Contents:
INTRO: Background
1. right to exclude v. right of access
a. trespass
i. defenses of consent and public policy
ii. trespass remedies; public accommodations
iii. public accommodations
2. liberty to use v. security
a. nuisance
b. lateral and subjacent support
3. immunity from loss v. power to acquire
a. adverse possession
b. improving trespasser
4. Servitudes
a. Prescriptive easements
b. Express easements
c. Implied easements
d. Restrictive covenants; equitable servitudes
e. Public policy & changed conditions
5. Common ownership
a. Homeowners associations & reasonable review of covenants & by-laws
b. Concurrent ownership; marital property
6. Estate system and future interests
a. Presumption against forfeitures; limits on new estates
b. Restraints on alienation; race; perpetuities
7. Landlord/tenant law
a. Leaseholds: consent to sublease clause; duty to mitigate damages
b. Constructive eviction; implied warranty of habitability
8. Anti-discrimination law in the housing market
a. Discriminatory treatment (race)
b. Discriminatory treatment (sex; familial status; sexual orientation)
c. Disparate impact; exclusionary zoning
9. Zoning/Tribal Law
a. Zoning laws
b. Tribal land use
10. Regulatory takings law
a. Regulatory takings
i. Ad hoc test
b. Categorical Takings
i. Physical invasion
ii. Core property rights
iii. No economically viable use
iv. Vested rights
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Background to Know:
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o
Rules v. Standards
 Rules  more predictable, help plan conduct, cases treated alike, prevents unfair social
surprises, controls jurisdictional discretion
 Cons  rigid, over/under inclusive, allows gamesmanship
 Don’t determine their own scope  judges apply them & create precedent
 Standards  flexible, moral justification, reasonable standard
 Cons  less predictable, need lawyers to advise, like cases not alike, lower
confidence in court system & rule of law
 Can be predictable/reasonable
Hohfeld
 Rights v Duties
 Rights = claim enforceable by state to have others act a certain way towards
property owner
 Duties = others may not interfere with the interests protected by that right, like
right to exclude
 Privileges v “No Rights”/Vulnerabilities
 Privileges = permission to act without liability
 Vulnerabilities = others suffer from the use of a privilege, like building so tall
there’s no sunlight
 Powers v Liabilities
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o
Powers = state enforced abilities to change legal entitlements held by oneself or
others, like power to transfer title to others
 Liabilities = what others face when power is exercised, like landlord can
terminate tenancy at any time
 Immunities v Disabilities
 Immunities = security from having one’s own entitlements changed by others
 Disabilities = lacks power to change others’ entitlements
Types of Arguments:
 Rights (appeal to fairness/justice in social relationships; relative)
 Rights of freedom of action v. rights of security
o FOA: A landowner’s right to use his property within the limits of
ordinances, statutes, and restrictions of record where such use is necessary
to serve his legitimate needs is fundamental.
o Security: Right to have one’s property protected from harm or
unreasonable interference with enjoyment of property
 Individualism (right to pursue goals at will) v. Altruism (duty to not harm others)
 Legitimate v. wrongful (but still legal) conduct
 Social Utility (promote socially desirable conduct; deter socially harmful conduct)
 Consider actual effects of adopting one rule vs another  Effects:
o incentives, economic development, burden of costs (i.e. cost internalization
by business harming society), valuations, transaction costs
 Evaluate effects as good/bad by reference to ultimate goal  moral judgment
 Cost/benefit analysis, balancing of interests
 Rules  promote social welfare by helping people plan
 Standards  promote social welfare by distinguishing cases
 Precedent
 Application  apply, distinguish, reconcile conflicting, modernize/overrule
 Provide stability, treat cases alike
 To distinguish precedent: identify significant factual differences & explain why
social policy dictates that the court treat the two case differently
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
o
To say indistinguishable: the factual differences are not important & the
policies justifying the result in the earlier case apply to this case too
 Statutory Interpretation
 Look at  language ambiguities/meaning, legislative intent, purpose, current
values/norms
Core Tensions
 Right to Exclude vs Right to Access
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 One is entitled to deny access in homes
 One is not entitled to deny access in public accommodations (race, sex, disability)
Privilege to Use v. Security from Harm
 Owners are generally free to use their property
 But they cannot harm their neighbors property substantially and unreasonably
Power to Transfer v. Limits on Disaggregation
 Owners (grantor) can sell, give away, or write a will for those who can take over
certain parts of their bundle of property rights after they die (limit using for a
covenant)
 But don’t want to infringe on future owner’s (grantee) freedom
Immunity from Loss v. Power to Acquire
 Immunity from taking private property for public purposes without just
compensation
 If non-owner occupies for a long enough time past the SOL, then adverse
possession is triggered
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1. Right to Exclude v. Right of Access
TRESPASS
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Trespass: unprivileged intentional intrusion on property possessed by another (“right to exclude”)
o Intent: any voluntary act, do not need to intend to trespass (can be by mistake)
o Strict liability tort
o Intrusion begins when non-owner enters property
o Elements: (1) intentional (2) intrusion (3) on property (4) possessed by another (5) w/o consent
Exceptions (“privileged trespass”)
o Necessity: necessity to prevent a more serious harm to person or property
 Magadini: Necessity defense avail to homeless people trespassing who meet 4 elements:
 (1) clear/imminent danger, (2) reasonable expectation trespass will be effective
in avoiding danger, (3) no reasonable legal alternative, (4) no statute precludes
the defense.
o Public policy:
 Shack (1971): Right to exclude not absolute  Human rights more important than
property rights. Can’t exclude migrant workers’ health & legal aid from farm.
 Right to exclude not absolute (public policy + consent because you’ve opened yourself to
the public
o Public accommodation:
 Martin/Pottinger: Can’t punish someone for being homeless.
 Resorts International Hotel: Can’t unreasonably exclude members of public from property
open to public, duty to serve public.
o Consent: entering land with consent of owner (can be implied, limited by scope, fraud)
 Obtaining consent through misrepresentation okay because it didn’t interfere with
possessory interests of the land, and the hospital was open to the public (Desnick)
 Even if consent is acquire by fraud, it’s consent (Food Lion)
 States disagree on whether consent by fraud is consent and will find trespass if the
specific interest that trespass protects is violated
 i.e. Investigative journalists working undercover
 Scope of consent? If you’ve opened for customers, have you done so for journalists?
Damages
o Fair market value: most common
o Compensatory damages (i.e. restoration damages): when actual harm to the property
 Glavin: restoration damages are fairer because the diminution of market value was small
(timber) compared to non-monetary harm of losing the trees.
 Ask what the nature of harm is
o Nominal (no need to prove damages) and punitive damages
 Jacques: trespass itself created no harm/injury to P, so only nominal damages ($1), but
court determined that $100K punitive damages were necessary for proper deterrence
 Factors to consider on whether punitive damages violate Due Process
1) reprehensibility: D showed indifferent or reckless disregard for the law
2) disparity of harm and award: where egregious acts result in injuries that are hard
to detect or noneconomic harm that is difficult to measure
3) difference between this remedy in other courts
o Injunction: when repeated trespass occurs
LIMITS ON THE RIGHT TO EXCLUDE
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Usually no duty to serve public unless civil rights statute
History
o Blackstone: public accommodations (inns, tailors, etc. exclusive list) have duty to serve public
because they rely on the services
o Cases related to innkeepers and common carriers  duty extended to all that is open to the public
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Civil War: Southern states enacted segregation state accommodation laws
 AK, Ga, MS, SC, TX still do not have public accommodation laws (MS: right to choose
customers)
o 1866 Civil Rights Act: Damages only. Only citizens; only protects racial discrimination
 §1981: “Make and enforce contracts” language
 §1982: Property Rights of Citizens – All citizens have same right as white citizens to inherit,
purchase, lease, sell, hold, and convey real and personal property.
 Not applied to private conduct until 1968
 Interpreted as overriding any state law that allowed racial discrimination
 Religion not included
o 1870 14th Amendment Protection Clause: equal protection of law
 1875 Public accommodation laws: stuck down as unconstitutional because the 14th
Amendment could not regulate private conduct
 Later repassed similar law under the Commerce Clause, and was upheld as
constitutional by SCOTUS
o 1964 Civil Rights Act: prohibited discrimination in places of public accommodation (no
damages)
 Only applies to establishments that “serve the public” and regulated only if their operations
“affect commerce” or if the types of discrimination by them are “supported by state action”
 Excludes private clubs/other establishments not open to public
 Exclusive list?  up for interpretation
 If yes, retail stores don’t apply (most courts)
 If no, retail stores are included
 For racial surveillance, split
 Title II: race, religion, national origin
o 1969 Fair Housing Act: regulates sale, rental, brokerage business in housing market
o 1990 American Disabilities Act
 Prohibits discrimination on the basis of disability in employment and public
accommodations (including educational institutions, doctors, lawyers, restaurants, retail
stores, barber shops, funeral parlors, etc.)
 Reasonable modifications and policies necessary unless it fundamentally alters the nature
of goods and services
 Failure to remove architecture barriers where such removal is readily achievable
 ‘readily achievable’: highly subjective test
 Considers (a) nature and cost of action needed, (b) overall financial resources of
the facility and impact on its operation, (c) overall financial resources of the
covered entity, (d) type of operation and relation of facility to the covered entity.
State statutes can offer more accommodation, but not less
o New York Exclusive Law: protects sexual orientation, military status, sex, disability, marital status
Summary
o Current common law majority rule: Only innkeepers/common carriers have duty to serve without
discrimination (“right to reasonable access”).
 Amusement places/everyone else  absolute right to arbitrarily exclude any person,
consistent with applicable civil rights laws.
o McClure: Proving discrimination “because of race” in accommodations case 
 Unequal treatment (not just exclusion)
 Comparative method (compare treatment to white person treatment over same issue)
 Sequence of events/greater context
 Cross-examination  inconsistent statements, lying, rationalization
o Exceptions:
 If there is a good reason (i.e. disrupting business)
 Uston v. Resorts International: Court held that as long as person does not threaten
the security of the premises and its occupants & his actions do not disrupt the
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regular/essential operations of the premises, there is right of reasonable access to
property open to the public
 Freedom of association
 Dale v. Boy Scouts: P was excluded from Boy Scouts for saying that he was gay.
Lower courts agreed with P that he was excluded based on his homosexuality and
that it was a violation of NJ’s public accommodations statute. SC disagreed and
said that Boy Scouts had first amendment right for freedom of association.
 Does not extend to private clubs
o Used to be the general rule only for innkeepers and common carriers because excluding people in
this case could be equivalent to leaving them out in the street – duty to serve the public
Statutory Interpretation:
o Compare with others; majority/minority
o Other statutes are clear that the list is exhaustive  they explicitly said it
o Intent?
2. Liberty to Use v. Security
NUISANCE
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Private nuisance: Intangibles’ (i.e. noise/odor/etc.) interference with a person’s interest in the private
use and enjoyment of his property
o Rule: (1) substantial (2) intentional AND (3) unreasonable (Dobbs – 100 dogs case)
 Substantial: traditional approach, moving to significant
 Intentional
 Unreasonable: the result, not the behavior. Can act reasonably but still cause
unreasonable nuisance to neighbor. Considerations in Dobbs:
 Are the defendants engaged in a useful enterprise?
 Is the area well-suited for this conduct?
 Which came first? (Not definitive; if the harm is great, it could be recognized as
nuisance even if it came first)
 Can the nuisance (i.e. odors/flies/noise) be reduced?
 Is modification of the facility practical?
o Consideration of courts (for both D & P)
 Fairness
 Character/extent of harm
 Distributive consideration (should one bear costs or spread to society)
 Fault: did owners engage in unfavorable activity? Conduct appropriate? Come
to nuisance (P)?
 Welfare
 Costs and benefits: allowing vs. not allowing conduct (social utility of conduct)
 Incentives: how will the decision affect incentive to engage in respectful activity
 Who is the lowest cost avoider, can it be abated by either party
 “Intentional nuisance” is different from negligence (which implies reasonable person
would have prevented that conduct) b/c intentional nuisance focuses on result of
conduct and not the conduct itself
Other Types of Nuisance:
o Unusually sensitive: not recognized
o Anticipatory Nuisance: no physical invasion yet. Very high bar to prove.
o Aesthetic: trends towards recognition, but usually only when there is evidence of malice
o Ultra-hazardous activities: strict liability imposed with most courts
o Nuisance per se: when an activity is so disfavored (ex: criminal activity) that it will be
considered a nuisance no matter the consequences or context
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o
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Negligence: causes harm to others through unreasonable conduct and they should have had
moral judgment to know not to do it
Light and air rights: obstruction of light and air can be a private nuisance depending on the
facts of the case (but not always, no legal right)
 Fontainebleau (no legal right to free flow of light/air from adjoining land)
Public nuisance:
 Unreasonable interference with a right common to the general public (ex: obstruction
of public highways)
 Traditionally only allowed state officials to bring suit, but now trending towards
allowing any affected private individual to sue
Diffuse water
 “Common enemy rule”: surface water is everyone’s common enemy
 Possessor’s privilege to ward against the intrusion of surface water w/o regard
to effects of conduct on others (exception: if collect with artificial force)
 Recognizes right to develop property
 Not applied literally  Need reasonable use test
 “Natural flow rule”
 Duties of the possessor to other land owners who are affected by his expulsion
of surface waters from his lands
 Minority rule
 Reasonable use test (Armstrong; now majority test)
 Balances the social benefit derives from D’s development of property,
availability of cost-effective means to avoid or mitigate the harm, and the
gravity of harm to P’s property
 Substantial harm to neighboring property is likely to be found unreasonable
 Recognizes the right not to be harmed, right to use property (but not in any way
that they please)// net harm to society, damages on the weakest
When to sue:
o Anticipatory nuisance  only available when plaintiff can show to a near certainty that the use
of something, once in place, will constitute a nuisance
o Before SOL ends
o Temporary v. permanent
 Temporary: SOL renews each time nuisance occurs
 Permanent: SOL starts when nuisance first begins
Defenses:
o “Temporal priority”: nuisance creator was there first
 Exception: health issues
 Spurr industries v. Webb: cattle ranch there first, then houses developed; court
ordered that Ps pay for relocation costs of cattle ranch if they wanted to get rid of
nuisance
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o Unusual sensitivity
Remedies:
o Injunction
 Traditional remedy; Scope of injunction cannot be unreasonable (Dobbs)
o Damages
 When D’s conduct is reasonable (causes more good than harm) but causes substantial
harm to P and would be unfair to force P to pay the costs of D’s socially beneficial
activity (Boomer)
 Remedy without injunction
o No remedy
 D’s conduct does not substantially harm P; or
 It causes more good than harm and would not be unfair to force P to pay the costs of
its socially beneficial activity; or
 Damages would put D out of business and its net effect would be worse than effect of
imposing costs on P
o Purchased injunction
 P pays D for losses and gets injunction in return
 If D’s conduct causes more harm than good but it is fair to force P to bear the costs of
stopping D’s activity
Standard v. Rule: nuisance is a standard and the jury determining what is okay to do with property
o More flexibility but less predictability
Efficiency arguments:
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Externalities: costs imposed on third parties that are not taken into account in the actor’s own costbenefits determinations
o Ex: losses borne by society due to pollution from factories
o If govt does not intervene, then factory will not internalize these costs as their own
Coase theorem
o Joint costs: factory should not bear all the costs; home-owning imposes cost on factory; the
problem is determining who should bear the cost
o Subsequent bargains: D can bargain with P to pay them instead of injunction; whoever
values entitlement more will keep it or buy it from the other party
 D can look into how much they stand to gain and pay P off with less than that.
 P can pay D to stop if it is not a nuisance according to the court; P will want to pay
less than what their losses will be
Distributive Issues
o If project decreases social welfare (costs more to P than benefits to D)  then project will be
enjoined.
Transactions Costs: costs to the parties in reaching an agreement
o Bargaining costs: costs incurred in finding and negotiating with others
o Strategic bargaining: one party holds out for more money
Critiques of efficiency analysis
o Critique against value being measured by willingness to pay  hurts poorer people
o Critique about offer-asking: hurts people with less money who can’t offer more offer price
always lower than asking price
 Endowment effect: we value more what we have than what we could have
 Prospect theory: we seek to avoid loss more than we seek gain
Difficulty of defining voluntary exchange
o To what extent was someone coerced into an agreement?
o Ex: fell into a pit of snakes, someone sold you a ladder in exchange for half of your future
earnings (really had no choice)
Efficiency = conservative bias
o Greater weight given to wealthy and corporations because they have greater economic power
because value is defined by willingness to pay
Commodification
o Margaret Jane Radin
o Some things should not be traded as commodities
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o
o
Like safety of workplace should not be bargained
These issues are better discussed in terms of rights and justice rather than wealth
SUPPORT RIGHTS
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Landowners own surface and earth beneath (unless sold for mineral rights)
“Subsurface” supports land above: excavation can damage support
“Lateral support”: support alongside the sides of the land (neighbors)
“Subjacent support”: support directly underneath the land
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LATERAL SUPPORT
o Duty  no duty to support the house/structures, but absolute duty to maintain lateral support for
neighboring land in natural state
o Nuisance  Focus on the effect to P rather than what D did wrong
o Strict liability:
 Servitude for lateral support of land created by common law  each owner has obligation
to maintain lateral support for neighboring land and each owner has rights to prevent
neighbor from excavation on their property to remove lateral support (Noone)
 Can be seen as a servitude/easement because it constrains how neighbor can use
his/her land
 Absolute (strict liability): don’t have to show negligence/fault
 Noone: Landowners are entitled to lateral support in adjacent land by natural law
o When land already supports building and then lose support causing the
building damage, the neighbor is liable
o If land caves only when building is added, neighbor not liable
o Negligence standard  Owners have no duty to support neighbors’ structures, but do have the
duty to refrain from negligent injury of structures
 Required to show negligence to recover for damages to structure
 Owners must provide temporary support of land during excavation and must warn
neighbors of any risk
o Retaining walls
 D has strict obligation to keep wall in repair if on D’s land and was built for lateral support
of P’s land; Obligation runs with the land: applies to future owners
o Remedies
 Measuring damages  Cost of restoration; Diminution of value of property; Value of loss
of use of building plus an amount of permanent depreciation of building’s value
SUBJACENT SUPPORT
o Surface owners have absolute right to subjacent support for their land
 Owners of subsurface mineral rights have an obligation to maintain support for the surface
 Withdrawing subjacent support  strict liability for damages to land in natural condition
o Most courts do not include damages to structures on land (but some do)
o Right to groundwater v. right to subjacent support
 Friendswood v. Smith-Southwest (TEX 1978)  Adopt reasonableness/negligence test for
groundwater extraction, but not retroactively because people rely and invest on existing
rule of law
 Prior standard = absolute right to extract groundwater (unless malicious or
wasteful)
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3. Immunity from Loss v. Power to Acquire
ADVERSE POSSESSION
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Definition: when someone is on another’s land in a manner that is exclusive, visible, continuous and
without the owners’ consent for a period defined by statute, the land title can be transferred to them (from
the true or record owners to the adverse possessor)
o Passes automatically after statutory period if all elements met. Legal proceedings just clear up
conflicts that arise.
o Claim for quiet title (legal proceeding to determine ownership of real property)  asks the court
to grant a declaratory judgment that the adverse possessor has become the owner of the disputed
property through adverse possession
o Can also be a defense against trespassing or ejection
Elements
o Actual possession
 Must physically occupy the property in some manner (living there, buildings, maintaining
grounds etc)
 Ordinary use of the land and using it as if an owner would use it (Nome 2000)
 Fencing off land is sufficient evidence for most jurisdictions (NY is exception)
 Exam: if actions are limited but not enough for AP, one may get affirmative easement
prescribed (right to continued use of someone else’s land- not possession)
o Open and Notorious (visible)
 Such that a reasonably attentive owner would notice someone else claims the property
 Acts that would put reasonable owner on notice  putting up a building or fence, etc.
o Exclusive
 Exclusive control and dominion over the land  can’t be shared with record owner or
another co-adverse possessor
 Acting like an owner, requiring permission for other people to enter
o Continuous
 Not literally constant, but at least must be a type of possession customarily pursued by
owners of that type of property
 Seasonal use satisfied IF the land is the type that is used seasonally
o Adverse or hostile: need to show that the owners didn’t give permission
 True owner’s state of mind
 If owner doesn’t say anything then presume that possession is NOT permissive
 Once owner grants permission possession will remain permissive unless possessor
explicitly claims property as her own
 Adverse possessor’s state of mind: 3 Approaches
 (1) Lack of permission (Majority approach): only matters that AP lacked
permission. The state of mind is irrelevant, even in bad faith.
o Sometimes, “claim of right” is required  AP’s explicit intention to
appropriate and use land as his own to exclusion of all others. Basically,
same approach but court requires AP intent.
 (2) Intentional dispossession (Bad Faith -- Minority): adverse possessor must be
aware that she is occupying property owned by someone else and must intend to
oust or dispossess true owner. Mistaken occupation does not convey AP. (rejected
in most courts)
 (3) Good faith: opposite of intentional dispossession. Some states shorten SOL if
possession is in good faith (minority)
Statutory period requirement  Varies by jurisdiction/statutes
o “Tacking”: continuous possession of previous adverse possessor(s) added to continuous
possession of current possessor (Brown v. Gobble)
 If the time added together is more than X years, adverse possession may be allowed
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Typical cases:
o “Color of title” (Romero-- ambiguous description of property in deed)
 Ownership under defective deed, AKA written conveyance appears to pass on title but
doesn’t  almost always good faith
 Occupation of ANY part of land in the defective deed can become actual possession
of entire lot described in the deed (like a fence around the whole land) (Romero)
 “Color of title” exists for several reasons: person conveying land did not actually
own it; deed lacks signature; vague language describing boundaries of land
o Border disputes (Brown – “tacking” allowed)
 Almost always good faith/mistake  dispute about border between neighbors
o Squatters (Nome 2000 – Natives in Alaska)
 Almost always bad faith, know they’re trespassing on others’ land
Remedies:
o If no adverse possession, true owner can eject non-owner
o If adverse possession, non-owner can claim for quiet title  ask the court to grant a declaratory
judgment that the adverse possessor has become the owner of the disputed property through
adverse possession
Other possible issues:
o Gov is immune from AP claims (except minority of states w/ strict guidelines)
o Preexisting non-possessory interests: AP generally obtain ownership rights subject to preexisting
liens, easements, restrictive covenants, and mineral interests
Justifications:
o Moral reasons:
 AP reliance / interests in land  unfair to force AP off land if interests greater than owner
 Willingness to pay is not a good way to measure the value of property for someone
o Economic reasons
 Settle disputes and allows for transactions/ lawsuit is lower cost than bargaining
 Prevents valuable resources from being left idle for long
 Property in the hands of those who value it more
 Ordinary expectation is based on actual use of land, not what’s written in the deed
 Most people’s view about property are based on just looking around  mistakes common
Arguments Against:
o Moral reasons:
 Right to have property protected based on title
 AP shouldn’t benefit from own wrongdoing
o Economic reasons:
 Bargaining is cheaper than litigation; Better to resolve by market mechanisms
 If AP really values more, she should purchase
 Not efficient to expect people to watch over their land all the time and fear about adverse
possession (bad to have surprises in law)
 Not efficient for AP to rely on inaccurate/vague information  Encourage people to be
more careful, know borders, avoid future litigation
OTHER INFORMAL TITLE TRANSFERS
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“The Improving Trespasser”
o Relative Hardship Doctrine (now the majority rule):
 An innocent trespasser who improves/builds on property in good faith belief that it was
her own property has a right to compensation for the value of the improvements when
those improvements increase the value of the property or to purchase the land from the
landowner for the value of the land minus the improvements.
 Bad faith: When encroachment made in bad faith, courts do not consider
arguments related to relative hardship.
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4. Servitudes
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Servitude: land use restrictions/a legal device that creates a right or an obligation that runs with the
land or with an interest in the land for the benefit of the dominant estate/non-owner party
- Definition
o Permanent and irrevocable
o Primary types: easements and restrictive covenants
o NOT Licenses: Licenses are limited rights to enter/use land that do not run with land and
usually are revocable at will
o A right or obligation runs with the land if it passes automatically to successive owners or
occupiers of the land or the interest in the land with which the right of obligation runs
- Terms/Types:
o Easement  nonpossessory interest in land owned by another
o Affirmative easement (AKA “easements”): right to use another’s land for limited purposes
 Most common  “Right of way” (right to use for egress or ingress)
 “Profit”  another type, allows non-owners to collect resources from the land, like coal
o Negative easement (AKA “covenants”): restrictions on what owners can do with their land
 Ex: solar easement (agreeing not to build more than certain number of stories)
o Easement in gross (personal): benefitting a particular person/entity rather than land
 Can transfer if assignable (esp. commercial easements in gross), but typically ends with
holder/grantee’s death. Ex: utility companies
o Appurtenant easement: benefitting possessor of another parcel of land/estate (not a
particular person) and is transferred from landowner to landowner
 Generally not severable from ownership; automatically assigned with land
o “Burdened”/“servient” estate: land subject to the burden of servitude
o “Benefitted”/“dominant” estate: land that benefits from servitude on another’s land
- Justifications:
o Policy  easements and covenants can both offer expectations, encourage investment,
coordinate land use and burden land with restrictions, undermine policy goals, or expectations
of new purchasers
o Covenants can function as an alternative to zoning laws because they can be much more
specific and precise in restricting land uses
o Can encourage investment (anti-competitive covenants) and save on transaction costs (no
need to negotiate restriction with each new owner)
- Modifying and terminating easements  last forever unless terminated by:
o Agreement in writing (release of easement by holder)
o By deed’s own terms
o By merger (holder of servient estate becomes owner of dominant estate)
o Abandonment (show that owner of benefited estate indicated intent to abandon easement)
o Adverse possession or prescription by owner of servient estate or third party
o Frustration of purpose (minority rule – purpose of easement impossible to accomplish)
- Distinguished from Licenses/Leases:
o L/L  Temporary permission, Limited to specific purposes, usually revocable at will (ex. Store
open to the public)
EXPRESS EASEMENTS
- Created by express agreement between the owners (aka written in deed), must satisfy SOF
o Statutes of Frauds (50 states): easements must be in writing/recorded to be enforceable, plus:
 Must be signed by grantor
 Must sufficiently describe the easement and the grantee
- Elements  Burden runs with the land if:
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(1) Satisfies SOF (must be the original writing)
(2) Subsequent owners of servient estate had notice of easement at time of purchase
 Actual notice: subsequent owners explicitly know about easement
 Inquiry notice: if there are visible signs of an easement (ex: telephone poles) then a
reasonable buyer should have known to look into the existence of an easement
 Constructive notice: if the deed states the easement and is easily found by subsequent
owners in registry, then they are on notice (they should have known)
o (3) Original grantor intended easement to run with the land
 Courts will at the language of easement [“this is an appurtenant easement” or conveys
easement to named person-> in gross] and if language ambiguous, courts will look at:
 Benefits easement offers
o If easement is useful/commercially marketable apart from ownership
of land -> in gross
o If easement has little utility separate from land ownership ->
appurtenant
 Situation of the property and the parties
 Strong presumption that easements are appurtenant to land
 If beneficial to dominant estate, regard it as intended to run with the land
(Green v. Lupo)
Transferability
o Appurtenant easements  transferable/assignable by definition
o Easements in gross  traditionally were not transferable but generally held to be now,
especially if commercial in nature (Henley)
 If for personal convenience or enjoyment, less likely to be assignable
o Cannot change easement in a way that goes against the intent of grantor (Cox)
 CAN be transferred to 3rd party if done to fulfill the intent of the grantor (Henley)
o Courts to hold that intent of use can change over time to account for technological advances
 Ex: telephone or electric service -> TV service (Henley)
Ambiguous easements:
o Appurtenant or In Gross  Presumption of appurtenance unless evidence to contrary (i.e.
language of grantor’s intent in writing, etc)
 Green v. Lupo: easement for ingress/egress purposes; easement is presumed to run
with land bc using road benefits any future owner of dominant estate
o Scope & Apportionment  whether owner of easement is misusing it by going beyond scope
of activities contemplated by grantor. 3 issues:
 (1) Kind of use: The owner of the easement can make a different kind of use than that
contemplated by the grantor
 Cox v. Glenbrook: Owner of an easement may prepare, maintain, improve, or
repair in a way reasonably calculated to promote the purposes for which it
was intended.
 (2) Unreasonable Burden: The use of the becomes an unreasonable burden not
contemplated by the grantor.
 (3) Divisibility [appurtenant] /Apportionability [in gross]
 Generally, the owner of an appurtenant easement can subdivide his land and
then distribute/apportion the easement in an appropriate way.
 If the easement is exclusive, courts generally hold it to be apportionable.
 If the easement is nonexclusive (grantor still uses), courts generally hold it to
be non-apportionable.
o
o
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IMPLIED EASEMENTS
- Easements not expressly stated in a document
- Types: (Prescriptive/prior use/necessity/estoppel/constructive trusts)
o Prescriptive Easements
 Definition  easement gained by long-continued adverse use (basically AP but for “use”
not “possession”)
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Scope  Specific use of property (limited to narrow use of another’s land rather than
general possession)
 Extent of easement determined by use, general outlines rather than minute detail
 Community Feed Store: prescriptive easement for use of cars and trucks to turn
around
 Requirements: same for adverse possession, except claimant must show adverse use
 Some drop exclusivity requirement; Some add that true owner must acquiesce
(not permission)
 Use generally assumed to be nonpermissive like AP but minority states
increasingly assume limited use is permissive
Easement Implied from Prior Use (Granite Properties) AKA “quasi-easements”
 When an estate is divided, and one person used another part of the divided estate for
a long time and it was obvious and is necessary for that person to enjoy the estate
 Elements (Granite)
 Common Ownership: Both parcels must have been owned by common grantor
 One parcel was previously (prior to severance) used for benefit of the other
parcel in a manner that was apparent and obvious, continuous and permanent
 The use is “reasonably necessary” or “convenient” for the enjoyment of the
dominant estate
Easement implied from necessity – (Finn) Ingress/Egress or “Right of Way”
 When a part of the divided estate is landlocked, and they need to use another part for
public road access
 Elements
 Former common ownership of the 2 estates
 Dominant estate completely landlocked (i.e. road is strictly necessary)
Easements by estoppel (Lobato) AKA “Irrevocable License”
 When courts prevent owners from revoking a [license/permission] after licensee grows
to rely on the permission/license such that revoking it would be unjust.
 Elements (Lobato)
 Permission/license from landowner to use land
 User relied on by substantial investment
 Reliance foreseeable & reasonable
 Finding an easement is necessary to prevent injustice
Constructive trust
 When someone does something bad (breach of trust, fraud, etc) depriving someone of
property right that she doesn’t own but should  legal system gives her the right

o
o
o
o
RESTRICTIVE COVENANTS & EQUITABLE SERVITUDES
- Covenants: restrictions on use of land or obligations regarding land held by one who does not own
the land (AKA “negative easements”)
- Main Types
o Restrictive/negative covenant: promise not to do something (i.e. not to lease land)
o Affirmative: duty to do something for the benefit of neighbor (i.e. HOA requirements)
o Covenant in gross  limited to specific owner, does not run with land
o Real covenants  run with the land
- Real Covenant Elements (requirements to run with the land  Neponsit):
o **All elements must be analyzed for both burdened/benefitted estates**
o (1) In writing  complies with Statute of Frauds
 Writing in original deed, or record a declaration (constructive notice) or in a plat (map
showing restrictions in some area)
o (2) Intent to run  Original parties must intend for burden/benefit to run with the land
 Covenant must state that it is intended to run with the land on both sides (intent to run
must be ascertainable from the writing)
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Covenant is made to grantor and “their heirs or assigns” or it is “intended to
bind future owners” or explicitly “intended to run with the land”
o (3) Touch and concern (only substantive requirement)
 Affects the use or value of land; restrictions on land satisfy this requirement easily
 Burdened: T&C if affects use and enjoyment of land
 Payment of money for services does not T&C burdened estate (except HOA fees)
 Benefited: if improves enjoyment of that land or increases its market value
 **T&C test slowly being abolished because it’s vague and confusing.
 New test seems to be more whether the covenant is reasonable or not (is this
the kind of obligation that should run with the land?)
 Unreasonable if: infringes on interests in individual liberty or inhibits
alienability of land without compensations social or economic benefits
 Restatement Third  valid unless covenant violates public policy
 Neponsit  HOA fees T&C burdened estate bc property owners enjoy benefits
of maintenance of public places by the payment of the HOA fees.
o Privity of estate  Need both horizontal & vertical to bind
 Horizontal privity: Concerns original covenanting parties  instantaneous
o ONLY when covenant is attached at moment of sale of land or
deed/lease that original covenanting parties sign
o One piece of property burdened for the benefit of another
o Requires a sale/conveyance of property interest  agreements between
neighbors, or agreements between grantor/grantee NOT made at time
of conveyance do not have horizontal privity
o Trend of moving away from horizontal privity as requirement
 Vertical privity: when original covenanting parties transfer their interests to
subsequent possessors  need formal transfer (i.e. not adverse possession or
leases)
o Burden: Subsequent owner must succeed original party’s entire estate
or ownership interest in property
o Benefit: subsequent owner just needs a possessory interest
o Lessee of burdened estate has no vertical privity but lessee of benefitted
estate does, under strict vertical privity standard
 There must be horizontal privity for there to be vertical privity
 Take away: when a covenant is made it should be in the deed to satisfy
horizontal privity and add that it should run with the land to satisfy vertical
privity
o Notice to purchaser (for Equitable Servitudes only)  whether the owner of the burdened
estate knew or should have known estate was restricted when they purchased it
 Actual notice: was told/directly made aware
 Inquiry notice: should ask about covenant because some visually apparent aspect of
land would make reasonable person inquire about its existence
 Constructive notice: should be in the deed, title, “declaration” in the registry of deeds
that would be found with reasonable search prior to sale/purchase
o Remedies for breach
 Covenants may be enforced by damages (default) or injunction (discretionary)
 In real property, damages might not be enough because of the nonmonetary value of
the property (location/purpose/etc)  Therefore, injunctions are often remedies
Equitable servitudes: covenants that could be enforced despite the lack of privity
o Elements
 Covenant in writing
 Intent
 Touch and concern
 Current owner purchased with the notice of restriction
o Equitable servitude = injunction damages only + replaces privity with notice requirement
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Implied Reciprocal Negative Servitudes (AKA implied reciprocal negative easements)
o Definition: When an owner sells # of parcels w/ evidence of intent to create a “common plan”
of development w/ covenants, then:
 (1) covenants made to the seller benefit all parcels within the plan, and
 (2) all parcels within the plan are bound by the covenants
o Purpose: Solves the intent/notice/privity issues that arise when a developer imposes
covenants on lots in a residential subdivision and intentionally/inadvertently leaves the
restrictions off some lots
o Potential evidence of intent for “common plan”:
 Recording/declaration stating intention that covenants are mutually enforceable
 Restrictions in all or most deeds to property in area
 Presence of restrictions in last deed
 Language stating the covenants are intended to run with land
 NO SCHEME  when some deeds unrestricted or restrictions not uniform
o Modern rule  Many states require filing of “declarations” by developers selling individual
lots subject to a common plan  puts everyone on constructive notice
o Case Law:
 Evans v. Pollock: Restrictions don’t have to apply to all lots, but do apply to “welldefined similarly situated lots.” (Owners could sell to other buyer to build marina and
private club because hilltop was not similarly situated as lakefront properties)
 Sanborn v McLean: Since a majority of lots were restricted, courts inferred intent to
create common plan even though great number of properties did not have restrictions.
 Riley v. Bear Creek Planning Committee: Sub-division created the covenant 9 months
after P purchased property. Court determined that the Ps were not subject to
restrictions because it was not written into their deed. The intent of the owner to
impose restrictions was not binding on them.
Third Restatement of Property changes:
o Get rid of “touch and concern” test and horizontal/vertical privity  essentially get rid of
distinction between covenants/equitable servitudes
o Suggested requirements for covenants to run with the land:
 If they are intended to do so
 The successors have notice of them at the time of the purchase (in lieu of privity)
 Enforcement violates no statue of public policy (i.e. reasonable)
Substantive Limits on Creation and Enforcement of Covenants:
(1) Reasonableness and Public Policy Violations (Katz, Nahrstedt)
(2) Assertion of CXL violations- Shelley v. Kraemer
(3) Claims of discrimination under FHA
(4) Review of restrictions on alienability
(5) Claims of unreasonable restraint on trade
PUBLIC POLICY & CHANGED CONDITIONS
Public Policy
- Traditional approach: covenants viewed as violating policy favoring free use of land. To interpret
covenants narrowly, courts applied touch and concern test to invalidate covenants that infringe too
much on land use without valid reason why
- Modern approach: look at policy concerns, focus on reasonableness, balancing of interests and impact
on community
o Davidson v. Katz  8 factor “reasonableness” test (p.603)
o Nahrstedt  cat lady in condo; pet restriction not against public policy or unreasonable
Terminating covenants  difficult to do
- Easements: (if terms of grant do not state specific expiration date/length)
o Abandonment: non-use combined with affirmative expression of intent to abandon
o Merger: if owner of both estates, easement disappears
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o Release (agreement by holder)  must be in writing to satisfy SOF
o Frustration of purpose: ex: road gone
o Other: estoppel, eminent domain, prescription
Covenants
o Changed Conditions (Focused on benefit to dominant estate)
 Covenant not enforced if conditions changed so drastically inside the area restricted by
the covenant that enforcement will not be of ANY substantial benefit to the
benefited/dominant estates  change so radical as to defeat purpose of covenant or
make it valueless
 Rest. 3rd test  relief granted only if purpose of servitude can no longer be
accomplished; Courts should avoid intervening when mechanisms exist for
termination through agreement between parties
 Applies to changes outside restricted subdivision only when those changes so adversely
affect lots in the subdivision that enforcement is pointless
 El Di v. Town of Bethany Beach- covenant restricting alcohol sale in town  Court rules
covenant unenforceable bc fundamental change in neighborhood that renders benefits of
restriction incapable of enjoyment.
 Policy interest: allow sale of alcohol to make it more regulated (restaurants can
then refuse to serve those too drunk)
 Damages may be allowed rather than injunctions if covenant cannot be enforced
o Relative Hardship: (Focused on harm to servient estate)
 Covenant will not be enforced if harm caused by enforcement will be greater by a
considerable magnitude than the benefit to the owner of the dominant estate
 Rest. 3rd: treats relative hardship doctrine as factor in determining remedies rather than
basis for terminating servitudes
o Other Equitable Defenses that can result in non-enforcement of servitude:
 Tolerating and failing to object to violations of covenant
 Unclean hands: owner failed to follow covenant himself
 Acquiescence: Tolerated previous violations by servient owner
 Abandonment: tolerated violations by other owners in neighborhood
 Estoppel- dominant estate owner orally represented to servient estate owner that she will
not enforce covenant estopped from enforcing if servient estate changes position in
reliance on oral statement
 Laches: If covenant has been ignored/breached for substantial period of time (but less
time than necessary to get prescriptive easement), court may find that unexcused delay
in enforcing covenant prompted investment in reliance of failure to object and
enforcement of covenant then unconscionable
o Other ways to terminate:
 Language in instrument: to terminate after stated years or renew
 Merger: if burdened and benefited estates come under ownership of same person
 Release: both parties agree in writing to terminate covenant
 Prescription: open and notorious violation of covenant without permission for the
statutory period may terminate the covenant by operation of the statute of limitations
 Statutes: Some states enacted to regulate enforceability of covenant and provide way for
covenants to be removed over time
 Blakely v Gorin (Mass 1974): Case has MA statute with CL on top- statute allowed
for damages rather than injunction (gave judge lots of discretion).
5. Common Ownership
CONCURRENT OWNERSHIP, MARITAL PROPERTY
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Definition: When more than one person has the right to control the same thing at the same time
Remedy:
o Only remedy for conflicts with co-ownership is partition
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Each tenant in common (no matter how small interest they hold) has right to possess entire parcel
unless covenants state otherwise
Types of Concurrent Ownership:
- Tenancy in common  Default form of concurrent tenancy if ambiguous, most common
o “Undivided” interests: Equal right to possess whole property, plus share equally in rents &
appreciation in value ($ according to respective interests)
o O  A + B, as tenants in common (A and B have whatever interest O gives them, doesn’t have
to be equal ratio)
 When A or B dies, property goes to heirs of decedent not to other tenant
o Tenancy in common interests are  assignable, devisable, inheritable
o Tenants can convey property to heirs in will
 Carr v. Deking: tenant in common can lease his own interest without permission of
the other tenant and nonconsenting tenant is not bound by lease to 3rd person
o Remedy is partition
- Joint tenancy  Right of Survivorship
o O  A + B as joint tenants (must be equal interest ratio among tenants)
 If A dies, A’s 50% interest goes to B
 If A, B, and C, upon A’s death, B and C become 50-50 owners
o “Right of survivorship”  When a joint tenant dies, her property interest is automatically
transferred to the remaining tenants in equal shares
o Traditionally requires the “four unities” (time, title, interest, possession)  rejected by some
states in favor of test of parties’ intent of right of survivorship
 Interest must be equal
 Each tenant has possessory rights to whole property
 Joint tenancies must be created by a common title
 Joint tenancies must be created at the same time
o Creation  by a deed or will & must state “as joint tenants w/ right of survivorship”
 CANNOT arise by intestate succession (2+ people inheriting property become tenants
in common)
o Severance
 Traditionally destroying one of the four unities  would become tenancy in common
 Joint tenant who transfers her property interest will destroy right of survivorship, new
owner will be a tenant in common with other owners, who remain in joint tenancy
together
 (A, B, C are joint tenants and A sells to D, then B and C are now tenants in
common with D. No right of survivorship but can partition. But B and C are still
joint tenants)
 In many states, divorce between joint tenants  tenants in common
 Do leases sever joint tenancies?
 Most courts say lease = severance of joint tenancy because it’s like a sale, but
others rule that it doesn’t and remaining joint tenants will have right of
ownership
 Tenhet v. Roswell (CAL 1976) – lease didn’t sever joint tenancy, but:
o Lease expires upon death of lessor because lessor no longer has the right
to lease the property. His interest has been passed automatically to the
other JT
o Singer: court is treating JT like life estate/ this is clash of property rights
and is a difficult question
- Tenancy by the entirety
o Just like joint tenancy but only married couples
o Only retained in about half the states  in majority, it is the assumption for married couples
o Traditionally required the four unities too but many states have gotten rid of requirement
o Severed by divorce (no partition otherwise)  become tenants in common
o
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Transferability
o Tenants in common and joint tenants free to transfer interests without the consent of co-owners
o Tenants in common can leave interest to devisees by will, joint tenants cannot
Ambiguous conveyances
o Most courts will presume a conveyance is a tenancy in common (over a joint tenancy)
o But some hold that the ultimate question is the intent of the grantor and will find a right of
survivorship to the other tenant if it appears from the deed or will
o If it is married couple and the state does not have tenancy by entirety, then the court will presume
it is a joint tenancy so that the interest automatically passes to the widowed spouse
Partition  can sue for judicial partition of commonly held property; physically or by sale
o Most states will prefer physical/partition in kind than partition by sale
o “Partition in kind”  Physical partition. Afterward, each owner controls an individual portion of
the property. Courts strongly prefer PIK, unless very good reason for PBS
 Ark Land: Economic value of the property is not the exclusive test for deciding whether to
partition in kind or by sale. Evidence of longstanding ownership, coupled with sentimental
or emotional interests in the property may be considered in deciding.
 A party that wants partition by sale must prove property cannot conveniently be
partitioned in kind, that interest of 1 or more parties promoted by sale, interests of
other parties not prejudiced by sale
o Partition by sale  court order for sale of the property & the proceeds divided by interest
o Leases will persist after partition unless the sale proceeds are used to compensate the lease for
termination of the lease
Rights and Responsibilities Between Co-Owners entitled to share the benefits and obligated to
share burdens of property.
o If dispute, tenant can seek judicial accounting (either during co-ownership or division) to
require co-owners to pay their portions of expenses or force them to hand over profits
Family/Marital property:
o Separate property (majority of states)
 Majority of states do equitable distribution (Montana Statute)
 Property owned during marriage is owned separately, unless they choose to combine assets
 But still have duty to support spouse, which could mean sharing property
 On death  If spouse dies without will, all of it goes to the surviving spouse
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o
o
o
If will says to give everything to someone else, then spouse can argue against the
will and get at least a portion (“forced share”)
 Cannot disinherit spouse (except in GA)
 On divorce  usually equitable distribution of property no matter who held title, based on
factors like economic need, status, contributions of each party, or fault in divorce (varies
by state statutes)
Community property (10 states)
 Separate property from before you were married does not count as community property,
but everything acquired after marriage (including income) is community property
 Can “transmute” community to separate property, but only with mutual consent
 Can use a prenup to determine separate property
Constructive trust
 If unmarried, the court may still find that one “spouse” owns part of the property due to
justified expectations and having reliance on that relationship/property  imposes a trust
to avoid unjust enrichment
Premarital agreement: differs among states, some may look at fairness/disclosure of
assets/consultation of lawyer, etc.
HOMEOWNERS ASSOCIATIONS (reasonable v. business judgement rule)
- Common interest developments: where multiple dwellings are joined by servitudes providing them with
shared rights in common elements (like roads)/shared obligation to contribute fees to HOA that
maintains common elements, enforces covenants, and sometimes enacts rules for the community
- HOA
o Created by declaration of developer, who drafts CCRs (conditions, covenants and restrictions) and
records them in deed
o Elected board, owners have voting rights (like mini government)
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o Enforce covenants
o Can collect dues and fees to maintain common areas – unpaid dues can be lien on property
Condominiums: each unit is owned by a person and common areas shared by all. Each person deals with
her own mortgage and taxes separately
o Ownership share for voting
o Board of trustees picked to manage common areas, maintain contracts, assess fees, enforce
servitudes
o Strictly creatures of state statute and give association board authority to government relationships
among unit residents and restrict rights of individual residents for good of majority (each
individual must give up certain degree of freedom to live in cond0
Cooperatives: entire building owned by single nonprofit coop corporation, where owners buy shares and
lease their individual units from corporation
Community land trusts/limited equity co-ops
o Community land trust: nonprofit corporation that buys and holds title to porporty (usually buy
cheap land in depressed area of land subsidized by government). Trust owns land but individuals
own units, and have to sell back to trust or to other low income users
o Limited equity coops: same as regular coop but sale of shares at fixed price (no benefit from
increases in market value)
Common types of conflicts
Conflicts between unit owners and developer
 Restatement Third: developer may not exercise power to amend or modify declaration in
a way that would materially change character of development or burdens on existing
community members unless declaration fairly apprises purchasers that the power could
be used for the kind of change proposed.
 Appel v. Presley Cos (591): Appels bought land on promises of restrictive covenants
but architectural control committee changed. Trial court thought this was ok because
language allowing for amendments was clear in restrictive covenants. Ct imposes a test of
reasonableness on when developer can exercise right to change restrictions (to not
destroy general plan of dvpmt)
 Reasonableness test is factual matter so deny SMJ and remand. Also if
unreasonable, court should use relative hardship doctrine to determine if
injunctive relief should be allowed
o 7 factor test page 593- reasonableness for developer (different than 8
factor reasonableness test in Katz)
 Good faith backdrop in CL requires discretionary power to be exercised
reasonably (developer would argue that they can change committee, text is plain)
o Policy Questions
 How much power to give condo boards? potential for abuse through arbitrary and
malicious decision-making VS. stability offered by community control of the board
 Don’t want to make it too easy for dissatisfied residents to bring complaints before the
court every time one resident doesn’t like the board decisions  threat to the stability of
living arrangement
 Purchase of a coop represents a voluntary choice to sacrifice certain privileges of single
ownership
 Note: (see below under restraints on alienation, in section on estate system): “Consent of
association to sell” provisions are usually upheld if they a) contain a reasonableness
clause and b) are framed as preemptive rights, creating a right of first refusal and not an
absolute block to sale.
Reasonableness Review of Covenants
o Enforce unless they violate public policy
 internal ex: competition, restraints on alienation
 external: freedom of speech
 free ranging
 Ariz Statute: covenant valid and enforceable if
 It does not violate state statute
 Consent
o
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o
o
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-> gets rid of public policy element (can be valid regardless if not contrary to state
statute) and doesn’t talk about race
covenant violating fundamental values
reasonableness: looking at costs, benefits, and relative benefits of each parties
Usually judged with respect to entire community and not just individual owner
Nahrstedt v. Lakeside Village Condo Asso. (604): CCRs in developers’ declaration
recorded at beginning of project said no animals. Π had 3 cats.
 Held: CC&Rs will be enforced unless it is unreasonable (“wholly arbitrary, violate in
fundamental public policy, or impose burdens on the use of land that outweighs any
benefit”) should be enforced if not arbitrary.
 did not own the right to fly flag
 Policy interests in enforcing CC&Rs:
 Condominiums have the right to create their own rules in the community
 stability, predictability, presume validity to discourage lawsuits by those seeking
exemptions
 protecting all owners from unanticipated increases in fees to fund the defense of
legal challenges to recorded restrictions, rationally related to health, sanitation,
and noise concerns in high-density condo projects.
 Reasonableness determined not by facts of individual owner, but by common
dvpmt as whole  reasonable for health concerns
 Dissent: extolled virtues of cats and cherished benefits derived from pet ownership,
would have found the restriction arbitrary and unreasonable. He felt the analysis should
focus on the burden on the use of land (and on the objecting owner) and not the “health
and happiness” of the development which realistically would be unaffected by this
particular use.
Covenants
Procedure (usually specified in state law)
Recorded
Reasonableness
Traditional (Rest): touch and concern
Rest 3d: Public policy (appropriate)
- lots of freedom to make covenants
Arizona: stat 33-440
CAL: unless unreasonable
NJ: reasonable
o
Rules
More flexible
May not be recorded (inquiry notice)
Reasonableness
: less likely to uphold rules than covenants
(covenants: presumption of validity and
implicit consent)
Rules/By-laws: by-laws given deference/usually enforced unless homeowner can show burden it
imposes substantially outweighs benefits
 Enforceable when:
 Are the changes within the scope of the authority created by the condo declaration?
o Authority to make the specific change does not need to be explicitly given,
can just allow general changes to common areas or changes or aesthetics
reasons, for instance (O’Buck)
 Then, review according to:
o Reasonable standard (majority)
 Balance the importance of the rule’s goal against the importance of
the interest infringing upon
 O’Buck: stronger rood and better aesthetics for increased
marketability (banning TV antennae) are clear interests and
small burden
 Restrictions can infringe upon right to peaceably assemble, as long
as it’s not regarding public or government issues
 Neuman: condo can ban religious services in a auditorium
based on a vote, reasonable and does not violate statute
 Singer doesn’t agree
22
o
o
o
Can condominiums amend declarations to retroactively prohibit leasing individual units?
 Most courts have answered yes on the ground that the condo owners expressly agreed to
allow amendment of the declaration by a vote of the members of the association and thus
implicitly agree whatever changes they would make
 Other courts have held that restraints on alienation are not favorable and cannot be
imposed retroactively
 Restatement 3d requires unanimous consent for declaration amendments that “prohibit
or materially restrict the use or occupancy of units”
By-laws that regulate what people can do INSIDE their apartment?
 Some courts suggest that rules be struck down as unreasonable if they are highly intrusive
 Restatement 3d states that unless the declaration grants higher powers, the condo ass. Can
only limit conduct inside condos if it is a nuisance-like activity that will interfere with the
use and enjoyment of neighboring unites
 If courts follow the business judgment rule, then will only strike down if evidence that was
not done in good faith
Summary of standards: growing presumption that covenants and bylaws are enforceable unless
unreasonable or violate public policy or other state statute
 Covenant Standards (declaration)~ like the CX
 Restatement: Touch & concern
 Rs3d - enforceable unless violate public policy [strong presumption]
 Ariz- enforceable unless violate statute [basically all valid]
 Cal- enforceable unless unreasonable [presume validity, more discretion compared
with pub pol where you need to show something is bad]
 NJ- reasonable [no presumption]
 By laws/rules standards [made by condo assoc] ~ like the statutes
 Reasonable (Cal)- most states
 Business judgment (NY, NJ) ~ Levandusky pg. 620 (standard – ok so long as
process was rational or employed in good faith to advance corporate interests)
6. Estate System and Future Interests
Present Estates/Future Interests
-
-
-
-
Two main types:
o Fee simple estate  ownership rights including the right to determine who owns in future
(potentially can last forever)
o Life estates  ownership rights lasting only for the life of a particular person
Three basic rules:
o One cannot grant more than one has
o Unless grant has limiting language, grantor will be presumed to have given away all transferred
interest (grant of fee simple from O to A w/o specifying future interest means granting property
forever)
o Whatever is not granted is assumed to remain with the grantor
Protection against feudal system (mention on exam)
o “Rule against perpetuities” and “presumption against forfeitures” are meant to protect the
autonomy of owners and a reversion to a feudal-like system of ownership
Vocabulary:
o “Future interest”  right of possession in the future under specified circumstances
 By sale, lease, will, trust
 Most states now allow transfer of future interests
o “Testator/testatrix”  one who dies leaving a valid will
 Opposite  “intestate” (without will)
23
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o “Trust”  legal arrangement in which person/entity holds title to property for benefit of another
o “Heir”  those who inherit if owner dies intestate
o “Devisee”  entitled to property under a will
o “Alienability/Assignability”  ability for property to be sold/transferred during lifetime
o “Condition Subsequent”  the occurrence/nonoccurrence of event that can cut short an estate
o “Possibility of Reverter”  future interest in fee simple determinable
o “Right of Entry”  future interest in fee simple subject to a condition subsequent
o “Executory Interest”  future interest in fee simple subject to executory limitation
o “Reversion”  life estate after A’s death reverts to grantor O
o “Remainder”  designated third party to obtain life estate after A’s death
o
Fee Simple Interests:
o Definition: Right to determine who owns property in future. 4 types (see below)
 Interest that does not necessarily end because of lapse of time or death, could potentially
last forever.
 Present interests that terminate at the end of a specified event other than the death of the
owner (basically right to determine who owns it in the future whether by sale, gift,
inheritance, or devise)
o Fee Simple Absolute: without associated future interest; complete ownership; lasts forever
 Language  “O to A”, “O to A in fee simple”, “O to A and her heirs”
 “And her heirs” just means in fee simple; Heirs do not have property rights
 If A gives to B, B has ownership no matter what heirs say
 Restraints on alienation for fee simple are always void
 Inheritable and alienable
o Defeasible Fees: present interests that terminate at happening of event (other than death of
owner)  Divided based on (1) whether future interest is in grantor or 3 rd party + (2) whether
future interest transfers automatically or if future interest holder needs to assert possession
 Fee Simple Determinable: interest automatically reverts to grantor (or heirs thereof)
on happening of stated event
 “Possibility of Reverter”  future interest in this case known (don’t need to state
explicitly in the grant)
 Most states now hold that the future interest is alienable as well as devisable and
inheritable
 Language  describing present interests with words of duration (so long as, during,
while, until):
o “O to A as long as used for residential purposes”  (conveyance creates fee
simple determinable in A with possibility of reverter in O or his
heirs/devisees)
o “O to A while used for residential purposes” / “O to A during residential
use”
 Fee Simple Subject to Condition Subsequent: Transfer to grantor upon grantor’s
assertion of property rights when condition set is violated
 “Right of entry”  future interest here; Owner (or heirs) can choose to assert rights
when condition set is violated. If O chooses not to, interest stays with possessor
o SOL for adverse possession starts when right of entry is asserted
 Traditionally wasn’t transferable, but now strong trend to allow transfer; most
states allow them to be inherited and devisable
 Language  Use words of condition (“on condition that”, “provided that”, “but if”)
o “O to A, but if used for nonresidential purpose, O shall have the right of
entry”
o Generally, must explicitly state the right of entry or termination of grant
 Fee Simple Subject to Executory Limitation: interest automatically shifts to nongrantor/3rd party when condition is violated
 “Executory interest”  Future interest (owned by someone other than grantor)
24
Majority of states interpret this as vesting automatically once condition is
violated but some say that the third party has to assert their interest
 Language  words of duration or condition
o “O to A so long as used for residential purposes, then to B”
o “O to A on condition that it is used for residential purposes, then to B”
 Important because of traditional rule against perpetuities: under this rule, B’s
interest is void in 20 states and interest goes back to O
o These courts will make this into possibility of reverter back to O
o Executor interests are regulated by rule against perpetuities but grantor
interests are not
o Majority states have changed this rule of perpetuities so that executor
interests are allowed as long as they vest within 90 years of initial
conveyance from O to A – also when it shifts to B they are no longer subject
to the condition unless specifically stated that they are (or if there is a
covenant – which might not be possible)
 To ensure possibility of reverter for a 3rd party, O can transfer to A through free
simple determinable and then O just transfer the possibility of reverter to a third
party, B (would not be subject to perpetuities)
Life estates: held for life of a designated individual
o Estate owner cannot choose who will own the property after her death  ownership automatically
shifts to reversioner or remainder holder
o Restraints on alienation for life estate are enforceable
o Language  “O to A for life”
o Reversion and Remainder:
 “Reversion”  future interest after A’s death reverts to grantor O
 “O to A for life”
 If O dies before A, then it goes to O’s heirs/devisees (inheritable)
 “Remainder”  if grantor designates a third party to obtain ownership after A’s death
 “O to A for life, then B”
 “Life estate for the life of another” (“life estate per autre vie”)  If O to A for life, then A
sells property to B, B gets what A had (life estate for life of A). Once A does, back to O.
o Contingent Remainder and Vested Remainder:
 Remainders are “contingent” if:
 Based on something that might not happen (Ex: O to A for life, then B if B has
graduated law school)
 Or if remainder will go to third party not known at the time of the initial conveyance
(Ex: O to A for life, then to the children of B)
 Can be destroyed if:
o If the contingency did not vest before the life estate owner died
 O to A, then B if B is a lawyer (B not lawyer at A’s death  O)
o Merger of the present and future estates
 “Rule against perpetuities” applies to contingent remainders
 Remainders are “Vested” if:
 Person who gets remainder is identifiable at the time if the initial conveyance AND
no conditions must occur before the future interest becomes possessory (except for
death of life estate tenant)
o “Absolutely vested remainders”  remainder that is not subject to change
 “O to A for life, then to B”
o “Vested remainders subject to open”  remainder is vested in some
individuals but others may join the class in the future
 “O to A for life, then to the children of B” (any future children of B
will join the class of children that are already alive)
 Most courts will close class at death under “Rule of Convenience”
o
-
25
“Vested remainders subject to divestment”  remainder that may be lost
due to an event that occurs after the original conveyance
 “O to A for life, then to B, but if B marries a lawyer, the property
shall revert back to O”
 Most states say this is subject to the “rule against perpetuities”
Rule Against Perpetuities  forbids future interests that could potentially vest after the established
time period. The rule is often stated as: “no interest is good unless it must vest, if at all, not later than
twenty-one years after the death of some life in being at the creation of the interest”
Interpretating Ambiguous Conveyances:
o Courts first seek to implement intent of grantor
 Must have specific language in grant to create future interest (Wood)
 Purpose language not enough; Need time/condition language, etc.
 May be trumped by grantor’s interest
 Edwards v. Bradley: court ignores presumption and creates life estate instead of
fee simple. Mother convey to daughter so not to be repossessed by creditors
o O to A in fee simple absolute, except to A’s children if creditors try to take
it
o Singer thinks it’s against the rule of perpetuities and wrong
 Also subject to Rule against creation of new estates (below)
o Presumption Against Forfeitures 
 If it is possible to interpret the language of grant to avoid loss of the property by the current
possessor, the courts will generally adopt this interpretation
 Policy considerations allowing for forfeiture  original conveyance promotes
interest of grantor in controlling future use and disposition, and creates security
for neighbors who can benefit by condition
 BUT presumption against forfeitures  promotes interests of current owners in
controlling property in their possession; more freedom to change land uses as
economic/social values change
o Cy Pres Doctrine (Equitable Reformation)  Modifies the purpose of a charitable trust when
purpose becomes impracticable or impossible to achieve, or against public policy
 Courts use to construe the grantor’s intent to save a challenged trust
 Hermitage Methodist Homes v. Dominion Trust  charitable trust for school w/
restriction they can only admit white students (violated public policy)
 Evans v. Abney  trust for park for only white people
 Trust failed & reverted to grantor’s heirs (court says automatic so no state action)
o
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Estates System
Present Interest
Words Used to Create
Future Interest
In Grantor
In Third Party
“to A”
Fee Simple Absolute
“to A and her heirs and
devisees”
Words of Duration
“Possibility of
“as long as”
reverter” 
Fee Simple
“while”
reverts to original
Determinable
“during”
owner if new
(Defeasible)
“until”
owner doesn’t
“unless”
meet requirements
automatically
26
Fee Simple subject to
condition subsequent
(Defeasible)
Fee Simple subject to
executory limitation
(Defeasible)
Words of Condition
“Right of entry”
“provided that”
(for condition
“on condition”
broken) or “power
“but If”
of termination”
Words of Duration or
Executory interest
Condition
“until (or unless)…,then to…”
“but if…, then to…”
“for life”
“Reversion” 
“Remainder” 
“for life, then to…”
property reverts to
-Vested: something
Life Estate
“for life, but if…then to…”
grantor when A
that will certainly
(Defeasible)
for life, then to …if…”
dies
occur
only for person’s
-Contingent: future
lifetime
interest is literally
contingent on an
unknown occurring
Regulation of Future Interests/State Action
-
-
Rule Against Creation of New Estates  prevents owners from creating ownership packages outside
of one of the established estate categories
o Owners cannot create new types of estates  Based on the notion that complicated estates both
impeded alienability and may constitute illegitimate dead-hand control
o Must interpret grants and see how estates fit into one of the established categories
o Policy arg  Courts will attempt to further the alienability of property – discourage feudalistic
hierarchy and promote market system with wide dispersal of property rights
 Ex: “O to A and the heirs of his body”
 Ex: “O to A and the heirs on her father’s side” (Johnson v. Whiton)
 Not an established estate  Closest thing would be a fee simple so court will
interpret it that way
 Ex: “O to A on condition that property never be sold”
 Will not be allowed by US courts (restraint on alienation)  Inhibits economic
freedom and use of land
 Ex: O to A other than that no good rotten husband of hers, B
 Not allowed to do this. Instead  “O to A on condition that if property is sold to B
then O has right of entry.”
 How to do it without future interest  “O to A in fee simple, then to anyone she
wants to give to other than B.”
Rule Against Unreasonable Restraints on Alienation  strong presumption that property owners
should be able to transfer their interests; Reasonableness standard
o Restraints on alienation: no transfer/sale/lease/mortgage etc., but cannot be absolute
 Types:
 Disabling restraints (“property not to be transferred”)
 Future interests (“if grantee transfers, title reverts back to grantor”)
 Covenants (“grantee covenants not to sell”)
 Restraints on fee simple  automatically void/unenforceable
 Life estates/leaseholds/charitable or gov properties  valid if reasonable
o Policy Arguments for Allowing Alienability:
 Pro  shift easily to more valued use of property; enhance freedom/flexibility for current
owners; encourage dispersal of property to new owners; prevent discriminatory exclusion
27
Con  enhance value of units to be marketed and allow owners to create cohesive and
congenial communities
o Modern law uses test of reasonableness (standard)
 Total restraints, no matter the form, uniformly held unenforceable
 Restatement  weigh the utility of the restraint against the injurious consequences
 Ex: Covenants preserving affordable housing by limiting occupancy to low-income
o Grantor Consent to Sell (i.e. “no sale or rental without consent of grantor”)
 Current law  Generally held to be repugnant to fee simple estates and therefore void
 NW Real Estate v. Serio  Provision in deed that land should not be subsequently
sold or rented without the consent of grantor
o Rights: liberty, autonomy of individual. Freedom to get rid of property and
go somewhere else
o Utility: to make as much use of land as possible, need to go to person who
would use the land to the fullest
 Condo Declarations
 Most courts say that they can be retroactively imposed on owners who purchased
units before restrictions were adopted
 Amendment to a declaration of condo is presumed to be valid if reasonable and
does not violate public policy or owners’ constitutional rights (Woodside)
 If association holds right to consent, court more likely (but not certain) to uphold
o If good commercial reasonable reason
o Sometimes provision of association to consent to sale, but with right to
transfer at fair market value: courts likely to uphold because it’s not
restraint on alienation since the owner can sell for market value
 If developer has right to consent to the sale, courts are divided
 Co-op Board consent
 Courts give almost full discretion but still is subject to the FHA; Allows racial,
religious discrimination in many cases
o Options to purchase  Restraint on alienation because someone other than owner can take title
by exercising the option
 Used in many different contexts  Buying many lots, lease of commercial lots
 Likely to be held unenforceable if for fixed price and no termination
 Upheld if for a limited time, or if ensures owner can receive fair market value
o Right of first refusal (preemptive rights)
 Limits on who the property can be sold to, but can’t violate antidiscrimination laws
 Normally HOA or coop  generally found to be reasonable as long as owner can get FMV
Rule Against Perpetuities  “No interest is good unless it must vest, if at all, not later than twentyone years after the death of some life in being at the creation of the interest”
o Voids or invalidates contingent future interests that vest too remotely
 “Contingent interests”  future interests to unascertained persons or that are subject to a
condition precedent
 Purpose  Prevents “dead hand” control, encourages alienability
o Application Steps:
 1. Identify future interest created by the grant
 2. Identify what must happen for the interest to fully vest
 3. Identify all the “lives in being” who can have something to do with it vesting
 4. Imagine any way in which the future interest will vest more than 21 years after the death
of all the people identified in step 3
o 1. Identify future interest created by the grant
 Exempted from rule:
 All future interest in the grantor (reversions, possibilities of reverter, rights of
entry)
 Vested remainders that are absolutely vested or vested subject to divestment

-
28
Subject to the rule (applies only to non-vested interests)  Future interests in
unascertained or conditional third parties
 Executory interests
o Option to purchase (type of EI)  the right to buy property for a stated price
at some point in the future
 Applies regardless of whether option is held by original grantor or
by third party
 Also can leave options to heirs, which can be exercised to far in
future
 Contingent remainders
 Vested remainders subject to open
 Right of first refusal or preemptive rights (allow the holder to purchase property
whenever the current owner decides to sell )
o Courts split on whether they are subject to RAP
o 2. Identify what must happen for the interest to fully vest
 “Fully vest” means that we know exactly who is going to get the interest, that they are going
to get it (all contingencies are removed), and what fraction of the interest they will get.
 Ex: “O to A for life and then to A’s children.”  To fully vest, A needs to have
children AND A needs to die
o 3. Identify all the “lives in being”
 Creation of future interest: created by conveyance at moment of conveyance,
 By trust moment trust doc is signed if irrevocable, and if revocable, when trust
becomes irrevocable
 In a will at the moment the testator dies
 “Life in being”  person alive or in utero at creation of interest who may be involved in
vesting (only humans)
 Ex: Will states “O to A for Life and then to A's children”  Interest created when O
dies. Lives in being = A and any of A's children alive when O dies
o 4. Imagine any way in which the future interest will vest more than 21 years after the death of all
the people identified in step 3
 If applicable, determine whether future interest is valid or invalid. If any possibility the
interest can vest more than 21 years after the death of everyone alive at the creation of
interest (not when you’re doing the assessing)  invalid
 Ignore biology (i.e. can imagine a woman could have baby at any time before death)
 Ex: “O to A for life, then to A’s children who’ve graduated from college” & say A has
child right before she dies
o Child is not life in being (not at time of conveyance). If A has no other
children, 21 years starts at A’s death. Child could graduate college at age 40
(more than 21 years)  interest is invalid, RAP applies
 If invalid, determine what interests remain by striking out the invalid interest and seeing
what is left.
 “O to A, but if the property is not used for residential purposes, then to B” (invalid)
 cross out entire second part, and it basically creates a fee simple absolute to A
Rule Against Unreasonable Restraints on Marriages

-
7. Landlord/Tenant Law
LEASES:
-
Leaseholds  Transfer of right to exclusive possession of defined property for agreed period of time
o Conveyance of a property interest AND a contract
o Reversion/Remainder  future interest after lease period, retained by owner or 3rd party
o “License”  if sharing house with the homeowner (authorization to enter w/o trespass liability)
29
Just because contract says license doesn’t mean anything  court will look at the meaning
of the contract and if it is a defined space, will rule that it’s a lease
 Cases generally decided by asking if owner has transferred exclusive possession; if
so, a lease will be found.
 Why does the difference between licenses and leases matter?
 Tenancy requires a process for eviction
 Licenses allow owner to use self-help to throw them out
 Differences in obligation/duties
Types of Tenancies:
o Terms of Years  based on agreed upon length of time
 No notice needed to vacate at end of lease; ToY is alienable, devisable, inheritable
o Periodic Tenancy  automatically renew at specified period, unless landlord or tenant terminate
 Requires notice to end
 Ex: Month to Month tenancies (term length conforms to frequency of rent payments)
o Tenancy at Will  same as periodic tenancy but can be ended with no notice
 Not inheritable, devisable, transferable or assignable
 Death of landlord or tenant terminates tenancy at will
 Effectively abolished in most states  statutes requiring notice ahead of termination &
some states only allow tenant to end TaW
o Tenancy at Sufferance (“holdover tenant”)  tenant who stays wrongfully after terminated lease
 Different from trespasser, because tenant had a right to possess property before
 Not a type of true estate  type of wrongful occupancy
Commercial v. Residential tenancies
o Most rules same for both, but courts more likely to adopt common law rules for residential leases,
because commercial tenants more likely to have sufficient bargaining power and expertise
Distinguishing Tenancies from Other Property Relationships:
o Tenants generally entitled to legal process before being evicted, owners can use self help to eject
other trespassers
o Tenants may have right to continued occupancy over landlord’s objections in some
circumstances
Regulation of Landlord-Tenant Relationships:
o Procedural regulations  impose formal requirements for creating/terminating the relationship,
 Ex: Leases over 1 year  Many states require SOF writing, require notice and eviction
proceeding to terminate, need court judgement for eviction
o Substantive regulations  define parties’ obligations to each other
 Agencies/leg pass housing codes re: condition of premises, circumstances under which
there is a breach of agreement, etc.
 Common law provides implied covenant of quiet enjoyment
o Consumer Protection Statues  tenant can sue LLs as “consumer of housing services”
 Consumer protection statues can provide for damages and attorney fees
 Courts first determine whether tenants protected by general consumer protection statues
that prohibit unfair or deceptive trade practices in sale G/S to customers. Then courts
define what kinds of conduct constitute unfair or deceptive
Landlord’s Rights and Duties:
o Duty to deliver possession of the rented premises (if holdover tenant still in possession)
 Majority rule (English Rule)  landlord has obligation to remove holdover tenant, deliver
actual possession (better for residential leases)
 Minority rule (American Rule)  only need to deliver right to possession and new tenant
must evict holdover tenant (primarily for commercial leases)
o Duty to mitigate damages  if tenant breaches lease:
 3 Potential remedies upon breach:
 (1) Accept tenant’s surrender  can choose to sue for damages immediately

-
-
-
-
-
30
o
Damages: Instead of future rent, LL will receive difference between rental
price and market value if he re-rents now. Courts may also award additional
reasonable costs of finding replacement renter.




(2) Refuse the surrender, re-let the unit on tenant’s account
o After finding new tenant, LL may sue for any reasonable difference
between breaching tenant and new tenant’s rents
o Issue with how to make clear that LL is refusing T’s proffered surrender
lease, when some states view re-letting as evidence of acceptance of
surrender  must explicitly tell tenant refusing their surrender
 (3) Wait and sue for back rent at end of lease term instead of mitigating 
rejected by almost all states, requiring LL to mitigate damages
Majority rule  LL has duty to mitigate damages by trying to find a new tenant.
 LL has burden of proving that he used reasonable diligence in attempting to relet
the premises
 Sommer v. Kridel  LL must attempt to mitigate damages after lessee
surrenders lease, as in most contractual settings, meaning he must make a
reasonable effort to re-let the premises. (contractual nature of lease)
Arguments for/against duty to mitigate  See chart below
Restatement retains traditional law of no duty to mitigate
31
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Tenant’s Rights and Duties:
o Assigning and Subletting  Tenant right to transfer property. Generally permitted, unless clause
in lease explicitly states otherwise
 “Assignment”  T transfers the lease without any future interest, and the landlord can
sue the new tenant by privity of estate
 Establishes “privity of estate”  LL/assignee share interests in the property,
which makes assignee directly liable to LL for covenants made with the original
tenant. LL also liable to assignee for breach of covenants.
o LL/assignee NOT in “privity of contract” (not the original contracting
parties)
 “Sublease”  independent transaction between tenant/sublessee; the original tenant
keeps some future interest, and the landlord must sue the original tenant
 Lease covenants do NOT run with the land as real covenants. LL cannot sue
sublessee to enforce covenants in the original lease (exception: rent)
 But they can probably be enforced by injunction as equitable servitudes- as long
as subtenant has notice.
o Landlord Consent Clauses  i.e. “no subletting unless with LL’s consent” and tenant argues
there is an implied reasonableness standard/ courts look at what’s ambiguous and what’s not
 Absolute bans on subletting/assignment are generally enforceable
 If lease requires LL consent 
 Majority rule (residential leases)  LLs can refuse consent for any reason
o Slavin  LL consent clause permits the LL to refuse arbitrarily or
unreasonably
 Minority rule (growing trend for commercial leases)  require LL to have a
commercially reasonable basis for refusal (i.e. not discriminatory or personal) 
implied reasonableness term in leases
o Kendall v. Ernest Pestana  Consent for assignment can only be withheld
where the LL has a commercially reasonable objection to the assignment
 Factors for commercial reasonableness  financial responsibility
of proposed assignee, suitability/legality of use of property, need
for alternation of premises, nature of occupancy
 LL Consent in Residential v Commercial Leases  Slavin
 In commercial leases, LL may try to withhold consent for unfair financial gain,
but there is little incentive for residential landlord to do this because of rent
control.
 Also, in commercial cases, there is a greater need for more alienability of property
and thus limit the restraints on alienation only to reasonable ones.
 When the lease is ambiguous regarding transferability:
 Court looks at intent and public policy to interpret (similar to mitigation chart
above):
o Public policy considerations:
 Promotion of alienability  right of tenant to move freely?
 Landlord argument: clause is alienable enough because just
needs consent; LL will be more likely to rent it initially if he
keeps consent over who can sublet it
 Promotion of freedom to contract  right of LL to design contract
& have it upheld? Tenant right to make new contract?
 Tenant argument: if LL did not want it, then they would
have written “no subletting”; people will be less likely to
enter into these types of contract if there is no
reasonableness standard
 Other  freedom of association & freedom of travel
o Other tenant duty  Duty not to Commit Waste or Cause a Nuisance
 Duty no to disturb the quiet enjoyment of other tenants
- Tenant’s Rights to Quiet Enjoyment and Habitable Premises:
1. Actual Eviction  LL literally locks out tenant. Tenant’s obligation to pay rent ceases entirely.
a. Partial Actual Eviction (locked out of PART of premises)  justification for tenant to move
out and not pay rent
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2.
3.
4.
5.
i. OR tenant can continue to stay  traditional rule is no duty to pay any rent; however
trend is to abate rent by decrease in FMV
Constructive Eviction  occurs when landlord substantially interferes with the tenant’s quiet
enjoyment of the premises act by the LL makes it practically impossible to possess
a. Covenant of Quiet Enjoyment  implied covenant in every K wherein LL promises not
to disturb T’s quiet enjoyment.
b. Elements of Constructive Eviction:
i. Intentional (actual or inferred) act/failure to act by LL that breaches duty owed to T
ii. That substantially interfere w/ T’s QE or render premises unfit for purpose for which
it was leased, and
iii. The T vacates the premises within a reasonable time after LL’s actions
c. Tenant allowed to stop paying rent and move out
d. Traditionally had to move out within reasonable time to assert constructive eviction as
defense for not paying rent  now may be able to show partial constructive eviction & stay
i. Traditionally must be so extreme that it must be virtually impossible, equivalent of
physical interference (modern rule more lenient)
e. Restatement Third departs from traditional law in many respects:
i. Defines constructive eviction as interference that is “more than insignificant” rather
than substantial
ii. Makes LL liable for act of third party performed on property in which LL has an
interest (conduct could be legally controlled by him, so he’s responsible)
iii. Rejects traditional requirement that tenant abandon premises before taking
advantage of constructive eviction
f. AFFIRMATIVE DEFENSE  T can’t sue LL for damages for constructive eviction but can
use as affirmative defense if sued for back rent or breach of K
Partial Constructive Eviction  When tenant is deprived of use and enjoyment of a part of the
property, remedy likely to be partial, rather than complete, abatement of rent.
a. Minjak v. Randolph  Invented the doctrine of “partial constructive eviction,” since they did
not completely abandon the premises. T does not owe complete rent and should receive
punitive damages for moral culpability (Dangerous/offensive construction)
i. Court treated this lease as residential even though it was commercial (bc LL knew
they were living there, refused to let him cheat the T’s)
b. Policy: Remedy likely to be abatement of the rent. Idea is housing is difficult to acquire, so
people should not be required to move out just because one part is uninhabitable.
Landlord’s Liability for Acts of Other Tenants
a. Traditional rule  T cannot use constructive eviction for behavior of third parties/other T’s
i. Unless lease specifically includes obligation of LL to control conduct of other T’s
b. Minority trend (Rest.)  make LL liable for Constructive Eviction caused by 3d parties
i. 3000 B.C. v. Bowman  Spa depending on quiet environment ruined by
construction and noise from upstairs children’s hair salon in commercial lease; Spa
vacated the premises after 12 years (utility of premises fundamentally impaired)
1. To return plaintiff to same financial position as before breach of QE  can
recover for losses sustained during period of breach of QE
ii. Blackett  LL rented downstairs to loud venue playing music until late; violated
covenant of QE since venue’s lease stated LL had right to control venue’s noise
Implied Warranty of Habitability  warranty that residential premises are safe & fit for
habitation at time of execution of lease, PLUS a covenant that LL will maintain & repair the
premises throughout lease so it stays in same condition
a. Traditional Rule (pre-1970s)  LL has no duty to make repairs (everything is buyer beware);
owner is only giving possession. To get out of lease, T would have to show const. evict.
b. Modern Trend (vast majority of states)  LLs have duty to comply with housing code and
provide premises that are safe and suitable for habitation. Housing code regulations should
be implied into leases. Only with physical conditions & usually only residential premises.
i. Javins v. First National Realty, 1970  Common law “Duty of Repair”
c. Origins of implied warranty:
i. In modern times, land is no longer most important piece of property  Ts paying for
residence suitable for occupation
ii. Urban T’s aren’t jacks of all trades, unreasonable to fix premises they don’t own and
only live in temporarily, little incentive to use their own finances
33
iii.
iv.
v.
vi.
Consumer protection law suggests LL has a duty to be a good seller
Contract law suggests that if LL breaches duty, then T should not have to pay
LL has more bargaining power
If tell owner, doesn’t fix, can stop paying rent and owner cannot evict in this case (No
retaliatory eviction). Owner has right to rent if he fixed it
vii. When lease finishes?
1. If the reason to refusing lease is asserting right, can’t refuse to renew as
retaliatory eviction. Courts would enforce renewal
d. It is Nonwaivable/Nondisclaimable Term in all leases (Compulsory):
i. Some states use “general community standards of suitability for occupancy” rather
than housing code.
ii. Many courts hold IWoH not violated until LL had notice and reasonable time to
repair. Minority find violation the moment the condition occurs.
e. Remedies of breach of IWoH
i. Rescission (right to move out before end of lease term)  T can stop K obligations
ii. Rent withholding; Rent abatement
iii. Repair and deduct costs from rent due
iv. Injunctive relief/specific performance (force compliance with code)
v. Administrative remedies under housing code
vi. Criminal penalties
vii. Compensatory damages: T can also bring as a claim as independent suit (perhaps for
damages of property or staying in hotel, etc).
f. Commercial leases  though most courts have modern view that covenants in commercial
leases are dependent rather than independent (i.e. still obligated to perform your end even
if the other party is not performing their end), some retain older view
i. Most states hold that commercial leases have no implied warranties unless stated
specifically in lease
6. Mortgages; Installment Land Contracts
a. Borrowing money to finance real estate purchase entails 2 separate contracts:
i. Note  borrower’s promise to repay the principal amount of the loan with interest in
the amounts and at the times specified
1. Property serves as collateral to secure repayment of loan (not necessarily the
property being purchased, could be other property owned by borrower)
ii. Mortgage  series of promises, including the promise to pay off the note in
accordance w/ its terms, to maintain insurance on the property, to pay property taxes
when due, and to maintain the property (should be recorded)
1. Lender  mortgagee; Homeowner/borrower  mortgagor
a. Mortgagor grants mortgage to mortgagee (security interest)
2. If buyer defaults, lender can declare entire amount of loan due, force property
to be sold, and use proceeds of sale to pay off rest of the note
a. Forced sale  foreclosure
b. Home equity lending  borrowers use their property as collateral for debt that is not
used for purchasing property
c. Subprime Mortgages (Fremont)  when the borrower has bad credit, they get loans with
bad interest deals. (ARMs, below, are a type of Subprime)
d. Adjustable-rate mortgages  loans which initially low interest rate payments that
increase over time (high risk for lenders  sell off to investors if default by buyer)
i. Fremont: 4 characteristics of subprime loans that would be “unfair” under MCCA:
1. Loans were adjustable with preliminary rate for 3 years
2. Initial rate was typically 3 points lower than the usual mortgage rate on 30
year loans
3. The debt-to-income ratio would exceed 50% after the introductory period
expired
4. The loan-to-value ratio was 100%
e. Securitization  bundling many loans and selling shares in these bundled loans to
investors
i. Increased the market to buy high-interest defaulted loans from lenders
f. Dodd Frank  Sets out national standards for mortgages in response to subprime crisis
34
i. Lenders must evaluate ability-to-pay through documentation about borrow; for
ARMs, lenders evaluate ability to repay based on payments over life of the loan, not
just the introductory rate (Fremont)
g. Defaults and right to foreclose:
i. Equity of redemption  mortgagor can prevent loss of property by paying off debt
before foreclosure
ii. Right of redemption (some states)  mortgagor can buy back property for the
price bid at foreclosure for a period of time after foreclosure
h. Price Inadequacy Doctrine  To challenge foreclosure based on price obtained through
the sale, need a level of inadequacy that shocks the conscience sufficient to raise
presumption of fraud and unfairness or is couples w/ other irregularities in the sale
procedure (Baskurt)
i. Rest 3rd  OK as long as price above 20% of market value
ii. Ibanez  Only the proven holder of a mortgage can foreclose on a property
1. Prove with the note and chain of title
i. Installment Land Contract / “Contract for Deed”  alternative way to finance real estate
i. Buyer makes a down payment to seller and signs a contract promising to pay the rest
of the purchase price to the seller at specified times and in specified amounts.
ii. At the end of the contract, the seller will convey the title to the buyer (seller retains
title until paid in full, but buyer gets possession in interim)
iii. Options for protections:
1. Some states  no mortgage protections (other than “penalty” doctrine for
“liquidated damages” – Wva)
2. Some states treat them as mortgages (KY, VT, Rest 3)  this affects right to
redemption after default
3. Split the difference  treat like a mortgage only if a substantial percentage of
the payments have been made (CO, IN)
iv. Sebastian v Floyd  The seller’s interest in an installment land sale contract should
be treated like a lien in order to protect the buyer from unfair forfeiture
1. Equitable title transfers to buyer at outset
j. Equitable Mortgages (Koenig)  lease + option to purchase is functionally equivalent to a
mortgage, but the form is that of a sale
i. Courts may treat the “sale” as a mortgage subject to all the regulations & protections
of the state mortgage laws, because there was no intent to permanently transfer
property
8. Anti-discrimination in the Housing Market
FAIR HOUSING ACT (p. 1018)
- Prevents discrimination in sale/rental of residential housing based on race, color, religion, sex, familial
status, national origin, or handicap.
o Other federal statutes include CRA 1866 §1981-1982, Title VI CRA 1964, Rehabilitation Act of
1973, Equal Credit Opportunity Act
o States also prohibit discrimination based on other things, like marital status, age, income, and
maybe sexual orientation that FHA does not!
o NOTE: Trick question: Fair Housing Act only applies to residential housing, not to
discrimination in the leasing of, e.g., a shopping center (Problem 1, p. 944). Don’t make this
mistake on the exam. Civil Rights Act of 1866 might regulate this instead.
- Important Sections:
o §3603: Exemptions
 Section 3604 does not apply, except section c (advertisement), if:
 a single family house sold or rented by owner if owner does not own more than 3
of these houses at one time and that it is sold without the use of sales/broker and
without publication of advertisement
 rooms or units in dwellings intended to be occupied by no more than 4 indep.
families if the owner actually occupies one as his residence.
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§3604- Discrimination in Sale or Rental of Housing and Other Prohibited Practices
(substantive provision):
 §3604(a)Refuse to rent, sell, negotiate, or “otherwise make unavailable or deny” dwelling
because of race, color, religion, sex, familial status, or national origin
 Racial Steering: showing minority customers housing in certain areas and
whites housing in other areas- can violate this section!
 §3604(b)- to discriminate in terms, conditions, or privileges of sale or rental
 §3604(c) – Make print or publish or cause to be made- any notice w/r/t sale or rental
of a dwelling that indicates any preference, limit, or discrimination based on race, color,
religion, sex…etc, or intention to make any such preference
 This part applies more broadly than other provisions because exemptions are still
liable – might raise free speech concerns?
 Indication – subtle signaling by use of all white models (p. 1027)
 §3604(d)- to represent to anyone based on all of above that unit not available when it is
 §3604(e)- to induce or attempt to induce sale/rental based on representing about entry
into neighborhood based on race, etc.
 §3604(f): Covers disabled people. Reasonable modification is physical, and reasonable
accommodation is in rules/policies
o §3605. Discrimination in Residential Real Estate-Related Transactions.
o §3607: Exemptions
 §3607(a)- Exemption from the whole title for religious organizations, private
clubs.
 §3607(b)- Exemption for Older persons: major exception- housing for older persons
not included in familial status
- Ways to show discrimination under FHA
o Discriminatory intent/treatment: Intentionally treating members of a protected class
different from others to deny particular person housing opp. If no direct evidence, apply prima
facie test in Asbury.
o Disparate Impact: D’s actions have a disproportionate, exclusionary effect on members of a
protected group that is not justified by legitimate gov or business obj. (Don’t need to prove
intent)
 Facially neutral policy that has a disparate impact on certain groups that is a prima facie
violation of the statute
 Hard to win a disparate impact claim  D must provide bona fide and legitimate
justifications for their action and that no less discriminatory alternatives can serve those
ends.
- Proving Intentional Discrimination
o Basis of Race- must show actual intent
 Burden of proof analysis
 P must establish prima facie case of discrimination
o Member of racial minority
o Applied for and was qualified for rent (made plenty of $)
o Denied the opportunity to rent
o The housing opportunity remained available (though unclear, lots of
evidence to support)
 ∆ then has burden of production to offer legitimate, nondiscriminatory
justification or defense (i.e. no vacancies)
 Burden shifts back to π, who rebuts to show that justifications are just pretext.
Potential negating defenses:
o post-hoc rationalization (i.e. kids being limited to townhouse invented for
trial)
o Facts (i.e. case-based facts specific rebuttals)
o Illegitimate (i.e. they were lying by saying they were just following policy)
o Relevant but inconclusive (i.e. we have black residents already)
 Ashbury v. Brougham (1032)  Ashbury brought suit under the FHA because Δ
refused to rent to her based on her race/sex. They told her there were no apartments. The
next day they told her white sister-in-law that they had apartments.
 Ct ruled in Ashbury’s favor
o
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MHANY v. Nassau County (1041)  Garden City had race-based motivations for
changing zoning laws to prevent multi-family housing
 Prima Facie Case PLUS  racial makeup of town, lack of affordable housing, code
words & abrupt change after public hearings, segregative effect of zoning changes
 Defenses (public interest)  traffic, burden on public schools
 Negating defenses  traffic not raised as problem initially (post-hoc rat.),
wouldn’t actually affect traffic or schools (facts), code words (racial animus)
o Sex Discrimination
 Sexual Harassment: FHA has not defined sexual harassment as sex discrimination,
courts have come to that conclusion based on some methods in Quigley
 Quigley v. Winter (p1050)  Sexual harassment is actionable as sex
discrimination in Mass (“but for” causation – would not have happened but for
her sex), but mere fact of sexual harassment doesn’t prove discrimination.
o Hostile housing environment created by sexual harassment  Standard is
whether the harassment was sufficiently severe or pervasive to interfere
with or deprive Quigley of her right to use or enjoy her home (here, yes)
o Sufficient evidence to show quid pro quo sexual harassment:
 member of protected class
 subjected to unwelcome harassment in form of sexual
advances/requests for favors
 harassment was based on sex
 submission to unwelcome advances was an express or implied
condition for receiving job benefits or her refusal to submit
resulted in a tangible job detriment.
 Coercion, intimidation, or interference with housing rights
 Factors for assessing reasonableness of punitive damages: 1) degree of
reprehensibility 2) ratio between punitive damages and actual harm
(compensatory damages) 3) civil or criminal penalties that could be imposed for
comparable misconduct PD of 18x CD excessive, 4x ok.
 Singer/Notes:
o Trying to ground sexual harassment in text of FHA.
o Maybe 3604(b) – privilege of quiet enjoyment, 3604(c) – making
statements, or §3617 – interference, coercion, intimidation
o Also our presumptions are discriminatory (man against man? Bisexual
harasser?). We always assume LL is heterosexual
o level of severity for sex harassment should be lower in the home (than in
employment discrimination model)
 Sexual Orientation:
 No court has held that discrimination on the basis of sexual orientation qualifies
as sex discrimination
- Proving Disparate Impact  Not necessary to show intent
o SCOTUS has never ruled on issue, but all circuits agreed such claims are available under FHA
(maybe in “otherwise make unavailable” language.)
o Facially neutral policies that have discriminatory impact on protected groups violate FHA
unless:
 Further legitimate, bona fide government interest
 No alternative course of action could be adopted that would enable the interest to be
served with less discriminatory impact
 Courts will balance D’s justification against policy concerns
o MHANY v Nassau (redux p1080)- Jury decided that private citizens had racial motives and
city deferred to it. Code words for discrimination that seemed like neutral statements (disparate
impact FHA claim)
o HUD Discriminatory Effects Rule  Three part framework: (new rule that shifted last
step back to π)
 Establish prima facie case: (1) statistical evidence that policy has significantly greater
impact on class of persons protected by FHA than others, or (2) show the policy/practice
tends to perpetuate segregation.

37
Burden shift to ∆ defending policy: show policy “is necessary to achieve one or more
substantial, legitimate, nondiscriminatory interests”
 Then, burden shifts back to π to show “interests supporting the challenged practice could
be served by another practice that has a less discriminatory effect”
- Disability Discrimination:
o Definition of disability  “major life activity” definition
o Americans with Disabilities Act of 1990  Governs public accommodations and services
operated by private entities
 No individual shall be discriminated against on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by any person who owns,
leases (or leases to), or operates a place of public acc.
 Exceptions 
o Modifications that would fundamentally alter the nature of goods or
services
o Participation would cause a direct threat to health & safety of others
o Doesn’t apply to religious orgs / private clubs
o FHA and Disability Discrimination:
 §3604(f)(3)(B)  unlawful to refuse “to make reasonable accommodations in rules,
policies, practices, or services when such may be necessary to afford” individuals w/
disabilities “equal opportunity to use and enjoy a dwelling.” (Janush)
 §3604(f)(3)(A)  unlawful to refuse “to permit, at the expense of the [disabled]
person, reasonable modifications of existing premises”
 Can make a disparate impact claim based on land use restrictions that have the effect of
excluding group homes for people w/ disabilities (contra Familystyle)
o Prima Facie Case (Janush – service animal issue)  P must show:
 The existence of a qualifying handicap
 D/property owner was aware of the handicap
 The accommodation may be necessary to afford P the opportunity to use and enjoy the
dwelling
 D/property owner refused to make the accommodation
o Cohen v Clark  1st Tenant has severe pet allergy, 2nd T moves in w/ service animal. Held:
accommodation of service animal not reasonable bc 1st T had priority in time (there first)

9. Zoning/Tribal Law
- Zoning Authority and Validity
o State governments have police power, authority to regulate for health, welfare, and safety.
 Euclid  Landmark SCOTUS case: Zoning ordinances are valid exercises of police
power, unless they’re clearly arbitrary or unreasonable. Created Euclidian Zoning.
o Zoning Enabling Acts: states delegate zoning power to municipalities for use and area
zoning; acts define scope of local govt’s delegated power and procedures for zoning process
 ZEAs often require making of a Comprehensive Plan for zoning as residential, agric,
commercial, etc.. Most state zoning enabling acts require any changes to ordinance to
accord with the general plan.
o Motivation for zoning  prospectively limit harms caused from proximity of incompatible land
uses (think about how this compares to nuisance law, covenants/K agreements between
neighbors)
 In general, courts (Euclid) defer to leg. judgment when reviewing zoning ordinances
 MHANY v. Nassau  disparate impact claims under FHA can include
racist/exclusionary zoning restrictions or policies
o Use zoning  divides municipalities into districts and regulates kinds of uses allowed within
each district (i.e., agricultural, residential, commercial, etc.)
o Area zoning  regulates size of lots, height of buildings, distance between them, etc., (physical
configuration of the property)
o Other forms of regulation:
38
Subdivision regulation - if owner wants to subdivide, go thru review process to ensure
infrastructure, sewers, etc. Requires site-plan review often - diff officials and goals than
zoning
 Modernizing Zoning - in addition to Euclidean (land use conflict), other modern goals
include community aesthetics, historic preservation, etc. New Urbanism- criticizes
Euclidean for being too suburb focused (performance zoning- by noise level instead of
action)
- Limits to Zoning Laws  Designed to Protect Preexisting Property Rights
o Prior Nonconforming Uses
 An existing nonconforming use will be permitted to continue only if it is a continuance of
substantially the same kind of use as that to which the premises were devoted at the time
of the passage of the zoning ordinance
 Runs with the land, use can continue w/ new owner. However, can’t resume use if
already abandoned.
 Town of Belleville v. Parrillos  Restaurant got pre-existing nonconforming use
right to stay open when zoning laws changed in 1955, then converted to a disco in 1978.
 Rule: Court rules against disco because it was substantial enlargement/change
 This is an easy case. Harder case: gas station owner wants to add a small
convenience store to pay for the cleanup required by environmental statutes. (see
panel: Text, rights, and utilitarian)
o Vested Rights
 Owners have vested rights to previous zoning regulations if they have invested
substantially in reliance on those regulations
 Proof:
 Must have acted in good faith; Must have engaged in substantial work; Must have
been granted a building permit
 Stone v. City of Wilton: P buys land to build multi-family low-income dwellings. 1/4
of the land is already zoned single-family at the time. Then the rest is rezoned singlefamily, after π spent fees for architect/engineering services
 Rule: Rezoning is valid if reasonable here, council’s decision to rezone to
further public welfare was in accordance with a comprehensive plan reasonable
and no discriminatory purpose because city could decide that public welfare is
more important than multifamily housing construction (judicial deference)
 Court rules that the costs they put into the project were not substantial
enough to establish a “Vested Right”
o This case is in between Euclid (buying is not enough) to Belleville (actual
use as restaurant is vested right).
o Variances
 License or official authorization to depart from zoning law and develop a parcel in a way
that otherwise violates the ordinance to alleviate special hardship
 Classic variance req: Most states look to whether:
 Property is unusual, exceptional, or unique
 Owner created hardship at issue
 w/o variance, zoning restriction imposes undue hardship or practical difficulties
 variance will significantly undermine public good or zoning plan
 Krummenacher v. Minnetonka: City had an ordinance requiring that the detached
garage be set back a certain distance. K’s garage was constructed before that ordinance
went into effect, and did not satisfy the setback requirement, but was a permissible
nonconformity. D applied for a variance to expand the detached garage.
 Test to demonstrate undue hardship (must satisfy all 3:
o Property cannot be put to reasonable use if variance not allowed
o Landowner’s plight is not due to conditions he created
o The variance would not alter the character of the neighborhood
 However, many locales routinely grant variances if they do not vary dramatically from
the zoning law and if no neighbors disagree (no one knows zoning board is breaking law
if no one objects… states have started to relax burden from undue hardship to “practical
difficulties”)
o Special Exception

39
Permit to develop property in ways the zoning law authorizes only if specifically
approved by zoning board after meeting certain conditions
 For uses that might pose risks  gas stations, landfills, airports, etc.
o Exclusionary Zoning:
 Mount Laurel  Municipal land use regulations must provide a realistic opportunity for
low income housing.
- Indian and Tribal Title:
o Nonintercourse Act  prevented acquisition of Indian lands w/o federal consent (but states
continued to do so)
o Original Indian title means a right to occupancy, not a property right (Tee-Hit-Ton)
 “No case in this court has ever held that taking of Indian title or use by Congress required
compensation.”
o Johnson v. M’Intosh (1823)  Discovery Doctrine (colonial power): The act of discovery
gives the discovering sovereign the power to extinguish the native title of occupancy.
 Tribes have “title of occupancy” and the right to possession w/ a restraint on alienation,
while US has “ultimate title”/ “the fee”
 Nonintercourse act will punish non-Indians who invade tribal lands
o Tee-Hit-Ton v US (1955)  Mere possession does not constitute ownership under 5th Amend.
 Possession for 20K years & “property” under federal common law is not “property”
within the meaning of 5th amendment
 Treaties that acquired lands from the Indian tribes were not land acquisitions but
revocation of “permission by the whites” to occupy land whose title was held by US

10. Regulatory Takings Law (See Attack Outline)
5th Amendment Takings Clause
-
-
“Nor shall private property be taken for public use, without just compensation”
1894 Due Process in 14th Amendment incorporates Takings  Court treats as same
In many cases, state constitutions will have takings clause
o If no federal basis, argue on basis of state law
o Supremacy: state can’t give less protection, but can provide more
No taking for public use without just compensation
o Public use  SC has interpreted to mean that it cannot include for private use
o Private  private transfer of property may be permissible under the Takings Clause even
though it’s about economic benefits if it implicates public policy
Is regulation a taking?
-
A regulation of property will be deemed a taking if fairness and justice require a court to conclude that
the public at large, rather than a single owner, must bear the burden of an exercise of state power
Ad hoc (Penn Central Test): used whenever it’s not a per se taking (analyze all three)
o For each of the below, analyze (1) precedents on both sides, (2) fairness/justice to both sides
 (1) Character of government action
 Physical invasion of property more likely to be a taking
 (2) Economic impact on owner
 If regulation leads to zero economic value of property  taking (Lucas)
 The greater the diminution in value, the more likely it’s a taking
 Extent of the diminution in value depends on how the courts define the relevant
property interest (denominator)
o Penn Central: parcel as a whole since “city tax block designated as the
‘landmark site’”
o Penn Coal: taking of coal was taking, but could argue that it’s not the whole
property
 (3) Interference with reasonable investment-backed expectations
40

-
More likely to be a taking if a citizen has already invested substantially in
reasonable reliance on an existing statutory or regulatory scheme
 If just planning/no reliance, the expectation is not a vested right (just an
opportunity and not actual cost)
 Penn Central  only losing opportunity to build a building
o **Taking away a right that you didn’t have in the first place (ex: nuisance) is not a taking
o Penn Central v. NYC (1978)  NYC designated Penn Central as historical landmark, but P wanted
to build a building above Grand Central. NY did not grant permission
 Court: typically not a taking when private property is destroyed to promote the health,
safety, and general welfare of the public. (Ultimate test: Fairness & justice)
 Historic preservation laws valid w/o compensation if they allow existing uses to continue
o Average Reciprocity of Advantage  regs that provide reciprocal benefits to the regulated
person do not rise to the level of a taking (Penn Coal)
Categorical/Per Se Taking (not absolute, but no balancing required)
o 1) Gov mandated Permanent physical invasion of property (character of gov action)
 Temporary flooding as a result of the government’s building a dam is physical occupation
and therefore taking (Pumpelly)
 DC rent control law that prohibited landlords from evicting tenants at the end of lease term
was not recognized as taking (Block v. Hirsh)
 Could argue that it’s a physical occupation by a stranger
o 2) Economic impact deprives owner of all economically viable use of their property
 Reduction in value must be 100% (hard to satisfy)
 Lucas  after P bought property on the shore, state enacted law barring him from building
any permanent structures – TC found that his property value reduced to $0
 Court: taking unless state can show that “background principles” meant that P
didn’t have right to build structure in the first place
 Prof thinks it’s not 100% reduction in value because property on the beach
o 3) Deprivation of certain core property rights
 Taking away right to designate after you die
 Babbitt v. Youpee (p.1241): court ruled that law requiring small parcels to escheat
to the tribe was taking
 Destroying lien on property is taking
 Amstrong: mortgage/because lien on property is a property right, destroying it is
taking
 Interest earned on principle is a core property right (Webb’s Fabulous Pharmacies)
o 4) Interference with reasonable investment expectations
 Vested rights
 Kaiser Aetna v. United States (p.1210): P invested in private lagoon so that it could be used
by its new marina, open to fee-paying members. The government tried to force P to grant
public access to lagoon because it became a navigable waterway
 Court: once vested, cannot take that away/also, it only became navigable waters
because of the P’s investment
 Existence of regulation before the investment doesn’t bar brining the takings claim
 Murr – the fact that the law was in place when buying the property doesn’t mean
that the state wins
 Exception: when it’s dangerous and taking for safety purposes
 Ex: add on sprinklers, change building code, make new regulations
 Government tries to accommodate and not make it mandatory on old buildings
o Ex: ADA reasonable accommodation for existing buildings
o Exactions: conditions imposed on land use development permits – LINKAGE required
 Government may condition approval of permit on the dedication of property to the public
as long as there is “nexus” and “rough proportionality” between benefit of government’s
demand and social cost of developer’s proposal
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
Nollan v. California Coaster Commission
o government requiring property owner for a bike path in return for granting
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