central, not Lucas.
3. Rule for exactions- (not necessarily per se, but is a heightened standard)
a. Exaction = government requiring, in order to approve development,
developer to provide land or fees to offset impact of development
project. Conditions.
Exaction can be money, not just donation of land.
Comes in a lot of forms, like affirmative and negative
Applies when give conditional approval and when deny
permit. Kuntz
b. An exaction is a taking if either:
(1) there is not an essential nexus b/w the exaction and a
legitimate state interest, or
1. Nollan- no nexus b/c exaction (donation of public easement for
lateral access) and harm provided by development (impairment
of visual access). Not clearly related.
2. Dolan- nexus b/w harm = runoff to creek and exaction = negative
servitude not to develop land b/w parking lot and creek but NOT
b/w harm and bike path (unrelated to harm).
(2) the exaction is not roughly proportional to the impact of
Dolan- requirement that owner provide land for pathway must be roughly
proportional to amount of increased customer traffic that store expansion
would produce.
D. Penn Central testi.
Evaluates 3 factors to determine if a taking exists:
1. The economic impact of regulation on the owner (diminution in value);
a. Penn Central case considers p’s primary expectation concerning use,
which is present use in that case. Present use produces profit, so
reasonable return on investment. Terminal profitable.
Notably, government contributes to terminal’s profitability
by running buses through Terminal.
b. Penn Central case considers TDRs. p could get credit for restrictions,
use to build on contingent lots. Mitigates economic burden/ effect.
Dissent argues that use on lot not equal to use of own lot.
Scalia, in Suitum v. Tahae Regional, says would look at TDRs
to determine if just compensation provided, not to determine
whether taking occurred in first place.
c. Penn Central case also indicates that claim is not ripe b/c p only
submitted 2 plans to developers that were about the same. Premature
to claim all value taken away.
d. Diminution in property value caused by regulation that is reasonably
related to promotion of general welfare is not a taking.
2. The degree of interference with the owner’s reasonable investmentbacked expectations; and
a. Looks at past investments. Not really addressed in Penn Central facts.
b. Focus is on the owner’s reasonable expectations when he/she invested
in the property.
c. Notice?
3. The character of the government action.
a. Taking more readily found when stems from physical invasion by gov.
Permanent physical invasion = exceptions to ad hoc
b. Regulating against noxious use?
Penn Central court says destruction or fundamental
alteration of historic property may be noxious use.
c. Substantially related to promotion of general welfare/ common good?
Penn Central allows for aesthetic considerations here.
d. Average reciprocity of advantage- part of the no singling out, both
Kelo and Penn Central emphasize plan element (condemnation and
takings cases). Evens out over long haul. Planned part in Kelo and
Penn Central is attempt to show average reciprocity of advantage.
Penn Central court says statute okay b/c enacted to produce
widespread public benefit and establishes neutral criteria
that guide plan, which includes Penn Central and all similarly
situated properties. Not singling people out.
Widespread public benefit? Effect on all similarly situated
Denominator- must consider entire property in takings evaluation.
1. Property must be considered in its whole, in terms of both geographical
dimensions and temporal aspect of owner’s interest. Lake Tahoe.
2. Length of time is factor to consider in Penn Central balancing.
E. Takings cases were formerly due process cases- remedy for due process violation =
rescission of ordinance, unenforceable. Remedy for takings = ordinance is
enforceable but have to pay just compensation to enforce it.
F. Notice- an owner can challenge a regulation that already existed when he obtained
title. Fact that regulation and inability to develop was established before p obtained
title to property does not bar takings claim. Takings claim survives transfer of
ownership. Notice is not a per se no takings rule. Palazzolo.
O’Connor concurrence in Palazzolo indicates that notice should be considered as
part of Penn Central balancing under reasonable investment-back expectation.
G. Ripeness
Penn Central (US S. Ct. 1978)- claim is not ripe b/c p only submitted 2 plans to
developers that were about the same. Premature to claim all value taken away.
Palazzolo (US S. Ct. 2001)- 2 commission rejections of development plan are
enough to bring takings claim.
H. Traditionally, takings doctrine has applied only to action by legislative & executive
Measure 37- don’t need complete economic wipeout to get compensated- any
diminishment in value due to a regulation whose effect took place after a landowner
owned the realty at issue is compensable.
Retroactive regulation- If purchased or relatives purchased prior to regulation,
immunizes loss of value due to regulation, except for:
1. Common and historically recognized nuisance;
2. Federal requirements of law, which exempts entirety of national scenic
area in Columbia Gorge;
3. Public health and safety regulations like building codes, pollution control,
hazardous waste (but not wetlands or endangered species protections or
other land use regulations);
4. Nude dancing or pornography that is permitted by OR Const.
Also applied to future claims for future regulations.
Measure 49- didn’t mean every landowner could bring Measure 37 claim, only small
landowners. If have 3 developable lots, covered. If more, not covered.
Most of large claims eliminated by this measure.
Allows government to rescind regulation, which normally do so don’t have to
pay. Rolls back land use regulations as applied to land that was purchased or
inherited before original regulation. Hasn’t had effect of providing
compensation, but of amending substantially the Oregon land use experiment.