I.
Introduction to Property
a. Definition of property
i. William Blackstone: There is nothing which so generally strikes the imagination, and
engages the affections of mankind, as the right of property; or that sole and despotic
dominion which one man claims and exercises over the external things of the world, in
total exclusion of the right of any other individual in the universe
b. Better definition of property
i. Recognized that property concerns relations among people regarding control over valued
resources
ii. Property rights are relative
c. The most important sticks
i. The privilege to use property
ii. The right to exclude others
iii. The power to transfer title to property AND
iv. Immunity from having property damaged or taken without their consent
d. Tensions within property
i. Right to exclude v. right to access
ii. Privilege to use v. security from harm
iii. Power to transfer v. powers of ownership
iv. Immunity from loss v. power to acquire
e. Theories of property
i. Traditional American Indian theories
1. Spiritual connection to the land
ii. Positivism and legal realism
1. What a person can do legally
2. Morals do not drive law, but there is a rationale
iii. Justice and fairness
iv. Utilitarianism, social welfare, and efficiency
1. Most benefit for the most people you can
v. Social relations
vi. Human flourishing
vii. Libertarian and progressive approaches
Hohfeldian terms: If someone has a right, it exists with respect to someone else who has a duty. If someone has a
privilege, it exists with respect to someone else who has no-right
- Useful way of thinking about property rights and rules.
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II.
Conflicts Between the right to Exclude and the right of Access
A. Trespass (3-23)
a. Common law trespass: an unprivileged, intentional intrusion on the person or
property of another
b. What is trespass
i. Unprivileged intentional entry on property possessed by another.
ii. Infringement on the right of possession
iii. Intrusion occurs upon physical entry by person, agent (employee), or an
object such as a building that extends over the boundary onto a neighbor’s
property.
iv. Can occur above or below the surface
c. Privileged entry
i. The entry is done with the consent of the owner
ii. The entry is justified by the necessity to prevent a more serious harm to
persons or property
iii. The entry is otherwise encouraged by public policy
d. Public policy Limits on the rights to exclude
i. Broad, but not absolute
ii. Rules limit the extent to who you can limit.
iii. Rights of access are different based on law, including common-law, federal,
and state public accommodations statutes and labor relations, freedom of
speech.
e. Privileged defenses
i. Consent
ii. Necessity elements
1. Clear and imminent danger
2. A reasonable expectation that the action will be effective in abating
the danger
3. No legal alternative will be effective in abating the danger
4. The legislature has not acted to preclude the defense through a
clear and deliberate choice
iii. Public policy
iv. Firefighter/police officer
f. Case example: State v. Shack
i. State common law requires that farmworkers be allowed to receive service
providers
ii. This conclusion is supported by the federal legislature and state
governmental reports
iii. Right to exclude is not absolute
iv. Shake is an illustration of the court’s use of public policy in rendering a
decision
g. Commonwealth v. Magadini
i. To be entitled to a jury instruction on the defense of necessity, defendant
must submit some evidence on each of the four elements
ii. He satisfied this burden for all of the alleged offenses at issue except for
one.
h. Disnick v. ABC
i. There was no invasion of interests in ownership or possession of the
land
ii. Offices were open to the public
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iii. The activities of the offices were not disrupted, and there was no invasion
of anyone’s private space.
i. Trespass to chattels
i. Intentional interference with possession
B. Common Law Right of Access to property open to public (23-31)
a. Common Law Duty (Majority View)
i. Private property that is open to the public
1. Innkeepers and common carriers (bus and trains)
ii. Case example: Uston (minority rule)
1. When property owners open their property to the general public in
pursuit of their property interests, they have no right to exclude
people unreasonably
2. Property owners may exclude people if reasonable (eg. Disruption
or security concern
3. Whether a decision to exclude is reasonable must be determined
from the facts of each case.
iii. Majority
1. Can exclude because not falling under these categories
iv. Minority
1. Need a reasonable basis
b. Rigid rules v. Standards
i. Property has rigid rules but flexible standards
C. Trespass Remedies (31-40)
a. Sometimes grant injunctions for trespasses that, while not strictly continuous, are so
repetitions that it would put an unfair burden on the landowner to require her to bring
repeated lawsuits.
b. Case example: Glavin
i. Restoration damages for tree cutting were warranted under the
circumstances and were not precluded by statute
ii. Trebling of damages under the statute doesn’t render damages unreasonable
iii. Property owners could be held liable for independent contract’s action
iv. Lockean idea: build more buildings for the use of it.
v. Test of reasonableness
c. Jacque v. Steenburg homes (courts could come out differently)
i. Punitive damages may be appropriate when only nominal damages have
been awarded.
ii. In this case, punitive damages are necessary to deter unlawful conduct.
1. Without them, the defendants may view trespass as profitable
means to deliver mobile homes.
iii. Rights to exclude are a very important right to owning property.
1. Maybe less violence with rights to exclude.
d. The relational nature of property rights
i. If one person has a right everyone else has a correlative duty to respect that
right.
ii. Property rights are not simply entitlements vis-a-bis things, but jural
relations among people.
1. If A has a duty toward B, then B has a right against A.
D. Free speech limits on the right to exclude (69-75)
a. Government is strictly limited in excluding speech from public places
b. Lloyd v. Tanner
i. There has been no exercise or assumption of municipal powers or functions
here like we say in Marsh
1. Marsh: would be able to enter mall
ii. Logan Valley Plaza’s holding was based on its factual situation, which is
different that that at issue here
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iii. The essentially private character of a store (or mall) and abutting property
doesn’t change when the public is invited to access it.
iv. Dissent
1. Class based argument
2. Sidewalks = public
3. Internal hallways = public
c. Speech v. commerce
d. NJ and CA: follow dissent
i. Mall owner allowing distribution
e. First amendment
i. Applies to state and federal action
ii. Applies to sidewalks in a company-owned town under MARSH
iii. Does not apply in a privately owned shopping center
iv. States may provide broader rights
E. Limitation on the Right to Exclude from Beaches and Shorelines: The Public Trust and
Related Doctrines (76-85)
a. Origin of the public trust doctrine
i. IL Central RR Co. v. IL
ii. States may alienate as long as no impairment of public interest
iii. Federal government can regulate to control navigational interests
b. Public trust doctrine acknowledges that the ownership, dominion, and sovereignty
over the land flowed by tidal waters, which extended to the mean high-water mark, is
vested in the State in trust for the people
c. The public’s right to use the tidal lands and water encompasses navigation, fishing,
and recreational uses, including bathing, swimming, and other shore activities.
d. Matthews v. Bay Head Improvement Ass’n
i. Public trust obligations apply to quasi-public association
ii. Uses allowed need to be determined based on evolving needs of society
iii. Area subject to public trust depends on the circumstances
iv. 4 Factor Test used (K2K) (right to exclude on beaches)
1. Location of the dry sand area in relation to the foreshore
2. Extent and availability of publicly owner upland sand area
3. Nature and extent of public demand
4. Usage of the upland sand area by the owner
e. Related Doctrines (K2K)
i. Dedication
1. Involves a gift of real property from a private owner to the public
at large.
ii. Custom
1. Has happened forever so it’s still going to happen
iii. Prescription
1. Grant public rights of access to tidelands or the dry sand area of
beaches
F. Excludability and the Right to Be-Somewhere: the homeless and Other Vulnerable
population (86-93)
a. Martin v. Boise
i. We hold that the cruel & unusual punishment cl. of the 8th amend.
precludes the enforcement of a stat. prohibiting sleeping outside against
homeless ind’ls w/ no access to alternative shelter.
ii. 8th amend. places substantive limits on what the gov’t may criminalize.
iii. The 8th amend. prohibits the imposition of criminal penalties for sitting,
sleeping or lying outside on public property for homeless ind’ls who cannot
obtain shelter.
b. Additional background on the case
i. Prevelance of camping bans and bans on sleeping outside nationwide
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ii. Connection between criminalization of homelessness and ability to access
subsidized housing
iii. 3 avenues to challenge a law under 8th amendment
1. Punishment gross disparity to the crime
2. Places limits on the government
a. This one is the issue
b. Robinson: narcotics added a crime and that is involuntary;
therefore, state running afoul with the third prong.
c. Powell: public drunkenness: followed the middle ground
i. Homeless cannot go anywhere else to be drunk.
3. Third approach
a. Activities cannot be criminalized
4. Majority
a. Third prong in 8th amendment violation
III.
Methods of Acquiring Property
A. Conquest, “Discovery” of Land, and Transactions with, and Seizures from, Indigenous
Inhabitants (95-112; 1152-1158)
a. Doctrine of Discovery
i. Essentially gave possession to colonizers who “discovered” the land first,
negating Native American ownership of any kind
ii. James v. M’Intosh: quiet title. Johnson was given land by Native
Americans, M’Intosh wanted land through discovery. Legitimized the
doctrine of discovery.
iii. Occupation vs. possession
1. Occupation is less permanent and they can just be removed
b. Sovereignty
i. Property is the product of sovereignty
1. Without authoritative rights to things than really no property
ii. Property in effect delegates sovereign rights to owners
1. Creating control over use of valuable resources, property gives
owners legal control over the other individuals.
c. Sovereignty and Indigenous Land
i. Acquisition from Native Nations
d. Johnson v. M’Intosh
i. Doctrine of discovery adopted
1. Premised on conquest
ii. Tribes land rights defined as “right of occupancy”
1. Rights not entirely disregarded but are to a considerable extent
iii. Tribes had no ability to sell the underlying fee
iv. Justifications in Johnson
1. These are relied on at various points & sometimes Court seems to
contradict itself
2. Practical justification (e.g., whole country was settled on the
premise of the Doctrine; Court of the Conqueror has no choice but
to enforce it; without Doctrine, US would lose land to France,
Spain etc.)
3. Habits & usages of Indians (in other words, allegedly inferior
civilization/use of land; purported lack of ability to mix with or
assimilate Native Americans)
4. Utilitarian (to hold otherwise would leave the country a
wilderness)
5. Cultivators v. Hunters
v. Johnson Property rights descriptions
1. Tribes
a. Indian title, right of occupancy, title of occupancy
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2.
U.S.
a.
Title, ultimate dominion, the power to grant the soil,
absolute title, complete ultimate title, free title, seisin in
fee, the sole right of acquiring the soil
e.
Tee-Hit-Ton Indians v. US
i. Tribe not entitled to 5th amendment compensation for the taking of their
lands
ii. The federal government had not recognized the Tribe’s aboriginal title to
those lands
iii. Government trumps tribal land
iv. This is a big expansion of Johnson
f. US v. Sioux Nation
i. Taking of Sioux lands in violation of prior treaty violated the 5 th
Amendment
ii. Tribal title had been recognized by treaty
iii. Fed. Gov’t was in the role of trustee, but no attempt was made to provide
equivalent value
iv. Test to decide if it was an illegal taking
1. Good faith
2. Whether they received something on equivalent value
a. Court acting as trustee for the tribes
g. Distributive justice
i. Rights of others to exclude
h. Sovereign authority or might makes right
i. Marshall: discovery doctrine is the law because the government in charge
said so, and the government has to have the power to say who can acquire
property rights and how.
1. Help prevent wars
i. Laches an equitable doctrine barring actions by those who unreasonably delay in
suing has resulted in prejudice to their opponents in defending the claim.
i. Have to assert your claim in a certain amount of time
ii. Applied because long sovereignty over the territory and would disrupt it.
B. Gifts and Inheritance (148-180)
a. Elements of a gift
i. Intent to transfer title
1. Has to be present intent
ii. Delivery of the property
1. Manual
a. Putting in the backpack
2. Constructive
a. Given you the means to control something
3. Symbolic
iii. Acceptance by the done
b. Split in the courts regarding this (p. 17 of property book notes)
c. Transfer at death (p. 8 of in class notes)
C. Possession of Different Types of Property (150)
a. Rule of Capture
1. Wild Animals and baseballs (150-160)
a. Pierson v. Post
i. Law of capture applies to wild animals in the U.S.
ii. Mortal wounding or great maiming may be sufficient, but
mere pursuit is not.
iii. Dissent – what about arbitration?
1. What if people do not want to hunt anywhere?
2. Customs
a. Advantage: custom applied
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b.
2.
3.
Disadvantage: people do not really have to
follow customs
iv. Social utility – need people to hunt these foxes, but they won’t
if they know someone else will fain the rights
b. Popov v. Hayashi
i. Where an actor undertakes significant but incomplete steps to
achieve possession of abandoned personal property and
ii. The effort is interrupted by the unlawful acts of others,
iii. The actor has a legally cognizable pre-possessory interest in
the property
iv. Custom
1. Does not play a role here because MLB could have
just taken it back.
v. Constructive possession (abandonment and possession)
1. Doctrine of acquisition by possession does not
require continuous possession, but rather clear
marking of ownership without abandonment of the
property
vi. Equitable division
1. Efficient because equal division
2. Enforces judicial authority
Oil and Gas (161-165)
a. Ellif v. Texon
i. The landowner has absolute title in severalty to the oil and gas
in place beneath his land
ii. This rule is considered in conjunction with the law of capture
iii. The negligent waste and destruction of petitioners’ gas and
distillate gives rise to liability
b. Majority rule
i. Absolute tile in severity theory (aka owner in place)
c. Minority rule
i. Non-ownership theory
d. Correlative rights v. Rule of Capture
Water (handouts)
a. Ground water approaches: jurisdictions getting more involved to ensure
predictable and fair allocation of rights and conservation and protection
of the resource.
1. Most states have rejected the absolute ownership or
free use rule and now follow the below approaches.
2. Action holding of free use or absolute ownership
3. What is ground water
a. Examples would be aquifers and percolating
water.
4. Ground water users had no takings claim against state
for prohibiting withdrawal that would affect prior
surface water users.
ii. American reasonable use rule
1. Owners of land overlying an aquifer may withdraw
water only if they put it to reasonable use on their
overlying tracts.
2. Reasonableness is construed very broadly
3. Off-tract is increasingly allowed
4. Considers both interests of the surface estate owners
and the interests of society as a whole, particularly
given the risk of depletion and the effect of one
owner’s extraction on other owners.
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b.
iii. Restatement 2d of torts
1. A version of the American Reasonable Use Rule
a. Liability imposed for water withdrawals that
unreasonably harm other surface landowners
or exceed such an owner’s reasonable use.
iv. Correlative rights doctrine (followed by a few states)
1. Each owner may withdraw an equitable (fair and just)
proportion.
2. Allowing each surface estate owner to withdraw an
equitable (fair and just) portion of the groundwater,
perhaps in proportion to what percentage of the
aquifer underlies their property
v. Prior Appropriation Doctrine (states on the west)
1. First in time, first in right
2. Effectively allocating rights according to the point in
time when property owners begin withdrawing the
water.
Surface water
i. What it is:
1. Lakes, rivers, steams
ii. Dominant rule:
1. Riparian doctrine – divided rights among
landowners
a. Generally, applies east of the Mississippi
river
b. Allocates water rights to owners of land
bordering a surface water source.
c. Cost benefit analysis
d. In resolving disputes between riparian
landowners, courts apply a multi-factor
reasonable use rule
i. Takes into account the relative
costs and benefits of the various
uses
ii. Harms to competing claimants to
the water
iii. Other factors
e. Some jurisdictions have turned to regulated
riparianism
i. Administrative permit systems
allocating time-limited licenses to
sue specific amount of water for
specified purpose.
2. Prior Appropriation - allocating rights based on
priority of use – similar to gound water
a. Generally, applies west of the Mississippi
River
b. Allocates rights based on the timing that a
given user first put the water to beneficial
use.
i. Incidental waste is okay, but no
wasteful use.
c. Essentially, it prioritizes the rights of those
first to make productive beneficial use of the
water against later users.
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d.
c.
d.
e.
Explicitly declare water to be a public
resource, and administer the priority system
by agencies that consider public interest in
regulating use, providing some protection
for the interests of junior users, and
preserving and efficiently using the water
system.
e. water scarcity promoted this – dry and thirst
land –
f. go back to time of use
3. Trend in both jurisdictions
a. To treat water as a common resource to be
regulated by public agencies to ensure water
is used in the common interest
Waste and abandonment, and stress on water rights
i. Water rights in prior appropriate jurisdictions (limited to
beneficial use)
1. Once established, they are vested.
a. Limitations to this principle
i. Waste
ii. Abandonment (elements)
1. Relinquishment of water
right
2. Includes both
a. Non-use
b. Intent to abandon
2. Courts have applied doctrines of non-use, forfeiture,
and estoppels to terminate water rights acquired by
appropriation.
ii. Water rights do not constitute the ownership of water, it is
simply a right to use the water to apply it to a beneficial use.
Justifying prior appropriation
i. Two conflicting views
1. Regimes such as prior appropriation developed in the
West to privilege the efficient use of water,
particularly through privatization and the protection
of productive use
a. Could lead to monopolies
2. By contrast, appropriation was primarily concerned
with equity and distributive justice.
Case Law: National Audubon Society v. Superior Court
i. Facts
1. Saltwater lake has shrimp
2. Diverted freshwater that took away the beauty of the
lake and brought predators
3. Public v. private
ii. Public Trust Doctrine
1. May be used to limit surface water withdrawals
2. Navigability of an effected water source is required.
iii. Laws When L.A.’s Diversions were approved
1. Water board had the right to reject applications that
would “not best conserve the public interest,” but it
also stated that the highest and best use of water was
domestic use.
iv. Key take away
1. Rule
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a.
4.
the public trust doctrine preserves the
state’s sovereign authority to protect publictrust use, thereby preventing owners from
acquiring a vested right that would allow
them to harm the land.
2. Public trust protects the streams because they are
affecting a navigable lake
3. No vested rights exist to appropriate water in a way
that harms the public trust
4. Public trust must be taken into account in allocating
water, and public trust uses must be protected
whenever feasible
5. LA’s concern must be part of any allocation decision.
Lost, mislaid, and Abandoned property (168 – 181)
a. Finders’ rights
i. Armory v. Delamire
1. Facts
a. Chimney sweeper who found jewelry, took
it to silversmith and did not give it back.
2. Rule
a. A person who finds property acquires an
ownership interest superior to anyone except
the rightful owner. The finder may bring a
claim for trover against anyone interfering
with ownership.
3. Take away
a. Even though not true owner: they still get it.
ii. Who is entitled to keep the found property?
1. Doctrine here is not confined to those who have true
title, but rather those who have a better title
2. Depends on whether the conflict is
a. Finders and rightful owners
i. Will be decided whether the
property was
1. Lost (finder loses)
a. Accidently
misplaced it
2. Mislaid (finder loses)
a. Owner
intentionally left
it somewhere, but
then forgets
where they put it.
3. Abandoned (finder win)
a. When the owner
forms an intent to
relinquish all the
rights in the
property.
ii. Property lost or mislaid will be
abandoned if the owner intents to
gave up any claim of the property.
b. Finders and subsequent possessors
i. Rule: finders will generally prevail
against all subsequent possessors of
property.
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ii. Even a thief can win against a
subsequent thief
c. Conflicts between the finder and the owner
of the premises where the property is found
i. On someone else’s property if
trespassing at time object found
1. Landowner will win
ii. Had permission to be on land when
object found
1. Private home
a. Awarded to
homeowner
2. Open place to public
a. Vary by
jurisdiction
iii. Distinguishing between lost and
mislaid property on land
1. Lost = finder
2. Mislaid = premise own.
a. Criticized due to
looking at
owners’ unknown
intent.
3. Examples
a. Drug bust =
abandonment
b. Plane = mislaid
d. Embedded property
i. Goes to landowner
1. Regardless of lost,
mislaid, or abandoned.
ii. Makes sure there is no agreement
or statute to the contrary.
iii. Exception
1. Treasure trove
a. Gold or silver
buried or
concealed
b. Make sure person
is dead or
unknown.
3. Some states have legislation that get rid of distinction
between lost, mislaid, and abandoned property.
a. Require them to report to police and
generally award the property to the finder if
it is not claimed within a reasonable period
of time.
iii. Charrier v. Bell
1. Facts
a. Archeologist excavated 2 tons of artifacts
from ancient burial ground.
b. Attempted to sell them and buyers got
suspicious
2. Rule
a. Burial or artifacts or objects in graves to do
not constitute abondonment
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b. That is why grave robbing is a crime.
Takeaway
a. The burial objects are not abandoned
b. The tribe is sufficiently related to those who
buried the objects to be entitled to them
c. Plaintiff unjust enrichment claim fails
because
i. There was no enrichment, and,
even if there way, it was not unjust
ii. Additionally, there was no
impoverishment.
4. Unjust enrichment elements
a. Must be an enrichment
b. There must be an impoverishment
c. There must be a connection between the
enrichment and resulting impoverishment
d. There must be an absence of justification or
cause of the enrichment and impoverishment
e. There must be no other remedy at law
available to the plaintiff
Presumption of title: possession may also create a presumption that
the possessor has legal title that will continue unless rebutted
i. Wilcox v. Stroup (superior title)
1. Facts
a. Found documents in grandmothers closet
took them to microfilm and sell them – the
department of archives obtained a temporary
restraining order preventing the sale
2. Rule
a. When there is not enough evidence available
to establish title to an object, there is a
presumption that an individual in possession
of the object is the rightful owner.
3. Takeaways
a. The presumption of ownership in favor of
the possessor establishes the parties’
burdens
b. When the party not in possession can
establish superior title be satisfactory
evidence, the presumption gives way.
ii. Look at public interest arguments
iii. Justified exception
1. Public peace
Possession of stolen property
i. Thief can transfer no title
1. Exception
a. True owner entrusts the property to a
merchant who regularly sells goods of that
title and merchant transfers to bona fide
purchaser
ii. Title received from owner who was under duress is voidable
unless transferred to bona fide purchaser
iii. A thief ordinarily has no right to transfer title to a third party.
1. Example: if someone does not own Radio Music
Hall, but attempts to sell it to you by granting you a
3.
b.
c.
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deed, you get exactly what your “grantor” had –
Nothing.
iv. If it is taken under duress or fraud, the owner may recover the
property from the buyer unless the buyer has subsequently
transferred the property to a bona fide purchaser.
5. Human Remands and cultural Objects (235-241)
a. Heritage is important part of personal identity
b. Wana the bear v. Community Construction, inc
i. Facts
1. City excavated and uncovered human remains but
still kept development.
2. Belonged to Miwok Indians
ii. Rule
1. Native American burial grounds are protected only to
the extent of the statutes governing human remains.
iii. Laws in Wana the bear
1. 1854
a. Public cemeteries are any place where 6 or
more bodies are buried
2. 1872 law
a. Public cemeteries created only by
i. Dedication
ii. Prescription
iv. Takeaways
1. No protection is provided for remains interred in the
traditional Miwok cemetery now located on private
property
2. Current CA law recognizes only cemeteries created
by dedication or prescriptive use
a. Dedication
i. Offer and acceptance
b. Prescriptive use
i. You do not get title when you have
the right, you just get to continue
using it.
ii. You for consecutive time
v. NAGPRA
1. Applies to human remains and associated objects
a. Found on federal or trivial land or
b. Held by a federal agency or museum that
receives federal funding
2. Requires return to lineal descendants or tribe
3. Also protects sacred objects
4. Limited exception for remains needed for a scientific
study
D. Adverse Possession (309-335)
a. Cannot have claims against the government
b. Banks can take back their property
c. Lockean idea
i. If you are using it you have more of a right to it.
d. Case law: Brown v. Gobble
i. Border dispute
ii. Facts
1. Gobble purchased property and there was a fence. Someone bought
other property, did a survey and the fence was on their property.
iii. Rule:
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1.
e.
f.
A party claiming title to land by AP may tack the time that
previous owners have possessed the land to the time the party has
possessed the land.
iv. Privity as defined in brown
1. A mutual or successive relationship to the right in property as
between grantor and grantee
v. Takeaway
1. Clear and convincing standard
2. Tacking permissible
3. Defendants had met requirements of adverse possession
4. Shows taking rule and how it works.
5. Also useful for illustrating what’s required under each element of
AP
6. Standard of proof (majority rule)
Quite title
i. Asks the court to grant a declaratory judgement that the AP has become the
owner of the disputed property through adverse possession.
Elements
i. Actual possession
1. Requires physical occupation
2. Limited exception for color of title
3. prescriptive easements may be available on lesser showing
4. have to possess it in a way that the owner will make use of it
5. Example:
a. In absence of a statute: actual occupancy means the
ordinary use to which the land is capable and such as an
owner would make it
i. This may be by enclosing property with a fence
treating it as your own
b. In absence of a fence, one must demonstrate actual
possession by engaging in significant activities on the
land, such as building on the land and/or living or
conducting business there.
6. Color of title
a. Someone who had the deed but is ineffective to transfer
because of a defect in a need
ii. Open and notorious
1. Sufficiently visible and obvious so as to put a reasonable owner on
notice
a. Example: building a fence or structure
2. They do not have to visibly see it
a. Sufficient to put owner on notice
i. Building a fence
ii. Building a structure
iii. Clearing the land
iv. Laying down a driveway
v. Mowing grass
vi. Using the strip for parking
vii. Storage
viii. Garbage removal
ix. Picnicking
x. Planning and harvesting crops
iii. Exclusive
1. The use is of a type that would be expected of a true owner of the
land in question and that the adverse claimant’s possession cannot
be shared with the true owner.
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a. Occasional entered by others will not defeat it
b. Pure owner needs to be exclusive of the true owner
iv. Continuous (Tacking doctrine)
1. Requirement depends on type of property at issue
a. Doesn’t mean they need to be on property 24/7
i. Is it a vacation property?
2. It does mean that the adverse possessor must exercise control over
the property in some ways customarily pursued by owners of that
type of property.
3. Tacking (adding it together) – limited exception
a. Successor can add the original adverse possessors holding
period only if they are in privity with one another,
meaning that the original adverse possessor purported to
transfer title to the successor.
v. Adverse or hostile
1. Means that the use is nonpermissive
a. Show that true owner has permitted the use will defeat the
claim
2. True owners state of mind (objective test – majority rule)
a. Courts question: whether the true owner permitted the use
i. If so, this defeats and AP claim.
b. What evidence is used to show nonpermissive
i. Expressly granted permission
1. Through granting license or lease.
ii. Expressly denied permission
1. No trespassing sign (helps AP)
c. What if the owner has said nothing either way
i. Courts hold that there is a presumption that
possession of another’s property is
nonpermissive
1. AP established by
a. Longstanding, visible,
continuous possession of
another’s land.
d. No proof need to be given on question of adverseness.
i. If all elements met, lack of permission is
presumed.
e. Permissive possession
i. Will stay that way unless the owner explicitly
revokes permission, or the adverse possessor
announces that she is removing the true owner
and claiming the property as her own.
f. Mere change is the subjective understanding does not
suffice to put the owner on notice that what has become
as permissive has become adverse
i. If the owner gets the person invest in the land –
it may become adverse.
3. Adverse possessor’s state of mind
a. Majority use objective test
i. State of mind irrelevant
ii. All that matters is that the possessor actually
possessed the property and lacked permission
from the true owner
b. Minority use subjective test
i. Requires the adverse possessor to demonstrate a
particular attitude on her part in addition to
15
showing that the true owner did not permit the
possession
ii. Three approaches to this test
1. Good faith
a. Only innocent possessors who
mistakenly occupy property
owner by someone else can
acquire ownership by adverse
possession
2. Intentional dispossession
a. Adverse possessor must know
that she is occupying the
property owned by someone
else and yet still seek to
become owner
i. Scholars reject
because it rewards
wrongdoer
3. Right of claim (combination of the
foregoing tests)
a. Objective approach
i. Do not require proof
of what you were
thinking
ii. Only requires is that
adverse possessor
acted toward the land
as an overage owner
would act
b. Subjective approach
i. Permit AP where
possessor occupied
the property under a
mistaken belief as to
the boundary line, but
not if the evidence
shows that the
adverse possessor
knew the land was
hers and occupied it,
but without any intent
to because its owner.
ii. Either to have good
faith belief that she is
the owner or to
engage in an act of
intentional
dispossession.
g.
vi. For the statutory period
1. Widely varying
a. Color of title may shorten (depending on jurisdictions)
b. Good faith may shorten (depends on jurisdiction)
2. Disability may toll SOL
Color of title
16
h.
i. When a written conveyance appears to pass title but does not do so because
there was a defective mode of conveyance
1. Doesn’t own land and documents lack signature because it
contains a mistake or ambiguous descriptions.
ii. Title is facially valid, but defective
1. Defect could be in property description or fact that it lacks a
required signature or in that statutorily required notice was not
provided or because of faulty procedure, such as a deed granted as
a tax sale.
iii. Adverse possessor/recipient of defective title follows all AP req’ts
iv. Then receives title to whole amount of land described rather than only what
she possessed.
v. Examples
1. Romero v. Garcia
a. Only one of the spouses who owned it singed in
transferring
2. Paine
a. Doesn’t really describe the defect.
b. Defects alleged in descriptions; we also know that these
needs may or may not be valid ones but the facts disputes
reference title are left unsettled in favor of UC.
c. Takeaways
i. Illustrates utility of color or title (no need to go
back before revolutionary war to sort out dueling
deeds)
ii. Also color of title allowed Paines to get wooded
portions
iii. Shows how type of land might play in (more use
required for rural land in MA)
vi. Extra facts
1. Without something like adverse possession and color of title the
costs would increase dramatically
2. On its face must be valid
3. Something strange about it – inconsistent because adverse
possession is supposed to not be permissive.
Squatters
i. Nome 200 v. Fagerstrom
1. Facts
a. Alaska land divided between north and south during
warm season land was suitable for homestands and
actives, but not during cold season.
b. Fagerstrom used it during the summer and on the south
end they made a cabin.
c. Fagerstrom won.
2. Rule
a. A party can adversely possess land by making use of the
land for the statutory period in the same way an average
owner of a similar parcel would.
3. Question about mindset
a. Objective test
i. Whether they acted toward the land if they
owned it and if they treated it like they owned it
(majority approach)
4. Takeaways
a. Clear and convincing
17
b.
The character of the land bears on continuity, exclusivity,
and notoriety
c. Hostility is determined by an objective test
d. But Fagerstroms are entitled only to land actually
possessed.
e. Less of a showing required for rural lands
f. Illustrates actual possession and notoriety elements
i. Justifications for adverse possession (page 41-42 of property book notes)
i. Traditional
1. Certainty of ownership
2. Maximizing utility of land
ii. Lowers cost of ownership claims
1. Cooter and Ulen
2. Epstein (variation)
iii. Possessor’s roots become shaped to property
1. Holmes
2. Posner (variation)
3. Radin (variation)
iv. Reliance
j. Defense of laches
i. Laches is an equitable defense, or doctrine. A defendant who invokes the
doctrine is asserting that the claimant has delayed in asserting its rights,
and, because of this delay, is no longer entitled to bring an equitable claim
E. Prescriptive Easements (335-342)
a. How PE is different then AP
i. Adverse use instead of adverse possession
ii. Many courts drop the exclusive requirement, although some retain it
iii. Some states require a claim of right or ownership
iv. Acquiesce may be required
1. No action brought for trespass OR
2. Owner knew of use and passively allowed it to continue OR
3. Reasonable owner would’ve known about use
b. Definitions
i. An easement is a nonpossessory right to use land possessed by another
1. Limited rights to use the property of another
ii. Considered an interest in land for statute of frauds purposes.
iii. Common type
1. Right of way
iv. Servient estate
1. Someone burdened
v. Dominant estate
1. Take advantage of easement
c. Extra information to know
i. The scope of the non-owner’s action is limited to a narrow use of another’s
land rather than general possession of it, she may be granted a prescriptive
easement rather than title by adverse possession
ii. Prescriptive easement claims result in the right to continue the kind of
amount of use that persisted during the statutory period.
iii. Burdon of proof
1. Clear and convincing evidence; some use preponderance of the
evidence
iv. Could either be an easement or adverse possession need to look at the use to
analyze
v. Acquisition by the public
1. Hard to due but sometimes use of a public road for a certain period
of time creates a public highway
18
d.
Types of easements
i. Affirmative
1. Right to engage in a particular use on another’s land
a. Example: right of way
2. Can be acquired by prescription
ii. Negative easements
1. The right to limit or black particular use of another’s land
a. Traditional types
i. Lateral support of one’s building
ii. Rights to prevent both light and air from being
blocked by construction.
iii. The right to prevent interference with the flow of
an artificial stream
b. Modern additions
i. Conservation easements
ii. Historic preservation easements
iii. Solar easements.
2. Cannot be acquired by prescription
e. Elements (go back up to adverse possession)
i. Open and notorious use
ii. That is hostile and adverse
iii. Continuous and uninterrupted for the requisite statutory period
iv. Under a claim of right
1. Just need to show lack of prescription
f. Case law: French v. Piontowski
i. Facts
1. Using reservoir for noncommercial recreational purposes
ii. Holding
1. Plaintiffs and their predecessors have used the whole reservoir in
an open, visible, continuous and uninterrupted manner under a
claim of right. Judgement affirmed
iii. Takeaways
1. Prescriptive easements for recreational purpose can be acquired
over non-navigable, artificial water body
a. Defendants’ burden and notice argument rejected
2. Defendants’ arguments regarding the claim of right, open and
notorious, and continued and uninterrupted arguments are also
rejected
3. Nature of the easement (here recreational) is part of the analysis as
to continuousness
4. No interruption of plaintiffs’ use occurred under CT law.
g. Case law: Wolff v. SD Sec’y of Game, Fish and Parks Dep’t
i. Takeaways
1. Only plaintiffs’ section 1983 claim and inverse condemnation
claim survive because they failed to give statutorily required notice
for other claims
2. Both of those claims are based on the premise of a prescriptive
easement
3. But any pre-existing easement was taken by the federal
government when it condemned the land
4. Plaintiffs cannot have acquired an easement since that taking
because adverse possession and prescription are not available
against the government
F. Improving Trespassers (343-355)
a. Background
19
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
i. If the structure decreases the value of the neighboring property, the owner
can have it removed so long as it is before the period for adverse possession
expires
ii. If improves the property – the landowner can choose to keep.
iii. When someone mistakenly things it is their land and creates an
improvement
Relative hardship doctrine: Removal of Encroaching Structures (majority view)
i. No injunction if encroachment is
1. Innocent
2. The harm minimal
3. The interference in the true owner’s property rights is small
4. Costs of removal are substantial
Factors to be considered to determine whether to grant injunction
i. Did the party to be enjoined cause the damage
ii. Would irreparable harm result without their injunction because of a lack of
an adequate and complete remedy at law
iii. Is the party to be enjoined acting in bad faith or is the injury causing
behavior an innocent mistake?
iv. In balancing the equities, is the hardship to be suffered by the enjoined
party disproportionate to the benefit to be gained by the injured party?
Unclean hands doctrine
i. Kind of in bad faith
Case Law: Hoffman v. Bob Law
i. Removal of encroaching structures: relative hardship
ii. Takeaways
1. Balancing the equities, we agree that the hardship to be suffered by
Hoffman in removing the encroachment (septic tank and leach
field) that the Corp. created is disproportionate to any harm that
would be suffered by the Corp.
Case law: Ward v. Ward
i. Enrichment v. Forced sale
ii. Takeaways
1. To entitle an evicted tenant of land for compensation for
improvements it must appear either that he was a Bona fide
purchaser and holder at the time that he made the improvements or
that the improvements were made by him under such
circumstances that it would be a fraud upon his rights to permit the
owner to take them w/o compensation.
2. Where the tenant is not a purchaser of the property but
nevertheless believes that she had an ownership interest therein
when he/she made the improvements, we have held that the owner
must compensate the tenant for the value of such improvements if
the owner was aware of the improvements and did not tell the
tenant not to make them.
What is quite title
i. Multiple people claiming property so one person brings an action to say that
they are the only one that has a claim to it.
Betterment statutes
i. Need documents that they have title
Trespassers are different than adverse possession
Mistake
i. Even if a mistake, the courts generally rule it is the landowner by the other
ii. Sometimes people cannot have the benefit of trespassing
1. Summersville v. Jacobs
a. Relies on a mistaken survey and built the warehouse.
Other informal methods of transfer (Boundary settlement)
20
G.
i. Oral Agreement
1. Courts may uphold oral agreements between neighbors that set the
boundary between their properties if
a. Both parties are uncertain where the true boundary lies or
a genuine dispute exists over the location of the boundary
b. The parties can prove the existence of the agreement
setting the boundary
c. The parties take and or relinquish possession to the agreed
line
ii. Acquiescence
1. Longstanding – even worth an express agreement or oral.
2. A boundary line by acquiescence is inferred from the landowners’
conduct over many years so as to imply the existence of an
agreement about the location of the boundary line
iii. Estoppel
1. When one owner “erroneously represents to the other that the
boundary between them is located along a certain line and the
second, in reliance on the representations, builds improvements
which encroach on the true boundary or takes other detrimental
actions
2. The party who made the representations is then estopped to deny
them, and the boundary is in effect shifted accordingly.
3. SOME states may find estoppel even when no explicit
representation is made
a. They may infer a representation “from an owner’s silence
in the face of knowledge that his neighbor is building an
encroaching structure.”
iv. Laches
1. This doctrine is an equitable remedy . . . by which a court denies
relief to a claimant who has unreasonable delayed or been
negligent in asserting a claim, when the delay or negligence has
prejudiced the party against whom relief is sought.
a. Time is a factor
i. If an owner knows about an encroachment and
does nothing to stop it, the delay in asserting the
owners rights may cause the encroacher to invest
in reliance on the belief that the occupation is not
wrongful.
1. Unreasonable delay and the judge might
deny injunctive relief
Adverse possession for personal property
a. Elements
i. Same elements as for real property
ii. But different approaches to the statute of limitations
1. Discovery rule
a. Holds that the SOL will start to run only when the true
owner either discovers or reas, should have discovered
that the property has been wrongfully taken and where it
is located.
2. Demand rule
a. Cause of action does not accrue until there is a demand
for return and a refusal
b. Justification
i. Burden should be on possessor not true owner
1. Therefore true owner need not show
due diligence
21
2.
IV.
Burden on possessor to show
provenance (chain of title/legitimate
possession)
c. But laches (in making demand) could still be a bar.
d. Fact specific
i. Look to the value and type stolen
ii. Look at reasonable ways to establish theft
iii. SOL begin to run when the property is wrongfully taken, and the owner
dispossessed of the property.
b. Case law: O’Keefe v. Snyder
i. Facts
1. Father had his painting and O’Keeffe is saying it is stolen after he
already possessed it
2. She did not make a complaint
ii. Rule
1. The discovery rule tolls the statute of limitations if the owner of
stolen property acted with due diligence to pursue the property.
iii. Takeaways
1. NJ Supreme Court cannot determine ownership on limited record
before it.
2. We conclude that the discovery rule applies to an action for
replevin of a painting
a. O’Keefe’s cause of action accrued when she 1st knew, or
reas, should have known through the exercise of due
diligence, of the cause of action, incl. the identity of the
possessor of the paintings.
3. Taking is permissible here.
Land-Use Conflicts Among Neighbors
A. Background
a. Land use conflicts among neighbors
i. Nontrespassory interferences with the property rights of others can occur when
the use of one’s own property harms the property interest of one’s neighbors.
ii. The privilege to use one’s property is limited by the regal rights of other owners
to be protected from uses that unreasonably harm their use or enjoyment of their
own property.
1. However, this is not absolute.
a. No absolute protection for either.
iii. Free use rights must be limited when the harm or risk to one is greater than he
ought to be required to bear under the circumstances, at least without
compensation.
b. The reciprocal nature of conflicting land uses (Coase’s theory)
i. Freedom to do business and added regulations would limit the owners freedom
to operate the factory as it wishes and thus impose costs on the owner.
1. Real questions: should A be allowed to harm B or should B be allowed
to harm A?
ii. Have to compare costs and benefit
iii. QUESTION
1. Whether to protect the plaintiff’s interest in security from harm or the
defendant’s interest in freedom of action
iv. Central question could be the magnitude of the harms on both sides and not their
character.
B. Support easements
a. Background
i. Landowners own both the surface and the earth beneath the surface unless they
have sold the subsurface to others in the form of mineral rights.
1. Example
22
a.
b.
If an owners excavates all the way up to the property line, the
neighboring land may be insufficiently strong to stand up by
itself; some of it may fall into the hole created by the
excavation
i. The excavation has undermined the lateral support by
taking along land along the side of the subsurface that
held it up.
Lateral support
i. Did Defendant’s actions remove or cause removal of support on one side of the
land?
ii. Strict liability for any disrptuions
iii. Case example: Noone v. Price
1. Facts
a. Wall built and it fell
2. Rule: a landowner is entitled to lateral support from an adjacent land,
but only insomuch as the adjacent landowner anticipated when he first
provided the support.
3. Takeaways
a. Strict liability available if plaintiffs can show deterioration of
retaining wall would have damaged land in its natural state
and this damage to land would have caused damage to their
house.
b. Negligence liability for
i. Negligent engineering methods
ii. Failure to notify
iii. Failure to provide temporary support during
excavation
c. Damage to building.
i. Strict liability
1. Majority rule:
a. If you can prove activity would
have damaged land in its natural
state and that the damage to the
building was caused by a chain
reaction, apply strict liability
2. Minority rule
a. You’re out of luck for strict
liability
ii. Look for possible negligence liability
d. Retaining wall – runs with the land
i. Was it put in to replace withdrawal of natural lateral
support?
ii. If yes, then it is incident to the land and subsequent
owners have to maintain it (strict liability)
iii. However, they will generally only be liable if
deterioration would have damages land in its natural
state
iv. EXCEPTION
1. If it can be shown that the retaining wall was
put in by agreement to support the building.
e. Who is liable for withdrawal of lateral support?
i. Majority rule
1. Only the person who withdrew it, UNLESS
a. It’s a structure (e.g., retaining wall)
put in to replace natural lateral
support, in which case it is an
23
incident to the land and subsequent
owners must maintain it.
c.
iv. Easements and servitude
1. Modern terminology
a. Easement: to affirmative easement
b. Servitude: restrictions on land use, including negative
easements
2. Servitude for lateral easements
a. Agreement by neighbors
b. Each owner has an obligation to maintain lateral support for
neighboring land, conversely, each owner has a right to
prevent her neighbors from excavating on their property to
remove lateral support for her land.
v. Lateral support in regard to land v. structures
1. Common law
a. Servitude for lateral support of land in its natural condition
b. Owners who withdraw lateral support for neighboring land are
strictly liable for any resulting damage to the land.
c. Owners do have a duty not to excavate in a negligent manner;
they have a duty to act as a RPP would – they cannot use
unreasonably dangerous engineering methods or create
unnecessary risks to adjoining property.
d. Also have to provide temporary support for neighboring land
during excavation and to notify the neighbors if their
excavation poses a risk to neighboring structures.
e. DOES NOT MEAN they have a duty to avoid foreseeable
harm to neighboring structures if the land is in its natural
condition
2. If the modern approach adopted imposes damages for harm both to the
land and the building if the harm to the building was caused by removal
of lateral support for the land.
3. Consequential damages
a. Resulting from breach of a legal duty to support the land.
Subjacent support (437)
i. Was the support undermined by defendant’s actions underneath the land or by
occurrences underneath the land caused by defendant’s actions?
ii. Rule of Capture or right to support
1. Majority
a. Holds that the absolute nature of capture for groundwater
protects those who remove groundwater from liability for the
subsidence caused by their action
2. Dissent
a. Applying the rule of acquisition (the rule of capture) to resolve
a dispute about the duties that owners owe to one another
iii. Current law
1. Majority
a. Imposing liability for undermining subjacent support only
when negligence can be shown
2. Others
a. Extend the absolute duty to provide lateral support for land to
the context of subjacent support, imposing strict liability for
removal of subjacent support.
iv. Separation of the surface from the mineral estate
1. Exception to the rule
a. There is no duty to provide subjacent support in the absence of
negligence if it occurs when ownership of the minerals
24
v.
vi.
vii.
viii.
ix.
x.
beneath the surface is separated from ownership of the
surface.
2. If there is no agreement
a. the owner of the surface has an absolute right not to have its
subjacent support undermined by the owner of the mineral
estate
i. Mineral estate: owns all minerals that are fixed in
place beneath the surface, as opposed to minerals that
can move from one place to another, such as oil.
ii. Mineral rights can be and often are severed and
conveyed separately from the surface estate.
Retroactivity
1. New rule applied to future cases; therefore, the new rule in this case is
applied moving forward and therefore the defendant cannot be held
liable in this case because we have to follow old precedent.
Precedent
1. Two steps are necessary in distinguishing a precedent
a. Identifying significant factual differences between the prior
case and the cade at hand
b. Explaining why, as a matter of social policy, the cases should
be handled differently.
2. What the plaintiffs’ attorney must counter
a. The factual differences between the two cases are not
important
b. The policies justifying the result in the earlier case apply to the
current case as well.
Liability
1. Strict liability
2. Reasonableness
a. Usually either negligence or nuisance
3. Application of groundwater rules
a. If the damage is due to groundwater pumping.
Land disputes not covered by these specific rules are governed by the general
law of nuisance
1. Strict liability rules
a. Easement for lateral support of land
b. Prior appropriation of water (veto rights in first user)
c. Natural flow doctrine for diffuse surface water
2. Reasonableness doctrines
a. Nuisance doctrine
b. Negligence (lateral support of structures)
c. Reasonableness use doctrine for water
d. Malice doctrine for spite fences
3. Free use rules
a. Common enemy rule for diffuse surface water
b. No easement for light and air
c. Free use or absolute ownership of groundwater.
Case example: Friendswood Development v. Smith
1. Facts: Withdrawing water with bad intent
2. Rule
a. If a landowner’s manner of withdrawing water from beneath
his land is negligent, willfully wasteful, or for the purpose of
injury, he will be liable for the resulting hard of his conduct.
Reasonable Use Rule
1. Landowners have duty not to use property in a way that would injure
others
25
Under this rule – landowners may be liable for negligent extraction of
groundwater that damages other property.
xi. Absolute ownership rule
1. Ownership of a subterranean water is absolute
2. Landowners are not liable for negligent extraction of groundwater, but
they cant engage in waste or act maliciously
V.
Land-Use Regulations: Zoning (447-479; 481-484)
A. Zoning
a. Municipalities, authorized by states, create ordinances that regulate uses of property and how
must be built. Ordinances must generally be consistent with comprehensive plan for the ares.
i. Traditional zoning
1. Euclidean, segregation of area and use
ii. Modern zoning
1. Negotiated, mixed use, form or density standards.
b. Administrative agencies, zoning boards and commissions, implement ordinances: determining
whether plans consistent with ordinances before granting permit, punishing violations,
granting variances, special use permits.
c. Case Law: Euclid v. Ambler Real Estate
i. Zoning ordinances will be upheld unless clearly arbitrary and unreasonable, having
no substantial relation to the public health, safety, morals, or general welfare
ii. Upholds ordinances with 75 % reduction in value of land.
iii. Rule
1. Municipal zoning regulations are constitutional, unless they are clearly
arbitrary and unreasonable, having no substantial relation to the public
health, safety, morals or general welfare.
a. Must be reasonable exercise of state police power.
d. Euclidean zoning
i. Merely regulated the geographic location of particular uses
ii. The basic question was where a use would be placed
iii. Pyramid typle
1. Single family housing allowed in multi-family districts and residenction
housing can be allowed inducstrial places. Not the other way award.
iv. Three principles
1. Zoning ordinances are presumed to be constitutional
2. The ordinance will be upheld against substantive due process claims and
equal protection attacks unless it is arbitrary and unreasonable, having no
substantial relation to public health, safety, and welfare/morals
3. A court may not conduct an independent review of wisdom or policy of a
zoning ordinance; if the validity of the legislative classification is fairly
debatable, the legislative judgment must be allowed to control.
e. Due process, zoning, and as applied challenges
i. Procedural when it comes to property
1. The adequacy of notice to the owner
2. The quality of the decision maker (especially its neutrality)
3. The opportunity of the owner to be heard (either before or after the
deprivation)
4. An opportunity to present evidence to the decision maker
5. an opportunity to confront witnesses and evidence and cross examine or
contest them
6. the right to have an attorney present
7. the right to have a formal discussion rendered based on a fixed record and
with a statement of the reasons for the decisions that can provide a basis for
appeal.
ii. Substantively
1. Due process clause protects owners from deprivation of property rights by
arbitrary and capricious government actions
2.
26
2.
3.
4.
In determining whether a state action is impermissibly arbitrary, courts
usually apply a deferential means-ends analysis that asks whether the state’s
action (or means) is rationally related to a permissible government goal (or
end).
Traditional basis review
Means-ends fit test, due process analysis
B. Modernizing zoning
a. Critiques of traditional zoning
i. Sprawl
ii. Privatization of community
iii. Favors a distinctly suburban model of land use that fosters sprawling development
and a privatized approach to community though the kind of residential zones upheld
in Euclid.
b. Modern Approaches
i. New Urbanism including form-based codes.
1. These codes generally describe an allowable building envelope and the
aesthetics of new development, leaving the specific uses of a given building
largely unregulated.
ii. More negotiation of solutions:
1. these are made at the local level, so the community involvement is heavily
prioritized.
iii. Negotiations may pose challenges: arguably there will not be uniformity.
iv. Two new layers
1. Novel forms zoning
2. The subdivision regulation process
v. Places less reliance on the comprehensive plan and more emphasis on discretionary,,
lot-by-lot zoning decisions.
C. Causes of action for zoning conflicts
a. Developer alleges that defendants have made false statements to harm the developer’s
reputation (mostly dismissed)
i. SLAPP suits: Strategic lawsuits against public participation
1. Defamation claims by developers alleging that defendants have made false
statements intended to harm developers regulation
b. Property owner who is aggrieved about a land use restriction challenges a given actin by the
relevant local government
c. Owner is granted the right to do something with her property that neighbors or other community
members object to, and those neighbors challenge the local government’s decision.
D. Two doctrines that constrain zoning authority to protect preexisting property rights.
a. Prior nonconforming uses (think about zoning being so drastic) (643)
i. Definition
1. Use of land that was originally legal and was made unlawful under new
zoning laws, but remains to be permitted because of the prior lawful use.
2. looked upon as a use of the land, buildings or premises that lawfully existed
prior to the enactment of a zoning ordinance & which is maintained after
the effective date of the ordinance even though it does not comply with the
use restrictions applicable to the area in which it is situated.
3. There are limits on repair if a structure is damaged, expansion is not
allowed, or a court does amortization may take place which states you must
end
ii. Case Law: Town of Belleville v. Parrillos
1. Conversion of restaurant to disco constituted a substantial change and
therefore was disallowed
2. The court noted that increases in time period of use as well as increase in
area of use and changes in function can all effect a substantial change.
3. Rule
27
a.
b.
A nonconforming use of premises will be permitted to continue
only if it is a continuance of substantially the same kind of use that
existed when the zoning ordinance was passed.
iii. Restricting the nonconforming use
1. Can’t change it after
2. However, can still happen when the property has been transferred from one
owner to another.
iv. Terminating the Nonconforming Use
1. Abandonment or Destruction
a. Abandonment occurs only if both
i. The owner intends to abandon the use
ii. The use is discontinued for a substantial period.
b. Destruction
i. Usually terminates the right to continue the use
1. Destroyed in a fire.
a. Can rebuild if partial
2. Amortization
a. Local government give the nonconforming owner a limited period
of time to continue the use. If this gives owners sufficient time to
realize a reasonable return on their investment, that will balance
the owners reliance interest with the public’s needs represented in
the zoning code.
Vested rights
i. Doctrine that protects a person who has already been granted certain rights from
losing them due to subsequent changes.
1. Example: the doctrine might protect a person who has won a legal
judgement from losing those rights due to new legislation, or a property
owner who has received a valid building permit from losing that right to
zoning changes.
ii. Case Law: Stone v. City of Wilton
1. Facts
a. Bought undeveloped land and decided to build a multi-family
home and secured a lone, but before construction city rezoned the
land for single family.
2. Rule: completing initial construction plans does not give an owner a vested
right in project completion.
iii. Vested completion right depends on
1. Kind of project
2. Cost
3. Location
4. Percentage of work completed under existing zone classification
5. Amount accomplished under conformity
iv. Possible bases for less deferential review
1. Inconsistency with comprehensive plan
2. Spot zoning
a. Rezoning that confers a special benefit on a small parcel of land
regardless of the public interest or the comprehensive plan
b. Facts when applying this doctrine
i. The size of the parcel
ii. The benefits conferred on the parcel compared to
surrounding parcels
iii. An injury or detriment to surrounding landowners and the
public in general
iv. Any changed conditions in the area and
v. Whether the rezoning is in accordance with a
comprehensive plan
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c.
Reverse spot zoning
i. A variant where rezoning imposes more onerous
restrictions
ii. Local government generally have latitude to rezone
individual parcels of land when this is deemed to be in
public interest
3. Change or mistake zoning
a. Rezoning is appropriate if
i. To correct a mistake made in the original zoning
ordinance or
ii. If physical conditions in the neighborhood have
fundamentally changed since the ordinance was adopted.
4. Characterizing zoning as administrative or quasi-judicial
a. Rezoning is only appropriate only if the owner seeking approval
process both
i. There is a public need for the proposed change
ii. The need is best served by rezoning the particular parcel
rather than the property.
v. A minority of states grant developers vested rights upon the filing of a valid and fully
complete building permit application without the need to demonstrate substantial
expenditures.
E. Variances
a. An authorized deviation from strict enforcement of the zoning ordinance in an individual case
due to special hardship.
i. Permits a particular parcel of land to be used in a way that would otherwise violate
the ordinance.
b. Types of variances
i. Area
1. Allows modification of height, location, setback, size, or similar
requirements for a use that is permitted in the zone.
ii. Use
1. Allows a use that would normally be prohibited in the zone.
2. Controversial
c. Case law: Krummenacher v. Minnetonka
i. Facts
1. Detached garage dispute.
ii. Rule
1. Have to show that property cannot be put to a reasonable use without the
variance.
d. Factors of variance
i. Property somehow unusual, exceptional, or unique
ii. Because of this, ordinance causes “undue hardship” or “practical difficulties”
1. Nature of the land
iii. Owner not to blame for conflict
iv. Granting variance would not undermine public interest or purposes of zoning plan.
e. Different analysis in some states
i. Some states allow variance to be granted on a showing of practical difficulties
1. Show significant economic injury from enforcement of the zoning
ordinance
2. Absence of a variance the property cannot be used without practical
conflicts with zoning restrictions
3. Relief is required because of some unique aspects of the property.
ii. Some states interpret the practical difficulties test to mean that same thing as the
unnecessary hardship test
1. Both unnecessary hardship and practical difficulties.
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iii. Some states go further and allow variances to be issued in unusual circumstances if it
will provide public benefit
f. Special exceptions
i. Use permitted but requires individual administrative approval
ii. Special harms may be posed by the type of use or could be something that causes
traffic impacts
1. Gas stations, parking lots, landfills, churches, facilities, halfway house
iii. Vague standards can be problematic.
g. Possible bases for less deferential review (same as vested rights)
i. Inconsistency with comprehensive plan
ii. Spot zoning
1. Factors
a. The compatibility of the change with the surrounding area
b. Consistency with the comprehensive plan
c. The nature of the carcel and the size of the rezoned site and
d. Considerations of public interest.
iii. Change or mistake zoning
1. Rezoning is appropriate if
a. To correct a mistake made in the original zoning ordinance or
b. If physical conditions in the neighborhood have fundamentally
changed since the ordinance was adopted.
iv. Characterizing zoning as administrative or quasi-judicial
1. Rezoning is only appropriate only if the owner seeking approval process
both
a. There is a public need for the proposed change
b. The need is best served by rezoning the particular parcel rather
than the property.
F. Contract or conditional zoning
a. Contract zoning
i. Accommodating concerns by entering into an agreement
1. Number of decisions hold that such contract zoning is invalid because it is
illegal spot zoning.
2. Trend though is moving away from this.
b. Conditional zoning
i. The city or other government entity makes no official promise. It identifies the
conditions that must be met before rezoning is approved, but in theory does not
legally bend itself to rezone the land.
c. Case Law: Durand Standard
i. A zoning decision will not normally be undone unless the P can demonstrate by a
preponderance of the evidence that the zoning regulation is arbitrary and
unreasonable or substantially unrelated to the public health, safety, or general
welfare
ii. If the reasonableness of a zoning law is fairly debatable, the J of the local Leg, body
responsible for the enactment must be sustained.
G. Exclusionary zoning
a. Background
i. Not permitted by federal Constitution
ii. Look to state constitutions and state statutes
b. Definition
i. Refers to land-use controls that tend to exclude low-income minority groups.
c. Case Law: NAACP v. Township of Mt. Laurel
i. Facts
1. Not allowing low income housing.
ii. Rule
1. A town must provide low-to-moderate-income persons housing
opportunities and cannot constructively prevent them from living there.
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iii. Takeaways
1. Fair share approach
a. All municipalities designated by the state as growth areas were
mound by the doctrine, not merely developing municipalities
b. Municipalities to take affirmative measures to encourage
construction of law and moderate-income housing
c. Builder’s remedy
i. If a municipality refused to allow construction of a
housing project in violation of its fair show obligation
1. A trial court could allow the project to proceed
unless it is clearly contrary to sound land use
planning.
d. MINORITY RULE
i. Few states have explicitly interpreted their state constitutions to limit exclusionary
zoning.
e. Growth Control: Generally upheld against due process and equal protection attacks.
a. Used when a city is inadequate to provide sewage, school, recreation, road, and
emergency services.
VI.
Servitudes: Easements, real covenants, and equitable servitudes 353
A. What is a servitude
a. Basically they are agreements between neighbors relating to the land that bind future owners
and possessors.
i. But the obligation for lateral support arises by common law.
b. Is a right or an obligation that runs with the land
i. Meaning that it will automatically pass to subsequent owners or possessors of the
land.
1. Examples: utilities, telephone, electricity.
c. Terminology
i. Servient estate
1. Burdened estate to the servitude
ii. Dominate estate
1. Benefited from the servitude
2. If the right to the benefited from a servitude automatically passes to the
owners of a particular parcel of land.
d. Affirmative (most) Easement
i. Right to do something on servient land (another’s land)
1. Rights to use another’s land for a limited purpose
2. Right way – right to use another’s land for ingress or egress
a. Right of railroad to run tracks over land, or the right of a
landowner to cross over neighboring land to access a public road,
body of water, etc.
B. Easement
a. Defining terms
i. Easement
1. Is a nonpossessory right to use land in the possession of another.
2. Considered an interest in land for statute of frauds purposes.
ii. Elements
1. Be in writing
2. Identify the grantor and grantee
3. Contain words manifesting an intention to create an easement, describe the
affected land, and
4. Be signed by the grantor
b. Express agreement
i. Creation of an expressed agreement
1. Owners of the benefited and burdened
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2.
Sometimes easement is created by a deed that conveys the easement by
itself
a. At other times the easement is created at the same time a parcel of
property burden or benefited by the easement is sold
ii. Writing SOF
iii. Negative easements
1. Narrow in scope.
2. Entitles its holder to compel the servient owner to refrain from doing
something that but for the negative easement would be permissible.
3. Permitted in 4 narrow setting
a. L - light
b. A - air
c. S- support
d. S stream water from an artificial flow
i. Minority
ii. 5th category – scenic view
4. More types of negative easements
a. Conservative easements
i. Preventing development of land
b. Historical preservation easements
i. Preventing destruction or alteration of buildings that have
historical or architectural importance
c. Solar easement
i. To protect access to sunlight for solar energy
5. Can only be created expressly!!!!
a. There is no implicit or automatic right to a negative easement.
6. Needs to be in signed writing.
iv. Running with the land
1. Will run with the burden of easement to run with the land
a. It is in writing
b. For the burden to run, there was notice to the servient estate holder
of the easement and
i. Actual
1. Subjectively knew
ii. Inquiry
1. Would do further investigation to discovery
whether an easements exists
2. Telephone poles – cant cut them down
iii. Constructive
1. Subsequent owner
2. Is it in the chain of tile?
c. It was intended to run with that estate
i. Easements bind future owners of the servient estate
only if the original parties intended them to be bound.
ii. May be clearly states, as when the deed creating the
easement states that the easement is intended to run
with the benefited and or burdened land
iii. Intent may be inferred from the circumstances
2.
c.
Appurtenant
a. If the benefit runs with a particular parcel of land, the easement is
appurtenant to the land
3. In gross
a. If the benefit attaches to a person or entity rather than a parcel of
land, the easement is in gross.
Ambiguous easements
i. Appurtenant or in gross
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Appurtenant – relevant to – pertaining to
a. Benefits its holder and his physical use or enjoyment of his own
property
i. Exam: it takes two
1. Two parcels must be involved
a. Dominant – benefit
b. Servient – burden
b. Passes automatically with the dominant tenement
i. Regardless of it is mentioned in any document of tranfer
c. The burden will pass with the servient land –
i. UNLESS bona fide purchaser without notice
d. Expand the scope of the easement?
i. No – unilateral expansion of an easement is not allowed.
2. In gross
a. Confers upon its holder only a personal or financial commercial
benefit (servient land)
i. Not linked to the personal use or enjoyment
b. Examples
i. Right to place a billboard on another’s lot
ii. Right to swim in another’s pond
iii. Right to law powerlines on another’s land
1. Commonality?
a. Servient land is burdened – there is no
dominant tenement
i. Only one parcel is involved
c. Not transferrable unless for commercial purposes
3. Case example – Green v. Lupo
a. Facts
i. Develop for mobile home but using easement for
motorcycles.
b. Rule
i. There is a strong presumption that an easement is
appurtenant to the land and easements in gross are not
favored.
c. Takeaways
i. Language of easements ambiguous
ii. Parole evidence properly examined
iii. Presumption in favor of appurtenant easements controlled
iv. Equitable limitations allowed as long as they do not
unreasonably interfere with dominant owner’s use.
ii. Scope and apportionment
1. Scope
a. three issues come up when determining if an owner of an easement
is misusing it by going beyond the scope of the activities within the
easement
i. whether the use is of a kind encompassed by the easement
ii. whether the use is so heavy that it constitutes an
unreasonable burden on the servient estate
iii. whether the easement can be subdivided among multiple
users.
b. Set by the terms or conditions that created it.
i. There can’t be any unilateral expansion of the easement to
benefit a nondominant parcel
1. Example: utilize A’s driveway to get to your
parcel B acre –
1.
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B acre is the dominant – A is the
servient
c. Questions on scope of easement
i. Kind of use contemplated
ii. Heaver use than contemplated
iii. Whether subdivision of use is permissible
d. Unreasonable additional burden.
2. Case example Cox v. Glenbrook
a. Takeaways
i. Easement is subject to use by future owners of sibdivided
property.
ii. Dominant owner could improce the road subject to certain
limitations but couldn’t widen it.
iii. Evidence was insufficient to determine if proposes
subdivision would create an undue burden ont eh servient
estate.
b. The conveyance
i. Establishes the purposes for which the holder may use
the servient estate.
1. If the conveyance does not expressly establish
whether a use is permissible, the court will
look to the parties’ intentions at the time of
conveyance; however the use cannot
unreasonably burden the servient estate.
Implied Easements: Creation of easements by implication: also affirmative easements
i. Background
1. Easements by implication should be in writing; however, when they are not,
the
ii. Easement by estoppel
1. Definition
a. When a landowner grants the clamant permission to use the
property, and the claimant so changes position in reasonable
reliance on the continuation of the permission , that it would create
substantial injustice to revoke it.
2. Background
a. A property owner may be held to be unable to revoke a license if
i. She grants the licensee the right to invest in improving the
property or otherwise induces the licensee to act in
reasonable reliance and
ii. The licensee in fact changes her position in reliance on
the license.
b. Oral easement is another type
c. Majority rule
i. Constructional preference
3. Constructive trusts
a. A trust implied by law when
i. one party has been wrongfully deprived by mistake, fraud,
or osme other breach of faith or confidence.
ii. Of some right, benefit, or title to property.
b. Legal title holder then
4. Case Law: Lobato v. taylor
a. Facts
i. Mexico and Colorado case
b. Rule
i. A court can imply an easement created by estoppel when (1)
the landowner permitted another party to use the land under
a.
d.
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circumstances in which it was reasonably foreseeable that the
user would substantially change position believing that the
permission would not be revoked, (2) the user substantially
changed position in reasonable reliance on that belief, and (3)
injustice can be avoided only by establishment of a servitude.
In the case at bar, the plaintiffs are entitled to an easement by
estoppel over the land that Taylor acquired
c. BEAUBIEN GRANT
i. Not legally effective in itself, it relies on the grant in
finding that the plaintiffs had easements by estoppel.
5. Elements
a. Permission from the owner to use the land
b. Foreseeable and reasonable reliance on continuation of the
permission
c. Changed position by the claimant (usually through significant
expenditures) in reliance on continuation, and
d. Finding an easement is necessary to prevent injustice
6. Found in three different types of circumstances
a. Noncompliance with the statute of frauds
b. Reasonable reliance on situation of consent
c. Fraud or misrepresentation
iii. Easements implied from prior use
1. Definition
a. Happen when a parcel of land is divided or severed, and prior to
severance one part of the estate used the other part of the estate, the
use was obvious or apparent, and is reasonably necessary for
enjoyment of the estate.
2. Background
a. The two parcels must have been previously owned by a prior
grantor
b. One parcel was previously used for the benefit of the other in a
manner that was visible and continuous
c. That the is “reasonably necessary” or convenient for enjoyment of
the dominant estate.
3. Granite properties limited partnership v. manns
a. Facts
i. Ingress to and egress from an apartment complex and
other to a shopper center. Both are situated on plaintiffs’
property.
b. Rule
i. An implied easement may arise from a grantor's continuous
and apparent preexisting use of property conveyed by the
grantor, even if the easement is not absolutely necessary for
the beneficial use and enjoyment of the property retained by
the grantor.
c. Takeaways
i. Given the strong evidence of plaintiff’s prior use of the
driveways and
ii. The plaintiff’s knowledge thereof and
iii. The fact that both driveways were reasonably necessary to
enjoyment of plaintiffs remaining parcels
iv. Appellate court was correct to hold that two easements
implied by prior existing use existed.
4. Elements
a. Two parcels were previously owned by a common grantor
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b.
c.
One parcel was previously used for the benefit of the other parcel
in a manner that was apparent and continuous and
The use is reasonably necessary for enjoyment of the dominant
estate
i. whether the use is sufficiently apparent and
significant to enjoyment of the property that the
parties likely believed it was part of their
bargain.
iv. Easements by necessity
1. Definition
a.
Happens when an estate is severed and upon severance one part
of the estate becomes landlocked, requiring a right of way over
the other part of the severed estate to access a public road.
2. Background
a. The servient and dominant estate were previously under
common ownership
b. Necessity exists
3.
Finn v. Williams
a. Facts
i. Charles Williams owned a large tract of land and conveyed
a part of it to Thomas Bacon. The Finns (plaintiffs)
eventually acquired title to this conveyed part. Zilphia Jane
Williams (Williams) (defendant) inherited the remaining
part of Charles Williams’ land. The only means of getting to
the nearest highway and market from the Finns’ land was by
crossing over Williams’s land or that of a stranger.
However, Williams refused to give the Finns permission to
cross over her land.
b.
Rule
i. An implied easement by necessity may lie dormant through
c.
multiple transfers of land, but it passes with each transfer
and may be exercised at any time.
Takeaways
i. Where an owner of land conveys a parcel thereof
ii. Which has NO OUTLET TO A HIGHWAY except over
the remaining lands of the grantor or over the lands of
strangers,
iii. A way by necessity exists over the land of the grantor
iv. And this easement may lie DORMANT through several
transfers.
4.
e.
Policy
a. To effectuate the intent of the parties and
b. To promote the efficient utilization of property.
5. Elements
a. The dominant estate and servient estates were formerly one parcel
and
b. At the time of severance, the dominant estate become landlocked.
Modifying and terminating easements
i. Agreement
ii. By their own terms
1. If the deed conveying the easement expressly states that it is to last for 10
years.
iii. Merger
1. When the holder of the servient estate becomes the owner of the dominant
estate
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iv. Abandonment
1. If it can be shows that the owner of the easement, by her conduct, indicated
an intent to abandon the easement
v. Adverse possession/prescription
1. By the owner of the servient estate or by a third party
vi. Frustration of purpose?
1. Impossible to accomplish or that the easement no long serves its intended
purpose
2. Liberal application of the amendment principle
vii. Also look at marketable title acts
1. May require that easements, along with other encumbrances on property
interest, be re-recorded periodically to be binding on future purchasers
a. Purpose is to limit how far back a buyer must look in the chain
of title to determine the validity of the seller’s title and the
existence of encumbrances on the land.
i. Springer v. Cahoy
1. Holding that marketable title act barred claim
for easement by necessity where deed severing
land had been recorded more than 40 years
before claim.
viii. Restatement 3rd
1. Changing this doctrine by permitting modification rather than
termination.
f. Statutory Rights to Easements for landlocked Property
i. Case example: Glenelk v. Lewis
1. Takeaways
a. Under the statute, the condemner must demonstrate a purpose
for the condemnation that enables the trial court to examine
both the scope and necessity of the proposed condemnation
b. Here, plans for the future development were not concrete
enough to support private condemnation under statue.
C. Covenants
a. Introduction
b. Creation
c. Implied Reciprocal Negative Servitude
d. Substantive limitations on Covenants
i. Reasonableness and Public Policy Violations
ii. Unconstitutional Covenants
iii. The Fair Housing Act
iv. Restraints on Alienation
v. Anticompetitive Covenants
e. Modifying and Terminating Covenants
VII.
Concurrent Ownership & Family Property (683-684
37