Table of Contents
PROPERTY CLAIMS
TRESPASS
CONQUEST & DISTRIBUTION
NATURAL RESOURCES
PROPERTY IN PERSONS / PROPERTY AS PERSONHOOD
2
2
3
3
4
LIMITS ON THE RIGHT TO EXCLUDE
PROPERTY OPEN TO THE PUBLIC
FREE SPEECH RIGHTS OF ACCESS
ADVERSE POSSESSION
4
4
5
5
RELATIONS AMONG NEIGHBORS ABSENT AGREEMENT
NUISANCE
LIGHT & AIR / LAW & ECONOMICS
DIFFUSE SURFACE WATER
6
6
8
9
PRIVATE LAND USE AGREEMENTS (EASEMENTS & COVENANTS)
EASEMENTS—HOW TO CREATE
PRESCRIPTIVE EASEMENTS
EASEMENT BY ESTOPPEL
EASEMENTS IMPLIED FROM PRIOR USE
EASEMENT BY NECESSITY
MODIFYING AND EXTINGUISHING EASEMENTS
REAL COVENANTS
COMMON INTEREST DEVELOPMENTS & LIMITATIONS ON ENFORCEMENT
TERMINATING COVENANTS
10
10
11
11
12
12
12
13
14
16
GOVERNMENT LAND USE REGULATION
ZONING
CONSTRAINTS ON ZONING AUTHORITY TO PROTECT PRE-EXISTING PROPERTY RIGHTS
REZONING & ZONING BOARDS
EXCLUSIONARY ZONING
EMINENT DOMAIN
REGULATORY TAKINGS
17
17
18
19
19
20
21
OWNERSHIP IN COMMON
CONCURRENT TENANCIES
FAMILY PROPERTY
21
21
22
PRESENT AND FUTURE INTERESTS
24
LANDLORD-TENANT RELATIONS
OCCUPANCY
RENT
COVENANT OF QUIET ENJOYMENT AND CONSTRUCTIVE EVICTION
IMPLIED WARRANTY OF HABITABILITY
RETALIATORY EVICTION
26
26
27
28
29
31
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POLICY ISSUES
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Property Claims
Property is a bundle of sticks (entitlements) that can be disaggregated. Property is not a
thing; it is a set of rights governing you relation to that thing. The bundle can be distributed
among multiple people (i.e. owner & tenant) or be split over time.
TRESPASS
Trespass: unprivileged intentional intrusion on property possessed by another.
● Intrusion = physical intrusion. Fuzzy areas- dust/tremors- nuisance or trespass?
● Unprivileged = 3 ways to get privilege
o 1-w/ consent gives you license
o 2-necessity
o 3-public policy
● Intentional = don’t need to intend to violate rights, just needs to be a voluntary
action (i.e. not sleepwalking).
● Possessed by another = can enforce right of trespass as a possessor (you don’t need
to be owner).
The state confers property rights. The existence of a right to exclude (and other property
rights) necessarily depends on your ability to call on the govt to use the threat of state
violence to eject trespassers. An individual trying to exercise right to exclude needs the
power of the state.
State v. Shack (NJ, 1971): Tedesco refused to allow 2 non-profit workers to visit migrant
workers on farm to distribute info about federal assistance programs. Court holds that
these non-profits are not trespassers. The right to exclude is a limited right. Here, the right
to the federal aid that these non-profits provide is too fundamental to be denied b/c of a
property interest.
● We focused on the court’s strategies of persuasion in this case.
● Shack argued that there was a constitutional violation; the court does not address
this, choosing instead to decide the case on State law (perhaps b/c they were
worried the case would be overturned on appeal if it was decided on constitutional
grounds)
● The court essentially wants to make a moral argument that stands up for
disadvantaged migrant workers, stating “property rights serve human values.” But,
in order to make it more persuasive, the court reformulates this argument in terms
of federal laws that have recognized the needs of migrant workers, such as the
Economic Opportunity Act of 1964 (p. 6), latching on to the legitimacy of the US
Congress.
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CONQUEST & DISTRIBUTION
Doctrine of discovery: Discovery of land brings with it the right to obtain title either by
purchase or conquest, subject to the Indians’ right of occupancy. (articulated by Marshall in
Johnson)
● Title owners have the exclusive right to extinguish the indian title of occupancy,
either by purchase or conquest.
Johnson v. M’Intosh (SC, 1823): conflict between non-Indians over the acquisition of
Indian land. Johnson got title from the Indians, M’Intosh was later granted title from the US.
The issue is whose title controls, and the court holds that M’Intosh’s title from the govt
controls. Native Americans have the right of possession, which can be extinguished by title
holder through purchase or conquest. BUT the native americans could not transfer the title
because they don’t have title, so Johnson does not have a claim to the land. Property rights
here are not based on justice, but on the power of the sovereign to conquer. Marshall:
“Conquest gives a title which the Courts of the Conquerer cannot deny.” Rejects natural law,
says property is a function of positive law. Also justifies the conquest by describing Indians
as savages and un-human.
NATURAL RESOURCES
General Rule: landowner has absolute title to the oil and gas beneath his land. Subject to
the qualification:
● Rule of Capture: if oil flows (“migrates”) to another owner’s land, the other owner
has rights to it.
● This right is mitigated by prohibition on waste (negligence) and regulation.
Policy rationale: rule of capture incentivizes extracting natural resources as quickly as you
can. Based on the idea that unused natural resources are a waste.
Policy critique: rule of capture leads to tragedy of the commons. There are externalities
here- harms not reflected in the market price. One solution to this is regulation which has
the capacity to account for non-market concerns.
Elliff v. Texon Drilling Corp. (Tex. 1948): Elliffs owned a producing gas well under their
property. Texon was drilling a well on Driscoll’s neighboring property, the oil of which
shared the reservoir with the Elliffs. One day the Driscoll well blew out and a large amount
of gas, distillate, and oil from the shared reservoir blew into the air. In addition, the hole
that the Driscoll well created soon expanded and enveloped and destroyed the Elliffs’ well.
The Elliffs brought a negligence suit to recover damages for their lost gas and distillate. Law
of capture does not include negligence. Negligent waste or destruction of the minerals does
not produce the same transfer of ownership. Therefore Texon’s drainage was wrongful and
it is liable for damages for Elliff’s lost gas.
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PROPERTY IN PERSONS / PROPERTY AS PERSONHOOD
One justification for property rights is the importance of property to people’s sense of self
and their identity.
Goffman Essay on Asylums (p. 163): Describes a mental asylum where inmates are
stripped of all property. Property has a special relationship to self. Describes how inmates
would establish personal spaces in shared rooms, and would carry around their few
possession (soap , cards, razors) in their pockets with them everywhere.
State v. Mann (NC, 1830): Mann leased Lydia (a slave) for 1 year. Mann tried to beat Lydia
for a minor infraction, and as she flees Mann shoots her and wounds her. Issue is whether
Mann can be indicted criminally for battery on a slave. Ct holds that Mann cannot be
indicted. The goal of slavery is “profit of the master, his security, and the public safety.” The
only way slavery works is through unchecked violence. Ct acknowledges that slaves are
human, and no human would ever be convinced to be a slave. “The power of the master
must be absolute to render the submission of the slave perfect.” Ct both recognizes the
humanity of slaves while endorsing systematic violence against them.
Limits on the Right to Exclude
PROPERTY OPEN TO THE PUBLIC
General rule today: there is an absolute right by owners to exclude without cause.
Exceptions:
● The right of reasonable access extends to innkeepers & common carriers. (Historical
rule based on idea that pre-automobile, access to inns and common carriers was
fundamental to accessing the marketplace (doesn’t make a ton of sense today)).
o BUT- exception to this is Mrs. Murphy’s Boarding House Exception: can exclude
if your are renting rooms out and the house is occupied. Rationale is freedom
of association; person residing there should be able to choose who they
associate with.
● Statutes prohibited owners from using certain categories (such as race) to deny
access to their properties. Examples:
o Civil Rights Act of 1866 (p. 42): prohibits race discrimination in property
o Civil Rights Act of 1964: prohibits discrimination in places of public
accommodation.
Why is access to property (prohibition on exclusion) important?
● (1)Market Access: access to property & basic market mechanisms is central to your
very ability to survive.
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● (2)Individual Dignity: Access to social relations/basic dignity.
● (3)Preventing Group Degredation: systematic segregation leads to violence, threats
to the state. Prohibition on exclusion promotes social cohesion, which is important
for political stability.
Rationales for right to exclude
● (1) market reasons—want to be able to exlude anyone who is going to drive down
profit (rowdy teens, etc)
● (2) psychological/personal tie to property—having property right should give
owner entitlement to do what they please
● (3) Efficiency—rule easier to administer, property owners don’t want to be dragged
into court for excluding.
Policy
Effort to use law to create a zone of no law. Creates an area where people have no legal
rights.
Uston v. Resorts International Hotel (NJ, 1982): Casino bars Uston b/c he won blackjack
too much. Court finds that Uston has a right of reasonable access and Casino cannot bar
him. This is an outlier case; most courts give owners right to exclude for any reason not
specifically prohibited by statute. Court here makes 2 arguments: (1) equality argument:
allowing people to exclude arbitrarily will lead to race based discrimination, (2) liberty
argument: even if it exclusion is arbitrary, it is still an affront to individual dignity.
FREE SPEECH RIGHTS OF ACCESS
First Amd safeguards rights of free speech and assembly by limitations on state action.
Guests or trespassers may not exercise rights of free speech on property that is privately
owned and serves private commercial purposes (Lloyd p. 63).
Lloyd Corp. v. Tanner (SC, 1972): Ps distributed handbills w/ invitations to protest
Vietnam War in a Mall owned by Lloyd Corp, and they were kicked out. Court holds that
Tanner does not have 1st amd rights to distribute handbills at a mall held open to the public.
Tanner tries to use a precedent case Marsh where the Court upheld right to distribute
religious literature on a sidewalk in a company-owned town b/c tow played all municipal
roles. Tanner would argue that since the state is increasily transferring controls of basic
things to private companies, there are fewer “public” places where Tanner could reach
people with his message. Underlying issue: how to gain access to people in their secluded,
sanitized communal lives to make them unconfortable.
ADVERSE POSSESSION
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Adverse Possession: claimant must show actual possession that is open and notorious,
exclusive, continuous, and adverse or hostile for the statutory period.
Elements of Adverse Possession
● (1) adverse/hostile: In a majority of states this means w/o permission, and true
owner has burden of showing that permission was given if they challenge it.
o minority of jx require that it was intentional: that the adverse possessor’s
know that the land is not theirs.
o Minority of jx require that is was in good faith: only allows innocent
possessors who mistakenly occupy property owned by another.
● (2) actual possession: using it in a way a true owner would use it. This analysis
depends on what the property is.
● (3) open & notorious: enemy flag flying. True owner doesn’t actually have to know,
but needs to be sufficient put a true owner on notice that someone is claiming
possession.
o Could be a sign, fence, building a new structure, sending a letter to the true
owner, reputation (everyone in town knows its yours)
o You only get the portion that you actually possess.
● (4) exclusivity: excludes both true owner and other claimants.
o Adverse possessors can bring claim of trespass against others (not the
owner).
● (5) statute of limitations: possession must be continuous for statutory period. This
varies from state to state; many cases it is 10 years.
o If A adversely possesses and then sells to B before the period has run, the
possession periods of A and B can be added together to get to the statutory
period as long as A and B are in privity. This is called tacking.
● (6) Most states require possession under claim of right, which just means you acted
like a true owner would. States that require good faith may additionally require
color of title, which means you have some paper or deed that you thought
transferred the property to you (basically a defective deed).
Brown v. Gobble (WV, 1996) p. 283: Gobble buys land believing that a 2 ft. tract is part of it,
but in fact it belongs to Brown. Although Gobble had not owned the land for 10 years,
they win adverse possession claim for the 2 ft tract by tacking on to previous owners
possession of 2 ft tract.
Relations Among Neighbors Absent Agreement
NUISANCE
Nuisance: substantial and unreasonable interference with the use or enjoyment of land.
● Deals with how people work out issues when there is no agreement (now many of
these issues are agreed upon through covenants).
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● Nuisance can be a totally legal activity.
● Fundamental conflict: the right of freedom of use vs. the other owner’s right of
security & enjoyment of property.
● Factors to consider in finding nuisance (p. 346):
o Character of harm (harm related to safety or health given higher priority than
financial or aesthetic harms)
o Suitability of activities for the location (i.e. residential or industrial area).
Looks at both Ds and Ps activities.
o Fairness. Who should bear cost? Who has prior use?
o Social & economic value of the conflicting activities. Which use is more
morally justifiable? Which use is more economically beneficial?
o Ability / practicability of either party to avoid the conflict/ lowest cost
avoider (not a primary factor but could be a tie-breaker)
● Normally intent is not a factor. Exception to this is when there is clearly malice or
spite, like a spite fence—this would weigh towards a finding of nuisance.
● This is different than tort- the focus is on the harm suffered, not on whether D is
being unreasonable or not.
Defenses to Nuisance
● Hypersensitive use of premises. Measure against what’s normal in a given
neighborhood.
● Coming to the nuisance (prior use). Defendant was there first.
o This is not an absolute defense. Where courts find that the character of an
area has changed over time, they may find a nuisance.
o This has given rise to purchased injunction where P compensates D to stop
the use if he was there first.
Public vs. Private Nuisance
● Private = nuisance affecting private owner
● Public = interference with a right common to the general public; a harm experience
by non-property owners.
o Used to be that only public official could bring a claim, but now anyone can.
Page County Appliance Center v. Honeywell (Iowa 1984) p. 342: Honeywell computer
was emitting radiation that interfered with television channels on display @ Page.
Honeywell said Page’s use was hypersensitive and this was not considered in TC. Describes
factors to be considered and remands for retrial (trial court messed up jury instructions).
Boomer v. Atlantic Cement Co. (NY, 1970) p. 355: Boomer (neighbors) sue Atlantic Cement
alleging that the pollution (dirt, smoke, vibrations) is a nuisance. Court grants permanent
damages but denies injunction. AC’s investment in plant is over $45 and employs 300
people. Costs of the injunction are too high relative to the benefit the activity generates.
Dissent: we are licensing a continuing wrong. You should not be able to pay a price to harm
your neighbors. The exception allowing damages instead of injunction should be limited to
property being used for public benefit (not private cement company).
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● Remedies: majority approach is to give injunction or damages; Boomer is
advocating for the minority- getting injunction and damages.
LIGHT & AIR / LAW & ECONOMICS
Majority Rule: In the absence of agreement to the contrary, owners have absolute rights to
develop their property w/o liability for interfering w/ a neighbors interests in light and air.
● Exception: spite fenses
● Minority takes opposite view: Prah v. Maretti.
Prah v. Maretti (Wisc. 1982) p. 369: Maretti’s planned construction is going to block light
to Prah’s solar panels. Conflict is between Prah’s interest in unobstructed access to sunlight
as an energy source for his home vs. Maretti’s interest in developing his land in compliance
with local laws. Judge first cites doctrine of “ancient lights” from England that protected
rights to sunlight, but acknowledges that it has not been adopted in the U.S. She discusses
the 3 policy reasons why courts have not protected landowner’s access to sunlight and
explains how they aren’t relevant today (p. 371-72): (1) free use of land: this is no longer a
predominate concern; land is regulated in many ways, (2) light is only valued for aesthetic
enjoyment: no- now it is a source of energy, (3) policy favoring unhindered private
development of land: now, there is no need to favor rapid development. Says nuisance law
is a flexible doctrine so that it can evolve to reflect current concerns. Dissent (Callow): the 3
polities are not obsolete and solar heating is an unusually sensitive use.
Prah v. Maretti expressed in terms of externalities:
If Maretti wins, the externality is the cost of Prah’s energy. Solution is for M to pay for P’s
energy.
If P wins, the externality is the cost to M to rebuild. Solution is for P to paybe M for the costs
of rebuilding elsewhere.
Fontainbleau Hotel Corp v. Forty-Five Twenty-Five, Inc. (FL 1959) p. 367: F planning to
build addition that will cast shadow on 4525 Eden Roc Hotel swimming area. Court decides
that 4525 does not have legal rights that would be infringed by Fontainebleau’s
construction of its tower, and thus Fontainebleau is not liable for damages based on
nuisance law, and is free to construct.
How to answer the question of who should pay? Nuisance Doctrine is one way. Another
distinct way is by looking at what is efficient.
Coase I: In absence of transaction costs, it doesn’t matter which legal rule is chosen b/c any
legal rule will produce an efficient result.
Coase II: in presence of transaction costs:
● Anticipate the market. Courts may increase efficiency by assigning entittlements to
the party who would have paid.
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● Give liability to party with the lowest transaction costs b/c they are in the best
position to go bargain
● Give liability to the lowest cost avoider
Critiques of Law & Econ Approach
● Offer-asking problem
o People are not rational; how a person values an entitlement will depend on
which party is given the entitlement initially.
o People are bad at evaluating future risk
● Distributive concerns
o Law and Econ is indifferent to distribution of costs and benefits.
o What people are willing to pay depends on their wealth
● Prior distribution of wealth
o Legitimacy of who has wealth; basis of distribution
● Conservative bias
o There are problems with relying on the market to distribute; this approach
doesn’t question problems with the existing marketplace (ex. women are
paid less, therefore it’s rational to educate fewer women).
● Commodification
o Everything has to be commodified in this model.
o Should things like the environment and discrimination be commodified?
Where Law and Econ might work
● Where there are experts/repeat players -> no offer/asking problem
● Where everything at issue is fungible -> no commodification issue
● Where there is not a big disparity in wealth between players -> no distributive issue
● Where there is not a question that wealth was priorly unjustly distributed
● Where law is predictable and not hinged on social dynamics/hierarchy.
DIFFUSE SURFACE WATER
State courts follow three different rules:
● Common enemy rule: possessor has absolute privilege to rid his land of surface
waters as he will (no liability to neighbors). (17 states follow, but many allow
liability for negligence).
● Natural flow rule/Civil law rule: a person who interferes with surface waters and
invades another’s interest is subject to strict liability. (any development that alters
the amount, force, or direction of natural drainage will lead to liability for resulting
harm. (few states)
● Reasonable use test: D liable if his conduct caused unreasonable interference
neighbors’ use of land. In a reasonableness determination, the court will consider
whether the utility of the possessor’s use outweighs the harm the use causes.
(Armstrong).
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Armstrong v. Francis Corp. (NJ, 1956): Francis housing development upstream has
changed water flow and caused flooding on Armstrong’s land. Court adopts reasonable use
test and holds that Francis’s use was not reasonable so Armstrong gets damages. Francis’s
diversion of the surface water helps to provide the social benefit of a new home
development, but this benefit is outweighed by the harm caused to the Armstrongs.
Private Land Use Agreements (Easements & Covenants)
We cannot just use contract here b/c then it would not continue after the parties died.
These are tools so that agreements run with the land (image- Crowley’s want to keep their
lake access so it runs with the land and does not devalue the property).
Servitude = right/obligation that runs with the land. 2 types of servitudes: easements &
covenants
EASEMENTS—HOW TO CREATE
Easement (p513): non-possessory rights to limited use of another’s land that run with land.
● Distinguish from a lease: possessory rights for all use.
● Distinguish from a license: non-possessory permission to enter property, not in
writing, revocable at will by grantor (ex. dinner guest).
● Ex: right of way (right to pass through another’s land) or profit a prendre (allows
non-owners to take resources).
Who gets the benefit of an easement? 2 types (p. 516)
● Appurtenant: runs with the land
● In gross: attaches to a person/entity. Still runs with the land of the servient
(burdened) estate- but the benefit attaches to a person not to a dominant estate.
Requirements to create an easement:
● (1) in writing (to satisfy SoF) and signed that says it “runs with the land” or runs
with “heirs and assigns.”
o Must be signed by burdened party.
o Assigns- inheritance through sales, gift or will
o Heirs- if you die w/o a will, ppl who take your land by statute
● (2) Intent (can be either express or inferred)
o Express: if writing says “runs w/ land” or “heirs & assigns” then intent is
automatically satisfied; its expressed in writing.
o Inferred: there must be some/any land parcel that is benefited. If there is
benefit to property itself (not person), intent is satisfied.
● (3) Notice (3 possibilities)
o Actual: you know about it
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o Constructive: registry of deed/chain of title. Basically, if it’s been recorded,
you should have known.
o Inquiry Notice: reasonable buyer would do further investigation to discover
whether an agreement exists (i.e. if you see a road, you should find out).
Estoppel and Prescriptions are exceptions to this formula; these are other ways to establish
and easement
PRESCRIPTIVE EASEMENTS
Rule (p. 314): The elements for establishing prescriptive easement are the same as those
for adverse possession except that the claimant must show adverse “use” rather than
adverse “possession.” (except most courts drop the exclusivity requirement). Thus, must
be:
● Adverse/hostile (non-permissive)
● Actual use (does NOT have to be as a true owner would use it)
● Open and notorious
● Continuous for the statutory period.
● (No exclusivity requirement).
Community Feed Store, Inc. v. Northwestern Culvert Corp. (VT, 1989) (p. 311): Feed store
continuously used the gravel area behind store for trucks picking up and dropping off, even
though the majority of the gravel area actually belonged to D. Feed Store brought an action
seeking a declaratory judgment that it had a prescriptive easement over the portion of the
gravel owned by Northeastern b/c they used it for more than the 15 year SoL. Court grants
prescriptive easement b/c extent of use does not need to be defined with absolute
precision, just need general outlines and Feed store met that burden.
EASEMENT BY ESTOPPEL
Elements (p. 541)
● Permission for the owner to use the land
● Foreseeable and reasonable reliance on continuation of the permission
● Changes position by the claimant (usually through significant expenditures) in
reliance on the continuation
● Finding an easement is necessary to prevent injustice.
Lobato v. Taylor (CO, 2002) (p. 534): conflict between the settlers who were granted the
land by Beaubien in 1850s and the Jack Taylor, who bought the interest in the land from
Beaubien’s heirs, years later. The Court concludes that the document that granted access to
the settlers is invalid under US law, so they did not effectively create an easement, but there
is easement by estoppel AND prescriptive easement b/c the ineffective grant satisfied the
“adverse” requirement. 2 Dissents- Martinez (p. 539) says landowners should also get
hunting and fishing rights, Kourlis says that the Beaubien document had no legal effect –
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quote p. 541 “must be held to the standards of the law in effect at the time it was executed
in order to protect the certainty and marketability of property interests.”
*we also discussed the existence of a parallel land system in Mexico- an indigenous system
where there was more emphasis on common land rights. This is disfavored in a capitalist
system b/c it makes the land less transferable and separable. Hard to sell or change.
EASEMENTS IMPLIED FROM PRIOR USE
Elements:
● Two parcels were previously owned by a common grantor
● One parcel was previously used for the benefit of the other parcel in a manner that
is:
o Continuous
o Permanent
o Open (put other owner on notice)
● Use was reasonably necessary or convenient for enjoyment of the dominant estate.
Rationale for this doctrine:
● If effectuates the intent of the parties if they forgot to put the easement into writing.
● Also- it favors productive use; courts have an interest in protecting productive use.
Granite Properties v. Manns (Ill. 1987) (p. 544): Court finds that P (Granite Prop)
established easement by prior use over two driveways on D’s property because- the whole
parcel used to by owned P, P’s have been using driveways continuously since the 1960s,
driveways were permanent, & D was aware of the driveways.
EASEMENT BY NECESSITY
Elements
● The dominant and servient estates were formerly one parcel and
● At the time of severance the dominant estate became landlocked.
Rationale
● Intent: presume that people to intend to create a landlocked property
● Public policy/productive use: it’s hard to make productive use of landlocked
property
Finn v. Williams (Ill. 1941) (p. 551): For 40 years the Finn’s did not need the road that
passed through the William’s property because they had a license to use a private road that
went through another property. However, this private road closed, leaving them landlocked.
Court find Finn’s have an easement by necessity and can use the road through the William’s
property b/c at one time these were 1 property and easement existed even though it was
not being used. (See image p. 553).
*Note that the dominant estate is not responsible for maintaining the easements.
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MODIFYING AND EXTINGUISHING EASEMENTS
Ways to exterminate:
● (1) Buy the easement – but it must be in writing and it must be signed by the
benefited party (dominant estate).
● (2) Adverse possession or prescription: servient estate blocks use, but must put
dominant party on notice. (dominant party has right to sue you, but if they wait too
long and statute runs and they haven’t used the easement, the right is extinguished)
● (3) Merger – the servient estate buys the dominant estate.
● (4) Abandonment – the dominant estate abandons (must be intent to abandon and
stop actual use). This is controversial and disfavored.
REAL COVENANTS
Covenant: restriction of an owner on the use of his/her own property that runs with the
land.
History: Old CL disfavored covenants because they didn’t like restrictions on land use. They
were concerned with notice to owners of covenant, productive use associated with free use
of property, and ease of marketability. Still today, courts are more comfortable with
easements than covenants, but generally there is a lot of deference to covenants.
Real covenants vs. servitudes: with real covenants you get damages, with a servitude you
get injunctive relief. 3rd RST gets rid of this distinction, but some states still use it.
Benefitted estate = dominant estate
Burdened estate = servient estate
Elements
● (1) Writing/SoF
● (2) Intended to run with land. (if there is clearly NO intent, then it will fail even if
there is a writing or it benefit & burdens the land)
o Can be satisfied with a writing- “heirs & assigns” or “run w/ land”; OR
o Can be inferred: if it’s appurtenant, check if it’s benefiting the land in some
way and also burdening the land in some way. (benefit and burden both must
be related to the land)
● (3) Touch & concern
o Must benefit the dominant estate and burden the servient (benefit & burden
must be related to the land)
o What constitutes a benefit? Comes down to policy considerations
● (4) Notice (3 ways)
o actual (actually told about it)
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o constructive ( registered in chain of title)
o inquiry (minor b/c you mostly can’t see covenants – but an exception would
be if all houses look identical in housing development)
With these 4 elements, you can establish an equitable servitude and get an injunction.
● (5) Privity (horizontal & vertical)
o horizontal: privity between the original covenanting parties- can only be
created at the moment of transfer. (usually made where promise is part of
deed)
o vertical: successor burdened must succeed to the entire original estate of the
original obligor.
With these 5 elements, you can establish a real covenant and get damages.
Neponsit Property Owners’ Association v. Emigrant Industrial Saving Bank (1938)
(summary p. 563): court held that Neponsit could enforce a covenant to pay $4 per lot
annually for the maintenance of roads, parks, beach, and other public amenities of the
Neponsit development against Emigrant Bank, who bought Dyer’s property when it
foreclosed. 2 important holdings:
● (1) Neither the plaintiff nor defendant were an original signatory to the covenant,
but the could held that owner’s association were in privity of estate and could
enforce the restriction.
● (2) affirmative covenants to pay fees to the benefit of common amentities in the
development DO touch and concern the land b/c although the benefits are to
common areas, the individual lots enjoy these benefits.
COMMON INTEREST DEVELOPMENTS & LIMITATIONS ON ENFORCEMENT
Policy
● Common interest development is good because of efficiencies of scale. Municipalities
and counties had a strong interest in CIDs b/c they could outsource government
functions. This links with the drive to decrease taxes, b/c if you live in one of these
CIDs, you already have services and don’t want to pay the same taxes as other
people. The consequence of this is that the wealthy are not subsidizing public goods;
poor people pay for poor amenities and rich people pay for great amenities. It’s a
very regressive system.
● Homeowners Associations act as mini govt; see p. 607- governing boards can enact
rules that are reasonably related to the promotion of “health, happiness, and peace
of mind.” This sounds very similar to police powers: health, safety & welfare. BUT
policy powers are restricted by the Constitution; but homeowners assoc. are not;
they are basically unrestricted.
● CC&Rs have more negative impact on the poor working class, who can’t choose
between condo and private home ownership.
● Autonomy against demands for conformity; this used to be an important part of
home ownership, now that’s being stripped away. People can’t make decisions about
their home.
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● Courts favor CC&Rs because they permit stability and predictability for prospective
buys & deter lawsuits. They act like rules, which are more administrable, reduce
costs and “social fabric” depends on enforcing what is written. (However- rules may
be rigid and unfair to individuals; may be over or under inclusive).
● Raises issues of social relations- tension between group vs. individual liberty. Power
of individual to resist the power of the group diminished in CIDs.
● However, social relations are essential for the ability to thrive; co-ownership regimes
are trying to fulfill this vision.
2 Major Challenges with CIDs:
● (1) power of developers
● (2) residential developments operating as mini govts (and their power is great b/c
they have the power to evict people).
Developers often want to reserve the power to change covenants. Example: after allowing a
bunch of single family homes, the remaining land becomes more valuable, so developers
want the power to change it. Courts respond differently to this problem.
Some courts will allow it if it’s clearly expressed, but this misunderstands the problem of
unequal bargaining power: developers have attorney’s and will exploit oral vs. written
contracts, whereas buyers won’t read them. Buyers aren’t really making a conscious choice
b/c of unequal bargaining power. The preferences of developers are privileged b/c
generally the developers write the CC&Rs—will reflect current distribution of wleath and
current power dynamics with regards to gender, race, etc.
Very few restrictions on homeowners associations in CIDs:
● If interests do not fall within a protected category (i.e. race, gender), should HOAs be
allowed to do whatever they want?
● Certain bases of discrimination we ought to expressly disfavor (i.e. ones you can’t
choose) but not just those- maybe there are more. We all have things that we value
(ex. cats), yet we’ve created a property regime that says HOAs have largely
unfettered authority over the lives of residents, and this will have a much higher
impact than what most of govt does b/c its so close and direct—regulating your
home.
Appel v. Presley Cos. (NM, 1991) p. 591: Appels say they relied on a restrictive covenant re:
size of residential buildings, sold subdivision to Presley. Presley changed the covenant
based on a section of the covenant saying they could amend whenever they wanted. Court
said this is not okay; amendment of a covenant must be reasonable. There is an
inconsistency in a restrictive covenant that sets out a common development plan, but also
contains a clause allowing the subdivision grantor to modify or get rid of any part of the
plan at any time. Courts must resolve this inconsistency with a factual determination on the
reasonableness of the employment of the exception.
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Nahrstedt v. Lakeside Village Condo Association ( CA, 1994) P. 604: N wants to have her 3
cats in her condo. Court decides that a pet restriction in declaration of a condo complex is
enforceable. The standard per CA statute is that covenants are enforceable unless
unreasonable. Court says covenants will be enforced unless (1) burdens substantially
outweigh benefits, (2) it violates public policy, or (3) it is arbitrary (turning standard into a
strict rule). Also says that they don’t look at the individual case, they look at how the rule
applies generally. Quote- p. 607- CIDs can promote “health, happiness, & peace of mind.”
Dissent: cats are important and this is arbitrary; the cats here are strictly confined to the
owner’s home. Quotes p. 610: “Owning a home of one’s own has always epitomized the
American dream. … the majority arbitrarily sacrifice the dream to the tyranny of the
‘commonality.’”
HALO thinks standards are better than rules in restricting covenants b/c of how much
power is being exercised over people’s homes and their sense of control over their lives.
Neuman v. Grandview at Emerald Hills (FL, 2003) p. 617: Condo assoc. rule banning
religious services in auditorium is a reasonable restriction of the right to peacefully
assemble b/c allowing religious use would create conflict. It was important to the court that
the community held a referendum; made it look more like a democratic decision (BUT this
is not necessarily the norm; many HOA boards act in private, w/o public referendums)
Govt could not restrict in this way, so it’s a CONTRADICTION to say that HOA is not a state
actor when it comes to protecting basic rights, but then also say that HOA is back by state
power (b/c all property rights are protected by state power).
TERMINATING COVENANTS
El Di, Inc. v. Town of Bethany Beach (Del. 1984) p. 647: Town of BB sues to stop El Di from
selling alcohol b/c of restrictive covenant prohibiting sale of alcohol. Court finds for El Di,
saying there have been significant changes from 1900 when covenant was made—now the
town is a vacation area that is highly commercial, practice of “brown-bagging” is
common—so to enforce the covenant would be against public policy. A court will not
enforce a restrictive covenant where a fundamental change has occurred in the intended
character of the neighborhood that renders the benefits underlying imposition of the
restriction incapable of enjoyment (p. 649). Dissent: BB is still a small beach town, the
covenant has remained intact for more than 80 years; preservation of neighborhood
schemes is important.
Shelley v. Kraemer (1948) p. 623: State court enforcement of a racially restrictive
covenant constitutes state action that violates the Equal Protection Clause of the Fourteenth
Amendment.
Relationship between covenants and zoning
● Zoning does not supplant restrictive covenants.
● BUT a change in zoning can be evidence of changed conditions.
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Government Land Use Regulation
ZONING
Overview
● Use zoning: regulated use (ag, residential, apts)
● Area zoning: regulates size of lots, height, physical configuration of property.
● The state has police power. It can delegate some of these powers to local govt
through zoning enabling acts.
● Local legislature/municipal govt can pass zoning ordinances or bylaws.
● Local govt may create planning commission, made up of local citizens
o These democratic structures are easily captured by $ interest, but can also be
mobilized by local groups too.
o These structures can allow public input, politicizes development decisions
and forces developers into conversations with communities.
o See stuff about SLAPP suits & CBAs on p. 433
● Local govt may also create zoning adjustment board.
● Courts generally defer to both state and local govt, but there is less deference at
lower levels (planning boards/zoning boards), especially when making
rules/exceptions benefiting 1 party—this sounds quasi-judicial and there are
concerns about corruption.
Policy Issues
● the permanency of property forces deep questions about how to organize property
because its so unchanging. It also poses questions about what it means to let market
forces rule.
Euclidean Zoning: practice of urban planning where everyday uses are separated from
each other and where land uses of the same type are grouped together. Shops are
concentrated in one area, housing in another area, industry in another. HALO thinks that
separation of uses is not really accurate; it’s actually privileging certain types of use (think
of pyramid).
Modern zoning (p 432): b/c of critiques that Euclidean zoning led to growth of suburbia
and sprawl, w/ modern zoning there is more focus on mixed use and other goals.
● New Urbanism: mixed use communities, focus on facilitating human-scale
community and walkability—use form based codes that allow flexible use.
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Village of Euclid v. Ambler Realty Co. (SC, 1926) P. 422: Euclid makes tiered zoning
structure (single family units occupying the most prized position… expanding as you go
down the pyramid). Ambler’s land is in zones U2, U3, and U6. Ambler claims that he has
been deprived of property and this is a substantive DP violation (think Lochner era DP) b/c
the zoning has diminished the value of his land. SC rejects this claim, arguing that times
have changed and there is a need for regulation. Draws on nuisance as basis for zoning
law—saying zoning law is a more effective way to anticipate and prevent nuisances.
Critique: once you can zone w/ limited constitutional review, the impacts are huge in
terms of segregating economic class and race. There is racism in the opinion; “the
apartment house is a mere parasite.” P. 427. It gives significant power to local govt, and the
modern trend is to transfer this extraordinary power to private developers.
Building a Community
● The court at the time of Euclid is generally receptive to economic arguments, but
instead they essentially rule for this vision of suburban community.
● Communities can exist in many different housing arrangements. Single family
residences promote autonomy—it can facilitate community, but it can also allow ppl
to withdraw.
“natural flow of development”: Ambler argues that the regulation is diverting the
“natural flow of development” elsewhere. BUT HALO thinks that since market devt depends
on the state- it’s wrong to think of this as natural. There will be public regulation, so the
important consideration is – to what end?
Changes in property law may make certain people lose value (like Ambler) but do we
assume this is a per se wrong, or do we ask why that person was in a position of power in
the first place?
Relationship between zoning and affordable housing
● Scarcity is a function of zoning—drives up the value of single family homes.
● For individual developers, zoning is annoying b/c they could make more $ from
multi-unit buildings
● The winners are people who can afford single-family homes. Loses are ppl who
cannot afford single family homes.
CONSTRAINTS ON ZONING AUTHORITY TO PROTECT PRE-EXISTING PROPERTY RIGHTS
Prior non-conforming uses
RULE: non-conforming prior use is allowed but the owner cannot expand or change the
non-conformity (does not include negligible or insubstantial changes). You can make
repairs, but the uses should be “reduced to conformity” over time.
Amortization: local govt give owners a limited time period to continue use.
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Abandonment destruction: if property is abandoned or destroyed, most courts will not
allow you to rebuild.
Town of Belleville v. Parrillo’s (NJ, 1980) p. 434: Pre 1955, Parrillos existed as a
restaurant; 1955 zoning restricted area where parrillos was located to residences, but
exception was made for Parrillos. 1978 owners changed Parrillos to a disco; town refused
to issue dancehall license. Applies rule above and holds that change to a nightclub is a
substantial change and is not allowed.
Vested Rights RULE: owners have vested rights to existing zoning law if they have invested
substantially in good faith reliance on that law. (p 442)
Competing interests here are protecting investment vs. govt interest in regulation.
Stone v. City of Wilton (Iowa, 1983) p. 442: Stone spend $7,900 making plans for
constructing multi-family housing apts. Then zoning changed to only allow single-family
homes b/c of water & sewer limitations. Court holds that Stone’s efforts prior to rezoning
were not substantial enough to create vested rights in completion of the housing project.
REZONING & ZONING BOARDS
Variance: if property is zoned in a way that makes it hard to productively use the land, you
can apply for a variance based on undue hardship. (see p. 458). Variances are generally
strongly disfavored; but are more likely to be granted for area than for use zoning regs.
Conditional/contract zoning: allowing rezoning in exchange for certain promises from
owner related to the use of land.
Durand v. IDC Bellingham LLC (MA, 2003) p. 445: IDC offered town $8 million to rezone
area for power plant. Rezone was approved. Residents living nearby challenged, arguing
that re-zoning was illegal “contract” zoning & offensive to public policy. Court holds that a
voluntary offer of public benefits is okay and upholds the rezoning. Concurring/Dissenting:
town sold it’s police power, IDCs offer was unrelated to any aspect of proposed devt.
Krummenacher v. Minnetonka (Minn. 2010): L had pre-existing non conforming garage,
she sought variance to expand vertically. Neighbor challenges the city’s finding of undue
hardship in granting variance. Court rejects “reasonable manner” standard, requires finding
of undue hardship.
EXCLUSIONARY ZONING
Southern Burlington County NAACP v. Mount Laurel (NJ, 1975) p. 461: Mount Laural has
4 residential zones, but all are restricted to single family homes. Zoning reqs make it
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essentially impossible to build affordable housing. Opinion talks about economics, but this
is actually about excluding black people. Blacks mostly lived in Springfield where
aparments were allowed b/c of pre-existing use, but could not be fixed or rebuilt. (context
p. 465). Why did city do this? To get good ratables/larget lots (single family homes pay
more in taxes, but put less burden on the system b/c there are fewer children in the place
that need education, etc. Ct holds that the city cannot make it impossible for lower income
individuals to live there; they must make a variety of housing lots potentially available.
Looks to NJ Constitution to make argument that Mount Laurel’s reason of getting good
ratables is not sufficient. Zoning is a delegation of state police power, and state has
responsibility to all people of state, not just those of one town. Cannot just exclude all the
poor from your town. (NOTE: this is a minority position, most states allow towns to only
serve their own residents). Shelter is a basic human need. Lets city determine remedy.
Why does this court decide based on income and not racial discrimination? Remedies
for racial discrimination are narrow and require proof of intent which would be hard.
EMINENT DOMAIN
Takings Clause: 5th Amd: “Nor shall private property be taken for public use w/o just
compensation.”
2 main restrictions on eminent domain:
● (1) Public use = rationally related to a conceivable public purpose. Public use is just
public purpose or benefit. (Kelo)
o Rationale behind this: the govt needs to be empowered to act. Developed
during New Deal; this is a part of the “burdens and benefits of common
citizenship.”
● (2) Just compensation= fair market value (what a willing buyer would pay in cash to
a willing seller). By definition this under compensates the owner b/c by virtue of
not selling the owner probably valued it more than market value. NO compensation
for moving costs, going-concern value, business goodwill by right under the
constitution, but some fed and state legislations provides compensation for these
things.
Kelo v. City of New London (SC, 2005) (p. 1142): City of New London development plan
involves taking 115 privately owned properties. Kelo + others own 15 properties being
condemned; they caim taking violates the “public use” restriction of 5th Amd. Court
(Stevens) holds this is a valid taking. Courts interpret “public use” very broadly; only needs
to be “rationally related to conceivable public purpose.” Otherwise, the court would be
overstepping institutional role in reviewing local govt decisions. Here, town has
comprehensive plan that unquestionably serves a public purpose, so the taking is valid.
Concurrence (Kennedy): here RB works, but in other cases stricter standard of review might
be necessary. Need to scrutinize for impermissible favoritism
Dissent (O’Connor): this abandons a basic limitation on govt power.
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Dissent (Thomas): Majority has changed meaning of “public use.” Should return to original
meaning-public use means public has the right to use the property. This ruling allows the
powerful to pray on the weak and has disproportionate negative impact on blacks.
Critique of Broad Reading of Takings clause: With such an expansive definition of public
use, the govt can take property from a private actor, and then immediately sell it to another
private actors (classic example of this is railways). Thomas dissent: the power of the govt
will be used against disfavored groups and racial minorities. Govt is easily corrupted; so the
rich will prevail where property can be taken from the poor and given to the rich.
Beneficiaries will be large corporations and devt firms (see O’Connell p. 1154). The govt
has a clear incentive to take land from the poor b/c they have less valuable land, so the govt
will pay less and they are less able to fight b/c they have less political power. The “burdens
and benefits of citizenship” fall disproportionately on the poor.
Critique of Thomas/O’Connor: for the right this case stands for the proposition that
government is too powerful. BUT, if you say the takings clause disadvantages minorities and
the poor, the appropriate solution is not absence of regulation—it is allowing for equal
protection claims and using heightened scrutiny. If corruption is a problem, rational basis is
not appropriate.
REGULATORY TAKINGS
Regulatory Takings: when an owner claims that a regulation has taken the owners
property w/o just compensation.
Ad hoc test for whether there has been a regulatory taking:
Courts weigh:
● (1) economic impact on particular owner
● (2) protection of investment
● (3) character of govt action.
Penn Central Transportation Co v. NYC (SC, 1978) p. 1184: Applying ad hoc rule, ct holds
that NYC’s Landmarks Preservation Law does NOT amount to a “taking” of Grand Central
Terminal w/o compensation b/c economic devaluation of property is not sufficient to
establish a taking and there is significant public benefit in preservation.
Dissent (Rehquist): NYC selected 400 buildings as landmarks and these owners should not
bear the cost of preserving the landmarks for all New Yorkers. Burden is huge and the
benefit will not accrue to the owner but to society generally.
Policy: key issue is who should bear the cost? The owners key argument is based on
fairness. The govt’s key argument is based on efficiency (it would be impossible for govt to
compensate everyone economically impacted by regulation.)
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Ownership In Common
CONCURRENT TENANCIES
Rights of Concurrent Ownership = undivided full possessory interest
● shared access to possession
● shared right to profits
● shared obligation for maintenance (extends to mortgages & taxes)
● Ordinarily, a co-tenant does not have to pay rent to the other owners if they are the
sole occupant, EXCEPT if the property cannot practically be shared, then other
owners can get rent from the co-owner in possession.
Ouster: co-owners cannot legally exclude other co-owners. When they do, it’s called ouster.
If co-owners don’t respond to ouster, it can mature into adverse possession. SoL for adverse
possession begins when you affirmatively ouster co-owner (lock doors/send letter).
TYPES
● (1) Tenancy in Common (TIC)—Default
o image- siblings
o divided between owners, but does not have to be equal—A get 2/3 interest, B
gets 1/3 interest. Both have full possessory rights, but profits are unequal.
o Owners have right of transfer, right of encumbrance (mortgage), right to
sever and partition, and right to devise (transfer by will).
● (2) Tenancy by Entirety
o Limited to state recognized marriages
o No right of transfer unless both agree, no right to encumber unless both
agree, no right to sever unless you get divorced, no right to devise; instead
you get right to survivorship.
o Right to survivorship: when other owner dies, the property interest is
immediately transferred to the other owner. Solves problem of property
getting tied up in probate after death and protects co-owners rights.
o Only half of state have TIE. It is paternalistic in design; the idea was to protect
women from bad husbands that might gamble away everything.
o Halo thinks TIE is actually an important protection for low-income spouses.
Because everything must be done in agreement, it forces coversations
(whereas TIC one owner can do something privately).
o BUT there is also the problem that women might be tied down with a TIE if
they are suffering domestic violence.
● (3) Joint Tenancy
o It’s mostly for spouses, but not restricted to spouses exclusively.
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o Owners have right of transfer (at which point it becomes TIC), right to
encumber (at which point it becomes TIC), right to sever, BUT no right to
devise; instead you get right of survivorship.
o JTs must be created expressly, otherwise courts assume TIC.
Olivas v. Olivas (NM, 1989) p. 669: Husband and wife, divorced and hold property as TICs.
Husband argues that there was constructive ouster b/c of divorce, in which case the wife
would owe him rent for his portion. Court rules in favor of wife, finding he abandoned
ownership by moving out to live with his girlfriend.
FAMILY PROPERTY
History
● Coverture: system where all $/property of a woman goes to her husband upon
marriage. The husband keeps it if they divorce and woman gets nothing.
● Married Women’s Property Acts- adopted in mid-1800s, and lasts through 1970s.
o Ends coverture & recognizes married women’s rights to hold property.
o This regime allows everyone to keep their own property (problematic b/c
most property is owned by men and wives provide lots of domestic labor that
is not compensated.
o Injustices of these laws were moderated through alimony: essentially courts
offering women “charity” to support children that was gone once a woman
remarried.
o This introduced formal but not substantive equality.
2 Modern approaches
● Marital Property (appox. 40 states)
o On divorce, courts move to equitable distribution. ALL property counts
(including the less tangible prop like in O’Brien). So it does not matter if
property is held jointly or solely.
o Idea is that both parties have moral claim to all property in marriage.
o BUT- not divided 50/50; division based on many factors which functionally
gives judges a lot of power.
● Community Property (10 states including CA)
o Property acquired during marriage = community property. Anything that
involves work/labor counts, including women’s unpaid labor.
o Separate property = property owned before marriage and property acquired
after marriage by gift, devise, bequest or inheritance.
o Litigation centers around whether property is community or separate.
▪ Note- if you “manage” separate property, profits become community
property.
o Vision = marriage as a joint business partnership.
o With community property, each takes half on divorce. ) (BUT this is changing,
moving to equitable distribution)
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o Critique: This even split could be problematic b/c it doesn’t take into
account the needs of parties (e.g. woman breadwinner forced to give up ½
her income when she is raising the kids). Marriage is not a joint enterprise.
Halo prefers thinking equitably about what role each person will be in; but
there is no space for equity considerations under the strict version of this
doctrine.
O’Brien v. O’Brien (NY, 1985): Couple married; she works while he goes to medical school
and she provides 76% of the couple’s shared income. They divorce 9 years later. Court finds
that his medical license is marital property and can be distributed upon the divorce.
Concurrence: points out unfairness in distributive awards—when a professional is still in
training he/she might be locked into a career to pay the award.
Watts v. Watts (Wis. 1987): couple was together for 12 years but not married. When they
split P (woman) argues she is entitled to a share of property b/c they had a contract to that
effect. D (man) argues no contract b/c its basedon illegal sexual activity and therefore
against public policy. Court says P has a valid claim under contract law, unjust enrichment &
partition.
Windsor: huge estate tax owed b/c govt didn’t recognize same-sex marriage.
Why contract is problematic in marriage context?
● Many can’t afford lawyer to make contracts
● Difficult to contract end of a personal relationship.
Present and Future Interests
See sheet for technicalities.
History:
● Estate system comes from feudal system—highly concentrated wealth maintained
through property. People sought to build dynasties and protect their wealth from
being captured by the state.
● Founded on patrimony—primogeniture.
● People with property wanted to be able to use their property as power to coerce
other family members.
Fee Simple Interests
● Fee simple is a present estate that could potentially last “forever.” Four types:
o (1) Fee simple absolute (often called fee simple): no one has a future interest
in the property, so the grantor is free to determine who owns it and how.
● The other 3 are “defeasible fees” because they are present interests that terminate at
the happening of a specified event.
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o (2) When the future interest reverts automatically to the grantor on the
happening of the stated event, the present interest is called a fee simple
determinable and the future interest is called a possibility of reverter.
▪ Ex. O to A so long as used for residential purposes.
o (3) Fee simple subject to a condition subsequent: grantor retains the right to
choose whether to retake the property at the time the condition is violated.
Here, the future interest is referred to as a right of entry or power of
termination.
▪ Laches may prevent the holder of a right of entry from waiting too
long to assert her right of entry.
o (4) When the future interest belongs to someone other than the grantor, the
present interest is called the fee simple subject to executory limitation, and
the future interest is called an executory interest.
Life Estates
● life estate: A owns property during his lifetime. The future interest can either be in
the grantor or a 3rd party.
o If property reverts to grantor, it’s called a reversion.
o If property goes to 3rd party, it’s called a remainder.
▪ 2 kinds of remainders—
● contingent remainders: if the remainder will take effect only
upon the happening of an event that is not certain to happen,
or if the remainder will go to a person who cannot be
ascertained at the time of the initial conveyance.
● Vested remainders: remainders to persons who are
indentifiable at the time of the initial conditions & upon whom
no conditions must occur for them to get the land other than
the death of the life estate tenant.
*Life Estate and defeasible fees create the potential of dynasty and dead hand control. Rule
against perpetuities tries to solve these problems.
Rule Against Perpetuities: interest must vest or fail within 21 years of a life in being.
Rule against Perpetuities attempts to deal with 2 main policy issues:
● (1) dead hand problems: we don’t want one person to be able to restrict use
indefinitely into the future.
● (2) social hierarchy: we don’t want all wealth to be concentrated in a few families.
Rule Against Perpetuties Problems:
● (1) invites logic games
● (2) is acutally not that effective in achieving it’s goals b/c it’s very easy to draft
around by doing reversion to O, and then O can transfer his interest to B through a
will or whatever.
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● (3) many states are abandoning RaP (an actually changing to facilitate
concentration of wealth.
Reforms
● wait & see
● cy-pres: judge looks at intent
● Uniform Statutory Rule
● RST3: allows 2 generations, but applies to grantor too.
Broad trend- from a feudal system that protected concentrations of wealth to a more
equitable system. However, not trend is going back as states allow for more concentration
of wealth.
Landlord-Tenant Relations
General Concerns
● Power relationships/bargaining power between LLs & Ts
● Process for removal (should we allow self-help?)
● This is not just about any commodity, it’s about something fundamental: living
conditions
● LL/T law is a strange mix of property and contract. Property is not fungible, but in
contract law it is.
Types of tenancies
● term of years (1 year +, expires automatically)
● periodic tenancy (month-to-month, renews automatically)
● tenancy at will (can be ended with no notice by either party—gone in most places)
● tenancy at sufferance (holdover tenant): a tenant rightfully in possession who
wrongfully states after the lease is terminated (distinguishes from a trespasser, who
never had a right to the property). LL cannot use self-help to evict holdover tenants;
must evict through summary proceedings.
*Most states landlord does not need to show good cause to evict; in NJ, landlords do need to
show good cause.
Vasquez v. Glassboro Service Assoc. (NJ, 1980) p. 814: Vasquez (temp. worker from PR)
was fired and forced to immediately leave the labor camp. Issue is whether Vasquex is a
tenant and has rights to a hearing before being evicted. Court first says migrant farmworker
is not a tenant under NJ statute, but is employment contract is in violation of public policy.
It’s a contract of adhesion (like a form K) where the party did not consent, and b/c of the
inequality in bargaining power, courts can intervene where it’s against public policy. Courts
should decide on a case by case basis.
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OCCUPANCY
Overview
● lease=transfer of possessory interest. Must go through eviction process to revoke.
● license=revocable at will; can engage in self-help to kick someone out. Personal, not
transferable.
● Licenses are advantageous to property owners.
● Sublease= convey a shared possessory right over time
● Assignment=transfer all rights.
Rule: landlords can condition subletting/assignment on approval of the lessor. The
majority rule says it can be arbitrary. The minority rule says it must be reasonable.
*This reasonableness test ensure that the lessor’s interest in rent is protected, while still
promoting market efficiency & alienation.
What is the interest of LLs in restricting assignment/subletting
● (1) personal relationship—the power to choose who you want in the space is
destroyed if your lessee can just sublease to someone else.
● (2) control over property
● (3) protect lessor’s interest in the property itself AND paying rent.
Contrary to these interests is an interest in promoting alienation of property, especially in
urban environments where there is a shortage of space.
Kendall v. Pestana (CA, 1984) p. 835: Bixler gets a 25 year sublease on hangar space at San
Jose Airport from Perlitch. Perlitch assigns his reversionary future interest to Pestana.
Then Bixler decides he wants to assign his 25 year sublease to Kendall, b/c he can charge
more and earn more money. Pestana does not want Bixler to do this, because Pestana
would rather renegotiated the contract so that they reap the higher profits, not Bixler.
(Kendall doesn’t care, they’re willing to pay the higher price, the issue is who will get the
profits.) So the underlying issue generally here is who should benefit from the increased
rent prices, the tenants in possession or the title holder? Court here holds that a
commercial lessor may not unreasonably withhold his consent to an assignment of a lease,
therefore finding for Bixler/Kendall.
Slavin v. Rent Control Board of Brookline (MA, 1990) p. 840: Slavin sought to evict Myers
b/c Myers (tenant) assigned his lease to someone w/o Slavin’s consent, violating their lease
agreement. Rent Control Board argues court should impose reasonableness requirement
from Kendall; court refuses to do so and holds for Slavin. Rule: a residential landlord may
unreasonably/arbitrarily withhold his consent to an assignment of a lease when there is no
provision saying his consent will not be unreasonably withheld.
RENT
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What happens when a holdover tenant pays rent?
● Majority rule: LL can accept the rent and sue to eject (can immediately start
summary proceedings). LL accepts w/o creating a new tenancy BUT needs to
communicate to tenant that tenancy is over.
● Minority rule: once LL accepts rent from holdover tenant, creates a new periodic
tenancy. But LL can end the tenancy by providing notice and starting summary
proceedings.
Options for LL when T breaches:
● (1) accept the surrender
o LL can collect back rent (rent owed but not paid for period before T left) AND
damages for cost of finding a new T (time, advertising, transactional costs,
including cost of rent for months it was unrented).
● (2) re-let on tenants account
o LL can get backrent, damages for cost of finding a new T, plus the difference
between T’s rent and the new rent (if the new rent is less).
o If new T leaves, old T can be sued.
o “Wait & see approach
● (3) Wait & sue –refuse to accept surrender and sue for back rent.
o Can’t sue for rent due until time has passed, thus wait and sue
o Can’t sue for other damages b/c you are not looking for a new tenant.
Is there a duty to mitigate?
● Prior rule=no duty to mitigate. 3 reasons for this:
o (1) Based on principles of property law, emphasizes notion that control has
been transferred to T.
o (2) want to protect the interest of LL in property & finances.
o (3) MOST Important: personal relationships emphasized in property
law—want to maintain stability.
Why should LL have a duty to mitigate? (Almost all states have now adopted a duty to
mitigate similar to that in Sommer, see p. 856)
● Reflects broad changes—property becoming more fungible and less personal.
● Duty to mitigate is primarily a contracts principle, based on fairness and equity. K
law wants to encourage efficient breach (T and LL can get out w/o losing and T will
be better off).
● However, alternatively LL is bargaining for security and peace of mind, doesn’t want
to have to go through hassle of renting.
● Another way to do this that doesn’t put burden on LL is to let T sublet or assign.
*Some jxs say LL has no duty to mitigate as long as Ts can sublet or assign. .
Sommer v. Kridel (NJ, 1977) p. 851: Considers 2 similar cases where tenant left and LL
failed to mitigate and sued for full damages on the lease. Court says leases are much like
contracts so there should be a duty to mitigate. The Duty = reasonable efforts to re-let the
apartment.
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COVENANT OF QUIET ENJOYMENT AND CONSTRUCTIVE EVICTION
Actual Eviction: if the LL breaches the lease by physically barring the tenant from the
property, T’s obligation to pay rent ceases entirely. T can terminate the lease OR affirm the
lease and sue for possession. And you can sue for damages (cost of finding a new place,
including emergency housing) and difference in rent. In commercial context you may also
get consequential damages (harm to business). No emotional distress unless the way LL
kicks you out is egregious. If you breach but LL uses self-help, you can get damages for
period summary eviction proceedings would have taken.
Partial Actual Eviction: LL takes part of the space. T can terminate the whole lease, or T
can stay and sue for possession. Modern rule is if you stay, you owe rent for part of premise
that you occupy.
Covenant of quiet enjoyment: implied in every LL/T relationship; LL promises not to
disturb T’s quiet enjoyment of the property.
Constructive Eviction: when the LL substantially interferes with the T’s constructive
enjoyment of the property. T can stop paying rent and move out before the end of the lease.
Minjak v. Randolph (NY, 1988) p. 860: Musician tenants stop paying 2/3 of their rent b/c
2/3 of their space was virtually uninhabitable b/c of water leaks and construction in apt
above and construction of elevator. Court says this nonpayment was justified under the
doctrine of constructive eviction. Ts can also get punitive damages here b/c LL actions were
intentional and malicious.
3000 B.C. v. Bowman Properties (PA, 2009) 863: 3000 BC was a spa that was disturbed by
noise and disturbances of neighboring tenants. Bowman Prop. Violated the covenant of
quiet enjoyment by renting to Hair Cuttery.
NOTE: 3000 BC could have just sued Hair Cuttery for nuisance. Instead they can sue LL.
Why impose on LL rather than having P sue neighbor in nuisance?
● (1) LL has more power than the other tenant.
● (2) Lower transaction costs. Where there is a diffuse harm, it is hard for many Ts to
organize to confront the one T who is causing the problem. LL is the lowest cost
avoider. The summary process is easier than suing in civil court for nuisance
● (3) Fairness—LL is generating externalities impose on other Ts. LL should pay.
● (4) Relationship—T has relation w/ LL not other Ts.
● (5) Contract—effectuate the intent of the parties. Good faith & fair dealing--3000 BC
would not have signed the lease if they knew of these conditions.
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IMPLIED WARRANTY OF HABITABILITY
Note: breaches of warranty of habitability need not rise to the level of constructive eviction.
B/c of the existence of warranty of habitability, constructive eviction has shifted towards
nuisance.
History/Old Law
● Used to be that contractual obligations of LL and T were independent rather than
dependent.
● Pre 1970s, most courts held that LLs has no implied duty to repair. The law was
caveat emptor: let buyer beware (exception for latent defect that you can’t see but is
known to LL). Based on antiquated theory that the main interest in property is in the
land.
● It also prioritized freedom of contract: if you want to impose a duty to repair,
bargain for it and make it part of the lease.
● But even if you had breach, this covenant was independent, so you still have to pay
rent. The only way to remedy is to sue.
Modern Law = there is an implied warranty of habitability that is dependent on the lease.
Rationale for change in law:
● (1) Changed times
o What T seeks has changed—they want dwellings not farmland
o Lessees are not longer jack-of-all trades, can’t make repairs
o Lessee stay for short periods, so it doesn’t make sense for them to invest in
fixing problems. Also T’s would have trouble getting financing for big repairs.
● (2) Analogies to Consumer Protection Law
o Apt, like a car, is complex and an ordinary consumer cannot be expected to
understand all parts
o LL as a commercial businessman has more opportunity, incentive and
capacity to inspect and maintain condition of building (872). They have
incentive to make longterm investments and repairs. They also have capacity
to finance (through mortgage).
● (3) Inequality in bargaining power
o limited housing options puts T in “take it or leave it” position
o Contracts of adhesion, lessee doesn’t read/understand.
o Especially in low-income areas, people don’t have other options, so LL should
be prohibited from transferring the duty of repair to Ts.
o If LLs could transfer the duty, they would do it every time b/c LL have so
much more power.
o Race & class dynamics at play—LL often white and Ts black. Bad for
society-unrest and riots of 1960s—continuing old policies will lead to
violence.
Remedies for when LL breaches warranty of habitability
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● Recission (move out)
● Withhold rent (while remaining in apartment). In most jx, T must provide notice and
a reasonable opportunity for LL to cure. Some jx require T to put rent in an escrow
account (rather than just withholding).
● Repair & deduct. Must give LL notice & opportunity to cure/fix first. If they don’t,
you can notify and fix and deduct.
o Exception for notice requirement: for emergency repairs such as heat, water,
electricity, and security of door and windows.
Javins v. First National Realty Corp. (DC Cir. 1970) p. 869: tenants at Clifton Terrace were
faced w/ 1500 violations of housing code and so they stopped paying rent. LL then sues to
evict for nonpayment. Court works around precedent and holds that there is an implied
warranty of habitability. Explains why old CL rules are not relevant (using 3 arguments
above).
RETALIATORY EVICTION
2 Meanings of Eviction
● In the middle of T’s term (always unlawful, unless for a reason)
● After the term ends
o At CL, the LL can evict for any reason at this time.
o In “good cause” state- T’s can stay unless LL gives good cause.
o Rent control areas always requires good cause.
Retaliatory Eviction is an affirmative defense that a T can raise if he believes he is being
evicted in retaliation for trying to enforce his rights. BoP is on T, once T has shows a reason
for possible retaliation, LL has burden of proving a non-retaliatory reason.
Hillview Assoc. v. Bloomquist (Iowa, 1989) p. 886: Ts organize b/c they are angry about
health & safety issues in trailer park. During meeting w/ mgmt., there was shouting and CT
finds Davenport struck manager in the face. Mgmt gives 60 notice of termination to
Davenport and many others who organized, Ts raise defense that this is retaliatory eviction
b/c of their complaints about housing conditions. Ct. finds Davenport could not establish
retaliatory eviction; mgmt. had good reason for evicting him b/c he hit the manager.
However, other Ts did establish defense of retaliatory eviction.
**Policy: we need to empower Ts to enforce rights where there are Housing code violations.
Imperial Colliery Co. v. Fout (WV, 1988) p. 891: Fout works for mining co, and his trailer is
owner by mining co subsidiary. His lease was for 1 month, with renewal and cost $1 per
year. Imperial tries to evict him, and Fout raises defense that the eviction was in retaliation
for his participation in a labor strike. Court hold that retaliation defense may be used only if
the LL’s conduct is in retaliation for the T’s exercise of a right incidental (related ) to the
tenancy. First Amd rights (protest) are not related to the tenancy, so Fourt is barred from
this defense.
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Tort Liability to tenant p. 898
LLs blacklisting Ts who have sued may undermine these protections against retaliation.
(897).
Policy Issues
Framework for Policy Arguments (P. 394-399)
● Rights
● Social Utility
● Administrability
● Institutional Competence
Persuasive arguments
Applicability of precedent
● generalized reading of precedent cases correlates with greater applicability
● more specific reading of precedent makes it easier to distinguish.
● See framing in State v. Shack (p.5).
● Note how judge in Prah v. Maretti buries bad precedent re: ancient light doctrine in
footnote- p. 371.
Ordering
● Start with Constitution, then statutes, then precedent. Last look to raw policy or
morality arguments.
● Don’t let policy argument float alone, ground them in relevant law.
●
Considering equity and fairness vs. sticking strictly to the doctrine
● Johnson v. M’Intosh: Marshall essentially says he cannot consider fairness and
justice, when the law is clear that conquest gives the title to the US. Rejects natural
law arguments; says that property is a function of positive law.
What is a property right? Rights as dependent on State’s enforcement
Rights: claims enforceable by state power.
Think about how legal rights structure relations among people.
Hohfeldian Terminology (p.39)—legal rights are jural relations among people. Ex. If X has a
right against Y, Y has a duty toward X.
Jural Correlatives
Right
Duty
Privilege
No Right
Power
Liability
Immunity
Disability
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● All rights depend on the state. The state has recourse to legitimate violence.
Property rights are rules about when the state will use force to protect tangibles
and intangibles.
● If you can call upon the state to enforce your rights to tangible and intangible things,
you have property rights. Examples- Johnson v. M’Intosh
● BUT there are constraints on this state power. Public opinion limits the power of
the state. People with cultural legitimacy can take up arms against the state and not
be crushed (ex. Oregon standoff).
Property vs. Contracts
● In contract law, performance is fungible. It doesn’t matter who performs; everything
is measured in monetary terms.
● Property is not fungible because we (in most cases) value property for more than
just monetary value. In our culture there is a strong connection between
personhood and property.
● Modern trend is to view property as increasingly fungible and apply contract law to
property problems.
● Duty to mitigate in LL/T; reflects that property is becoming more fungible.
Law & Econ; Externalities
● Rule of Capture- leads to tragedy of commons where environmental impacts are
externalities that are not taken into account. Approach to property that incentivizes
using natural resources as quick as possible has externalities. (Elliff v. Texon)
● Fontainebleau.
Important goal of property: encouraging productive use of land
● Doctrines of easement implied by prior use and easement by necessity are justified
by interest in productive use
What better advances social utility? Regulation or Free Use
● *In property law, resistance to restrictions on property has faded over time.
● Old CL favored free use- see CL disfavoring real covenants.
● Today, there is more recognition that regulation actually leads to more productive
use; this led to the rise of zoning laws. The value of property actually increases when
we separate out conflicting uses
● This connects to the broader neoliberalism debate
● Huge increase in restrictive covenants and CIDs- shows trend towards regulation.
● Kelo v. City of New London sees the full extent of this shift to preferring regulation
and away from free use. Dissent is concerned we’ve gone too far.
Problems with Unequal Bargaining Power
● Common interest developments (go to that section)—developers have huge power
over people who have their homes in the developments.
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Rules vs. Standards
● Courts favor CC&Rs in CIDs because they permit stability and predictability for
prospective buys & deter lawsuits
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