PROPERTY DEAN’S FELLOW SESSION WEEK ONE
About your Dean’s Fellow...
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Name: Lindsay Dawson
Email: Lmd201@miami.edu
About the Dean’s Fellow Sessions in your property class...
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Typically, we will meet on Mondays & Thursday to review the material that was covered
in Professor Parker’s class the previous week.
The same material will be covered in each study group. Therefore, you should only need
to come to one per week.
The pace of the study groups will follow the pace in Professor Parker’s class.
If necessary, I can meet with you for 1-on-1 discussions.
DF sessions will often be comprised of review packets and practice questions.
o They are not mandatory, but they are useful
I will try to leave time for property-related Q&A, but:
o Speaking to me is not a substitute for speaking to Professor Parker; and I will tell
you if I don’t know an answer, but I will try to find the correct one. If that
happens, please email me your question after the session.
Beyond property class, I’m here because I want to help you learn how to do well in law
school. Our sessions will be tailored to support that goal as well.
Life Lessons with Lindsay...
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Health.
o Balance is possible. You can spend one half of your time on law school, the other
half of time on your health, and still be good at this.
Because.
o Do not be conclusory. Law (usually) needs logic, and logic needs the word
because.
o Professor Parker will ask you whether you think something is fair. Be prepared to
answer: “Yes, because...” or “No, because...” or “It depends, because...”
 Grade will ultimately depend on how well we can explain our answer
Job.
o Treat law school like a business. You have already invested too much to treat it
like anything else. Show up every day, learn the job, and do the work.
The __Bundle_ of Sticks...
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What is a property right?
o A right that entails the use of __STATE__ power to protect one’s title.
o TITLE is evidence used by the state to support one’s possessory right.
Theoretically, what does a bundle of sticks have to do with property rights?
o Each stick in the bundle represents a DISCRETE right.
 But, in keeping with the idea of a bundle, these discrete rights are
RELATIVE to one another.
 Said another way, each right is contextualized withIN the rights of others.
Thus, each right establishes the relationship different people have with
regard to a certain thing.
So, you mean to tell me that my property rights are not absolute?
o That is precisely the point. A property right comes with restrictions that are
brought on by other sticks in the bundle we call property rights.
o Notably, some restrictions can ENABLE or enhance property rights. (e.g., cars &
stop signs). Other restrictions do not enable property rights, but rather serve some
other SOCIETAL interest.
William Howard Taft on The Right of Private Property...
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Taft’s view aligns, in part, with the LOCKEAN theory of labor (i.e., you own yourself,
and therefore you own your labor, and therefore you own the products of your labor.
Contrasts with the Bundle of Sticks theory because Taft views property rights in more
ABSOLUTE terms; he seems them as inherent and inviolable rights that predate the law.
 OPPOSITE CONCEPTION OF BUNDLE OF STICKS
Recall that this speech was given in 1894 to graduates of an elite law school; this was a
time when the United States was facing economic crisis and the rise of
socialism/communism.
 Socialism/communism was seen as unconstitutional because they violate property
rights.
Taft equates personal & corporate property as PRIVATE property; he also feels that the
rich minority needs protection under the law as much as the poor majority once did.
Some Basic Property Rights...
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The right to ____EXCLUDE_________ others from using your property.
 Example: no trespassing signs, or the right to keep a hitchhiker from hopping in
your car.
The right to ____USE_______ your property.
 Example: you can take pictures with your camera.
The right to _________TRANSFER_____________ possession of your property.
 Example: the right to sell your home, or to bequeath your jewelry after your
death.
The right to _______DESTROY___________ your property (under certain conditions).
 Example: a pig farmer’s harvest, or a bonfire in your back yard.
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The right to be ________COMPENSATED__________ for your property if it is taken,
damaged, or destroyed by another.
 Example: government must compensate owner for seizure of land under eminent
domain.
Common Law Limits on the Right to Exclude...
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________TRESSPASS_____________: an unprivileged intentional intrusion on property
possessed by another.
o _______INTENT_________: it is not necessary to show that the trespasses
intended to violate the owner’s legal rights; the intent requirement is met if
defendant engaged in a voluntary act (i.e., walking on to plaintiff’s property even
if defendant didn’t know it was privately owned).
o Courts balance the right to exclude v. the right of reasonable ____ACCESS_____.
 Note: the more private property is devoted to public use, the more likely it
is that courts will find public rights of access to the property.
o Exceptions & Defenses to Trespass (i.e., privileged trespass):
 ______NECESSITY_____- AFFIRMATIVE DEFENSE_________
 _________CONSENT__________________
 _______PUBLIC POLICY____***_____
o Trespass Remedies...
 Nominal Damages: usually ordered if no damage occurred to the property.
 Compensatory Damages: ordered if trespasser caused harm to property.
 Punitive Damages: ordered to punish or deter outrageous behavior.
 Injunction: ordered to force actor to cease wrongful conduct.
 Declaratory Judgment: states the legal rights one party has over another.
From Heaven to Hell (or: how ownership of land was previously conceived).
o Cujus est solum ejus est usque ad coelum et ad inferos – whoever owns the soil
also owns up to the heavens and down to the depths (literally, “down to hell”).
 Applying this principle, courts have conceived land ownership as
ownership over a cone of space.
o Some obvious exceptions have been made (e.g., air travel doesn’t violate land
ownership in most cases, but low-flying aircraft can still be liable).
o Complications arise when trespasses occur under the surface, such as:
 Cave tours under a person’s house; or
 Harm caused to ground water as a result of hydraulic fracking.
State v. Shack (Page 4 – 1971)
o Facts: Two government workers (a lawyer and a medical aid provider) were
arrested for entering a farmer’s land so as to provide services to the farmer’s
migrant workers.
o Holding: Ownership of real property does not include the right to bar
____ACCESS_______ to governmental services available to migrant workers.
 Thus, there was no _____TRESPASS_________ within the meaning of
the New Jersey criminal statute.
o Notes...
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Important case because it illustrates how a property owner’s right to
exclude is not absolute. Here, the court held that the migrant workers’
access to federal aid superseded the farmer’s right to exclude federal aid
worker from his property.
What was the order of the court?
• ____REVERSED AND REMANDED FOR ACQUITTAL_________.
Sic uteru tuo ut alienum no laedas – use your property in such a way as to
not harm others.
 In keeping with this Latin maxim, property owners do not have the
right to use their property so as to harm another’s rights—
particularly when that property has been opened up to others.
 Accordingly, denying the migrant workers access to federal aid on
the farmer’s property harmed the workers enough for the court to
limit the farmer’s right to exclude.
 IT’S ABOUT BALANCING THE RELATIVE RIGHTS OF THE
TWO PARTIES AND THE REASONS
SPEND SOME EXTRA TIME AND EFFORT ON QUESTIONS AND PROBLEMS THAT
CHANGE FACT PATTERNS
RESPONSES TO EXAM QUESTIONS WILL FOLLOW IRAC
- This case takes up the issue of the right to exclude
- The rule that determines right to exclude
- Analysis
- Conclusion
You will have a Takings & Eminent Domain question
**The more air time a topic gets the more likely it will be on an exam
PROPERTY DEAN’S FELLOW SESSION WEEK TWO
Common Law Limits on the Right to Exclude...
Commonwealth v. Magadini (Page 9 – 2016).
 Facts: the defendant was an old homeless man cited for trespassing.
o 6/7 counts involved an instance where defendant entered on to private property in
order to escape the peril of a frigid night in Massachusetts.
o 1/7 counts involved defendant’s trespass to a store’s bathroom in June.
o Defendant entered a necessity defense at trial, but the judge refused to provide the
jury with instructions regarding a necessity defense.
 Holding: because the defendant satisfied the requirements for a valid defense of
necessity, the trial judge erred in his failure to provide the jury with adequate instructions.
o Thus, the defendant was entitled to a _____NEW TRIAL_____ on 6/7 of the
counts; while 1/7 counts was affirmed.
 Notes...
o The ______NECESSITY DEFENSE___ shifts the burden of proof on to the
defendant and requires four elements.
 An example of an affirmative defense
o A _____CLEAR_______ and ________IMMINENT__________ danger, not one
which is debatable or speculative.
o A reasonable expectation that his or her action will be __EFFECTIVE_________
as the direct cause of abating the danger.
o There is no legal _______ALTERNATIVE_____ which will be effective in
abating the danger.
o The ______LEGISLATURE________ has not acted to preclude the defense by a
clear and deliberate choice regarding the values at issue.
Desnick v. American Broadcasting Companies, Inc. (Page 19 – 1995).
NEED TO GO BACK TO ^^^
 Facts: ABC reporters posed as eye exam patients, but really were undercover
investigative reporters producing a feature on Desnick’s ophthalmic clinics. ABC also
obtained consent to film some other (non-undercover) footage inside the clinic and stated
that the story would be “fair.” The story wasn’t favorable to Desnick; and Desnick
claimed that ABC committed a trespass by entering under false pretenses.
 Holding: Carrying out an undercover investigation, when it does not disrupt a company’s
functions or invade private space (e.g., the home), is not trespass because it does not
interfere with the possession of land that is protected by the tort of trespass.
 NOT NECESSARILY ABOUT FRAUDULENT NATURE BUT RATHER, THAT NO
PRIVATE SPACE WAS INVADED BY FRAUDULENT PORTRAYAL
 Notes...
o Distinctive case because it holds that even if consent to enter is obtained under
false pretenses, and the owner would revoke consent if intent were known, it does
not necessarily _____INVALIDATE_______________ consent.
o Contrastable with Food Lion v. ABC, Inc. because, in that case, consent for entry
to __PRIVATE___ places was obtained by fraud.
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AS SOON AS PRIVATE SPACE INVADE, PROPERTY RIGHT
INFRINGED UPON
Uston v. Resorts International Hotel, Inc. (Page 25 – 1982).
 Facts: defendant, a card-counting blackjack player, was prohibited from sitting at the
casino’s blackjack table.
 Holding: a person has the right of reasonable access to property open to the public so
long as the person does not threaten the security of the premises.
 Notes...
o Uston is generally consider an ___OUTLIER____ because it follows early
common law rules and isn’t in line with the majority of court opinions.
o Most modern courts have affirmed the rights of business owners to exclude
people from their property so long as the reason for exclusion isn’t specifically
protected by ____PUBLIC ACCOMMODATIONS______ law.
IF THIS SITUATIONS COMES UP ON FINAL, MAKE A NOTE THAT COURT MAY
FOLLOW USTON, BUT NOT THE NORM OF MODERN COURTS
Glavin v. Eckman (Page 34 – 2008).
 Facts: plaintiff and defendant were neighbors of Martha’s Vineyard.
o Defendant employed an independent contractor to cut down old trees on
plaintiff’s property because they obstructed defendant’s view of the ocean.
o Contractor removed trees without plaintiff’s permission.
o Court awarded plaintiff damages based upon the restoration cost of the trees, and
trebled those damages according to state law.
 Holding: restoration damages are appropriate to make a property owner __WHOLE
AGAIN___ because actual damages do not always amount to the price of deterring
others.
 Notes...
o This case was studied primarily to examine the role ______DAMAGES______
can play in actions of trespass. Here, they were “trebled” which is just a fancy
word for tripled.
o The court justified its order to restoration damages because (1) the cost of losing
trees in terms of property value and (2) the value of the timber were not very
significant in relation to what happened.
o In context, the trees provided immense personal value to plaintiff and they were
100+ years old (thus, immeasurable value).
o WHEREAS, IF ONLY COST OF TREES, THEN WOULD NOT COVER
DAMAGE EXPERIENCED BY PLAINTIFF
Jacque v. Steenberg Homes, Inc. (Page 38 – 1997).
 Facts: plaintiff repeatedly denied defendant’s request to move a mobile home across his
land. Defendant ignored the denial of its request, and it moved the mobile home across
plaintiff’s land.
 Holding: when nominal damages are awarded for intentional trespass, punitive damages
may also be awarded even when no harm to the property resulted from the trespass.
 Notes...
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Zero defense for malicious ignorance; ___PUNITIVE_____________ damages
awarded to keep companies from treating violations of this magnitude as a
marginal cost of doing business.
The state stresses the importance of this (almost senseless) right to exclude
because the court values a property owner’s right to exclude.
 BALANCING RIGHTS OF INDIVIDUALS
Actual ____HARM_______ occurs when an intentional trespass occurs because a
substantial right has been violated.
Court upheld plaintiff’s right for the sake of judicial integrity, and it did so with a
roundhouse kick to the defendant’s wallet.
 NOMINAL + PUNITIVE TO EFFECTIVELY DETER
Public Accommodations Statutes... STATE + FEDERAL LAW
The Civil Rights Act of 1964, Title II (24 U.S.C § 2000a, 2000a-6) – Page 44.
 Federal law prohibits segregation or discrimination on the basis of:
§ ________RACE_________________ § _________COLOR________________
§ _________RELIGION________________ § _____NATIONAL ORIGIN__
 Provides entitlement for “the full & equal enjoyment of the goods, services, facilities,
advantages, and accommodations of any place of ________PUBLIC
ACCOMMODATION__________________.”
o One must show they were denied the full and equal enjoyment of a place for one
of the aforementioned reasons to establish a claim that the State can act upon.
o Notably, it does not provide ______PROTECTIONS____________ for
discrimination based on sex, sexual orientation, age, disability, or socio-economic
status.
o The law does not provide for ______DAMAGES_____________, but it does
allow for injunctive relief and the recovery of attorney’s fees.
o Established pursuant to The Commerce Clause, which authorizes Congress to
regulate interstate commerce and therefore permits them to pass this law.
The Civil Rights Act of 1866 (42 U.S.C. § 1981-1982) – Page 45
 Only regulates __RACE________ discrimination but does provide for damages to an
injured party.
 Any citizen has the same rights that a white person has to make and enforce contracts,
and purchase / lease / sell / hold / convey real property.
o Discussion about how this affects daily commerce or shopping...
 Does a person have a right to enter a store? Usually, __YES____.
 Does racially discriminatory surveillance interfere with the right to contract? Usually,
_NO_____.
 Does exclusion through vibes interfere with the right to contract? Possibly, __YES____.
 ALL DEPENDS ON WHAT ONE IS ABLE TO PROVE
 In 1964, it was thought that this statute only applied to ___PUBLIC________ conduct.
 The 1964 act was intended to cover _____PRIVATE__________ conduct as well.
 Post-1964 judiciary decisions have forced private entities to abide by this law as well.
New York Executive Law (Article 15) – Page 51
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Much more expansive than federal public accommodation laws
States may ____INCREASE___________ protections, but they are limited by other
federal laws.
o MEANING, 1964 AND 1866 ARE THE BASELINE
o NY IS MORE EXPANSIVE
CONSTITUTIONAL LAW
PROPERTY DEAN’S FELLOW SESSION WEEK THREE
Public Accommodations Statutes...
Daley v. Boy Scouts of America (Page 53–2000).
 Facts: James Dale’s position of assistant scoutmaster was revoked when the Boy
Scouts learned that he was an open homosexual & gay rights activist.
o Dale asserted that this violated a New Jersey statute prohibiting discrimination
on basis of sexual orientation in places of public accommodation.
o Boy Scouts argued that making them keep Dale in the organization violates
their First Amendment right of free association.
 Holding: Boy Scouts are not found to be a physical location; therefore, NJ’s public
accommodation law does not apply. NJ’s public accommodation law in this case
would violate Boy Scouts’ first amendment right of expressive association.
 Notes...
 Under the First Amendment, a state cannot infringe upon the right of
_______EXPRESSIVE ASSOCIATION_______ through the application of a
public accommodations law.
 The forced inclusion of an unwanted person in a group infringes on the group’s
freedom of “expressive association” if the presence of that person significantly
affects the group’s ability to advocate public or private viewpoints.
 Supreme Court of New Jersey held that a place of public accommodation doesn’t
have to be a physical location, but SCOTUS didn’t buy that logic.
 Rehnquist, C.J. – Boy Scouts “engaged in instilling its system of values in young
people” and “that homosexual conduct is inconsistent with the values it seeks to
instill.” Furthermore, the “state interests in New Jersey’s public accommodations
law do not justify such a severe intrusion on the Boy Scouts’ right to freedom of
expressive association.”
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Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Com’n, 138 S.Ct. 1719, 1723-32
(2018).
o Facts: In July 2012, Charlie Craig and David Mullins went to Masterpiece
Cakeshop in Lakewood, CO, and requested that its owner, Jack Phillips, design
and create a cake for their __WEDDING___.
 Phillips declined to do so on the grounds that he does not create wedding
cakes for same-sex weddings because of his religious beliefs.
Furthermore, Phillips sincerely believes that decorating cakes is a form of
art through which he can honor God and that it would displease God to
create cakes for same-sex marriages.
 Craig and Mullins filed charges of discrimination with the Colorado Civil
Rights Division, alleging discrimination based on sexual orientation under
the Colorado Anti-Discrimination Act (CADA). Until the case reached the
United States Supreme Court, Craig and Mullins received decisions in
their favor.
 At a formal hearing held before the Colorado Civil Rights Commission,
one of the commissioners informed Phillips that “[f]reedom of religion
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and religion has been used to justify all kinds of discrimination throughout
history . . . [a]nd to me it is one of the most despicable pieces of rhetoric
that people can use to—to use their religion to hurt others.” Id. at 1729.
Issue: does the application of Colorado's public accommodations law to compel a
cake maker to design and make a cake that violates his sincerely held religious
beliefs about same-sex marriage violate the Free Speech or Free Exercise Clauses
of the First Amendment to the Constitution of the United States?
Holding: if the application of the public accommodations law fails to treat the
cake maker __NEUTRALLY___ and ___RESPECTFULLY___, then yes. Thus,
the Colorado Civil Rights Commission's conduct in evaluating a cake shop
owner's reasons for declining to make a wedding cake for a same-sex couple
violated the Free Exercise Clause.
Notes...
 The Court explained that while gay persons and same-sex couples are
afforded civil rights protections under the laws and the Constitution,
religious and philosophical objections to same-sex marriage are protected
views and can also be protected forms of expression.
 Does this seem to square with the theory that our rights are a
_______BUNDLE OF STICKS_______?
 The Colorado law at issue in this case, which prohibited discrimination
against gay people in purchasing products and services, had to be applied
in a neutral manner with regard to religion. The Court found that the law
was not applied neutrally, and therefore ___IT REVERSED____ the order
of the lower court because Phillips was entitled to new administrative
process conducted in accordance with the Supreme Court opinion.
Federal and State Constitutional Free Speech Access Rights...
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Constitutional Limits on The Right to Exclude:
o Public property does not mean open to the public.
o One can exercise public expression in a ____PUBLIC FORUM_____.
 In Commonwealth v. Davis, the City of Boston established its right to deny
people the right to make speeches on Boston Common.
 1930s: SCOTUS rules allow public forums to be subjected to __TIME__,
__PLACE__, and __MANNER_____ restrictions so long as they’re
applied neutrally without regard to content.
Lloyd Corporation, Ltd. v. Tanner (Page 65 – 1972)
o Facts: ∆, the owner of a shopping mall, prohibited π from distributing Vietnamprotest handbills in the shopping center in accordance with their handbill policy.
The π claimed that this violated their first amendment rights.
o Holding: a privately-owned shopping center does have the right to
__PROHIBIT__ handbilling on its premises when that handbilling is unrelated to
the purposes or establishments in the shopping center.
o Notes...
 The First Amendment does not guarantee that you can exercise your free
speech rights anywhere. The First Amendment limits the __STATE_____
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from infringing on your constitutional right to free speech, it does not
prohibit a corporation from doing so.
The Court held that it was an infringement on private property rights to
force a private actor (i.e., the mall) to yield to an individual’s First
Amendment rights.
The Court also noted that property does not lose its private character
merely because the public is generally __INVITED______ to use it for
specific purposes; thus, the Court treated the mall as private property.
Distinguishing Lloyd Corp. from Marsh v. Alabama and Logan Valley...
 Marsh v. Alabama
o SCOTUS affirmed a Jehovah’s Witness’ right to distribute
religious literature on the sidewalk in a
___COMPANY_____ town.
o The private owner __HAD ASSUMED MUNICIPAL
POWERS___; that was not the case in Lloyd Corp.
 “If you step into the shoes of the state, you must
assume the responsibility of the state.”
 Logan Valley
o SCOTUS allowed picketers to picket a store for its
____EMPLOYMENT___ practices from the parking
lot/area next to the shopping center (purpose of picketing
was directed at the establishment).
o The facts in Lloyd Corp. are too different than the facts in
Logan Valley, and thus they did not aid in the π’s case
against the shopping mall.
Beach Access and the Public Trust...
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The Doctrines of Dedication, Prescription, and Custom:
o ___DEDICATION___ – involves a gift of real property from a private owner to
the public at large; requires an offer by the owner and acceptance by the public.
o __PRESCRIPTION_____ – if the public has used property possessed by another
for a particular purpose for a long time, the public can acquire such rights
permanently even if they never had them originally.
 The permanent right to do something on another’s land is called an
___EASEMENT__, and such rights can generally be granted through a
contractual agreement.
 The public can acquire a __PRESCRIPTIVE EASEMENT____ if a
property owner fails to exclude trespassers from her property within the
statute of limitation (this is very rare).
o ___CUSTOM____ – similar to prescription, but it acquires property for the
public’s use by demonstrating longstanding, uninterrupted, peaceable, reasonable,
and uniform use of a property by the public for a significant amount of time (i.e.,
it has been an area of public use for a long time, and isn’t exactly taking property
away from a private owner).
Matthews v. Bay Head Improvement Association (Page 72 – 1984)
o Facts: ∆, the Association, a private entity, controlled beach access during the
summer months for its membership, which was restricted to property owners and
residents of the town of Bay Head. ∆ also owned six beachfront lots and land at
the edge of nine beachfront streets, extending from the upper dry sand to the mean
high-water mark.
o Holding: public interest doctrine requires that the public have reasonable access to
the sea; therefore, the Association—a quasi-public organization that was
operating as a municipality—had to open its membership to the public at-large.
o Notes...
 THIS CASE GIVE US THE CONCEPT OF PUBLIC TRUST
DOCTRINE _______
 Traditionally, the public in New Jersey were permitted access to
natural waters and the sand up to the mean high-water mark.
 This case expands the public trust doctrine because it gives the
public the right to use the dry sand beach so that they may access
the sea as well as rest and enjoy the sea (so long as the land is
publicly owned or owned by a quasi-public entity like ∆ in this
case).
 Professor Parker suggested that an easy way to understand something held
in public trust is that it is something that cannot be owned
_PRIVATELY__.
The Right to be Somewhere and the Problem of Homelessness...
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Pottinger v. City of Miami (Page 82–1992)
o Facts: ACLU brought lawsuit in Miami challenging city’s sweep of homeless
people from city parks before the Orange Bowl Parade in 1988.
o Notes...
 Judge Atkins opined that homeless people can’t do routine daily acts
(urinating, washing, sleeping, eating, cooking, relaxing, etc.) in the
privacy of their own home; thus, they must do those things in public
places.
 Arresting homeless people for these acts is essentially punishing
them for being homeless. Atkins argues that this constitutes cruel
and unusual punishment.
 In 1998, the City of Miami settled the Pottinger litigation.
However, the commissioners voted in 2013 to keep fighting the
case in court in an attempt to undo some aspects of the settlement.
Nuisance...
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Glossary of Terms
o ___NUISANCE_____: substantial and unreasonable interference with the use or
enjoyment of land.
o Nuisance involves a use one’s property in a way that ____INTERFERES_______
with another’s property; thus, it’s non-trespassory and one can be held liable
regardless of the standard of care (i.e., it’s more like strict liability than
negligence).
o Two Prong Test: Reasonableness and Gravity of Harm
o ___REASONABLENESS_____: judged on social utility (weigh the reciprocal
costs).
 How much value does the law place on the conduct?
 Alternative means (i.e. available technological advancements)?
 Practicality of stopping the “invasion”?
 Suitability of the use?
o ___GRAVITY OF HARM_____: judged by the weighing of rights / harm (must
be substantial)
 How much value does society place on the type of land/use interfered
with?
 Extent of the harm?
 Nature of the harm?
 Burden on ∆?
 Sensitivity of π?
 Who was there first?
 Nature of the neighborhood? Nature of ∆’s activity?
o The concept of ___RECIPROCAL____ nature of costs suggests that preventing ∆
from causing a harm that poses a cost to π (i.e. nuisance) can also inflict a cost on
∆ by limiting ∆’s freedom to use his land.
o __NUISANCE PER SE___: activities that are so disfavored that they will be held
to constitute a nuisance no matter where the activities take place or what
consequences they generate.
o __PUBLIC NUISANCE___: an interference with a right common to the general
public (e.g. pollution of a river, or building a bridge from your property to your
friend’s property that is too low for ships to pass under it).
o Remedies for nuisance:
 ____DAMAGES___(money awarded to P_
 ____INJUNCTION___(court awards P injunction to stop D’s activity)_
 ____PURCHASED INJUNCTION______(court awards P injunction to
stop D’s activity, but at a cost, typically determined between parties, e.g.
via arbitration)_ ________________
 IF NO NUISANCE  DISMISSAL
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Common defenses for nuisance claim...
o ______TEMPORAL PRIORITY______________________________
 Coming to the nuisance; harmful activity established first.
o ______HYPERSENSITIVITY______________________________
 Can privilege a serious harm to π if ∆’s conduct is considered generally
inoffensive.
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Dobbs v. Wiggins (Page 340 – 2010)
o Facts: ∆ was running a training ground for dogs in a residential area, and π was
tired of the barking.
o Holding: affirmed that dogs posed a substantial nuisance but rejected the remedy
of the trial court.
o Notes...
 Trial court erred by limiting the owner to six dogs because there was no
_____EVIDENCE_______________ prescribing that the number be that
low (or high).
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Page County Appliance Center, Inc. v. Honeywell, Inc. (Page 346 – 1984)
o Facts: radiation from ∆’s computer caused interference with the picture on the
televisions in π’s store.
o Holding: ∆ can be liable for nuisance even if they used the highest degree of care
to prevent or minimize the effect.
o Notes...
 ∆ tried to raise a ___HYPERSENSITIVITY______________________
defense but failed because TV stores are common.
 An example of nuisance-in-fact, as opposed to nuisance per se.
PROPERTY DEAN’S FELLOW SESSION WEEK FOUR
Hypothetically...
Joanna owns a boutique bakery on a tree-lined street in her town’s central business district. Monday
through Saturday, she sells artisanal cupcakes to whomever walks through her antique front door
(which was salvaged from an old railroad station and restored by Joanna’s ex-friend Clint). On
Sundays, Joanna’s bakery is closed because she runs an interior design business out of the bakery’s
attic on an appointment-only basis.
One Sunday afternoon, Joanna was hard at work in her attic researching copper kitchen hardware
when she heard the unmistakable crash of thunder outside. She looked out the window and saw a
mass of dark clouds on the horizon. Confident that a violent storm was approaching and
knowledgeable of the fact that she had no appointments scheduled for that afternoon, Joanna settled
back into her midcentury desk chair and continued to browse the internet.
Clint, the carpenter who frequently worked with Joanna until he penned a memoir about her
tyrannical leadership style, was one block from Joanna’s bakery when the storm arrived. Struck by
rain and the realization that most shops in this part of town were closed on Sunday, Clint began to
panic when he realized that a tornado had just touched down in the town’s central square.
Clint ran to Joanna’s bakery and, knowing how the antique lock on her front door could be jiggled
open, he let himself inside and made a dash for the bakery’s basement. Joanna, who had seen the
tornado from her attic window, had already called 911 and taken shelter in her basement when Clint
arrived. For a few moments, things were . . . awkward.
After the tornado, a sheriff’s deputy arrived at Joanna’s structurally sound bakery to follow up on her
911 call. Joanna informed the deputy of what had transpired, the deputy arrested Clint, and Clint was
ultimately indicted for violating the following statute (reprinted in full).
18 Hypo. Stat. § 724(e): Criminal Trespass.
(1) Any person who makes an unprivileged and intentional intrusion on to land possessed by
another has committed criminal trespass.
(2) Insanity is not a valid defense to the crime defined in this statute.
^^^^Only legislative preclusion
The aforementioned facts were adduced through testimony at Clint’s trial. During today’s closing
arguments, Clint’s lawyer claimed that, while Clint may have broken the law, his actions were
justified and he should be acquitted. The prosecution, of course, did not agree that Clint’s actions
were justifiable. Accordingly, the judge ordered a hearing for tomorrow morning where each side is
expected to argue whether a specific affirmative defense instruction should be given to the jury.
You are a new judicial intern working in the judge’s chambers. The judge has asked you research the
applicable jury instruction, enlighten her as to the arguments that each side will make during the
upcoming hearing, and conclude whether or not she should provide the jury with the applicable
instruction.
-
-
I.
The issue in this fact pattern is whether or not the jury should be instructed on the necessity
defense
The rule is:
Necessity defense
o Affirmative defense to criminal trespassing when not trespassing potentiates
substantial harm or loss of life
 This defense will likely be advanced by the defense in argument that failing
to take shelter during a tornado implicates foreseeable harm
 Under the circumstances, severe storm and impending tornado, Clint acted in
a manner that was reasonable of another person
o Plaintiff will likely argue that there were other alternatives to breaking and entering
into her shop to take cover
 Her business was no more “open” than any of the other closed businesses
 Other places and ways to take shelter
Judge should provide jury instruction as to necessity defense, pursuant to precedent
established by Magadini, where instruction was warranted when defendant sought cover from
the elements on privately owned property.
First, determine what the issue is:
a. determine what is the affirmative defense and what are its elements:
Necessity Defense is available when:
1.
2.
3.
4.
Clear and imminent danger
Effective abatement
Legal alternatives
Legislative preclusion
II.
Determine arguments each side will make for each element
1. D: Impending tornado and severe thunderstorm pose imminent danger if no
shelter
 P: Defendant should not have been out given the forecast
2. D: NWS urges shelter in room without windows, client knew that P had a
basement
III.
On balance – come to a conclusion about what the judges should do
The issue in this fact pattern is whether or not the defendant is entitled to a jury instruction
on the necessity defense
Necessity Defense: For a defendant to be entitled to a necessity defense instruction, he or
she must present some evidence on each of the four underlying conditions for the defense:
(1) a clear and imminent danger, not one which is debatable or speculative; (2) a
reasonable expectation that his or action will be effective as the direct cause of abating the
danger; (3) there is no legal alternative which will be effective in abating the danger; and
(4) the legislature has not precluded the defense by a clear and deliberate choice regarding
the values at issue. Commonwealth v. Magadini.
Clear & Imminent Danger
The prosecution will argue . . .
-
Thunder provided warning to Clint that a storm was approaching and seek shelter
No tornado warning siren
No known severity; black clouds on the horizon and not overhead
Unpredictable
The defense will argue . . .
-
Tornadoes are clear and imminent danger
Fast-moving storm
Joanna sought danger
911 response not out during storm
Street was lined with trees
Unpredictable
Effective Abatement
The prosecution will argue . . .
-
No guarantee that shop will be effective
Could have run away
The defense will argue . . .
-
NWS urges shelter inside; common practice is to seek shelter away from windows
He knew that there was a basement and he knew he could get in
Time was of the essence
Legal Alternatives
The prosecution will argue . . .
-
May have been other stores that were open
Find a ditch
Fallout shelter
Car/flee
The defense will argue . . .
-
Uncertainty around running and/or if other
Law doesn’t require defendant to consider all possible alternatives
Case law permits affirmative defense when escape from elements
Legislative Preclusion
The prosecution will argue . . .
-
Prosecution will concede that no legislative preclusion
The defense will argue . . .
-
@ statute, only thing precluded is insanity defense
Conclusion
On balance . . .
Can be just one sentence, e.g. … should be instructed because Clint meets all four requirements.
PROPERTY DEAN’S FELLOW SESSION WEEK FIVE
Life Lessons with Lindsay...
 Let’s talk about supplements
o Only for people who are keeping up with the readings
o Go to book horizons
o First and foremost stick to what Parker is saying
Nuisance...
 Order of analysis: Gravity of the Harm  Social Utility  Appropriate Remedy
Gravity of the Harm
(must be substantial)
No substantial harm
+
Reasonableness (judged on
social utility
Positive social utility
=
Dismiss
Substantial harm
+
Positive social utility
=
Damages
Substantial harm
+
Negative social utility
=
Injunction
$1,000 harm to the
homeowner
$3,500 harm to the
homeowner
+
$4,000 in social utility
=
D pays P ($1000?)
+
$1,000 in social utility
=
Injunction




Remedy
A few more nuisance terms to be aware of:
o Damnum absque injuria.
 Damages without [legal] injury.
 Entitlement belongs to the ___defendant______.
o Sic utere tuo ut alienum non laedas.
 Use your property so as to not harm someone else.
 Entitlement belongs to the ____plaintiff______.
o What is an externality?
 External ___costs_______ or _____benefits_______ that are imposed on
third parties
Restatement of Torts on what factors are considered when considering the gravity of
harm.
o The ______extent____________ of the harm involved.
o The _____character_____________ of the harm involved.
o The ____social_______ value that the law attaches to the type of use/enjoyment
invaded.
o The ______suitability_________ of the particular use/enjoyment invaded to the
character of the locality; and
o The _______burden______ on the person harmed of avoiding the harm.
Manner = what defendant doing that is causing the harm
Circumstances = looks at harm acceptability under the circumstances
Boomer v. Atlantic Cement Co. (Page 358 – 1970)
 Facts: π was a neighbor to a large cement plant (∆); alleged injury to π’s property from
dirt, smoke, and vibrations emanating from the plant. Filed actions for an injunction and
damages.
 Holding: π is entitled to an injunction that will be lifted once damages are paid by ∆.
 Notes...
o Permanent damages, rather than an injunction, are appropriate when the harm
resulting from a nuisance is significantly ____less (e.g. line 3 on chart)_____ than
the economic benefit derived from the party causing the harm.
o Total damage to π’s property was relatively small when compared with value of
∆’s operation and the consequences of a permanent injunction.
o ∆’s value increased overall social utility, and therefore its conduct was
________reasonable_________________.
Light & Air...

The Doctrine of Ancient Lights
o Basically, it’s a negative ____easement_____________.
o Defined as a prescriptive right to light and air derived from England. However, it has
been viewed as _____anti-development________ in the United States.
 ^^ majority rule rejects ancient light doctrine
Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc. (Page 370 – 1959)
 Facts: Eden Roc (π) sought to enjoin Fontainebleau (∆) from building a spite wall /
addition that would block π’s access to light and air @ its pool.
 Holding: No injunction for π because π does not have a right to the ___free
flow________ of light and air.
 Notes...
o The court states a bright line rule that directly ____rejects__________ the doctrine of
ancient lights.
o This is the rule throughout most of the United States.
o The maxim sic utere tuo ut alienum non laedas is a valid principle in Florida law, but
it does not aid the Eden Roc in this case because the hotel does not have lawful right
to the light and air.
o This case is an example of ______judicial deferrence________ because the court
felt this was a matter to be decided by a zoning board.
Prah v. Maretti (Page 373 – 1982)
 Facts: π’s house used solar electricity; sought to enjoin construction of his neighbor’s
house because it would block his panel’s access to sunlight.
 Holding: when a landowner uses solar energy, and a new structure will unreasonably
interfere with the use and enjoyment of his property, the construction of the new structure
can be enjoined under the theory of private ____nuisance_______________.
 Notes...
o Much like the Uston case, this is case is an ___outlier__________ and can be
easily contrasted with the bright line rule of Fontainebleau.
o Court notes that right to light and air is not absolute, but it opted to weigh social
values in this case and that worked out well for our eco-friendly π.
o Court also notes that the pro-development era of the industrial revolution and its
policy arguments don’t work very well in the 1980s (remember that the vast
majority of courts would hold that owners have no right to light/air, but the prosolar ___policy__________ argument is stronger today than ever).
Water Rights...



_____Common enemy rule_______________________
o Surface waters are the common enemy of man.
o Landowner is allowed to protect his land by any means he wants, even if it
damages another’s land.
______Civil law rule_____________________________
o Owner may not channel the drainage, or otherwise alter its natural flow in any
way that would affect the adjoining land.
______Reasonable use rule_____________________________
o Owner may make reasonable changes in the natural drainage pattern of surface
waters but will incur liability if such changes cause harm.
o Requires a balancing test...
 Amount of harm caused?
 Foreseeability of the harm which results?
 Purpose or motive behind the possessor’s action?
 Other relevant factors (i.e., this is a non-exhaustive list).
Armstrong v. Francis Corp. (Page 392 – 1956)



Facts: a neighborhood development company (∆) changed the drainage pattern of a field
and caused significant erosion downstream that damaged π’s property.
Holding: when drainage flow has been increased so substantially so as to cause damage
to π’s property, ∆ should pay π an amount that will allow π to install protection on his
land.
Notes...
o Importantly, the court adopts the ___Reasonable use rule_________.
o Acknowledged the social good caused by the developer, but also required the
developer to pay for the harm it caused.
Support Rights...

____Lateral support_____________
o The right to have your land supported in its natural state by the adjoining land;
aka _____adjacent_______________ support.
o If the land in its natural state would also support a structure on the land, adjacent
landowner has duty to provide lateral support for that structure as well.


Note: one only has a duty to give ___notice_______ of withdrawal of
lateral support for structures that are not supported by the land in its
natural state.
________Subjacent support________________
o The right to have your land physically supported in its
____natural____________ state by underground structures.
Noone v. Price (Page 404 – 1982)
 Facts: a couple (π) discovered their house was slipping down a hill and believed the
slipping was caused by an adjacent landowner’s (∆) deteriorated retaining wall.
 Holding: absolute right to ___lateral___________ support exists only as to the land in its
natural state; on remand, π would have to prove that land in its natural state could have
_________supported the house___________ in order to recover damages.
Friendswood Development Co. v. Smith-Southwest Industries, Inc. (Page 412 – 1978)
 Facts: Houston is sinking; ∆ extracted a large amount of water from wells, and nearby
landowners claimed that as a result, their land severely subsided, which caused erosion
and flooding.
 Holding: in future cases, if the landowner’s removal of groundwater is
__negligent________, ________malicious____________________, or _____willfully
wasteful___________, and such conduct is a proximate cause of damage to the land of
another, then the landowner would be liable for his conduct.
 Notes...
o Subjacent support case from Texas; important to remember that the rule adopted
in this case does not apply to ∆ because of ______contract integrity________
policy concerns. (only future cases)
o What types of rules were discussed?
 American Rule: ______reasonable use_____________.
 English Rule: ____absolute ownership except waste and malice
use______.
 The New Texas Rule: the ____English____ rule with an added wrinkle of
negligence.
Relativity of Title...

Conceptual Overview
o Unlike most contract rights, property rights are not merely against those with
whom you enter into an agreement with, but against a wide array of _strangers.
o Property rights are __relative__: the rights are good against some people under
certain circumstances, but not others.
o Finding lost property or possessing land, even without official title to the
property, creates rights against subsequent possessors, but not against the _title_
owner.
o The Law of Finders (an example of relativity).
 The person who is entitled to keep found property depends on whether the
property conflict is between the finder and original owner, a subsequent
possessor, or the owner of the land on which the property is found. It also
depends on whether the property is considered lost, mislaid, or abandoned.
 __Lost_: owner accidentally misplaced the property.
 ___Mislaid__: owner intentionally left it somewhere and forgot
where he put it.
 __Abandoned_: owner intended to relinquish all rights to the
property.
 Finders typically lose against original owners of _lost_ or _mislaid____
property but can win against original owners of _abandoned property.
Armory v. Delamirie (Page 156 – 1722)
 Facts: chimneysweep’s boy (π) finds jewelry; goldsmith (∆) takes it and refuses to give it
back.
 Holding: the finder of the jewel, though without _absolute_ ownership, has a right that
allows him to keep the jewel against all but the original owner.
 Notes...
o One of the first cases to establish _possession__ as a valuable property right and
as evidence of ownership.
Charrier v. Bell (Page 158 – 1986)
 Facts: π exhumed items from a Native American burial plot from another person’s land. π
sought declarative relief, and—in the alternative—sought compensation under the theory
of unjust enrichment.
 Multiple Issues & Holdings...
o Issue: adequacy of the proof provided by the Native American tribe that they were
legitimate decedents of the individuals buried.
 Holding: even though there wasn’t a perfect __chain of title_, the tribe
was held to be an accumulation of the decedents of the people buried on
that land.
o Issue: π’s ownership of the artifacts.
 Holding: objects buried with the dead are not _abandoned___ property;
so, the court would not uphold ownership of an unrelated party who
discovered them.
o Issue: applicability of the unjust enrichment theory.
 Holding: dismissed unjust enrichment theory; π didn’t enrich anyone, but
rather caused pain. Also, π was not impoverished by this because
__operated at his own peril____.
o Notes...
 In general, stuff buried on the land belongs to the _owner__ of the land.
Christy v. Scott (Page 163 – 1852)
 Facts: π was granted some land by U.S. gov’t in Texas but ∆ was already on the land. ∆
ejected π, and π sued to __quiet title__.
 Holding: because the court doesn’t know whose law to apply to quiet the title (Spain,
Mexico, or Texas), that issue will have to be decided on remand; in the meantime, it opts
follow the principle of relativity of title.
 Notes...
o Here, “relativity of title” means that someone who may not have title to the land
can still protect his __possessory_ rights against a later intruder.
Adverse Possession...
 Doctrinal Overview
o Defines how a third-party non-owner can prevail in a _possessory_ conflict with
the true title holder.
 The prevailing party in an adverse possession case extinguishes the
previous title holder’s _title_.
 The evidentiary standard is _clear__ & _convincing___ evidence.
Adverse Possession Requirements:
 __Actual possession__: need to provide proof that you treated land as a reasonable
owner would.
o E.g., fence or other significant activity.
 _Open__ and __notorious__: acts have to be sufficiently visible to put owner on notice
that his property is being occupied by a non-owner after a reasonable inspection.
o E.g., enclosure, building of a structure, laying a driveway, or mowing the grass
work; raising cattle w/o an enclosure or clearing trees are not going to be
sufficient.
 __Exclusive_: use is of a type expected of a true owner, and the adverse possession isn’t
shared with another adverse possessor.
o E.g., you might have a hard time adversely possessing a community garden in
your neighborhood.
 _Continuous__: a person must exercise uninterrupted control over the property in a way
customarily performed over the property.
o Note: seasonal use might qualify, see Nome 2000.
 _Adverse__ / __hostile__: non-permissive use; courts usually have a presumption that
the use is non-permissive and thus shift burden of proof to owner to prove that the use
was permissive.
o Remember: Parker said that the property owners in the Jacque case were mistaken
about this prong of adverse possession law.

For the Statutory Period of _Time_: differs in each jurisdiction.
o Note: some states toll the statute of limitations if the true owner has a disability
(e.g., infancy, insanity, or incompetence).

Additional terms to know...
o _Quiet title__: a type of claim that asks the court to grant a declaratory judgment
that the adverse possessor has become the owner of the disputed property.
o __Color of title__: a claim to title that seems legitimate but may not be due to
some defect in the conveyance.
o __Tacking_: the general rule that succeeding periods of possession may be added
together so long as the periods are in privity with one another.
o __Tolling__: pause button; statutory provision that mandates that the statutory
period does not begin to run until after the true owner’s disability ends.

What about the adverse possessor’s state of mind?
o Some states require more elements for adverse possession; if that’s the case on
your exam, Parker will probably give you that instruction.
 ____Objective test____: adverse possessor’s state of mind irrelevant, and
all that matters is a lack of permission from the true owner (this is the rule
in most places).
 ____Claim of right__: subjective test that requires adverse possessor to
have the intent of use and appropriation at the exclusion of others.
 ___Bad faith__: requirement for intentional dispossession of another
person’s property; effectively, adverse possession must be the goal
(minority rule).
 __Good faith___: only innocent possessors who mistakenly occupy
property owned by someone else can acquire ownership through adverse
possession.
Brown v. Gobble (Page 287 – 1996)
 Facts: Brown (π) wanted Gobble (∆) to stop building a road along the edge of ∆’s
property; π’s predecessor in title built a fence beyond the property line (in the space
where the road was planned to go).
 Holding: the lower court erred because π provided evidence for each element of adverse
possession and established (through tacking) that the statutory time period was satisfied.
 Notes...
o Go-to case for citing adverse possession or tacking rules because the case
explains the elements of each concept very neatly.
o In order to show _privity__ of title, original owner must have purported to
transfer title of disputed property at issue to his successor.
Romero v. Garcia (Page 300 – 1976)



Facts: mother-in-law didn’t sign a deed for land given to her son and daughter-in-law.
Daughter-in-law had _color_ of title and sued to _quiet_ title after she was widowed and
remarried.
Holding: the deed was sufficient to show color of title even though one party failed to
sign it because the boundaries of the land were able to be ascertained upon further
examination.
Notes...
o Go-to case for deed defects or color of title issues.
o Why could the mother-in-law argue that the deed was void because her signature
was missing?
 Because New Mexico is a _community property__ state.
o Why do we treat people with color of title more favorably than those without?
 Arguably, because they’re a more orderly person than a
_squatter__.
 Sometimes, legislatures even shorten the statutory time
requirement for people with color of title.
Nome 2000 v. Fagerstrom (Page 303 – 1990)
 Facts: Nome 2000 (π) was a company that owned a whole bunch of land in Alaska; the
Fagerstrom family (∆) claimed ownership thorough adverse possession.
o Sequence of events on the property in dispute...
 _1970_: placed corner posts and used the land.
 _1974_: placed a camper trailer; planted trees; built an outhouse, fish rack,
and reindeer pen.
 _1978_: built a cabin on the parcel.
 _1987_: company filed a complaint for ejectment.
 Holding: family’s conduct on the land was sufficient to meet the requirements of adverse
possession even without the cabin on the property, thus statutory clock started before
1978 (the year in dispute).
 Notes...
o π fought the family on the elements of (1) statutory time, (2) continuity, (3)
exclusivity, (4) open and notorious, and (5) adversity.
 Statutory Time: the ten-year clock started _before_ the cabin was built.
 Continuous: _seasonal_ use is appropriate given the nature of the
property.
 Exclusivity: doesn’t have to be entirely exclusive; the family excluded
people as an _owner_ would have excluded people.
 Open and Notorious: the corner posts were __insufficient__, but other
objects in addition to testimony of local residents who said it was family’s
land was enough to put the owner on notice.
 Adverse/Hostile: π argued that ∆ didn’t meet this requirement because
they thought of themselves as stewards of the land in accordance with
Native Alaskan system of landownership; court said this didn’t matter
because intent is irrelevant in an _objective__ test jurisdiction.
Draco Malfoy was in a bad state after his expulsion from school. Draco’s classmate Harry Potter
heard of Draco’s despair, and he invited Draco “get himself right” by staying at his rustic cabin
in the Montana wilderness. Draco followed Harry’s advice, made his way to Montana, and fell in
love with Harry’s cabin. Accordingly, Draco cast the Dark Mark into the sky above the cabin and
opted to live there for the next ten years. During that time, Draco left the cabin only to mow the
lawn, shovel the snow, hunt for food, and access the amenities of the nearby town. Every
Christmas, Draco would invite Pansy Parkinson to visit him at the cabin. During their first
Christmas together, Pansy helped Draco install a mailbox at the end of the driveway that was
emblazoned with the Malfoy crest. During their second Christmas together, Draco & Pansy
cursed a small child who came to the cabin with a request for food and shelter. Shortly before
Draco’s tenth Christmas at the cabin, Harry & his family arrived with presents in tow. Harry told
Draco that it was time for him to leave because the Potters wanted to spend a happy Christmas at
the cabin. “The statutory time limit for adverse possession is seven years in Montana, Potter,”
said Draco, “this cabin is mine now!”
True or False: Assuming that Draco is correct about the statutory time limit, he will
succeed in his adverse possession claim.
-Actual Possession? Yes. He lived in the cabin.
-Open and Notorious? Yes. He installed a mailbox with his crest on it and cast a dark mark
above the house within the first year. He also regularly mowed the lawn and shoveled the snow.
-Exclusive? Yes. He was selective about his guests.
-Continuous? Yes. He rarely left the property, and when he did leave his departures were
consistent with the behavior of a true owner.
-Adverse / Hostile? No. Harry explicitly gave him permission to use the property for an
indefinite time.
-Statutory Time Requirement? No. Even though he was there for ten years, the law requires
him to satisfy each element for seven years. Much like Draco’s time in school, he may have
thought he was being super-hostile, but he wasn’t.
True or False: Assuming that Draco is correct about the statutory time limit, he will
succeed in his adverse possession claim.
Actual: Dark mark in the sky; took care of the lawn/property
Open/notorious: Mailbox with crest
Exclusive: Satisfied; Pansy was a guest; cursed small child
Continuous: Satisfied
Adverse/hostile: Close call; Draco was invited
Statutory time: Satisfied; was there for +-10 years
PROPERTY DEAN’S FELLOW SESSION WEEK SEVEN
Brief Introduction to Servitudes...


What is a servitude?
o It is a ______right___ or ____obligation_____ that automatically passes to
subsequent owners / possessors of the land.
What is an easement?
o It is an affirmative servitude; a non-possessory ____use______ right.
o An example of an _______affirmative______ easement is a right of way.
o An example of a _______negative______________ easement is a height
restriction.
Prescriptive Easements...


Prescriptive easements are very similar to __adverse possession_____ claims, but they
require actual use instead of general possession.
o Successful litigation results in continued __use__ rather than transfer of
____title______.
What are the required elements for a prescriptive easement?
o _______actual use_________ that is:
o __open______ and ________notorious___________,
o _________continuous________________, and
o ____adverse_________ / _______hostile_________
o For the ______statutory____________ period of time.
 Note: some jurisdictions require proof of
______acquiescence__________________ such that (1) the owner never
brought a trespass claim, (2) the owner knew about the use and passively
allowed it to continue, or (3) a reasonable owner should have known about
the use.
Community Feed Store, Inc. v. Northeastern Culvert Corp. (Page 315 – 1989)
 Facts: a feed store had been using a piece of land for vehicles for many years before it
was conclusively established that another party owned the land. The actual owner erected
a barrier which prevented the feed store from using the land, so the store made a claim for
a prescriptive easement.
 Holding: general, not absolutely precise, ____usage_______ outlines must be provided in
a prescriptive easement case; π provided documentation that proves usage to a level of
reasonable certainty and therefore his claim was valid.
 Notes...
o As a general proposition in prescriptive easement cases, use that is that open and
notorious is presumed to be ________adverse/hostile__________.
 _______public use exception_________: ∆ argued that public use of
private property is presumed to be permissive, but the court didn’t buy that
because the use in this case did not involve public use.
Express Easements...
 Glossary of Terms
o __________express easements_______: created by actual agreement between
owners of benefitted/burdened land. To be enforceable, the agreement must be
contained in a writing signed by the grantor and sufficiently describe easement
and grantee.
o _____________servient estate_____: land that is subject to the burden on an
easement.
o _________dominant estate____: land (or party) that is subject to the benefit of
an easement.
o __________appurtenant__________: an easement where whoever owns the land
benefits.
o ___________easement in gross____________: an easement where a specific
person or entity benefits.
o ______licenses_____________: limited rights to enter or use land that do not run
with the land and are usually revocable at will by the grantor (e.g. movie tickets).
o _________profit__________: allows non-owners to collect resources from the
land such as coal, water, or timber.

Requirements for an express easement’s burden to run with the land...
o It must be in ______writing___________.
o Owners of the servient estate had _______notice________ of the easement
(actual, inquiry, or constructive – e.g., published in a registered deed).
o Original grantor (easement creator) must have ____________intended________
for the easement to run with the land.
Green v. Lupo (Page 520 – 1982)
 Facts: dispute about an appurtenant or in-gross easement because adjoining landowner
converted their property to a mobile home park and noisy motorcyclists have started to
annoy the easement creator.
 Holding: court looked to the language of the grant to determine what type of easement
was intended by the parties, and the language suggested that the easement was
appurtenant.
 Notes...
o Go-to case to argue for a strong ____presumption___________ of appurtenant
easements.
o Easement promised specifically to named people, but it also described the purpose
of use for ______egress_____ and ___ingress_____________.
Cox v. Glenbrook Company (Page 524 – 1961)
 Facts: dispute between a Lake Tahoe resort and an adjoining landowner who sought to
widen the road over π’s land so as to enable ∆’s further development of a subdivision.
 Holding: where the grant is unclear, the extent of the easement must be construed as
broadly as necessary to carry out the purposes for which it was granted.

Notes...
o Based on original intent, what is the extent of the easement?
 No evidence that grantor or original grantee ever intended for easement
(road) to be any _____wider________ than it was constructed.
o When ambiguous, court looked to facts and circumstances.
 Here, the road was conceived as being wide enough for only _one car__.
o Is there an undue burden? Why?
 Benefitted party can’t cause undue burden to the servient estate.
 Court said that holder of the easement cannot widen the road but can
________improve____ and _______maintain_________ the road.
o Is the easement appurtenant or in gross?
 No question that it was an ______appurtenant________________
easement.
Henley v. Continental Cablevision of St. Louis County, Inc. (Page 529 – 1985)
 Facts: trustees of a subdivision (π) had the right to grant easements too the parties for the
purpose of creating and maintaining electric, telephone and telegraphic service for the
lots on the subdivision. ∆ used a license it received from the two utility companies who
serviced the subdivision, with original easements granted by π, in order to erect cables,
wires, and conduits for the purpose of transmitting television shows. π sought an
injunction.
 Holding: license issued to ∆ was valid because the easements were intended to be
exclusive and therefore _________apportionable________________.
 Notes...
o An easement is apportionable when it can be ____shared______ with other
grantees.
o This easement was intended to be exclusive because π never attempted to
___use____ the easement after it was granted, and therefore it was apportionable.
o Example of an easement ______in gross____________.
Property Dean’s Fellow Week 8
Life Lessons with Lindsay….
 Welcome to hypo season.
Implied Easements...
Conceptual Overview
 The four ways that easements can be created without Statute of Frauds compliance.
o Easements by ___estoppel_______________
 Permission from owner to use the land.
 Foreseeable and reasonable reliance on continuation of permission.
 Changed position of claimant (usually through significant expenditures)
made in reliance on continuation.
 Finding an easement is necessary to prevent injustice.
o Easements by __prescription________________
 Actual Use
 Open and Notorious
 Continuous
 Adverse / Hostile
 For the Statutory Period
o Easements __implied______ by Prior Use
 Elements...
• Two parcels were previously owned by common grantor.
o One parcel was previously used for benefit of the other parcel in
manner that was apparent and continuous.
• The use of the servient parcel is “reasonably necessary” or
“convenient” for the enjoyment of dominant estate.
 These are also called “quasi-easements” or easements by implication.
 What is “reasonably necessary use”?
• Usually rights of way for people or vehicles, but it can be argued
either way in most cases.
o Easements by _necessity_____
 Dominant and servient estates were formerly one parcel.
 At the time of severance, the dominant parcel became land-locked (note:
the land-locked requirement has become somewhat relaxed).
Lobato v. Taylor (Page 537 – 2002)
 Facts: All of the parties’ land was originally part of the “Sangre de Cristo” land grant
(1844 Mexican land grant). Landowners exercised rights to enter and use Taylor Ranch
property for over one hundred years. Jack Taylor fenced the land in 1960 and forcibly
excluded them.
 Holding: π have implied rights in ∆’s land for the access to the __profits_______
detailed in the Beaubien Document.
 Notes...
o Go-to case for easements by _estoppel______.
o Also, a good case to argue easements ____implied_____ by prior use.
Granite Properties Limited Partnership v. Manns (Page 547 – 1987)
 Facts: π sold some of their land to ∆, but there were driveways on that land that π used
for commercial and residential purposes; π wanted to keep using, but ∆ did not want to
allow it.
 Holding: given the strong evidence of π’s prior use of the driveways, and ∆’s knowledge
thereof, it held that the evidence regarding the need for use was sufficient to fulfill the
___necessity____ requirement.
 Notes...
o Another good case to argue easements implied by prior use.
Finn v. Williams (Page 554 – 1941)
 Facts: π sued ∆ to enforce a dormant easement to reach a public highway from π’s
landlocked estate.
 Holding: where an owner of land conveys a parcel thereof which has no outlet to a
highway except over the remaining lands of the grantor or over the lands of strangers, an
easement exists over the land of the _grantor_______.
 Notes...
o Go-to case for easements by ___necessity____.
Covenants...
 Conceptual Overview
o ___Covenants____: a promise to do or not to do something; an agreement for a
restriction or an obligation; remedies come in the form of damages.
o ____Equitable Servitudes__________: covenants that can be enforced by
injunction; also, the privity requirement is replaced with a notice requirement.
o __Touch_____ & __concern____: requires the covenant to concern the land in
some way (i.e., it must affect the value of the land, but it doesn’t have to be
physical).
o ____Horizontal privity_______: satisfied when the covenant is created during
the legal transfer of land (note: it is usually accomplished through “instantaneous
privity”).
o _____Strict vertical privity________: covenant transferred through the legal
transfer of land; prior party cannot retain any interest in the land (e.g., doesn’t
extend to Landlord / Tenant transfers).
o _____Relaxed vertical privity_________: covenant transferred through the legal
transfer of land; however, the prior party may retain an interest in the land (e.g.,
Landlord / Tenant qualifies).
o For the burden of a covenant to run…
 ___Form (in writing)_____
 ___Intent______ for the burden to run (without explicit intent,
appurtenant covenants presumed to run)
 __Touch__ & ____Concern__________
 ____Horizontal______ Privity
 ____Strict___ Vertical Privity

_____Notice___ (note: this is common now, but it was not historically
required)
o For the benefit of a covenant to run...
 Writing
 Intent for the benefit to run
 Touch & Concern
 ___Relaxed____ Vertical Privity
Neponsit Property Owners Association v. Emigrant Industrial Savings Bank (Page 563 - 1938)
 Facts: bank bought a foreclosed home @ auction and did not pay the required HOA fees;
HOA sued to enforce the covenant and the court ruled in favor of the HOA.
 How did the covenant touch & concern the land?
o Covenant had such an effect on the _legal rights__ that would flow from
ownership of the land that it was connected with the land. Formal requirement
may not have not been met, but the covenant touched the land in substance.
 How did HOA show vertical privity?
o Privity in substance—if not in form—because the HOA was acting in the
collective interest of the ___owners____ to enjoy all of the benefits of the land.
A bonafide exam question.
James Addison owned a tract of land in a predominantly rural area of a midwestern state. In
January 1950, Addison conveyed the northern half of his tract of land to John Baxter. In order to
preserve the bucolic nature of the tract that he had retained, Addison inserted in the contract of
sale the following provision:
Section 12. Covenant. Each of James Addison and John Baxter intends and agrees that the
following covenant shall run with the land and shall benefit or bind, as the case may be, the
heirs, successors, and assigns of each of James Addison and John Baxter.
John Baxter will maintain a lawn across the entire length of said tract, of an area no less than
10,000 square feet, beginning 50 feet north of the southern boundary of said tract.
Throughout the contract, “said tract” referred to Baxter’s tract. The covenant was reflected in the
deed delivered to Baxter, recorded in accordance with applicable law and complied with in every
respect until 1994.
Approximately twenty feet north of the boundary between Baxter’s tract and Addison’s tract
stood a little shed that Addison had used to raise chickens when he had title to both the tracts. At
the time of the conveyance, Baxter told Addison that he could continue to enter Baxter’s tract in
order to raise chickens in the shed.
In January 1970, Baxter conveyed for due consideration his entire interest in his tract to Michael
Crawford. A few days after Crawford had moved onto the tract, Addison and Crawford’s wife,
after a brief flirtation, decided to elope. When he heard the news, unable to overcome the
humiliation of being abandoned for a poultry farmer, Crawford immediately suffered a severe
nervous breakdown that kept him in mental institutions for over twenty years.
In January 1970, a few days after Crawford had been wheeled off in a stretcher, eager to being
his new life as soon as possible, Addison conveyed for due consideration his entire interest in his
tract to Howard Dexter. Dexter immediately tore down the chicken shed and constructed a fence
across the entire width of Crawford’s tract so that the site on which the shed had been located lay
south of the fence. From then on, Dexter’s possession of the southern portion of Crawford’s tract
was in all respects actual, exclusive, continuous, open, notorious, and hostile within the meaning
of the applicable law.
Over the next twenty years, the area in which the tracts were located changed from a largely
agricultural area into a largely industrial area. Fumes emitted by the vastly increased number of
factories in the area made it impossible to conduct any kind of gardening activity. Under the
impact of billowing clouds of toxic smoke, trees rotted, flowers withered, bushes shriveled, and
grass died.
In 1994, Crawford recovered from his breakdown and returned to his property. Convinced that
he would no longer be able to enjoy the quiet rural lifestyle that he sought, Crawford decided to
build a fifteen-story apartment building on his tract.
In the course of consulting with architects, Crawford learned that, in order to comply with
applicable building ordinances in respect of the construction of a fifteen-story apartment
building, he would have to lay out a concrete parking lot of a certain size on the site currently
occupied by the now thoroughly miserable and denuded lawn on his tract.
In the course of consulting with surveyors, Crawford also learned that Dexter’s fence lay
approximately twenty yards north of the true dividing line between the two tracts. Crawford
believes that, if he could recover that area from Dexter, he would be able to construct an even
larger concrete parking lot and, therefore, construct an eighteen-story apartment building.
Dexter hires you as his attorney. He is anxious to know whether, under applicable law, (a)
Crawford is bound by the covenant between Addison and Baxter and, if so, whether he can
obtain an injunction against Crawford for any violation of the covenant, (b) Crawford might be
able to raise any defenses to an action to enforce the covenant, and (c) Crawford will be able to
recover from Dexter the area south of the fence constructed by Dexter in 1970.
Assume that the jurisdiction in which the tracts are located, and which will resolve the disputes
has a standard recording statute and a statute of limitations that reads:
An action to recover the title to or possession of real property shall be brought within twenty-one
years after the cause thereof accrued, but if a person entitled to bring such action, at the time the
cause thereof accrues, is within the age of minority, of unsound mind, or imprisoned, such
person, after the expiration of twenty-one years from the time the cause of action accrues, may
bring such action within ten years after such disability is removed.
(a) Whether Crawford is bound by the covenant between Addison and Baxter and, if so,
whether he [Dexter] can obtain an injunction against Crawford for any violation of the
covenant.
Tip: Split the question into A(1) and A(2)
(1) Whether Crawford is bound by the covenant between Addison and Baxter.
Issue: The issue is whether C is bound by the covenant between A & B under an
equitable servitude theory. [*equitable servitude b/c D is seeking an injunction]
Rule: Equitable servitudes are covenants that can be enforced by injunction. The
requirements for equitable servitudes are (1) in writing; (2) touch and concern; (3) intent;
and (4) notice.
[remember: the privity requirement is replaced with a notice requirement]
Analysis:
(1) in writing: Yes, the covenant was in writing. Addison inserted the covenant in the
contract of sale. The provision stated “Section 12. Covenant. Each of Addison and Baxter
intends and agrees that the following covenant shall run with the land and shall benefit or
bind, as the case may be, the heirs, successors, and assigns of each of Addison and
Baxter.”
(2) touch and concern: Touch and concern requires the covenant to concern the land in
some way. Here, the covenant touched and concerned the land. The covenant required B
and subsequent owners to maintain a lawn.
(3) intent: Yes, there was intent. The provision in the contract of sale specifically stated
the covenant would run with the land and would benefit and bind subsequent owners.
(4) notice: Yes, there was notice. B signed off on the contract of sale.
[feel free to include any additional facts & compare/contrast to the caselaw from class]
Conclusion: Yes, C is bound by the covenant between A & B because all the
requirements for an equitable servitude have been met.
(2) If yes, whether Dexter can obtain an injunction against Crawford for any violation of the
covenant.
Yes, D can obtain an injunction against C. Because he was bound by the covenant
between A & B, C was required to maintain a lawn and failed to do so.
(b) Whether Crawford might be able to raise any defenses to an action to enforce the
covenant.
Issue: The issue is whether Crawford can raise a public policy argument to challenge the
enforcement of the covenant.
Rule: Public policy concerns can invalidate covenants by using the reasonableness test
seen in Davidson Brothers v. Katz. Davidson provides an 8-factor reasonableness test,
which requires looking at
(1) The intention of the parties when the covenant was executed, and whether the parties
had a viable purpose that did not at the time interfere with existing laws or policy
(2) The value of the covenant by the parties at the time of conveyance
(3) Whether the covenant clearly & expressly set forth the restrictions
(4) Whether the covenant was in writing, and if so, whether subsequent grantee had
notice
(5) Whether the covenant was reasonable concerning area, time, or duration
(6) Whether the covenant imposes an unreasonable restraint on trade or secures a
monopoly for the covenanter
(7) Whether the covenant interferes with the public interest
(8) Even if the covenant was reasonable at the time it was executed, whether changed
circumstances now make the covenant unreasonable.
Analysis: [Go through 8 factor reasonableness test]
(1) The intention of the parties was to create a that would run with the land and bind any
future owners of A & B’s land. (@ the provision in the contract of sale) As per the fact
pattern, the covenant was reflected in the deed delivered to B and recorded in accordance
with applicable law.
(2) You can argue this point. What it meant to the parties at the time of conveyance.
(3) The covenant was clear. (@ section 12 of the deed)
(4) Yes, the covenant was in writing and notice. (@ section 12 of the deed)
(5) There is an argument here about the time/duration of the covenant. The covenant was
for an indefinite duration. You can cite to Davidson and point out that covenants which
extend for perpetuity may be found indefinite.
(6) Trade/monopoly not really present in this fact pattern. (think about the grocery
business in Davidson. This fact pattern does not really have the same impact on this
factor.)
(7) Public interest: possibly. Look at the apartment building C wanted to build. Maybe
there is an interest in the housing aspect. The rural lifestyle is not necessarily available
anymore.
(8) Changed circumstances: YES. Over the twenty years following the creation of the
covenant, the area in which the tracts were located changed from a largely agricultural
area into a largely industrial area. Fumes emitted by the vastly increased number of
factories in the area made it impossible to conduct any kind of gardening activity. Under
the impact of billowing clouds of toxic smoke, trees rotted, flowers withered, bushes
shriveled, and grass died.
Conclusion: The answer here is that the covenant is likely unreasonable. Point to the
indefinite duration of the covenant, public interest, and changed circumstances.
[*Note: Compare and contrast the facts here to Davidson as much as possible. That case
should guide your analysis because it is where the reasonableness test comes from.]
(c) Whether Crawford will be able to recover from Dexter the area south of the fence
constructed by Dexter in 1970.
The issue is whether Crawford will meet the statutory requirements for recovering the area south
of the fence.
Statutory requirement: 21 years, but if the person is of unsound mind, the action can be brought
within 10 years after such disability is removed.
Here, 1970-1991 (checks off the 21 years) but in 1994 C returns from mental break. He has until
2004 to bring an action. [Note that the hypo does not tell you what year it is, so you are allowed
to assume that as long as it is before 2004, C can still bring an action.]
Yes, C will be able to recover as long as he brings the action before 2004.
PROPERTY DEAN’S FELLOW WEEK 9
Substantive Limitations of the Creation and Enforcement of Covenants...
 There are a few different grounds for challenging a covenant, including:
o Assertions of _____constitutional________________ violations.
o Claims of ____discrimination_________________ under the Fair Housing Act
o Claims of restrictions on___alienability____________________.
o Claims of unreasonable restraint of___trade___________.
o Modern courts also address ____public policy___________________________
concerns by invalidating covenants under a reasonableness test.
Davidson Brothers v. D. Katz & Sons, Inc. (Page 602 – 1994)
 Facts: Davidson owned two supermarkets; sold one to Katz. The deed for the sale
contained a covenant requiring that the lands and premises shall not be used and for a
supermarket or grocery store for the next 40 years. New Brunswick Housing Authority
purchased the store from Katz and leased it to a grocery store (C-Town), violating the
covenant.
 Holding: the court depended on a ______reasonableness test______, and based it on
eight different concerns, it found the covenant to be so against public policy concerns that
it should be invalidated.
 Notes...
o Go-to case for factors in a reasonableness test.
o Intention of the parties when the covenant was executed, and whether the parties
had a viable ____purpose__________ that did not at the time interfere with
existing laws or policy.
o __Value________ of the covenant by the parties at the time of conveyance.
o Whether the covenant clearly & expressly set forth the ___restrictions_________.
o Whether the covenant was in __writing___________, and if so, whether
subsequent grantee had _notice______________.
o Whether the covenant was reasonable concerning ___area____, __time_____, or
___duration____________ (note: covenants that extend for perpetuity or beyond
terms of a lease may be deemed unreasonable).
o Whether the covenant imposes an unreasonable ___restraint___________ on
trade or secures a ___monopoly______ for the covenanter.
o Whether the covenant interferes with the _public interest____.
o Even if the covenant was reasonable at the time it was executed, ____changed
circumstances_________ now make the covenant unreasonable.
 Here, the covenant created a ___food desert_______. City officials looked for
alternatives before violating the covenant, but in the end, it was a necessary solution to
resolve the public policy goal of restoring the inner city.
Nahrstedt v. Lakeside Village Condominium Association, Inc. (Page 607 – 1994)
 Facts: Woman sued to prevent HOA from enforcing a restriction against keeping pets in a
condo development. She asserted that the restriction was unreasonable as applied to her
because she kept three noiseless _cats_____ indoors, who she alleged created no
nuisance.


Holding: the HOA covenant was ___reasonable_____.
Notes...
o What kind of proof would the plaintiff have to show?
 Burden imposed on the property would have to so substantially outweigh
the benefit that it shouldn’t be enforced against __anyone___.
o What are common interest developments?
 Hybrid property—like a _____condominium_______—where everyone
owns some real property and shares some common property.
o How are use restrictions in the declarations of common interest developments
treated differently?
 The ___presumption______ is that the restrictions are reasonable.
o Under what point of reference is the reasonableness of a condo use restriction to
be determined?
 Determine reasonableness based upon the community as a _whole__, not
just the ∆.
Shelley v. Kraemer (Page 626 – 1948)
 Facts: black family bought a house in a neighborhood with a racially restricted covenant
that, if enforced by the courts, would not allow them to live there.
 Holding: court enforcement of a racially restrictive covenant constitutes a state action that
violates the ___Equal Protection___ Clause of the Fourteenth Amendment.
 Notes...
o Important thing to note is that the court saw its enforcement of the covenant as the
___state action______.
Evans v. Abney (Page 770 – 1970)
 Facts: a racist senator willed property in trust to his hometown for the purpose of creating
a whites-only public park. Because the park could not continue to operate on a
discriminatory basis, the Supreme Court of Georgia ruled that the grantor’s intention had
become impossible to fulfill and so the trust failed and the trust property reverted to the
Senator’s heirs. Several citizens then sought to have the park integrated by using the
doctrine of cy pres.
 Holding: allowing non-whites into the park would violate the covenant and be
unconstitutional; so, it upheld the decision that reverted ownership to the heirs.
 Notes...
o ___Cy pres____: a doctrine that modifies the purpose of a trust when a settlor
establishes a charitable trust and charitable purpose identified by settler becomes
impracticable/impossible to achieve.
Modifying and Terminating Covenants...

Equitable Defenses: two major ways to terminate covenants:
o ____changed conditions doctrine_______________
 Must show that nobody still benefits from the covenant.

Under this doctrine, covenants will not be enforced if conditions have
changed so drastically inside the neighborhood restricted by covenants
that enforcement will be of no substantial benefit to the dominant estate.
o _____relative holding doctrine_______________________________________
 Focuses on whether the covenant causes substantial harm to the servient
estate compared to the dominant estate. Won’t be enforced if harm to
servient estate is greater than the benefit to the dominant estate.
 Under this doctrine, covenants will not be enforced if the harm caused by
the enforcement (to the owner of the servient estate) is greater “by a
considerable magnitude” than the benefit to the owner of the dominant
estate

Other ways to terminate covenants:
o _______language in the instrument_________________________: covenants
that terminate within a stated number of years unless renewed.
o __Merger________: if burdened and benefited estates are owned by same
person, covenant terminates.
o ___Release________________: agreement in writing by all involved parties that
the covenant will terminate.
o ___Prescription____: open and notorious violation of covenant without
permission for statutory period may terminate the covenant by operation of the
statute of limitations.
El Di, Inc. v. Town of Bethany Beach (Page 650 – 1984)
 Facts: a restaurant in a quiet Delaware beach town wanted to sell alcohol.
 Holding: conditions have changed substantially; you may sell your alcohol.
 Notes...
o Conditions sufficiently changed because:
 It used to be a quiet seaside town, and now it’s a resort town with lots of
__tourists_____ and rowdy prep school students.
 A lot of ___drinking____ occurs there already.
 Even the ______zoning___________ was changed for a commercial
district.
Blakely v. Gorin (Page 658 – 1984)
 Facts: covenant wouldn’t allow anything to be built in a Boston alley because it provided
light and air for an apartment building.
 Holding: the court will not uphold the covenant but will require damages to be paid.
 Note....
o The covenant was no longer of substantial _____benefit_____ to the public.
o The court wanted the land to be put to its best use.
Interpreting Ambiguous Conveyances and the Presumption Against Forfeitures...
 Glossary of Terms
o __heirs_________: those entitled by law to inherit the property if the owner dies
intestate (i.e., without a will).
o __devisees______________: those entitled to real property under a will.
o __future interest_____: protected legal right when you don’t have possession.
o __laches___________: a defense in equity under which a party claims that the
opposing party has failed to assert its rights within a timely manner and that the
rights therefore cannot be enforced.
o ___Non-freehold estates__________: personified by landlord / tenant
relationship.
o ___Freehold estates __________:property that is “free from hold” of any entity
besides the owner; thus, owner can put the land to any purpose he wishes (subject
to local regulations).
o ___Fee simple absolute __________: provides an estate for a potentially infinite
duration.
 “from O to A” or “from O to A and his heirs”
 ___Fee tail______: estate intended to concentrate an estate in a bloodline.
 “from O to A and his issue / heirs of his body”
 Abolished in most jurisdictions.
 ____Defeasible fees_________:
 Fee simple determinable;
 Fee simple subject to condition subsequent; and
 Fee simple subject to executory interest.
 ____Life estate _____: rights that terminated with the life of a designated
individual.
o Reversions & Remainders...
 ___Possibility of reverter ___________: future interest of grantor in a fee
simple determinable that depends upon the happening of a stated event.
 ____Right of re-entry___________: future interest of grantor in a fee
simple subject to condition subsequent that depends upon a condition
being met before property reverts to grantor.
 ___Executory interest _____________: similar to a right of entry but
describes the future interest of a third party.
 ___Conditional remainder ___________: future interests subject to the
happening of uncertain events.
 ___Vested remainder ____________: future interests to persons
identifiable at the time of conveyance and for whom no conditions must
occur before the future interest becomes possessory.
 Subject to _open___: class of future interests can be expanded.
 Subject to _divestment______: remainder may be lost due to
event after conveyance.
PRESENT INTEREST
Fee simple absolute
Fee simple
determinable
Fee simple subject to
condition subsequent
Fee simple subject to
executory limitation
Life estate
WORDS TO CREATE
“to A”
“to A and her heirs” “to A in
fee simple absolute”
Words of duration:
F.I. IN GRANTOR
“as long as” “during” “until”
“while” etc.
Words of condition:
Possibility of reverter
F.I. IN THIRD PARTY
Right of entry (aka
“provided that” “but if” “on power of termination)
condition” etc.
Words of duration/condition:
Executory interest
“until/unless..., then to...”
“but if..., then to”
“for life”
Reversion
Remainder (vested or
contingent)
Wood v. Board of County Commissioners of Fremont County (Page 756 – 1988)
 Facts: π’s gave land to county “for the purpose of” a hospital; land later sold to a private
company who didn’t build a hospital.
 Rule: a conveyance of land passes the __entire______ estate of the grantor unless there
is express language in the grant indicating grantor intent to retain some kind of interest.
 Notes...
o Strong presumption in ambiguity that it’s a __fee simple absolute______.
o Here, the required language for a defeasible fee was absent.
Edwards v. Bradley (Page 758 – 1984)
 Facts: deed in the will structured so that daughter’s financial irresponsibility doesn’t
cause grandkids to lose their inheritance (comparable to a “spendthrift trust”).
 Rule: __forfeiture restraints___________ are valid as to life estates, but not to fee
simple estates.
 Notes...
o Here, the deed did not state what type of ownership interest was created in the
daughter, but it did place limits on her right to __alienate_______ the property.
Therefore, the court determined a life estate was created by the will.
McIntyre v. Scarbrough (Page 764 – 1996)
 Facts: McIntyre, a man with a life estate, let the property fall into disrepair because of his
absence and failed to pay the taxes in accordance with his contract with Scarbrough.
 Rule: life estate can be terminated because of a tenant’s _waste__.
o What factors constituted waste?
 Mobile home had been vacant, was in a general state of disrepair, fire and
health hazards, and was unfit for habitation

Mobile home appeared to have been vacant for some time, general state of
decay and disrepair, posed fire/health hazards, and was unfit for
habitation.
PROPERTY DEAN’S FELLOW SESSION WEEK TEN
Life Lessons with Lindsay...
 Office hours.
Rule Against Perpetuities
 Conceptual Overview
o Future interests are __invalid___ unless they are certain to “vest” or “fail to vest”
within the lifetime of someone who is alive at the creation of the interest or no
later than 21 years after her death.
o Order of analysis...
 Identify the __future interests_____ created by the grant.
 Identify what has to happen for the interest to __fully____ vest.
 Identify all the __lives in being_________ at the creation of the interest
who can have something to do with it vesting.
 Creation of the interest...
o Created in a conveyance @ the __time of conveyance ___.
o Created in a will @ __death__________.
o Created in a trust @ the _irrevocable moment____.
 Life in being...
o A person __alive__ or in __utero___ at the creation of the
interest who may have something to do with it vesting.
 See if you can imagine any way in which the future interest will vest more
than __21___ years after the death of all the people identified in step three.
o Who is __immune____ from the rule?
 Interests in the grantor, absolutely vested remainders, vested remainders
subject to divestment.
o Who is __subject____ to the rule?
 Executory interests, contingent remainders, and vested remainders subject
to open.
o Alternatives to the rule against perpetuities?
 The __wait__ & _see___ Test – courts will not hold that a future interest
violates the rule until the perpetuities period has passed and they are
certain that the future interests have not vested within that period.
Lots of leeway between jurisdictions and highly dependent on rules of a given jurisdiction.
PROPERTY DEAN’S FELLOW SESSION WEEK ELEVEN
Life Lessons with Lindsay...
 Get your takings reading done.
Varieties of Common Ownership...
 Three forms of concurrent tenancies:
o Tenancy in Common
 Default form of concurrent ownership; can be created __explicitly____ or
by __presumption_____.
 Each cotenant has right to possess the _entire__ property regardless of
fractional interest.
 Does not require __unity___ of __interest___.
 One may __unilaterally______ file to terminate co-tenancy and divide
the property and its proceeds.
 Right to ___transfer___ and encumber.
 No right of __survivorship____.
o Joint Tenancies
 Requires the four unities:
 time_____
 title____
 interest____
 possession_______
 Right of survivorship.
 Can be severed through conveyance or mutual agreement.
 Free to encumber unilaterally or file for partition.
 Most common example: __joint bank account_______.
o Tenancy by the Entirety
 Only available to a_legally married couples_______.
 Only ended by __divorce____ or ___death_____.
 Right of survivorship.
 In most states, one cannot encumber without _spouse’s_consent _______.
Olivas v. Olivas (Page 673 – 1989)
 Facts: Cheating husband moves in with his girlfriend; wants ex-wife to pay him rent for
time spent in the house after the divorce through the final judgment.
o Before divorce: community property.
o After divorce: _tenancy in common______.
 Husband argued that he was subject to constructive ouster (i.e. ouster by law) and was
therefore entitled to rent. In determining a constructive ouster, the court looked to
whether there was evidence of:
o ___Hostility_____ (note: it didn’t need to be physical – “emotions of a divorce”
make it impossible to share property); and
o Whether there was evidence of _________________________.
 Did the court have any love for Mr. Olivas?
o __No____ because he chose to move out. Thus, there was no ouster.

Carr v. Deking (Page 678 – 1988)
o Facts: dispute between a son, his father, and a tenant farmer. Father and son were
tenants in common. After father’s death, the farmer was forced to accept that his
lease was subject to the son’s equal right of __possession_____.
 Son was not entitled to eject the farmer because one tenant in common
(i.e. the father) can lease his interest in the property without the consent of
the other tenants in common.
o On remand, the court was to determine whether the son wanted to _partition___
or ___share___ the property.

Tenhet v. Boswell (Page 679 – 1976)
o Facts: joint tenant leased his interest in land to a third party. Then he died, OMG!
o Did the lease sever the joint tenancy?
 No__, because there was no express intent to end the joint tenancy.
o Did the death extinguish the lease?
 Yes__, because leases can’t last longer than the lifetime of a joint tenant.

Sawada v. Endo (Page 684 – 1977) *****
o Facts: Mr. & Mrs. Endo conveyed the family home, which owned as a tenancy by
the ___entirety______, to their sons after Mr. Endo got into an accident without
insurance.
o Was this conveyance fraudulent?
 Hawaii does not allow creditors of a spouse to subject property held as a
tenancy by the entirety without the other spouse’s consent because
couple’s interest in the property is _indivisible___.
 Accordingly, the conveyance was not fraudulent.
o Talk about other jurisdictions’ approaches if see on final

Ark Land Co. v. Harper (Page 691 – 2004)
o Facts: Dispute involving 75 acres of land in West Virginia. Prior to 2001,
property was owned exclusively by the Caudill family. In 2001, Ark Land
acquired 67.5% of an undivided interest by purchasing interests from several
Caudill family members. Ark Land attempted to purchase remainder for purpose
of coal extraction via surface mining, but the remaining family members refused
to sell.
o Issue: Whether evidence supported circuit court’s conclusion that the land could
not be conveniently partitioned _in kind___, thus warranting partition _by
sale__.
o General Rule: _partition in kind___ means the division of the land held in cotenancy into cotenants’ respective fractional share. If land cannot be fairly
divided, the estate may be _sold__ and proceeds _divided__.
o Holding: _Economic_____ value is not the exclusive test for determining whether
to partition in kind or by sale. Sale is extreme if it’s not what all owners want, and
the additional cost to Ark Land that will result simply does not impose the type of
injurious inconvenience that would justify stripping the Caudill heirs of the
_emotional_______ interest they have in preserving their ancestral family home.
o Order: Reverse and remanded to enter order to partition _in kind___.

Conflicts About Rent...
Conceptual Overview
o When a landlord asserts a claim against his tenant based on tenant’s failure to pay
rent or on a claimed breach of their lease agreement, the landlord can:
 Seek _payment___ of the back rent owed by the tenant; or
 Take possession of the premises through ___eviction____.
o Tenants can also make claims for:
 ___damages______ resulting from the landlord’s breach of the lease;
 ___Rent abatement______ owed for the period during the breach of the
lease; or
 ___injunctive_____ relief.
o Leaseholds generally survive the transfer of a landlord’s interest.
 So, if your landlord _dies__ or _sells__ your residence, the person who
acquires your landlord’s interest is not automatically able to terminate the
lease.
o Tenant can usually transfer possessory interest through a _sublease___.
o Majority of jurisdictions require that a landlord has duty to deliver possession if a
prior tenant wrongfully continues to live on premises his lease expires.
 Thus, the landlord has an obligation to remove the prior tenant by
evicting__ him or _convincing____ him to leave.
o Lease types
 ___term of years______: e.g., six-month lease.
 ___Periodic tenancy________: e.g., month-to-month.
 ____Tenancy at will_______: similar to periodic but can be ended
without notice.
 ___Tenancy at sufferance_________: where the tenant is in possession
who wrongfully stays after lease ends.
o The landlord has a duty to ____mitigate damages__________ when the tenant
surrenders. The landlord can:
 Accept tenant’s surrender;
 Refuse surrender & re-let on tenant’s account;
 Do nothing & wait to sue; or
 Incorporate an acceleration clause in the contract.
Sommer v. Kridel (Page 856 – 1977)
 Facts: Kridel rented apartment from Sommer in a lease the term of which continued from
May 1972 until April 20, 1974. Kridel was supposed to begin occupancy in May but his
circumstances changed and he asked to be released from the lease and offered to forfeit
the two months’ rent already paid. Landlord didn’t rent it to a new tenant until September
1, 1974. Sommer sued Kridel, demanding the total amount due for the full two-year term
of the lease.
 What was the _old_ rule?

o Landlord did not have a duty to mitigate damages caused by a defaulting tenant.
What is the __new__ rule?
o Based on fairness, equality, and contract law, the landlord has a duty to mitigate
damages.
Tenant’s Right to a Habitable Premises...
Conceptual Overview
 __Warranty of Habitability______: obligates landlord to provide premises that are safe
and suitable for habitation. If there’s a breach, the tenant has several options for
remedies:
o Rescission (i.e., the right to move out before the end of the lease term). § Rent
withholding.
o Rent abatement.
o Repair & deduct.
o Injunctive relief / specific performance.
o Administrative remedies (e.g., local housing inspector can get involved).
o Criminal penalties.
o Compensatory damages.
Minjak Co. v. Randolph (Page 865 – 1988) ***RULE FOR CONSTRUCTIVE EVICTION
 Facts: Jazz musician’s loft disrupted by sand, water, and a shitty landlord. Unable to use
2/3 of the loft, and therefore the tenant’s wanted an ___abatement_____ of 2/3 the rent.
o Court gave Randolph what he wanted plus punitive damages.
 __Constructive eviction ______was used as the doctrinal defense.
o If a landlord substantially interferes with tenant’s quiet enjoyment with the
property, it is treated as though they have actually been evicted.
3000 B.C. v. Bowman Properties Ltd. (Page 868 – 2009)
 Facts: a spa needed to move out after the landlord leased the above unit to a hair cuttery,
which that created excessive noise in the spa.
 Again, constructive eviction was the doctrinal defense because the landlord breached the
implied covenant of ___quiet enjoyment______.
Javins v. First National Realty Corp. (Page 874 – 1970)
 Issue: whether housing code violations that arise during a lease term affect the tenant’s
obligation to pay rent? Before this case, __no__. After this case, _yes___.
 Important case that enunciated the shift from old view of leaseholds to the view that a
lease is a _contractual__ arrangement for shelter that is a package of goods and services.
 As you’ll learn in Contracts, the implied warranty of merchantability is a big thing under
the Universal Commercial Code.
o After Javins, we also have an implied warranty of _habitability____.
Hillview Associates v. Bloomquist (Page 891 – 1989)
 Facts: trailer park brawl begets evictions.
 In the old days, evictions/non-renewals did not require a reason.
o Now, laws prohibit __retaliatory eviction_____.
o There is a six-month presumption of retaliation; during this window, the burden is
on the landlord to disprove retaliation.
Imperial Colliery Co. v. Fout (Page 895 – 1988)
 Facts: π’s housing was linked to his job in a somewhat roundabout way. Following a
labor dispute, π was evicted and claimed that it was retaliatory eviction.
 Holding: Not retaliatory eviction because “the retaliatory eviction defense must relate to
activities of the tenant __incidental_______ to the ___tenancy_____.”
No person shall be held to answer for a capital, or otherwise
infamous crime,
unless on a presentment or indictment of a Grand Jury,
except in cases arising in the land or naval forces, or in the
Militia,
when in actual service in time of War or public danger;
nor shall any person be subject for the same offence
to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a witness
against himself,
nor be deprived of life, liberty, or property, without due process
of law;
nor shall private property be taken for public use, without just
compensation.
U.S. Const. amend. V.
PROPERTY DEAN’S FELLOW SESSION WEEK TWELVE
Life Lessons with Lindsay...
 Don’t quit now.
 Outlines! Brooke. bmm173@law.miami.edu
Regulatory Takings...
Conceptual Overview
 Unlike private persons who must find a willing seller, the government has the power to
force unwilling persons to sell property to it.
o This power is called _eminent domain__, and it is so well established that the
framers of the constitution assumed it to be an inherent right of government.
o Thus, the Fifth Amendment’s ___takings clause____ simply states that private
property shall not be taken for public use without just compensation.
o This clause applies to the states through the Fourteenth Amendment, and
mandates that reasonable compensation be paid for the property taken by the
government through a process known as __condemnation_____.
o Condemnation can take place in the conventional sense (initiated by the
government), or it can arise through __inverse condemnation______ when a
government occupies or invades private property without initiating condemnation.
 __Regulatory takings_____: occur when government’s regulation of private property
“goes too far” such that compensation to the private owner is due. Usually analyzed
through an Ad Hoc Test.
o Categorical Takings (also known as _per se_ takings)
 Physical invasion or ___occupation____ by the authority of the
government.
 See Loretto; Causby; Kaiser Aetna; but see Heart of Atlanta Motel; Yee.
o __Total taking____ that render the property valueless.
 Two exceptions: nuisance law or background principles of the state’s
common property laws would duplicate the result.
 ^^^ above can be raised as a defense … i.e. not taking because it is
a way of handling a common law nuisance
 Use for counter analysis – what gov’t might argue
 Basically, the government can raise a nuisance defense where it
would essentially argue that it would not be a taking because it
would be justified as a replacement for a common law way of
dealing with nuisance
 See Lucas.
o ___Conceptual severance___: applying an ad hoc test requires knowing what the
property is that is claimed to have been taken; thus, the court must know what the
denominator is in a fraction that represents the property taken divided into the
whole parcel owned by π.
 The Surface as the __denominator___



Property can be conceptually severed based upon how much of its
surface is affected; analysis differs dramatically given whether
there will be a physical occupation of the land or a regulation
imposed.
 “Whole Parcel” Rule – see Palazzolo.
 Air, Surface, and Mineral Rights as _separate interests_______
 Once severed, the surface, mineral, and air rights can be
considered separate properties for takings purposes (very rare).
Note: surface rights are critical.
o Regarding air rights, compare Causby with Penn Central.
 Temporal Severance
 Property can be conceptually severed on a timeline.
 _Permanent _____takings (e.g., for the use of a highway) will
often require compensation. Additionally, the government can be
liable for damages during which an unconstitutional temporary
taking is in effect.
o Necessary administrative delays and not-unreasonablylong emergency moratoria are not temporary takings. See
Tahoe-Sierra. (**27 years = ave duration of ownership)
___Judicial takings_______: the takings clause does not address which branch of
government may take property, only that private property may not be taken without just
compensation.
o See Stop the Beach.
__Exactions____: conditions imposed by a municipality that a landowner/developer
must meet before the municipality will issue the landowner/developer a subdivision,
building or occupancy permit.
o An exaction may be a dedication of land for public purposes, a restriction on the
development of land, or a required improvement.
o See Nollan; Dolan; Koontz.
Pennsylvania Coal Company v. Mahon (Page 1184 – 1922)
 Facts: In 1878, PA Coal conveyed the surface of a plot of land it owned to Mahon. In this
transfer, PA Coal retained the right to mine underneath the property, and an explicit
provision in the deed stated that Mahon was taking the land subject to any risks
associated with mining beneath the land. In 1921, PA enacted the Kohler Act; preventing
coal mining that could possibly affect the integrity of any surface land. Mahon then sued
PA Coal, arguing that the new state law barred PA Coal from mining.
 Rule: while the use of property may be regulated, ___overregulation_______ will be
considered a taking.
o “too far” = taking
 Notes...
o Law can be justified by imposing an “average reciprocity of advantage” on all.
o “Government could hardly go on if to some extent values incident to property
could not be diminished without paying for every such change in the general
law.” – Holmes
o “The general rule at least is, that while property may be regulated to a certain
extent, if the regulation goes too far it will be recognized as a taking.”
 Justice Holmes (majority).
o “Coal in place is land, and the right of an owner to use his land is not absolute.”
 Justice Brandeis (dissent).
IF NO PER SE EXCEPTION THEN NEED TO USE:
Penn Central Transportation Co. v. New York City (Page 1192 – 1978)
 Facts: NYC’s Landmark Preservation Law effectively prohibited Penn Central from
building a fifty-story office building on top of their historic terminal because the
preservation commission thought it was an aesthetic joke.
 Rule: in determining whether a state regulation constitutes a taking under the Fifth and
Fourteenth Amendments, courts should consider (1) the economic impact of the
regulation on the owner, (2) the extent to which the regulation has interfered with the
owner’s reasonable investment-backed expectations, and (3) the character of the
government action involved in the regulation.
 ____Ad hoc test________:
o The economic impact of the regulation.
 Use and value are used interchangeably; it examines the owner’s
economic loss.
 Is the owner left with an unreasonable number of uses for the property?
 Must determine the __denominator____, and the diminution in value
must be great.
o The extent to which the regulation has interfered with reasonable
investment-backed expectations.
 Expectations depend upon whether (1) π was __aware____ of problem
that produced the regulations, (2) π could reasonably __foresee____ the
enactment of regulations, and (3) π knew that his use was ____highly
regulated_____ to begin with.
 Thus, an π’s expectations not given a lot of weight if he was aware that his
use would pollute a nearby waterway, or that filling in nearby wetlands
would require state and federal permits, or that his use would make him a
player in the highly regulated industry.
o The character of the government’s action.
 Physical invasion or occupations by the government?
 E.g., Loretto.
 Is there an ___average reciprocity advantage_______ provided by the
regulation?
 E.g., pillars of coal in Plymouth Coal Co. v. Pennsylvania.
 Misuse of the regulatory authority of the government?
 E.g., government denies services so as to decrease the value of the
land before providing just compensation.
 Uncertainty in the application of regulations so that an owner is unable to
plan for the use or development of the property?


E.g., repeated, bad faith rejections of development plans that
always come with new demands.
The importance of the government action (i.e., does the regulation prevent
a significant threat to the environment)?
 E.g., a municipal ordinance prohibiting coal mining under a city in
order to prevent subsidence.
PruneYard Shopping Center v. Robins (Page 1209 – 1980)
 Facts: students ejected for distributing protest flyers in a California shopping center.
Presents the question of whether the right to exclude others from property so essential to
the economic value of a shopping center’s property that a state-authorized limitation of it
amounts to a taking?
 Holding: _No taking__. A state’s enforcement of individuals’ freedom of speech on
private property open to the public does not amount to a taking of the owner’s property.
o Government has an interest in protecting free speech rights.
o The owner’s right to exclude was not entirely taken because he could enforce
_time___, __place___, and ___manner____ restrictions.
Loretto v. Teleprompter Manhattan CATV Corp. (Page 1212 – 1982)
 Facts: Loretto purchased an apartment building in NYC. Teleprompter Manhattan CATV
Corp. installed cable facilities that occupied portions of Loretto’s roof and the side of her
building. Prior to 1973, Teleprompter routinely obtained permission from building
landlords to install its cable facilities. In 1973, New York passed a law which prohibited
interference by a landlord in the installation of cable and the acceptance of payment from
a cable company.
 Rule: a permanent ___physical occupation_______ authorized by government is a
taking requiring the payment of just compensation without regard to the public interests
that it may serve or the fact that it only has a minimal economic impact on the property
owner.
 Notes…
o Go-to per se physical occupation case.
United States v. Causby (Page 1218 – 1946 – Note Case) – physical occupation e.g.
 Facts: military aircraft flew so low over π’s house so as to render their residence
uninhabitable and their chicken farm business inoperable because the noise caused the
chickens to _die__ of __fright____.
 Rule: property is taken within the meaning of the Fifth Amendment by a direct and
immediate interference with the enjoyment and use of private land that renders it
uninhabitable.
 Notes....
o If a landowner is to have “full enjoyment” of his land, “he must have exclusive
control of the immediate reaches of the enveloping atmosphere.”
o An additional physical occupation case for your reference.
Kaiser Aetna v. United States (Page 1219 – 1979 – Note Case)
 Facts: the owner and lessee of a private lagoon invested substantial amounts of money in
developing the lagoon so as to connect it with navigable waters and create a private
marina. The federal government sought to force Kaiser Aetna to open the marina up to
the public under the navigational servitude doctrine.
 Notes...
o An example of a physical invasion case as well as a __stick_____ removal case.
o Forcing the marina to be open to the public under a doctrine that could not have
been applicable but for the π’s investment would cause the loss of “one of the
most essential sticks in the bundle of rights that are commonly characterized as
property—the right to exclude others.”
Heart of Atlanta Motel v. United States (1219 – 1979 – Note Case)
 Facts: In defiance of the Civil Rights Act of 1964, a motel sought to exclude customers
on the basis of _race__, and presumably claimed a taking from the bundle of sticks.
o The Supreme Court, with no analysis whatsoever, held that it did not “find any
merit in the claim that the Act is a taking without just compensation.”
Yee v. City of Escondido (Page 1220 – 1992 – Note Case)
 Facts: California enacted the Mobile home Residency Law (MRL), which limited trailerpark owners’ ability to evict their tenants. If the tenant sold the mobile home, the MRL
prohibited the landlord from requiring the mobile home, upon its sale, to be removed
from his land.
o The landlord also could not charge a fee for the sale nor refuse to lease to a
mobile-home buyer who is able to pay rent for the park space. However, the MRL
allowed park owners to evict their tenants if, among other things, the owners
wanted to change the use of the land.
o In 1988, the City of Escondido enacted rent control laws. The council would
approve any increase that was deemed fair and reasonable.
 Rule: ___rent controls_______ do not constitute a physical taking.
Horne v. Department of Agriculture (Page 1222 – 2013 – Note Case)
 Facts: raisin case that required growers to give a reserve portion of their harvest to the
government so as to help stabilize raisin prices; any profits returned from the disposal of
the raisins would go to the growers.
 Rule: the takings clause does not prohibit the taking of personal property but having to
render _specific____ personal property to the government is a taking.
Lucas v. South Carolina Coastal Commission (Page 1223 – 1992)
 Facts: In 1986, Lucas bought two beach front parcels of land. In 1988, a regulation
prohibited development of habitable structures seaward from an erosion line (this
included all of Lucas’ land). Thus, Lucas’ land was rendered essentially valueless.
 Rule: a state regulation that completely deprives private property of all its ____economic
value_________ constitutes a taking under the Fifth and Fourteenth Amendments that
requires the payment of just compensation to the property owner, unless the economic

activity prevented by the regulation is not part of the owner’s initial title or property
rights when acquiring the property.
Notes...
o Total takings case with two exceptions: nuisance law and background common
law can function as government defenses. **nuisance = public nuisance
o Justice Stevens’ dissent believes that Justice Scalia’s total takings rule is wholly
arbitrary because 95% of diminished value recovers nothing, but 100% receives
just compensation.
Palazzolo v. Rhode Island (Page 1237 – 2001)
 Facts: Palazzolo owned a parcel of ocean front property but was repeatedly denied
permission to develop the wetland portion of the property; instead he was only granted
permission to develop 18 acres of upland property, while __most___ of his property was
not allowed to be developed.
 Rule: a property owner obtaining property after a regulation on the property is passed
may still challenge that regulation as a taking requiring payment of just compensation
under the Fifth and Fourteenth Amendments.
 Notes...
o The majority opinion decided three important things:
 That the issue was ripe for decision because it was clear that Palazzolo
wasn’t getting a permit;
 That the cases indicate that the __whole parcel_____ controls; and
 That regulations enacted before title is acquired do not immunize the state
from takings challenges.
 *** case comparison if we see something that involves reg enacted
before ownership
Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (Page 1241 – 2002)
 Facts: 36-month moratoria on building around Lake Tahoe was put in place in order to
review how to best preserve the lake’s clarity (an injunction extended this to six years).
 Rule: a ___temporary______ moratorium on development imposed for the purpose of
developing a comprehensive land-use plan __does not_____ constitute a per se taking of
property for public use requiring the payment of just compensation under the Fifth
Amendment.
 Notes...
o Contrary to First English (which allows for property owners to sue the
government for compensation after temporary takings), the court held that a
reasonable moratorium on development was not a taking because, for the Lucas
rule to apply, a 100% deprivation in value must occur.
o Because ownership extends over _time__ and __space___, a temporary
moratorium, by definition, does not result in a complete diminution of value.
o Majority opinion reasserts the opinion of Mahon (“government could hardly go
on...”).
Babbitt v. Youpee (Page 1250 – 1997)


Facts: congress passed a law (and later a revised version of that law) that prohibited the
transfer of land to devisees who would hold a very fractional interest in the land.
Rule: if the extraordinary character of a regulation is such that it denies a landowner
certain fundamental property rights such as the right to __devise____ his land, the
regulation amounts to a taking of property without just compensation.
o Here again, the law took an entire stick from the bundle – the right to alienate and
right to devise property.
Andrus v. Allard (Page 1255 – 1979 – Note Case)
 Facts: laws prohibited the sale of ___eagle feathers_________ in order to protect
endangered species; this ban included the sale of feathers that were acquired before the
laws went into effect. Andrus sold Native American artifacts, some of which included
eagle feathers.
 Rule: a prohibition on the sale of lawfully acquired property is not a taking for Fifth
Amendment purposes.
o In contrast to Babbitt, the court held that the denial of an entire stick (at least
where the owner possesses an entire bundle of property rights) is not a taking
because the aggregate must be viewed in its entirety.
 Takings affecting real land is going to be much more severe than
regulation affecting personal property
 Value of right being taken away compared to value of everything retained
2019: Murr x Lucas – hypothetical where regulation affected whole property
The Supreme Court has found that even right-to-exclude occurs on a gradient—albeit a short
one. In Pruneyard SCOTUS said that retaining right to exclude at certain times, in certain places,
and of certain manners was enough to fail to find taking.
Gradient is even shorter when it comes to right to bequeath – elective share rule is not a taking,
but that is about as far as the tolerance goes.
Can’t really sue the gov’t for nuisance
And we have explained that “the act of taking” is the “event which gives rise to the claim for
compensation.” United States v. Dow, 357 U. S. 17, 22 (1958).
 Stop the Beach re Judicial Takings: Thus, these four Justices said that, in future
cases, a state court decision declaring that an “established” property right “no
longer exists” may constitute a taking.
-
Attack on stare decisis rather than taking
PROPERTY DEAN’S FELLOW WEEK 13
Life Lessons with Lindsay…
 Finals studying schedule. Plan out days that will be dedicated to each class—
48hours only upcoming test
Takings Continued…
Murr v. Wisconsin (Denominator test)
Facts: Petitioners own two adjacent lots (E and F) along the lower portion of the river in
Wisconsin. The area where the property is located is prevented by state and local regulations
from the use or sale of adjacent lots under common ownership as separate building sites unless
they have at least one acre of land suitable for development.
-Petitioners wanted to sell Lot E, but the County Board of Adjustment appealed, and state courts
affirmed. Petitioners filed suit, alleging that the regulations worked a regulatory taking that
deprived them all of, or practically all use of Lot E.
Issue: Whether two legally distinct but commonly owned contiguous parcels be combined for
takings analysis purposes?
Holding: NO taking. Merger provision in local minimum size lot regulation applicable to
property along river was legitimate exercise of government power. The parcels were required to
be evaluated as a single parcel in determining whether the regulations effected a regulatory
taking; and the regulations did not affect a compensable regulatory taking.
 Petitioners haven’t suffered a taking under Lucas because they have not been deprived of
all economically beneficial uses of their property. Nor have they suffered a taking under
the Penn Central test. The valid merger of the lots under state law informs the reasonable
expectation that the lots will be treated as a single property. The lots are contiguous. Lot
E brings value to Lot F.
*Denominator test
1. _Treatment of property__ under state and local law (ex: aggregating taxes)
2. _Physical characteristics_ of the land (ex: proximity, surveying)
3. _Prospective value_ of regulated property (if one aggregated parcel raises the value
of the other, it weighs against a finding of a taking.)
**Look at how it was regulated for other things in the past; i.e. combining for tax purposes, but
separating for taking = not good, not going to help taking claim
Judicial Takings
Stop the Beach Renourishment v. Florida Department of Environmental Protection
Issue: Whether a state’s decision to restore eroded beach by filling in submerged land is
considered an unconstitutional taking of littoral property owners’ rights to future accretions and
to contact with the water?
Holding: NO taking. The Florida supreme court did not engage in an unconstitutional taking of
littoral property owner’s rights to future accretions, and to contact with the water, by upholding
the state’s decision to restore eroded beach by filling in submerged land.
 Plaintiff could not show that before the Florida supreme court’s decision, littoral-property
owners had rights to future accretions and to contact with the water superior to the state’s
right to fill in its submerged land.
*Brings up the issue of _judicial takings__.
*Only a taking if rights are taken that were previously held. In this case, the plaintiff never had
the right to begin with, so it is not a taking.
Exactions Cases
Nollan v. California Coastal Commission
Facts: Plaintiffs bought and sought to demolish a beach home and replace it with a larger, more
modern home. The property was located on the Pacific coast on a strip of land between two
public beaches. The commission conditioned the grant of a building permit on the plaintiffs
granting the state an easement for the public to walk on their property to go from one park to the
other.
Holding: The lack of a nexus between the condition and the original purpose for requiring the
building restriction alters that purpose and causes the condition to constitute a taking. If the
commission wants an easement across Nollan’s property, it can pay for it.
*Legal standard: _essential_ __nexus__ between regulation and state interest; the burden must
on its face seem like it could serve its purpose.
Dolan v. City of Tigard
Facts: Plaintiff wanted to redevelop his business. City gave a conditional permit which required
the plaintiff to dedicate a portion of the property to the city to be used as “green space” and a
pedestrian/bicycle pathway.
Holding: The city’s dedication requirements constitute an uncompensated taking of property.
 Preventing flooding along the creek and reducing traffic congestion in the district are
legitimate public purposes; and a nexus exists between the first purpose and limiting
development within the creek’s floodplain and between the second purpose and providing
an alternate means of transportation.
 In determining whether the city’s findings are constitutionally sufficient to justify the
conditions placed on the permit- the necessary condition required by the fifth amendment
is “rough proportionality.”
o The city must make some sort of determination that the required dedication is
related both in nature and extent to the proposed development’s impact. This is
essentially the “reasonable relationship” test adopted by the majority of the state
courts.
 The city’s findings do not show the required reasonable relationship between the
floodplain easement and the Dolan’s proposed building. The city never stated why a
greenway is required in the interest of flood control.
*Even with an essential nexus, there must be roughly proportional____ between the interest
and the burden; the impact of the regulation or exaction must practically handle the problem it is
meant to mitigate or solve.
Koontz v. St. John’s River Water Management District p.1265
Facts: Koontz applied to the St. Johns River Water Management District for a permit to develop
3.7 acres of wetlands under the District's jurisdiction. He offered to mitigate the loss of wetlands
by conveying to the District a conservation easement over 11 acres of adjacent land. The District
declined Koontz's mitigation offer, instead proposing that Koontz either reduce the size of his
development to one acre or pay for improvements to unrelated property owned by the District
several miles away.
Holding: Applying the Nollan and Dolan tests, the Court determined that the water management
district cannot condition approval based on giving up property without compensation.
 Offsite mitigation: your negative impact can be mitigated by contributing to some other
project; paying for your variance.
*__Monetary exactions__ are subject to the Nollan/Dolan tests. (Taxes are not takings.)
Eminent Domain & Public Use
Hawaii Housing Authority v. Midkiff
Facts: The Hawaii legislature enacted the Land Reform Act of 1967 which created a
condemnation scheme where title in real property is taken from lessors and transferred to lessees
in order to reduce the concentration of land ownership.
 Act authorizes HHA to hold a public hearing to determine whether the state’s acquisition
of the tract will “effectuate the public purposes” of the Act. If HHA determines that these
public purposes will be served, it is authorized to designate lots in the tract for
acquisition.
 HHA held a public hearing on plaintiff’s land and determined that acquisition of the land
will meet its purposes. Plaintiff filed suit.
Holding: The Act is constitutional. The land did not have to be put into public use in order to use
eminent domain. It is the taking’s purpose and not the mechanics that are important.
*A taking with a not-irrational _public purpose__, which serves the public abstractly, but
perhaps not each and every constituent (the outdated “public use” requirement), satisfies the
Public Use Clause.
-If there is no public use, the state cannot take your property.
-To win a takings challenge, you must say a public purpose is “inconceivable.”
Kelo v. City of New London p.1150
Facts: The City of New London approved a development plan to revitalize its downtown and
waterfront areas. The development agent purchased property from willing sellers and utilized
eminent domain to acquire additional properties needed in exchange for just compensation. The
city believed this would stimulate the local economy by creating jobs and tax revenue. The
plaintiffs were resisting homeowners who alleged that their property was not blighted and was
only condemned because it was in the development area and argued the taking violated the
Public Use Clause.
Holding: “Public use” is really “public purpose.” Economic development has always been said
to be furthering public purpose. Success of the plan has nothing to do with constitutionality.
*_Economic development____ is a legitimate public purpose. (Public use exception also applies
to takings for business purposes.)
Initial Acquisition: Conquest and Government Distribution of Lands
“Conquest gives title which the courts of the conqueror cannot deny”
Johnson v. M’Intosh p.88


Issue: Whether the Indians had absolute title in the land they occupied.
o For Indians to transfer property, they needed to have “absolute and complete title”
to it.
o But the United States had, from the beginning, asserted its own absolute and
complete title to the land occupied by Indians by right of conquest, thereby
assuming “the exclusive right of extinguishing the title which occupancy gave to
them.”
The court declined to challenge the validity of this title-by-conquest.
o “It has never been doubted that the US had a clear title to all land within its
boundaries subject only to the Indian right of occupancy, and that the exclusive
power to diminish that right was vested in the government. The United States
holds and asserts the title by which it was acquired; that discovery gave the
exclusive right to extinguish an Indian title of occupancy.”
80% of time on issue spotter question
-
No future/estates or RAP
How the Indians Lost Their Land
- About the book and compare and contrast with Taft + Bundle of Sticks
e.g. for Murr – two or more pieces of land
lucas situation-- started with Murr, analyzed per se, then exaction
- Then part b was AP or easement
met per se and was a taking