Property Final Outline
I. Adverse Possession
Transforms trespassers into owners
- Basic Elements of Adverse Possession (if all elements apply to possessor of land,
owner is barred from bringing ejectment claim against the possessor):
a. Actual Possession
 In absence of a statute, means the ordinary use to which the land is
capable and such as an owner would make of it.
b. Open and Notorious
 Not necessary for the adverse possessor to demonstrate that former title
holder observed/knew about his use of the property. True owner is
charged with seeing what reasonable inspection would disclose.
c. Exclusive
 Generally means use is “of a type that would be expected of a true
owner of the land in question”.
 Proving that possession was not shared with the true owner may require
a showing that “the record owner has been effectively excluded.”
d. Continuous
 Adverse possessor must exercise control over the property in ways
customarily pursued by owners of that type of property.
 Tacking Doctrine - If someone possesses property adversely for less
than time period required and (purports to) sell the property 
succeeding periods of possessions may be added together
 Successors can only add the original adverse possessor’s
holding period if they are in privity with one another (if
original purported to transfer title to the successor).
e. Adverse/Hostile (w/out permission of owner)
 Showing that the true owner has permitted the use will defeat the claim
 Typically presumed that possession is nonpermissive, unless the true
owner produces evidence to show that the use was permissive.
 Possession initially permissive will stay that way unless: (a)
owner explicitly revokes permission, or (b) possessor
announces he’s ousting true owner/claiming property as own.
1. Ouster = person who explicitly states intent to take
possession of entire property from co-owner by AP.
f. For the State’s Statutory Period
Standard of Proof: AP must be shown by “clear and convincing evidence”
Adverse Possessor’s State of Mind - Four approaches exist:
1. Objective test based on possession (majority rule)  state of mind irrelevant,
only need lack of permission.
2. Subjective tests based on:
a. Claim or right  usually do not require proof of what adverse possessor
was thinking, only require that he act toward the land as an average owner
would act (collapses claim or right test into the actual possession test)
b. Intentional Dispossession  test requires adverse possessor to be aware
that he is occupying property owned by someone else and must intend to
oust or dispossess the true owner.
c. Good Faith (opposite above) Only innocent possessors mistakenly
occupying property owned by another may acquire ownership by AP.
Adverse Possession Claims:
a. May be brought by the adverse possessor in a lawsuit against the record
owner to “quiet title” – asks court to grant a declaratory judgment that the
adverse possessor has become owner of the disputed property through AP
b. May arise as defense to trespass or ejectment claims by record owner.
“Color of Title” (required element in some states) - When A.P. has deed that purports to
transfer the land in question but is ineffective to transfer the title because of
a) A defect in the deed (such as lack of signature)
b) OR a defect in the process by which the deed was issued (lack of notice to the
owner when the property is sold for failure to pay property taxes).
 Some states lower # of years required for AP when “color of title.”
 Color of Title functions as fences do to help the court determine
boundaries of the land being claimed.
Claims against the Government: Generally, claims cannot prevail against govt.
property. Govt. entity constitutes absolute defense to an AP claim.
Brown v. Gobble (1996)(p.179)
1. Π sought to have ▲s prohibited from interfering with Π building a road on a 2ft
wide tract of land that formed a boundary between their adjoining properties.
- Land in question was enclosed by a fence and visually appeared to be part of the
▲s property.
- When the ▲s bought their land, they were informed by real estate agent that their
property ran up to and included the fence and their deed read as though it was part
of their property.
2. Holding - Judgment for ▲ based on adverse possession doctrine
i. Elements for the requisite statutory period (in W. Va. ten years):
1. Tract held adversely or hostilely
2. Possession has been actual
3. Possession has been open and notorious
4. Possession has been exclusive
5. Possession has been continuous
6. Possession has been under claim of title or color of title.
a. ▲’s allege that they have “claim of title” and allege
that they have had possession for the requisite ten
year period by tacking on the time periods that their
predecessors in title claimed the tract of land.
ii. Proof of the elements, ▲’s and their predecessors:
1. had the land fenced off as far back as 1937
2. periodically repaired the fence, routinely planted garden
along the tract and removed weeds, built a treehouse in one
of the trees along the tract, etc.
3. had reputation in community that the land belonged to them
4. only ones to have possession up until the lawsuit
5. maintained, cultivated, and claimed ownership
6. had all claimed ownership without the actual title
Nome 2000 v. Fagerstrom (p.187)
1. Π Nome 2000 – record title holder to 7.5 acres of land in area of Alaska sued ▲
Fagerstrom for ejectment from the disputed parcel of land  ▲counterclaimed
title by adverse possession.
- Π admits that from time the cabin was placed until Nome filed suit, ▲’s
adversely possessed the north end of the disputed parcel, BUT contends that for
the year prior (necessary for the 10 year AP statute in Alaska to hold) the ▲ did
not construct significant structures and use was only seasonal and not exclusive
(allowed others to pick berries, use paths, etc) or hostile. Note: Court only
concerned with first year.
3. Holding – (a) ▲ did establish elements of adverse possession, but (b)▲ is not
entitled to the entire disputed parcel (can’t have south part).
a. -Conditions of continuity and exclusivity require only that the land be
used for the statutory period as an average owner of similar property
would use it.
i. In this case since rural land, lesser dominion and control may be
reasonable.
- That others were free to pick berries/fish is consistent with the conduct
of a hospitable landowner  does not undermine continuity or
exclusivity of their possession.
- For notoriety – quick investigation of land, especially during season it
was best suited for use, would show a reasonably diligent landowner
that someone else was exercising dominion and control over N. part.
- Element of hostility has nothing to do with what ▲ believed or
intended. determined by objective test of whether possessor acted
toward the land as if he owned it without permission of the one with
legal authority to give possession.
b. – ▲’s use of trails and picking up liter, although maybe indicative of
adverse use, would not provide reasonably diligent owner with visible
evidence of another’s exercise of dominion and control.
- Prescriptive Easement – A limited right to use property of another (right to cross the
property/“right of way”).
- Same elements as AP except two differences:
o Use (instead of possession).
o In some cases no exclusivity requirement.
 AP grants title whereas easement grants legal right to continue
using property in same manner as before easement was granted.
o Affirmative easements – right to do something specific on the land (right of way)
- May be acquired by prescription.
o Negative easements – rights to limit or control the use of neighboring property
(ex: to prevent neighbor from adding extra story onto her building, can purchase
the right to prevent any construction above the existing building).
- Cannot be acquired by prescription.
Community Feed Store, Inc. v. Northeastern Culvert Corp. (p.207)
- Holding: Π did establish a prescriptive easement for the gravel rectangular lot on ▲’s
land that Π’s company (supplier trucks and customer vehicles) used for turning and
backing. (Reversed finding that Π failed to prove with sufficient particularity the
dimensions of the easement).
 Extent of use must be proved not with absolute precision, but only as to the
general outlines consistent with the pattern of use throughout the prescriptive
period.  Trial court had before it extensive evidence as to the nature and scope
the user claimed (approximate dimensions given).
 General rule is that open and notorious use will be presumed to be adverse.
 Defendant argues/trial court noted that instead of using this presumption,
should apply presumption that public use of private property is by
permission.  This case does not involve generalized public use.
Unjust Enrichment
Somerville v. Jacobs (p.218)
- Held in favor of Π, who built warehouse on what they believed to be own lot but which
actually belonged to ▲. Ruled that ▲ must:
a) pay the Π (improver) the value of the improvements under a lien ($17, 500)
OR
b) sell the land to the Π at court determined price of land pre-improvements ($2,000).
 Issue is between two innocent parties  by selling the lot to the Π, the ▲
would “suffer no financial loss” and the Π would not lose the building. If ▲
retains the building and refuses to pay compensation for the improvements 
they will be unjustly enriched by more than 8.5 times the value of the lot.
o Unjust Enrichment Doctrine – it is inequitable to allow one to be
enriched by the labor and expenditures of another who acted in good faith
and in ignorance of any adverse claim or title. Courts refuse to assist the
rightful owner of land against the occupant unless he makes compensation
for permanent and beneficial improvements made by the latter.
Note: Where one party mistakenly builds on another parties land most courts rule that
the landowner becomes the owner of the structure built by someone else on her land
because “trespassers cannot have the advantage of any benefits they have made to the
property. Such improvements belong to the landowner without compensation to
trespassers for labor or materials.
- The ruling in the case above aligns with states that have betterment statutes – allow
owners to choose between:
o Paying the builder the value of the improvements built on their land OR
o Selling the land on which the improvement sits to the builder.
-
Courts agree that bad faith improvers will not be granted right to compensation
and will ordinarily be required to remove the encroaching structure.
Boundary Settlement
Oral Agreement
- Courts may uphold oral agreements between neighbors that set the boundary between
their property if:
a. Both parties are uncertain where the true boundary lay or a genuine dispute
exists over the location of the boundary.
b. The parties can prove the existence of an agreement setting the boundary.
c. The parties take (and/or relinquish) possession to the agreed line.
Acquiescence
- Even without oral agreement, courts may nonetheless recognize longstanding
acquiescence by both neighbors in a common law boundary.
- 1) Adjoining owners 2) who occupy their respective tracts up to a clear and certain
line (such as the fence) 3)which they mutually recognize and accept as the dividing
line between their properties 4)for a long period of time, cannot thereafter claim that
the boundary thus recognized is not the true boundary. (Tresemer v. Albuquerque
Public School District).
Estoppel
o Boundary may be established by estoppel when one owner “erroneously
represents to the other that the boundary between them is located along a
certain line and the second, in reliance on that representation, builds
improvements which encroach on the true boundary or take s other
detrimental actions.”
 Some states find estoppel even when no explicit representation is
made  may infer a representation from an owner’s silence in face of
knowledge that his neighbor is building an encroaching structure.
Dedication - A transfer of real property from private owner to gov. entity (such as a city).
Valid dedication requires: Offer by owner of the property and acceptance by the public.
II. Trespass
Rules that limit possessor’s right to exclude non-owners from the property.
Trespass = Unprivileged intentional intrusion on property possessed by another.
- Intent requirement is met if the ▲ engaged in a voluntary act, such as walking on the
property. It is not necessary to show that the trespasser intended to violate the
owner’s legal rights.
- Intrusion may occur upon physical entry by:
o A person
o An agent such as an employee
o An object (ex: building extending over boundary onto neighbor’s property).
 Trespass may occur both above or below surface.
Trespass Defenses - A trespass is privileged (and thus not wrongful) if:
a. Entry is done with consent of the owner (person who enters w/ consent =
licensee; his property interest is a license).
b. Entry is justified by necessity to prevent serious harm to persons or property
c. The entry is otherwise encouraged by public policy
Trespass remedies (three kinds of relief):
- Damages
o Nominal damages even if no other harm has occurred.
o Compensatory damages if trespasser caused harm to property (measured by
cost of restoring the property or by diminution in its market value).
o Punitive damages to punish and deter outrageous or malicious behavior.
- Injunction – ordering trespasser to cease conduct/remedy harm caused to property.
o Π may bring lawsuit for ejectment to remove trespasser from land.
- Declaratory judgment - states the Π’s legal right against the other party.
Criminal Trespass – generally initiated by federal, state, or local govt. officials rather
than by private citizens.
I. Public Policy Limits on Right to Exclude
State v. Shack (p.104)
- Held that Π, farmer employing migrant workers for seasonal needs (workers housed
at camp on his property as part of compensation) could not exclude ▲’s, government
workers with CRLS (legal advice/representation for the farm workers) and SCOPE
(health services for migrant farm workers) from his property on grounds of trespass.
o Title to real property cannot include dominion over the destiny of persons the
owner permits to come upon the premises.
o Ends that agencies like SCOPE and CRLS work toward could not be gained
if the intended beneficiaries could be insulated from efforts to reach them.
 Migrant workers are outside mainstream communities and unaware of
rights/services available to them  only be reached by positive efforts
 Maxim of common law that one should use his property so as not to
injure the rights of others.
 Private/public necessity may justify entry upon the lands of another.
o Employer may not deny worker his privacy or interfere with his opportunity
to live with dignity and enjoy associations customary among our citizens.
Rights are too fundamental to be denied on basis of interest in real property,
and too fragile to be left to unequal bargaining strength of the parties.
Desnick v. American Broadcasting Companies, Inc. (p.108)
- Held ▲, ABC, not liable for trespass on Eye Center’s property when sent fake
patients to offices with hidden cameras for segment of Prime Time Live.
o Consent (defense) to come on land, which is procured by fraud, still stands as
consent so long as interests that law seeks to protect aren’t interfered with.
 No invasion of specific interests that trespass seeks to protect (not
interference w/ ownership or possession of land, or w/ private space).
 Test patients entered offices that were open to anyone
expressing desire for ophthalmic services
 Videotaped physicians in professional communications.
 Activities of the offices were not disrupted
 No intimate details of anyone’s life were publicized.
 No eavesdropping on private conversations.
II. Right of Reasonable Access to Property Open to the Public
Uston v. Resorts International Hotel, Inc. (p.116)
- Issue: Should the court uphold the right of an amusement place owner’s right to
exclude unwanted patrons or the patron’s competing right of reasonable access?
(Both have roots in the common law).
- Held Resorts not entitled to withhold Π’s right to sit at blackjack tables in its casino
(despite card counting strategy) because of patron’s right of reasonable access.
o Court rejects 70 yr. old common law from English precedent (Leadbitter - has
allowed majority American rule to disregard right of reasonable access,
granting proprietors of amusement places an absolute right arbitrarily to eject
or exclude any person).
o Looks instead to State v. Schmid (upheld right to distribute literature on
private university campus)
 “The more private property is devoted to public use, the more it must
accommodate the rights which inhere in individual members of the
general public who use that property.”
 Recognizes that when owners open their premises to general public in
pursuit of own property interests, they have no right to exclude people
unreasonably, and on contrary, have duty not to act in an arbitrary or
discriminatory manner toward persons who come on their premises.
 Uston does not threaten security of casino occupants or disrupt
functioning of any casino operations  possesses usual right
of reasonable access to Resorts’ blackjack tables.
Note: Traditional common law rule imposes duty on innkeepers and common carriers to
serve public without discrimination unless there’s good reason not to provide service to a
particular individual (public right of reasonable access).
- Uston changed common law rule by extending right of reasonable access to all
businesses open to the public.
o Most states still go by traditional absolute right to exclude without cause
and limit duty to serve to those listed above.
o Justifications for special obligations on innkeepers and common carriers:
a. More likely to be monopolies than other business so denial of service
could become denial of ability to travel/find lodging away from home.
b. They provide necessities whose denial would place individuals in risk
from elements, or bandits on highway.
c. Public relies on their representation as businesses ready to serve public
III. Public Accommodations Statutes and Antidiscrimination Policy
- Federal Law
- Elements of a claim under Civil Rights Act of 1964, Title II (p.124):
o Discrimination in form of exclusion/denial of equal access
o On basis of race/color/religion/or national origin (note: not on basis of sex).
o From a public accommodation
 Not a private establishment/club
 Must be included in list of relevant establishments
 Operations of the establishment must affect commerce or be
supported by state action
-
Federal civil rights statute sets a minimum standard but states may go farther to
protect individuals from other types of discrimination.
Basic rules of interpreting statutes:
a. Start with language of the statute
b. Get guidance from legislative history
i. Records of prior versions of the bill
ii. Committee reports issued in conjunction with the legislation
iii. Debate on the floor of the legislature
c. Determine intent of the legislature by reference to language used and to policies
underlying the statute and the purpose the legislation was intended to achieve.
d. Use canons of statutory interpretation.
Dale v. Boy Scouts of America (p. 133)
- Trial Court held that New Jersey’s LAD (Law Against Discrimination) prevented
BSA from excluding Dale on basis of sexual orientation.
o Various locations where BSA troops meet fulfill the “place” requirement
(court had previously held places of public accommodation were not limited
to those in the statute - merely illustrative).
o BSA is a “public accommodation” under LAD (any entity that invites public
to join, attend, or participate in some way…BSA engages in broad public
solicitation through various media).
o BSA does not qualify as LAD exception of being “distinctly private” because
size of organization membership implies an open membership policy.
- Dale was reversed by Supreme Court in a 5-4 vote (granted BSA right to exclude).
o Grounded on notion that LAD prohibiting BSA from excluding gay Scouts
violated First Amendment’s protections for freedom of association.
IV. Free Speech Rights of Access to Private Property
- U.S. Constitution: The First Amendment
Lloyd Corp. v. Tanner (p. 153)
- Πs brought suit seeking declaratory judgment based on First Amendment right to
freedom of speech after being threatened with arrest for trespass by ▲ “shopping
mall” when they were distributing handbills inside protesting draft/Vietnam War.
o Building is enclosed - no public streets/sidewalks inside.
o Mall is generally open to the public
 Groups/organizations permitted by invitation and advance
arrangement to use auditorium and other facilities (rent is
charged unless charitable organization – some specific ones
allowed to sell/solicit for charity, others denied similar use)
 Political use also forbidden (except presidential candidates)
- U.S. Supreme Court held judgment for ▲ [reversed lower courts’ ruling for Π.
Had based holding on center being “open to public”  “functional equivalent of
business district.” Used Marsh holding that “company town” could not restrain
Jehovah’s witness from distributing religious literature on sidewalk based on 1st
and 4th Amendment rights].
o First and Fourth Amendments safeguard rights of free speech/assembly by
limitations on state action, not on action by owner of private property used
nondiscriminatorily for private purposes only.
o Argument that “open to public” same as “business district” reaches too far.
i. Marsh does not apply – owner of company town was performing
full spectrum of municipal powers, stood in the shoes of the State.
ii. Property does not lose its private character merely because the
public is generally invited to use it for designated purposes.
iii. Property/store that is privately owned does not change by virtue of
being large or clustered with other stores in mall.
iv. Logan Valley holding was limited to picketing where it was
“directly related in its purpose to the use to which the shopping
center property was being put” and where store was located in
large private enclave with consequence that no other reasonable
opportunities for the pickets to convey their message to their
intended audience were available (too specific to apply here).
Note: Const limits power of state/federal gov to interfere w/ citizens’ right to speak freely
1st Amendment: “Congress shall make no law abridging the freedom of speech…”
(doesn’t say anything about private property owners restricting that right).
- Extent of free speech under Lloyd:
o Private properties are not subject to free speech rules under federal
constitution. Only public government or private entity that essentially
takes on the role of public government are restricted by it.
III. Nuisance
Rules Governing Relations Among Neighbors
A. Water Rights
Diffuse Surface Water: Flooding Problems
Armstrong v. Francis Corp. (p.232)
- ▲ built drainage system as part of housing developments it put on the land resulting in
consequences for Πs: (a) Erosion has eaten away the banks on their land, (b) Stream
often floods after storms, (c) Stream is now discolored/smells/void of fish, etc.
- Holds that reasonable use standard should be applied to diffuse surface water.
o Virtue of flexibility. Factors reasonable standard takes into account:
 Amount of harm caused
 Foreseeability of resulting harm
 Purpose or motive with which possessor acted
 Whether utility of possessor’s use of his land outweighs the gravity of
the harm which results from his alteration of the flow of surface
waters.
 Reasonable Use arguments for this case: (1) Economic costs
should be born by persons making profit. (2) Externality –
compensate for any harm. (3) Need to encourage responsible
landowners.
o Note: previously used “Common Enemy Rule” – possessor of land has
unlimited/unrestricted legal privilege to deal with surface water of his land
as he pleases, regardless of harm he may thereby cause others.
 Common Enemy arguments: (1) May discourage and thus limit
development, (2) Freedom to use land, (3) Ability to know
what’s right (clear rule).
B. Support Easements
o Covenant/Negative Easement (type of servitude) = right to prevent someone
else from using his own property in a certain way.
I. Lateral Support
- Servitude for Lateral Support of Land = common law servitude granting each
landowner right to lateral support of land in its natural condition.
a. Each owner has obligation to maintain lateral support for neighboring land.
b. Each owner has right to prevent neighbors from excavating on property to
remove lateral support for their land.
- Landowner who withdraws lateral support is subject to two possible claims:
o Strict liability for acts/omissions resulting in withdrawal of lateral support to
neighboring property in its natural state (no obligation to support added weight
of buildings or other structures that land cannot naturally support).
 If adjacent landowner provides insufficient support to sustain land in its
natural state, but land slips as direct result of the additional weight of a
building  no cause of action against adjoining landowner for damage
to the land or the building.
 Action for removing support based on strict liability:
 kind of lateral support withdrawn is material
 quality of actor’s conduct is immaterial
o Liability for Negligence - No duty to support neighbor’s structures, but if
structures are actually being supported  neighbor withdrawing support has
duty to do so in non-negligent way, and obligation to provide temporary support
during excavation/notification if excavation poses risk.
 If land in natural condition is sufficient to support structure on
neighboring land and removal of support for land damages building 
 Older law (still some states): No remedy for building owner.
 Modern approach (Noone): Damage imposed for harm to land
and building if harm to building was caused by removal of lateral
support to land  Damages to building = consequential damages
resulting from breach of legal duty to support land.
 Action for removing support based on negligence:
 kind of lateral support withdrawn is immaterial
 quality of actor’s conduct is material
- Owner liable for removing necessary support cannot avoid this liability by
transferring the land to another, BUT when actor who removes natural lateral
support substitutes artificial support to replace it (such as a retaining wall), the
wall then becomes burden on the land  subsequent landowners and possessors
have an obligation to maintain it.
Measurement of Damages:
- Cost of restoration
- Diminution in value of property
- Case of liability for damage to building  value of lost use of building plus
amount representing permanent depreciation in building’s value.
Noone v. Price (p. 243)
- Stone/concrete wall along hill constructed between 1912 and 1919.
- Π’s home built in 1928
- ▲ bought his house (included the wall) in 1955 (located directly below Π’s at
foot of hill). Before ▲’s purchase the wall had fallen into disrepair.
- Π bought his house in 1960. In 1964 wall under Π’s front porch was giving way
and living room plaster had cracked.
- Π told ▲ that problems with their home were result of deterioration in the ▲’s
retaining wall – ▲ did nothing to fix it  Π brought action for damages based on
▲’s failure to provide lateral support for Π’s land, and negligent failure to
provide lateral support for their house.
- Holding: Reverse summary judgment. Π’s should have been allowed to prove
that their land was sufficiently strong in its natural state to support the weight of
their house, and that their house was damaged as result of deterioration of
retaining wall when the land in it’s natural state slipped as a result of the
withdrawal of lateral support.
a. Since ▲’s predecessor was not required to furnish wall sufficient to
support structure that Π might erect on their property (Π’s land had no
building erected at time ▲’s predecessor built retaining wall) ▲ merely
had obligation to maintain wall to support the Π’s land in its natural
condition (not required to strengthen the wall to extent that it would
provide support for weight of Π’s building).
b. To recover, Π must prove that disrepair in wall would have led to
subsidence of their land in its natural condition. If land would not have
subsided but for the weight of the Π’s house, then they cannot recover.
II. Subjacent Support
- Right to Dig versus Right to Support
Friendswood Development Co. v. Smith-Southwest Industries, Inc. (p.251)
- Πs (landowners) brought action against ▲ (Friendswood) for allegedly causing
severe subsidence of their lands through past and continuing withdrawals of
underground water from wells on ▲’s nearby lands.
o Wells were drilled even though ▲’s knew this would result in land
subsistence in the area and flooding of plaintiff’s land.
- Legal Issue: Whether ▲ who withdrew percolating ground waters from well
located on own land is liable for subsidence that resulted on land of others in area.
- Holding: (1) Defendant’s are not liable on Π’s allegations of nuisance and
negligence.
o Follows state’s established rule of property law (below) because parties
should be able to rely on the law which existed at time of their actions.
-
Court precedent uses common law rule of absolute rights (damnum absque
injuria) for withdrawals of ground water. Cases = Houston, Acton,
TexasCo., and City of Corpus Christi - deal with removal of ground water
but not with subsidence as a result.
- Restatement of Torts §818: “To the extent that person is not liable for
withdrawing subterranean waters from land of another, he is not liable for
a subsisdence of the other’s land which is caused by the withdrawal.”
(2) Negligence as a ground of recovery shall apply on all future subsidence
proximately caused by future withdrawals of ground water.
- Henceforth, if landowner’s manner of withdrawing ground water from his
land is negligent, willfully wasteful, or for the purpose of malicious
injury and such conduct is a proximate cause of subsisdence of land to
others, then he will be liable for the consequences of his conduct.
- No other use of private real property which enjoys such immunity from
liability under law of negligence.
Note: Friendswood imposes liability for undermining subjacent support only when
negligence can be shown BUT other courts extend absolute duty to provide lateral
support to context of subjacent support imposing strict liability for its removal.
Standards of care specifying possible duties imposed on neighbor:
1. Strict liability – do the act  you’re liable (intentions/reasonableness irrelevant)
 Plaintiff Veto Rights (absolute security)
a. Easement for lateral support of land
b. Prior appropriation of water (veto rights in first user)
c. Natural flow doctrine for diffuse surface water
2. Reasonableness test – middle ground
a. Negligence standard(based on reasonableness of conduct) - impose liability if:
i. ▲’s conduct created an unreasonably great risk of causing harm.
ii. Harm to Π’s property was foreseeable at time ▲ acted.
b. Contrast with Nuisance Standard(conduct’s consequences, not conduct alone).
i. Determines whether ▲’s activity is both unreasonable and causes
substantial harm to the use and enjoyment of Π’s property.
ii. Considers whether ▲’s activity causes more harm than good.
3. Strict non-liability – absolute right to use land w/out liability for consequential harm
to land of others.
 Defendant Privilege (damnum absque injuria “Damage Without Legal Redress”)
a. Common enemy rule for diffuse surface water rights
b. No easement for light and air
c. Free use or absolute ownership of ground-water
Possible Remedies:
1. Dismissal of Complaint (remedy for defendant’s privilege - legal entitlement to
engage in the harmful activity without liability).
2. Damages (remedy for plaintiff’s security - cost of restoration and diminution in the
market value of property = most common measures of damages).
3. Injunction (plaintiff may request, order defendant to do or not do specified acts).
4. Purchased Injunction (conditional injunction, ordering activity stopped on
condition that plaintiff reimburses defendant for the opportunity loss occasioned by
ceasing the activity. Example = when plaintiff settled near defendant’s land and
knew of the prior use already established by the defendant’s actions).
C. Protection of Use and Enjoyment of Land
-
Nuisance = substantial and unreasonable interference with use or enjoyment of land.
o Harm must be substantial and interference unreasonable to establish nuisance.
o Unlike Trespass, which concerns physical invasion of land and protects Π’s
possessory interest in the land, nuisance concerns use of one’s own land that
interferes with a neighbor’s use and enjoyment of his property.
 Trend is to allow invasion by particles under trespass and nuisance (but
some jurisdictions hold particles nuisance, larger items trespass).
o Distinguish negligence which provides remedies for unreasonable conduct,
from nuisance which focuses on the result of the conduct (questions not
whether conduct was unreasonable but whether interference is unreasonable).
 Conduct which is not negligent (couldn’t be foreseen) may constitute a
nuisance because it results in harm to the neighbors property interests that
is not justified by the social utility of the conduct causing it.
- Two types of Nuisance:
o Permanent Nuisance – irreparably injures Π’s property or is likely to
continue indefinitely.
o Temporary Nuisance – can be alleviated by changes in the ▲’s conduct.
Note: Some courts impose strict liability on landowners for “ultrahazardous activities”
(i.e. toxic waste)  liability without need to prove either negligence or unreasonableness/
substantial harm requirements of nuisance doctrine.
Page County Appliance Center Inc. v. Honeywell, Inc. (p.273)
- Page Appliance alleges a “private nuisance” against Honeywell and ITT because
radiation leaking from ▲’s computers caused interference with his display
televisions (part of Π’s business).
- Legal Issue – whether Π’s use of his premises (for display televisions) is
hypersensitive and thus too particular to make Honeywell’s action unreasonable.
 When very unusual use is at the root of the nuisance claim  no liability
(doesn’t affect the broader public in any way / no social cost or right at stake).
 “Normal person in a particular locality” Standard = Liability for nuisance only
when significant harm, suffered by normal person in community, or by
property in normal condition for normal purpose.
- Held issue of whether Π’s premises is devoted to hypersensitive use must go to jury.
* Note: Page County adopts general rule that imposes liability on any actor who
“materially participated” in causing the harm.
Restatement: § 821B. Public Nuisance:
(1) Public nuisance = unreasonable interference w/ a right common to the general public.
(2) Circumstances that may sustain a holding that an interference with a public right is
unreasonable include the following:
(a) Whether the conduct involves a significant interference with the public health, the
public safety, the public peace, the public comfort or the public convenience, or
(b) Whether the conduct is proscribed by a statute, ordinance or administrative regulation,
(c) Whether the conduct is of a continuing nature or has produced a permanent or longlasting effect, and, as the actor knows or has reason to know, has a significant effect upon
the public right.
Factors for determining whether there’s a nuisance:
a. Interest encompassed by the right to use/enjoyment - freedom from pollution,
noise, odors, smoke.
b. Seriousness of the interference - typically must be substantial.
c. Reasonableness of the harm based on:
i. Rights/Fairness (harder for Π to prevail in nuisance case if she came to the
nuisance BUT Π coming to the nuisance is not an absolute defense).
ii. Social utility/welfare (asks whether society is better off if the activity goes
forward despite the harm) considering:
a. Gravity of the harm.
i. Extent of involved harm.
ii. Character of involved harm
iii. Social value that the law attaches to the type of use or enjoyment
invaded.
iv. Suitability of the particular use or enjoyment invaded to the
character of the locality.
v. Burden on the person harmed in avoiding the harm.
b. Utility of the Conduct.
i. Social value that the law attaches to the primary purpose of the
conduct.
ii. Suitability of the conduct to the character of the locality.
iii. Impracticability or preventing or avoiding the invasion.
Remedies
- Π may obtain an injunction against ▲’s conduct when it is unreasonable (causes
more social harm than good) and causes substantial harm to Π.
- Π may obtain damages but no injunction if ▲’s conduct is reasonable (it causes
more social good than harm and therefore should be allowed to go foreword) but
the harm to Π is substantial.
- Π is entitled to no remedy if:
 The harm to Π is not substantial, or
 ▲’s conduct causes more social good than harm, and it is not unfair to
impose costs of ▲’s activity on Π, or
 Damages would put ▲ out of business and avoiding this result (because of
social value of ▲’s conduct) is more important than preventing harm to Π.
- Π is entitled to purchase injunction if ▲’s conduct causes more harm than good,
but it is fair to impose the cost of shutting down activity on Π.
Fontainebleau Hotel, Corp. v. Forty-Five Twenty-Five, Inc. (p. 284)
-
Eden Roc Hotel brought nuisance suit against Fontainebleau Hotel seeking
injunction to stop construction intending to be built to height that would interfere
with customers use and enjoyment of Π’s beach/pool and thus harm the Π.
- Court notes: No legal right to the free flow of light and air from the adjoining
land – universally held that where a structure serves a useful and beneficial
purpose, it does not give rise to a cause of action, either for damages or for an
injunction, even though it causes injury to another by cutting off the light and air
interfering with the view that would otherwise be available over adjoining land in
its natural state, even if the structure may have been erected partly for spite.
- Order granting temporary injunction reversed with directions to dismiss complaint.
Prah v. Maretti (p.302)
- Π sought injunction/damages against ▲’s construction on his own land which Π
alleges would interfere with the sun needed for his solar power system.
- Held that Π stated claim under which relief could be granted if he proves elements
to establish actionable nuisance (judging ▲’s conduct by reasonable use doctrine).
o “Private nuisance law is better suited to regulate access to sunlight in modern
society than an inflexible doctrine of non-recognition of any interest in access
to sunlight across adjoining land.”
o Nuisance claim for unreasonable obstruction of access to sunlight will not
prevent land development or unduly hinder the use of adjoining land. Will
promote reasonable use and enjoyment of land in modern context.
o Fact that ▲’s proposed house was in conformity with zoning regulations does
not automatically bar a nuisance claim.
Note: Majority of courts hold – owners have absolute rights to develop property
without liability for any interference with neighbor’s interests in light and air. No
easement for light and air exists unless a contract creates it.
IV. Servitudes
Public Regulation of Private Agreements Restricting Land Use
1. Servitude - creates a right or obligation that “runs with the land” – meaning it
passes automatically to successive owners or occupiers of the land, or to the interest
in land with which the right or obligation runs.
Servitude = easement if permission is intended to be permanent or irrevocable.
Easement – affirmative right to do something on someone else’s land.
Restrictive Covenant (aka Negative Easement) – all obligations
restricting what one can do with one’s own land.
Affirmative Covenant – obligation to do something for the benefit of
another owner or owners.
2. License - grants non-owners permission (which is revocable at will by the grantor) to
enter property. It is not transferable and cannot be inherited or left by will.
- Four circumstances where licenses cannot be freely revoked.
o License coupled with interest
o Promise to grant license
o Easements by estoppel
o Constructive Trusts
3. Easements – Three types:
Easement by Estoppel
Easement by Agreement
Prescriptive Easement
1. Easements by Estoppel
Courts may prevent owner from revoking license if he induced the licensee to act in
reasonable reliance on the license (Note: Does not need to be express agreement).
Holbrook v. Taylor (p.321)
- Holding: Affirmed trial court judgment finding that action to establish a right to
the use of a roadway was established by estoppel.
- Precedent: Lashley v. Durbin – “Where license includes right to erect structures
and acquire an interest in land in the nature of an easement by construction of
improvements thereon, the licensor may not revoke the license and restore his
premises to their former condition after licensee has exercised the privilege given
by the license and erected improvements at considerable expense.”
o In this case – appellant gave appellees permission to use and repair the
roadway in order to get to their house by widening it, putting in a culvert,
and adding gravel to part of it.
o Later dispute led appellants to erect a steal cable across the roadway to
prevent its use and constructed “no trespassing sign”  suit was filed to
require their removal of the obstruction and to declare appellees right to
use of the roadway w/o interference.
2. Easement by Express Agreement
-
-
-
Express easements must be in writing (creation of a deed) to be enforceable under
the statute of frauds. Normally signed only by the grantor.
Many courts allow reservation of an easement in a third party (nontraditional rule)
Requirements for creating agreement for easement:
1. Writing
2. Notice (actual constructive inquiry)
3. Intent
o Burden – Must be intended that the burden will run with the land
i. If yes, intended  easement
ii. If no  No easement, personal
o Benefit – Must be intended that the benefit will run with the land.
i. If intended – appurtenant easement (transferred w/ dominant estate)
ii. If no  easement in gross (no dominant estate to which easement is
attached so it can be sold off but not transferred automatically).
Negative Easements traditionally limited to:
o Right to lateral support of one’s building
o Right to prevent light/air from blockage by construction on neighboring land.
o Right to prevent interference with flow of artificial stream such as aqueduct.
Requirements for the Burden to Run with the Land:
o Easements created by implication, necessity, and estoppel generally held to
run with the land if they were intended to do so and are reasonably necessary
for the enjoyment of the dominant estate.
o Easements that do not fit into these exceptions run with the land to burden
future owners of the servient estate only if:
 The easement is in writing
o Required writing is the original writing creating the easement.
Does not have to be included in subsequent deeds.
 The original grantor who created the easement intended the
easement to run with the land
o May be expressly stated or implied
 Subsequent owners of the servient estate had notice of the easement
at the time of the purchase of the servient estate.
o Three kinds of notice exist:
 Actual Notice - Subsequent owners know of its existence
 Inquiry Notice - Visible signs of use by non-owners
 Constructive Notice – Deed conveying the easement is
recorded properly in registry of deeds and is in the chain
of title (way to find out location/scope of easement).
- Requirement for the Benefit to Run with the Land:
o Easement may be owned by the person to whom it was originally granted, or
by whoever happens to own the parcel of land it was intended to benefit.
o Appurtenant Easement – benefit runs with the land – treated as if it were
attached to that particular parcel of land, and intended to benefit whoever
owns the particular parcel of land
 Enforceable by future owners of the land. They pass automatically
to whoever owns the dominant estate and cannot be severed from
ownership of that estate.
o Easements in Gross – benefit does not run with the land – not attached to
particular parcel of land and there is no dominant estate. It belongs
personally to the grantee and is not in connection with his ownership or use
of any specific parcel of land.
 Test for distinguishing between the two is intent of the grantor
- If intent is ambiguous  look at surrounding circumstances and policy
considerations.
o If easement would be useful separate from ownership of neighboring lands
(utility easements) then likely intended in gross.
o If easement has little or no utility separate from ownership of neighboring
land and is useful to anyone who owns the parcel of land benefited by the
easement, then likely to be appurtenant.
Green v. Lupo (p.350)
- Π initiated suit to specifically enforce an agreement to grant an easement along
the southern 30 feet of the north tract of land that Π had deeded to ▲.
- Issue: Whether parol evidence is admissible to construe an easement as personal
to the grantees where the easement is agreed in writing to be for ingress and
egress for road/utilities purposes but the writing does not expressly characterize
the easement as either personal to Π or appurtenant to the land.
- Holding – instrument was ambiguous admitted parol evidence and found
easement to be appurtenant for ingress/egress to Π’s property. Allowed EL.
4. Rationale:
a. Easement in gross not favored and it is not in gross if there is anything in
the deed or the situation of the property which indicates that it was
intended to be appurtenant to land retained or conveyed by the grantor.
b. Easements appurtenant become part of the realty which they benefit.
Allow possession of the dominant estate through successive transfers.
c. Easement was to obtain “access to the land”  supports conclusion that
easement was intended to benefit plaintiffs’ land.
d. ▲ requested that equitable limitations be imposed (reasonable restraints
on right of way to avoid greater burden on the servient owner’s estate than
that originally contemplated in easement grant) because motorcycles were
creating dangerous nuisance on the easement property.
Appurtenant Easements
Cox v. Glenbrook Company (p.353)
- Π and ▲ both sought declaratory judgment for scope and extent of “Quill Easement.”
- Π owns property formerly owned by Quill. ▲ owns property on two sides of Π’s
property. Back road on ▲’s property was extended to Quill’s (now Π’s) property.
- Π wants to widen road and allow others living on the now subdivided parcels to use it.
1. Lower Court’s Judgment – Quill Easement limited in three respects:
a. Restricts dominant parcel to ingress/egress “by single family & their guests.”
b. Restricts use to the roads as they are presently constructed and maintained.
c. Use of ▲’s roads by purchasers of subdivided parcels (making up former
Quill property) would constitute illegal/unjustified burden on servient estate.
2. Holdings/Rationale of Upper Court
a. Restriction in (a) above destroys the appurtenant character of the easement
(which is clear from the terms of conveyance)
b. If (b) above prohibits the owner of the dominant estate from making any
improvements or repairs of the way  too restrictive.
i. General Rule: Owner of easement may prepare, maintain,
improve, or repair the way in manner and to the extent reasonably
calculated to promote the purpose for which it was created.
1. Action of Π in leveling or “rough grading” the “back road”
is okay under general rule and does not fall under exception
(i.e. would not in itself cause an undue burden upon
servient estate, nor constitute an unwarranted interference
with the easement rights of other private property owners).
2. Π’s conduct in attempting to widen the way – not okay
under general rule. Intention of the parties at time of grant
controls as to width.
c. Absence of existing evidence to support (c) above
Easements in Gross
Henley v. Continental Cablevision of St. Louis County, Inc. (p.358)
- Π’s predecessors as trustees were expressly granted right to construct/maintain electric
services on or over the lots in the subdivision, and to grant easements to other parties for
purposes of maintaining the systems.
- Trustees conveyed easement to Southwestern Bell and Union Electric
- ▲ Continental Cable exercising licenses from Bell and Electric to erect cables/wires
- Π (trustees) filed action for injunction for removal of ▲’s wires/cables and damages
- Issue – whether the easements are exclusive and thus apportionable by the utilities to ▲
- Held that nature of easements obtained by both utilities were intended to be exclusive,
and therefore apportionable (rule in favor of ▲).
a. Concept that when one grants to another the right to use the grantor’s land in
a particular manner for a specified purpose and retains no interest in
exercising a similar right himself he sustains no loss if, w/in the
specifications expressed in the grant, the grantee shares his use with others.
b. “Exclusive” therefore refers to the exclusion of the owner and possessor of
the servient tenement from participation in the rights granted.
c. Owner of an easement may license or authorize third persons to use its right
of way for purposes not inconsistent with the principal use granted.
d. It is in the public interest to use the facilities already installed for the
purpose of carrying out this intention to provide the most economically
feasible/least environmentally damaging vehicle for installing cable systems.
In Short:
- If in gross easement is exclusive transferable/apportionable
- If not exclusive  grantor maintains interest in the property and the grantee of
the easement cannot apportion the easement to other third parties.
Three things to consider when determining whether owner of an easement is misusing
it by going beyond the scope of activities contemplated by the grantor:
1. Whether the use is of a kind contemplated by the grantor
2. Whether the use is so heavy that it constitutes an unreasonable burden on the
servient estate not contemplated by the grantor.
3. Whether the easement can be subdivided.
a. Arises as issue when owner of the dominant estate subdivides the property
and attempts to transfer the easement rights to the new owners.
i. Nonexclusive easements in gross  grantor/owner of servient estate
has reserved the right to use the easement in conjunction with the
grantee  easement is nonapportionable (not divisible).
ii. Exclusive easements in gross  grantor has no right to use easement
in conjunction with grantee  easement is apportionable (divisible).
Easements last forever unless they are terminated by:
1. Agreement in writing (release of easement by the holder)
2. Their own terms (ex: the deed expressly states that it is to last for ten years)
3. Merger, when holder of servient estate becomes the owner of the dominant estate.
4. Abandonment - easement owner’s conduct indicates intent to abandon easement
5. Adverse Possession or prescription by owner of servient estate or by a third party.
6. Frustration of Purpose (some courts – changed conditions doctrine)
C. Covenants:
Unlike easements which give right to do something on someone else’s land – covenants
restrict what you can do, or require you to do something on your own land.
-
Covenants enforceable either by damages or injunctive relief as long as long as:
o The covenant was in writing
o The covenant was intended to run with the land
o The owner of the burdened estate was on notice of the restriction
o The covenant is one that is appropriate to impose on subsequent
possessors of the servient estate for the benefit of future owners of the
dominant estate (traditional “touch and concern” requirement).
Note: Privity of Estate – Makes benefits of contract rights for real property assignable
if they are conceived of as being attached to ownership interest in the land created by two
parties who had simultaneous rights in the land (historically - made it possible for both
the benefit and burden to run with the land).
Davidson Bros, Inc. v. D. Katz & Sons, Inc. (p.367)
- Issue: Whether restrictive covenant in a deed, providing that property shall not be used
as supermarket or grocery store, is enforceable against original covenantor’s successor, a
subsequent purchaser with actual notice of the covenant.
- Facts: Plaintiff conveyed deed for its George Street property (where it had supermarket
operating at a loss because it directly competed with Π’s other location on Elizabeth
Street) with restrictive covenant not to operate a supermarket on the premises.
Despite actual notice of the restrictions, ▲made plans to put in a supermarket.
- Holding – 1) Reasonableness standard should be used instead of strictly using “touch
and concern test” alone, 2) Remand for analysis of reasonableness factor…fact-sensitive
nature of standard makes summary judgment inappropriate.
1. Rejects Brewer (which holds that burden of non-competition covenants are
personal to the covenantor and not enforceable against a purchaser).
a. Court says the state’s touch and concern test (requires covenant to touch
and concern both burdened and benefited property to run with the land)
should not be completely abandoned, but should be a factor in
determining reasonableness of the covenant instead of the sole test (takes
into account the realities of today’s commercial world).
2. Considerations to determine whether covenant is reasonable:
a. Intention of the parties at time covenant was executed and whether they
had viable purpose that did not interfere with existing laws at the time.
b. Whether covenant had an impact on the considerations exchanged when it
was executed (provides measure of value to the parties at the time).
c. Whether covenant clearly and expressly sets forth restrictions.
d. Whether covenant was recorded in writing, and if so, whether subsequent
grantee had actual notice of the covenant.
e. Whether covenant is reasonable concerning area, time, or duration.
f. Whether it imposes an unreasonable restraint on trade or secures a
monopoly for the covenantor.
g. Whether covenant interferes with public interest.
h. Whether “changed circumstances” now make it unreasonable.
Note: Covenants not to compete typically do touch and concern the land (“burden”
connects with touch and concern factor because covenant restricts actual use of the land).
Note 2: ▲’s contention that Π’s covenant interferes with public’s interest and “changed
circumstances” must be determined by trial court, if so damages may be appropriate
instead of injunction.
Whitinsville Plaza v. Kotseas (p.376)
- Kotseas sold land to Trust with restrictive covenant in which Kotseas promised not to
use his abutting retained land in competition with the discount store contemplated by the
grantee (one permitted business use that Kotseas retained was for a “drug store”)  Trust
sold the land to Plaza, who sued Kotseas and CVS when Kotseas leased portion of its
abutting land to CVS for use as a “discount department store and pharmacy.”
- Holding: Against Kosteas/CVS
o Covenant restraining competition are enforced if reasonably limited in time/space
and consonant with public interest (reasonable covenants against competition
considered to run with the land unless result unreasonably restrains trade).
o Covenant was (according to this court)
 In Writing
 Clearly states that benefit/burden were intended to run with land
 CVS had actual notice (and constructive notice)
 Privity of estate existed since both parties had easements in other’s land.
 Anti-competitive covenants do touch and concern the burdened land
(limit use or burdened land and enhance market value of benefited land).
Notes:
1. Benefit of Covenants Held in Gross
Does Trust (from case above) have power to enforce the covenant once it sells the
benefited parcel? NO – Two reasons:
a. Covenant is likely to be intended to benefit the current owner of the land
and not prior possessors (original covenantee can only enforce after
transfer of property if agreement contains explicit language to that effect).
b. Courts have traditionally refused to impose burden of a covenant on future
owners of the servient estate if the benefit of the covenant is held in gross.
1. Restatement (Third) allows the benefit of a covenant to be enforced in gross but
only if the person seeking enforcement can demonstrate a legitimate interest in
enforcing the servitude.
2. Enforceability against original covenantor after the land is transferred
If Kotseas had sold the property to CVS (instead of renting) then Kotseas as
original promisor could not still be bound by the covenant.
- Covenant’s purpose is to restrict land use of servient estate so owner is liable for
that breach (prior owner is not legally responsible for action of subsequent owners
of the burdened land).
- Note: Lease is different – landlords retain power to control use of leased premises
so responsible for any breach of covenant.
3. Obligations of Successors in Interest
Can Plaza (successor owner of dom. estate/benefited parcel) get relief from CVS?
o Plaza can obtain a remedy only if BOTH the benefit and the burden run
with the land (if only one runs with the land then no remedy for Plaza).
o Must apply law of real covenants and equitable servitude (traditionally
real covenants, which determined availability of damages, required privity
of estate vs. equitable servitudes, which determined availability of
injunctive relief, did not require privity of estate  if NO privity of estate
then court that adheres to traditional rules may allow Plaza to obtain
injunctive relief but not damages against CVS.
Real Covenants – Land use restrictions run with land when:
1. Covenant is in writing (in document transferring property interest,
or prior recorded document in chain of title).
2. Party to be bound (owner burdened parcel) had notice of restriction
when purchased property (recorded in the deed).
3. Grantor intended restriction to run with the land (magic words in
the deed, if not, court can look for implied intent).
4. Restriction touches and concerns both dominant and servient estate
(burdened and benefited sides).
5. Privity of estate exists between original covenanting parties
(horizontal privity) and between those parties and succeeding
owners (vertical privity).
* Can get damages and injunctions today (orig. just damages).
Equitable Servitudes – Same as above with exception of privity of estate.
*Can only get injunctions under equitable servitudes.
4. Privity of Estate
o Horizontal Privity – one piece of property is burdened for the benefit of
another (regulates relationship between the original covenanting parties).
Only applies when there’s a transfer of land rights.
Two Kinds of Horizontal Privity
1. Mutual Privity – when two owners have simultaneous interest in
same parcel of land (landlord-tenant relationship) or (Whitinsville
case) when owner of one parcel has an appurtenant easement over
another owner’s parcel.
o Mutual privity missing when one owner sells land to another
and grantor retains no interests in the land being sold.
2. Instantaneous Privity – covenant intended to burden one parcel
for benefit of another can become attached to both parcels if it is
created at moment the owner of one parcel sells the other parcel
(covenant contained in deed of sale transferring property interest).
o Vertical Privity – benefits and burdens run to succeeding owners of both
parcels in the future. Two options:
1. Relaxed Vertical Privity
o Imposes burden on any future possessors of burdened land, and
benefit of covenant on any future possessor of the benefited
land (regardless of future interest retained by grantor).
2. Strict Vertical Privity
o Included technical requirement that grantor not retain any
future interests in the land (so present when owner sells
property but not when she leases it).
5. Touch and Concern Test
Traditional - Covenant must relate to the use of the land (i.e. not ingress).
o On burden side – obligation touches and concerns the burdened estate if it
is related to the use of the land and the obligation is intended to benefit
current and future owners of the dominant estates.
o Benefit side – obligation touches and concerns the dominant estate if it
improves enjoyment of that land or increases its market value.
Note: Restrictive covenants that limit land use almost certainly satisfy test.
Modern– Reasonableness test prescribes against big restrictions on alienability.
Applying analysis of real covenants/equitable servitudes to covenants provided in class:
New Mexico Covenant: Might not have horizontal privity element because restrictions
set at different time from transfer of land and needs to be simultaneous. Do have vertical
privity. So, may be enforceable under equitable servitude but not via real covenant.
Ingram Covenant: Fails traditional touch and concern test because doesn’t relate to use of
land, instead restricts who can own the land. Also, there’s no dominant estate being
benefited here (only the prior owner who no longer owns anything – so it’s in gross –
benefit doesn’t run with land) thus real covenant is not applicable.
*Note in New Mexico Covenant there is no dominant estate but gov. agency = exception
D. Modifying and Terminating Covenants
1. Changed Conditions
El Di, Inc. v. Town of Bethany Beach (p.411)
- Town sought injunction to prohibit El Di from selling alcoholic beverages at a
restaurant in Holiday House in Old Town of Bethany based on restrictive covenant
(which was included in chain of title for the Holiday House lot) prohibiting sale of
alcohol on property, and prohibiting nonresidential construction on the property
- Purpose of covenant had been to “insure the quiet character of the community.”
- 1909 – Town incorporated into municipality, and area became known as “Old Town.”
Despite restriction prohibiting commercial building, commercial development began in
1920’s and in 1952, zoning ordinance established commercial district in Old Town (C-1).
- Holding: Reverse lower court’s injunction – finds it unreasonable and inequitable to
enforce the restrictive covenant now in view of the change in conditions in C-1 district.
o Old Town commercial uses have gone unchallenged for 82 years (despite the
covenant) – evidence of changed community conditions.
o “Brown bagging” practice – evidence of significant change in conditions
o License issued to Holiday House permits El Di to better control availability and
consumption of alcohol – public policy consideration
 Ready availability of alcohol in area and long tolerated/increasing use of
brown bagging  enforcing restrictive covenant subverts public interest.
Changed Conditions Doctrine – Covenants will not be enforced if conditions have
changed so drastically inside the neighborhood restricted by the covenant that
enforcement will be of no substantial benefit to the dominant estates (granted only if the
purpose of the servitude can no longer be accomplished).
-
Changed conditions doctrine likely to apply to changes outside restricted
subdivision only when those changes have so adversely affected so many lots in
the subdivision that enforcement is pointless.
2. Relative Hardship - Focuses on servient estate (unlike changed conditions doctrine
which focuses on whether covenant remains substantial benefit to dominant estate).
- Relative Hardship Doctrine – A covenant will not be enforced if the harm caused by
enforcement (the hardship to the owner of the servient estate) will be significantly greater
than the benefit to the owner of the dominant estate.
o Note: Unlike reasonableness test (which looks at whether it was reasonable at
time of formation of the covenant), relative hardship doctrine considers balance
of reasonableness to parties later, when one seeks to terminate the covenant.
3. Other Equitable Defenses
General equitable doctrines (in addition to “changed conditions” and “relative hardship”
that may result in non-enforcement of a servitude:
Acquiescence, Abandonment, Unclean Hands - Complaining party may be barred from
enforcing covenant if he’s tolerated or failed to object to other violations of the covenant
- Plaintiff’s toleration may indicate intent to abandon the covenant  defendant
may reasonably rely on the failure to enforce covenant in investing in property.
This may occur if Π has:
1. Violated the covenant himself (unclean hands)
2. Tolerated previous violations by owner of the servient estate (acquiescence)
3. Tolerated violations by owners of other restricted parcels (abandonment)
Estoppel - Owner of dominant estate who orally represents to the owner of a servient
estate that she will not enforce the covenant may be estopped from asserting her interests
in enforcing it if owner of servient estate changes his position in reliance on the statement
Laches - If the covenant has been ignored or breached for a substantial period of time,
but less than the time necessary to establish prescriptive rights – the court may find that
unexcused delay in enforcing the covenant prompted investment in reliance on the failure
to object to the violation and that enforcement of the covenant would be unconscionable.
Marketable Title Acts - Many states have “marketable title” statutes that (like with
easements) terminate restrictive covenants if they are not re-recorded after a specified
period of time.
Other ways to Terminate Covenants:
1. Language in instrument – may be stated in the covenant that it will terminate
within stated number of years unless renewed.
2. Merger – Like with easements, if the burdened and benefited estates come under
the ownership of the same person, the covenant will terminate.
3. Release – When both parties affected by the covenant agree in writing to terminate
it, or to release the property from it.
4. Prescription – Open and notorious violation of covenant without permission for
statutory period may terminate covenant by operation of the statute of limitations.
4. Statutes
Blakeley v. Gorin (p.420)
- Petitioners, owners of 2 parcels (1st vacant, 2nd site of Ritz Carlton) plan to build hotel
w/ connecting bridge over alley between them, but restricted by “Commonwealth
Restrictions”  seek determination that restrictions are obsolete and unenforceable.
- Respondents, owners of parcel (adjacent to petitioner’s vacant lot) w/ apartment
building in which all rear apartments derive principle light/air from window on the alley.
- Issue: Whether restrictive stipulation in deeds for these parcels that states
“passageway, sixteen feet wide, is to be laid out in the rear of the premises” should be
enforced, since the bridge that petitioner plans to build will occupy most of the space
between the two buildings (with consequent effects on light and air of respondent).
- General Law (MA) – “No restrictions shall be enforced or declared enforceable unless
it is determined that the restriction is, at the time of the proceeding, of actual and
substantial benefit to a person claiming rights of enforcement. Further, even if a
restriction is found to be of such benefit, it shall not be enforced except by award of
money damages if any of several enumerated conditions are found to exist.”
- Held the restriction should not be enforced but damages are to be awarded for the loss.
o Statutory support for denial of specific enforcement of the restriction:
a. Changes in character of the properties affected that would materially
reduce the need for the restriction or the likelihood of the restriction
accomplishing its original purposes.
i. Single family residences have been replaced by high rise buildings
for apartments and institutional use.
ii. Passageway restriction is of substantial benefit in its effect on light
and air, but proposed bridge would only have modest impact in
view of the drastic changes which have already occurred.
iii. Inevitable that if bridge not permitted  even higher building
would at some time be constructed there.
b. Continuation of restriction on parcel against which enforcement is claimed
would impede reasonable use of land for purpose it is most suitable for,
and would impair growth in manner inconsistent w/ public interest.
i. Free standing tower is not economically feasible and apartmenthotel complex connected to Ritz is must suitable use of land.
Magnitude of harm to petitioners in specific enforcement of the restriction far
exceeds that to the respondents in its denial  weighing and comparing interests of
the parties and the public in accordance with statutory provisions yields conclusion
that specific enforcement should be denied.
V. Common Interest Communities
A. Homeowners Associations and Condominiums
-
Homeowners association/“common interest community association” are
empowered to enforce covenants/restrictions by suing to compel compliance.
Residential and commercial condominium complexes similarly create
condominium associations that usually have the power to enforce covenants.
o Each unit in condo is owned in fee simple by a particular person or entity.

-
-
Common areas of condos (exterior walls, roof, stairwells,
hallways, etc.) are owned by unit owners collectively.
 Ownership interests are generally proportional to percentage of the
building taken up by the individual unit.
Both HA and CA are common-interest communities because owners are
burdened or benefited by servitudes that require them to
o pay fee to maintain commonly owned property
o or to finance the operations of the association that provide services to both
commonly owned and individually owned property
o and/ or empowered to enforce servitudes burdening the property in the
neighborhood.
Two kinds of conflicts are common in “common interest communities”
o Conflicts between unit owners and the developer of the condo or
subdivision (often over management contracts).
o Conflicts among the unit owners themselves (often takes form of lawsuit
between individual member and association or board of trustees).
2. Cooperatives
-
Entire building owned by single nonprofit cooperative corporation (owners buy
shares in corporation and lease their individual units from the corporation).
3. Community Land Trusts and Limited Equity Coops
-
-
Landholding tailored to low-income persons for the purpose of removing land
from speculative market to create low income housing and keep it affordable
Community Land Trusts
o Nonprofit corporation that has elected board of directors and open
membership. Trust buys and holds title to property but sells building
located on land to low-income purchaser(s) by lease (called “ground
lease”) granting possessory rights to the owner of the building. Ground
lease lasts long time and may be renewable.
Limited Equity Cooperatives
o Organized like a regular cooperative – purchaser buys shares in
cooperative and obtains lease to particular unit. Contracts involved allow
sale of owner’s shares at fixed price, thus preventing owner from
benefiting from increases in the market value of the unit.
1. Relations Between Unit Owners and Developers
Appel v. Presley Companies (New Mexico)(p.429)
- Π, homeowner in subdivision owned by Presley Co. (one ▲) alleges that
representations were made concerning lots in subdivision and purpose of restrictive
covenants that they relied on in purchasing a lot and constructing their home.  Sub’s
Control Committee (members all employees of Presley) amended restrictive covenants by
deleting nine lots from its effects (one of which was sold to Wolfe, developer /owner of
tract in sub who is replatting into four lots for single family residences).
- Π sues ▲s for breach of restrictive covenants and request permanent injunction
enjoining Wolfe from constructing any building on its lot unless it complied with
restrictive covenants applicable to the subdivision.
- Holding: Appellate court reversed summary judgment for ▲s
Court agrees that language of provisions in covenant permitted committee to
make amendments, but determined that all provisions allowing amendments
of subdivision restrictions are subject to reasonableness requirement
Valid if exercised so as not to destroy general scheme or plan of development.
 Here, found exceptions were applied in unreasonable manner  breach
of covenant (trial court should apply doctrine of relative hardships).
Factors when considering whether or not to grant injunctive relief:
Character of the interest to be protected
Relative adequacy to Π of injunction compared w/ other remedies
Delay, if any, in bringing suit
Misconduct of plaintiff, if any
Interest of third persons
Practicability of granting and enforcing order or judgment
Relative hardship likely to result to the defendant if an injunction is
granted and to the plaintiff if it is denied.
2. Rules and Bylaws
O’Buck v. Cottonwood Village Condominium Association, Inc. (Alaska)(p.483)
- Π owned unit in Condominium (▲) where antenna based cable system was set up (Π
had antenna on roof to allow for reception). Board of Directors removed all roof
antennas after realizing that they led to problem of roof leakage. Board then prohibited
use of roof antennae anywhere on the building, paid hookup fee to new cable system for
one television, and paid for depreciated value of old antennae. Π had three additional
televisions each requiring $10/month payment to get setup to new cable system.
- Π filed complaint against Association seeking damages/injunction against enforcement.
- Holding – Board had authority to enact rule:
a. Provisions in Declaration of Condominium support Association’s authority to
create the ban on grounds of roof-protection or aesthetics.
b. Lack of provision explicitly authorizing Board to ban antennae is not persuasive.
c. Roof problems not the only justification for the rule (if so – might cast doubt on
blanket prohibition of antennae since side of building presents alternative). Ban
was also motivated by Association’s desire to preserve uniform exterior
appearance, and enhance marketability by removing unsightliness of antennae.
d. Condominium owners consciously sacrifice some freedom of choice in their
decision to live in this type of housing.
e. Ban in instant case curtails no significant interests – only loss suffered by owners
is small monthly fee to receive television and Association’s interests justify it.
Neuman v. Grandview at Emerald Hills, Inc. (Florida)(p.485)
- Issue: Whether condo association rule banning holding of religious services in condo
auditorium constitutes violation of Fla. Statute which precludes condo rules from
“unreasonably restricting a unit owner’s right to peaceably assemble.”
- Π (2 members of condo association) sued condo seeking injunctive and declaratory
relief after condo association changed previous rule (allowing religious services in
auditorium if 80% of members were condo residents) by banning them altogether.
- Holding – affirm that rule does not violate statute (in favor of ▲).
a. Test for rules regarding operation of condo’s common areas is reasonableness,
and rule preventing use of auditorium for religious services was reasonable in
light of Board’s concern for potential conflicts of use among religious groups.
b. Polled members and determined that majority preferred the ban  in accordance
with the statutory reasonableness test because serves the members interests.
c. Right to peaceably assemble traditionally interpreted to apply to right of citizens
to meet to discuss public or government affairs.
VI. Present Estates and Future Interests
1. Division of Ownership Over Time
-
Landowners may own property in common in two ways:
o Concurrently – Two people (or more) possess property together and work out
among themselves how it will be used.
o Over time – One person owns right to possess the property, another has a future
power to take possession from the present owner in specified circumstances.
 Present estate holder – has right to possess while her property rights last.
 Future interest holder – obtains right when/if present interest terminates.
 Grantor – specifies the circumstances under which the property will shift
from present interest holder to future interest holder.
o Sometimes the circumstance is one over which the grantee has no
control (grantor indirectly controls what is done with the property).
 Ex: says that when A dies, property must transfer to B.
o Other times grantee can control circumstance for title shift
 Ex: Grantor conveys property to A so long as it’s used for
residential purposes, but if it is ever used for nonresidential
purposes then ownership will revert back to grantor. (Here,
loss of title acts as sanction against present owner for
violation conditions under which he obtained title, thus
grantor directly controls what is done with the property).
- Present and future interests may be created by:
o Sale – Seller can create future interest in a deed.
o Lease – Landlord/lessor necessarily creates future interest either orally or in a
written lease because property will revert to the landlord when lease term expires.
o Will – Testator (one who dies leaving a valid will) may create future interest by
devising or bequeathing property in will.
o Trust – Settlor (one who establishes a trust) may create future interest in a trust
- Future interests exist the moment they are created even though the future owner
has no right to possess the property until the happening of the triggering event.
o Central legal questions here are whether future interest is enforceable and, if so,
whether condition triggering the future interest has been violated or has occurred.
- Problem of dead hand arises if owners seek to control who owns long after they die.
o Affected persons may be able to remove archaic restrictions by contract, in which
the beneficiaries of the restraints on use or alienation agree to give up their rights.
2. Historical Categories of Current Significance
- Freehold and Nonfreehold Interests
o Estates = particular ways of dividing interests over time.
o Most basic division in types of present interests = distinction between:
 nonfreehold interests – those associated with landlord-tenant relationship
 freehold interests – all other ownership interests
- Legal and Equitable Interests: Executory Interests, Development of Trusts
o Trust = arrangement in which grantor (called “settler” or “trustor”) conveys
property to one person (“trustee”) for benefit of third party (“beneficiary”).
 Both real and personal property can be used to create a trust.
 Declaration of trust – when grantor appoints herself as trustee
 Deed of trust – when legal title is transferred to another as trustee
 Inter vivos document – trust created during settlor’s life instead of at death
3. The Estate System
A. Fee Simple Interests
I. Fee Simple Absolute = property ownership without an associated future interest.
o Owner of fee simple interest in real property has the present right to:
 possess and use the property
 the right to sell it or give it away
 and the right to devise it by will or leave it to her heirs.
o Because no one owns a future interest in the property, no other individual has any
presently identifiable legal right to obtain ownership of the property in the future.
 Depending on what fee simple owner chooses to do with the property,
possible future owners include:
 potential buyers
 grantees by gift
 beneficiaries of a trust, and
 divisees (if the owner leaves a will) or heirs (if the owner dies
intestate - without a will).
- Conveyance = technical word for transfer of an interest in real property.
o Conveyance of fee simple interest accomplished by the following language:
 O to A
 O to A and her heirs ( “heirs” simply means fee simple, does not
actually grant A’s heirs any future property interest – technicality).
 O to A in fee simple
 Owners are presumed to covey all interests they own in property
they convey (unless the conveyance states otherwise).
o So, if seller fails to indicate that he intends to create a future
interest, the courts will presume that the grantee (buyer)
receives all the ownership rights of the seller – a fee simple
interest in the property.
II. Defeasible Fees = Present interests that terminate at the happening of some
stated event other than death of the current owner.
o Categories of defeasible fees relate to two distinctions:
 Whether the future interest is in the grantor or in a third party
 Whether the future interest becomes possessory automatically when the
stated event occurs or becomes possessory only if the future interest
holder chooses to assert his property rights.
1) When the future interest belongs to the grantor two kinds of possible fees:
a. Automatic Transfer – when the future interest reverts automatically to the grantor
on the happening of the stated event 
i. the present interest is called a fee simple determinable
ii. the future interest is called a possibility of reverter
 Any language denoting that ownership is limited to a time period during
which certain conditions are met generally will be interpreted as evidence
of the grantor’s intent to cut off ownership rights automatically when the
condition is violated or met (“so long as used for,” “unless used for,” etc).
b. Transfer Upon Grantor’s Assertion of Property Rights – when grantor retains for
herself or her heirs the right to decide, at time the condition is violated, whether to
retake the property or allow ownership to stay with the current owner 
i. current interest is called a fee simple subject to a condition subsequent
ii. future interest is called a right of entry (aka power of termination).
- Modern approach treats reverter and right of entry the same under one of theories:
o Doctrine of laches – court may apply to prevent holder of right of entry from
waiting too long to assert her right of entry.
 Laches prevents recovery when an unreasonable delay in asserting legal
rights unfairly prejudices another.
o Policy matter – seems inappropriate for one who violates a condition to face the
perpetual possibility of a claim by the current holder of the right of entry. 
 Modern (but not universal) approach = start running statute of limitations
(for adverse possession) at the moment the condition is violated. (Makes
right of entry similar or identical to possibilities of reverter).
 Traditionally - statute is triggered only when holder of the right of entry
demands a right of possession from the present owner.
2) When the future interest belongs to a third party instead of the granter 
o Present interest is called a fee simple subject to executory limitations
o Future interest is called an executory interest
 These interests are identical to fee simple determinable, with ownership
shifting automatically on the occurrence of the contingent event, except
that ownership shifts to a third party rather than reverting to the grantor.
 Ex: “O to A so long as used for residential purposes, then to B.”
B. Life Estates
Unlike with fee simple (where owner can choose who will own property after her death),
a life estate owner has no right to determine who owns the property after her death
since ownership automatically shifts to the reversioner or remainder holder (see below).
I.
Reversion and Remainders
- Life Estate = Present ownership rights are held during the life of designated
individual. (Conveyance from “O to A for life”).
o Reversion – The future interest is called “reversion” if the property reverts to
grantor when present owner dies.
o Remainder – The future interest is called a “remainder” if the grantor designates a
third party to obtain ownership when the present owner dies.
o
II.
-
o
o
If life estate owner A sells property to buyer B  buyer gets what seller had: an
estate for the life of A  When A dies, property will shift to reversioner or
remainder holder (grantor or third party).
B’s interest is called a life estate for the life of another
 Note: Life estate may be subject to a divesting condition that would cause
the interest to shift before the owner dies  future interest would be
executory interest.
Contingent and Vested Remainders
RECAP SO FAR: Future interests following defeasible fees (specified events
other than death) vest either in grantor (possibility of reverter – automatic, or right
of entry – grantor’s assertion) or in third party (executory interest). Future
interests following life estates may vest in grantor (reversion) or third party
(remainder).
NOW: Remainders are further divided into two kinds: contingent remainders
and vested remainders.
Contingent Remainders – Remainders are contingent if:
 The remainder will take effect only upon the happening of an event that is
not certain to happen
 Example: “O to A for life, then to B if B has graduated school.”
OR IF…
 Remainder to go to person who can’t be ascertained at initial conveyance
 Example: “O to A for life, then to the children of B.”
*Note: One or both of above conditions could be met.
Vested Remainders – Include any remainders that are not contingent remainders
 Remainders to persons who are identifiable at the time of the initial
conveyance and for whom there are no conditions precedent (conditions that
much occur before they will have the right to control the property) other than the
natural termination of the prior life estate when the life estate owner dies.
 Three Kinds of Vested Remainders
 Absolutely Vested Remainders – Remainder not subject to change.
 Vested Remainders Subject to Open – Remainder that may be
divided among persons who will be born in the future. (Ex: “O to
A for life, then to children of B” would be one if B has living
children at time of conveyance. It would be subject to open
because any children born of B after conveyance from O to A may
share in the property rights – they will own it jointly)
 Vested Remainders Subject to Divestment – Vested remainder that
may be destroyed by an event that occurs after the original
conveyance. (Ex: “O to A for life, then B, but if B has flunked out
of law school, the property shall revert to O” creates vested
remainder in B because no conditions precedent to B’s taking
property but if condition of flunking out is met at any time B will
lose his right to obtain the property.)
o Note: Vested remainders subject to divestment and contingent remainders
may be functionally the same (wording here makes them different)

O to A for life, then to B if she survives A, otherwise to C
(Creates contingent remainder in B)
 O to A for life, then to B, but if B doesn’t survive A, then to C
(Creates vested remainder subject to divestment in B)
 Courts may use discretion in classifying the interest
depending on views about the probable intent of the
grantor and the legal consequences of the classification.
III.
Destructibility of Contingent Remainders
- Traditionally: Contingent remainders were destroyed in two circumstances:
o If they did not vest before the preceding life estate ended, or
o By “merger”
- Modern Approach: Contingent remainders are indestructible.
 So, if “O to A for life, then to B if she has been elected
President.”  If B had not become President before A died,
then property would revert to O as a fee simple subject to
executory limitation with an executory interest in B that would
vest and become possessory if B ever were elected President
during her lifetime.
o Contingent remainders likely to vest too far into the future are today
regulated by the rule against perpetuities.
IV.
Doctrine of Worthier Title
- “O to A for life, remainder in the heirs of O” is interpreted “O to A for life,
remainder in O.” The remainder in the grantor’s heirs is converted into a
reversion in the grantor. In the past this was absolute, but today sufficiently
clear language can overcome the rule if the grantor actually intends to give a
remainder to his own heirs.
- Still today inability to create fee simple interest by contract may
substantially interfere with alienability of property and thus justify the rule.”
o Note that restraints on alienation of life estates are usually enforced only
when they are not disabling restraints – that is, when someone owns the
right to enforce the restraint and may be induced to sell or waive that right.
V.
Rule in Shelley’s Case
- “O to A for life, remainder to A’s heirs” becomes “O to A for life, remainder
to A.” Converts a remainder in the grantee’s heirs to remainder in grantee.
o Since A owns both the life estate and the remainder, the two are merged
into a fee simple.  really, the rule converts “O to A for life, remainder
to A’s heirs” to “O to A in fee simple absolute.”
o The rule has been abolished in most states, but can also be avoided
by careful drafting: Grantor can create a leasehold for a fixed term
(“term of years”) rather than a life estate to avoid operation of the
rule. For example: “O to A for 100 years if A lives so long, then
to A’s heirs” avoids operation of the rule.”
3. Fee Tail - estate whose purpose is to keep the property in a family dynasty.
- Traditional words to create a fee tail are “O to A and the heirs of his body.”
- Traditionally created set of life estates in A (A’s lineal descendants, their
descendants, etc, until blood line ran out  property would revert to O or O’s heirs)
o Because of its effect on marketability, fee tail has been substantially abolished
and is only recognized in four states.
o States have adopted variety of ways to treat fee tail interests
a. As a fee simple absolute
b. Permit fee tail but allow the fee tail owner to convert it to a fee simple
by conveying the property in fee simple to another
c. Interpret fee tails as life estates in the present owner with a remainder
in fee simple in her issue.
4. Regulation of Future Interests
-
Three kinds of legal rules regulate future interests.
1. Presumption against forfeitures guides interpretation ambiguous conveyances.
2. Property law limits the ways in which owners divide property interests. To
create an effective temporal division of property rights, ownership interests
must be in the form of one of the established estates; a general rule prohibits the
creation of new estates.
3. Legal rules regulate the substance of future interests by preventing owners from
creating certain kinds of future interests.
 Some prohibitions, such as rule against perpetuities and the rule against
restraints on alienation, intended to promote free transfer in market place.
 Other doctrines are intended to protect interests in equality and liberty.
5. Trusts
-
-
Grantor (“settler”) conveys property to a trustee to be managed for the
benefit of the beneficiaries. The trustee, has holder of legal title, has the
power to sell the property (the trust of assets) and reinvest proceeds in other
assets if so doing is in the best interests of the beneficiaries, unless the settler
intended the property not to be sold.
Trusts can be created in forms that correspond to all legal estates described
above, including life estates and defeasible fees.
1. Example: Settlor could grant property to “X in trust for A for
life, then to A’s children.
6. Summary
I. No future interest: fee simple absolute
II. Defeasible fees
A. Future interest in grantor or her heirs
1. Automatic transfer
a. Current interest: fee simple determinable
b. Future interest: possibility of reverter
2. Transfer only if future interest owner asserts her interest
a. Current interest: fee simple subject to condition subsequent
b. Future interest: right of entry
B. Future interest in third party
1. Current interest: fee simple subject to executory limitation
2. Future interest: executory interest
III. Life Estates
A. Current interest: life estate
B. Future interest
1. In grantor: reversion
2. In third party: remainder
a. Vested remainders
i. absolutely vested remainder
ii. vested reminder subject to open
iii. vested remainder subject to divestment
(don’t worry about this one- subject to divestment)
b. Contingent remainders
i. condition precedent or
ii. unascertained person
Estates System: Freehold Interests
Present Interest
Fee simple subject
to condition
subsequent
Word often used to
create the interest:
“to A”
“and her heirs”
“so long as”
“while”
“during”
“until”
“unless”
“provided that”
“on condition”
“but if”
Fee simple subject
to executory
limitation
Life estate
“until/unless…,then
to…, but if…, then
to….”
“for life”
Fee simple absolute
Fee simple
determinable
Future Interest
in Grantor
--
Future Interest
in Third Person
--
Possibility of
reverter
--
Right of entry for
condition broken
(or power of
termination)
--
--
Executory interest
Reversion
Remainder
4. Interpretation of Ambiguous Conveyances
A. Presumption Against Forfeitures and the Grantors Intent
-
In interpreting ambiguous conveyances two policies are important:
1. Intent of the grantor
2. Public policy considerations (when grantor’s intent is unclear)
 Courts attempt to further the free use and alienability of
property by a presumption against finding a future interest
 presumption against forfeitures, however, is in tension
with the principle of promoting the grantor’s intent.
Class Notes on Future Estates:
I. FEE SIMPLE
No Conditions Imposed:
Fee Simple Absolute:
- O to A and his heirs
Conditions Imposed:
Fee Simple Determinable
- O to A, so long as used for residential purposes
Both present and future interests are transferable!
- Possibility of reverter - automatic transfer back to grantor.
Fee Simple Subject to Condition Subsequent
- O to A, but if used for non-residential purposes, O shall have a right of
reentry.
- Same idea as above, but ownership doesn’t automatically transfer back to
granter, the right has the option to assert it.
Fee Simple Subject to Executory Limitation
- O to A, but if used for non-residential purposes then to B
- Third party has executory interest.
II. LIFE ESTATE
- O to A for life
- Reversion – Property goes to someone for life and then comes back to
original grantor.
-
O to A for life, then to B
Remainder – After person who gets it for life dies, it goes to third party
(Once B gets it, he now has a fee simple absolute).
O to A for life, then to B’s children
Vested remainder subject to open if B has 2 children right now.
Contingent remainder if B has no children right now, because it’s contingent
upon B having any children at all.
1. Creates unpredictability 
2. These are typically not alienable because not certain if anyone
actually owns them (given unpredictable nature).
III. LEASEHOLDS
- O to A for a year
IV. FEE TAIL
- Only in a few jurisdictions – future interests continue with party’s blood line.
- Courts limit this through:
1. Interpretation (to avoid present owner losing the property).
Restrictions will not be upheld if:
- Violates public policy (racial, etc.)
- Too restrictive in terms of alienation
- Rule against perpetuities:
o “No interest is good unless it must vest, if at all, no later than 21 years
after the death of some life in being at the creation of the interest.”
 Roughly, it bars those limitations that don’t vest within 21 years
plus the person’s life span.
Interests that are subject to this rule:
 Contingent remainders
 Vested remainders subject to open
 Executory interests
-
VII. Leaseholds
I. Leasehold Estates
A. Types of Tenancies
-
-
Leaseholds – Landlord transfers possession for a specified period to the tenant in
return for the tenant’s promise to make a periodic rental payment. When tenancy is
over, possession ordinarily reverts to the landlord unless she has sold the property,
conveying her interest to someone else.
Two types of tenancies:
o Residential Tenancies – renting property for purpose of establishing a home.
o Commercial Tenancies – any nonresidential use, including operation of a
business for profit or nonprofit such as a church, hospital, or university.
1. Categories of Tenancies
-
Four major types of tenancies or leaseholds:
o Terms of Years
 Lasts for specified time, any length determined by the parties.
 Ends automatically at the agreed-upon time, but it may be
terminated before the end of the fixed period on the happening of
some event or condition stated in the lease agreement.
 Future interest retained by landlord = reversion
 If, at time of lease, owner provides that the property will shift to a
third party at the end of the leasehold  third party = remainder
 Death of either party does not terminate the tenancy.
 Landlord not entitled to evict tenant before end of term unless he
breaches a material term of lease (such as covenant to pay rent).
o Periodic Tenancy
 Renews automatically at specified periods unless either the
landlord or the tenant chooses to end the relationship.
 Death of landlord or tenant does not terminate the tenancy. Heirs
or devisees of deceased landlord or tenant may choose to end the
tenancy, unless statue or common law prevents this.
 Landlord can only evict the tenant by providing the requisite notice
that the tenancy will not be renewed.
o Tenancy at Will
 Similar to periodic but can be ended with no notice to either party.
 Death of either landlord or tenant terminates the tenancy at will.
 Many states have essentially abolished these by requiring notice
 Unlike with periodic tenancy (where tenant can argue defense to
eviction) landlord in tenancy at will has absolute right to evict
(even if requisite notice is required by the state).
o Tenancy at Sufferance
 Tenant at sufferance or holdover tenant = A tenant rightfully in
possession who wrongfully stays after leasehold has terminated.
 Term meant to distinguish between a tenant who
wrongfully retains possession after the end of the lease
term and a trespasser, who never had the right to possess.
-
o May be legal for a tenant to eject a trespasser
herself (self-help) or call police to do so, while an
eviction proceeding and court judgment are required
to evict a tenant, including tenant in sufferance.
o A landlord who accepts rent checks from a holdover
tenant may be held to have agreed to a new tenancy
calculated by the rental payment schedule (monthly
checks creating a month-to-month tenancy).
Most states require that leases of more than one year be in writing, while leases of
one year or less are enforceable whether they are written or oral.
2. Regulation of Landlord-Tenant Relationships
-
-
Procedural regulations impose formal requirements for creating the landlord
tenant relationship, and define procedures required to terminate the relationship.
o Termination procedures usually require notice and an eviction proceeding
and court judgment to evict the tenant. May also provide for expedited
court proceedings, often called summary process, to allow quick evictions.
Substantive regulations define the parties’ obligations to each other.
B. Landlord-Tenant Relationships: Self-Help v. Judicial Process
*Note: New Jersey Anti-Eviction Act on P.642
Vasquez v. Glassboro Service Association, Inc. (p.644)
- Puerto Rican farmworker, Vasquez, was hired through Glassboro (non-profit org. that
contracts w/ farmers to provide migrant labor) to work for a farmer who fired him and
would not permit him to remain in provided living quarters overnight, despite vacancies.
- Held (1) migrant farmworker is not a “tenant” w/in meaning of NJ statute – rationale:
a. Special characteristics of migrant workers housing
b. Absence of contractual provisions for payment of rent
c. Lack of privacy
d. Intermittent occupancy
e. Interdependence of employment and housing
(2) Look to Glassboro contract (negotiated between Glassboro and Puerto Rican Dept. of
Labor) to determine whether farmworker is entitled to notice before dispossession.
Conclude that dispossession of migrant farmworkers on termination of employment
should proceed in summary manner (as provided by Legislature for removal of tenants).
- Principle that contracts should be enforced as made by the parties assumes that
parties are in positions of relative equality and that consent is freely given.
- Interests of neither migrant farmworker nor public is served by casting the worker
adrift to fend for himself without reasonable time to find shelter.
CLASS NOTES:
Arguments for entitling migrant farm workers to judicial process:
- Legislative Intent – migrant welfare
- Precedent – State v. Shack supports limitation of property rights for welfare of migrant
workers (persuasive but not binding, different legal issue) other contracts of adhesion
- Public Policy – don’t want homeless/unemployed…individual rights/safety
Counter-arguments for not entitling migrant farm workers to judicial process:
- If legislature intended to give migrants rights, they could have done so.
- State v. Shack was specifically tailored to granting migrant’s rights in terms of
legal/medical not possessory – greater burden on farm owner granting possessory rights.
- Not adhesion because Puerto Rican Dept of Labor negotiated on behalf of the workers.
Summary process v. Self-help
- Owners entitled to use self-help (put person’s stuff outside/change locks) to remove
licensees, and, if they refuse, may use reasonable force.
- Owners used to be able to use self-help to remove tenants, but most states outlaw that
now, obligating landlords to use court proceedings (eviction) to recover possession.
- Every state has a statue called forced entry and detainer or summary process laws that
enables landlords to recover possession in expeditious court proceedings.
License v. Lease
If owner has transferred exclusive “possession” of a defined space  lease
o Person granted possession of property = tenant
- If control of a particular space is not granted, or possession is not exclusive  license
o Person with permission to be on property (right of use) = licensee
o Person not granted possession or permission = trespasser
Tenant’s main right falls under just cause statute – must show just cause for eviction.
- Examples of just causes:
o Tenant’s failure to pay rent
o Tenant causes damage to premises
o Tenant displays disorderly conduct
o Conversion of building to condominium
Prob.1, p.658 - Why students are “tenants” requiring judicial process for eviction:
1. Estoppel – argue that students relied on university’s representation of being a
place that invites free speech and potentially that others have been able to
demonstrate free speech without eviction.
2. Contract of Adhesion – argue that it was a “take it or leave it” type of clause and
that students had unequal bargaining power.
3. Purely Definitional Argument – argue that students are being given possessory
rights by the university, not just right of “use” (understood that students will live
there and that others will not be granted use to the same room aside from the
established roommates) so falls under category of tenant, not licensee.
II. Conflicts about Rent
Landlord’s Right to Receive Rent
-
Main rights reserved by the landlord in relation to the tenant are:
The right to receive the agreed upon rent.
Right to have the premises intact/not damaged aside from normal wear/tear
(tenant’s duty not to commit waste).
The landlord’s reversion, right to regain possession at end of the lease term.
1. Landlord’s Remedies When Tenant Breaches and Refuses to Leave:
Possession and Back Rent - Tenant wrongfully stops paying rent, or breaches other
material terms in the lease and continues to occupy the premises  landlord may sue
tenant for back rent (rent already due but not paid) and for possession (to evict the tenant
and to be able to re-rent the apartment to someone else).
-
Defenses that tenants may assert:
o Rights based on implied warranty of habitability and retaliatory eviction.
o Attempt to evict constitutes unlawful discrimination.
The holdover tenant and the renewal of tenancy - If tenant wrongfully holds over end
of lease term and continues to pay rent  landlord has two options:
- Accept new tenancy relationship, OR
- Treat tenant as tenant at sufferance/holdover tenant and sue for possession.
o To avoid creating new tenancy by accepting checks, landlord may:
a. Refuse to accept tenant’s proffered checks
b. Cash the checks but write on back that not agreeing to renew the
tenancy, merely using to cover rental value from tenant at sufferance.
Self-Help - Most jurisdictions don’t allow landlord to use, require court proceedings.
Summary Process - (provided in most states by statute) = proceedings that allow
relatively fast judicial determination of landlord’s claim of right to regain possession.
- Also known as: Forcible entry and detainer, unlawful detainer, summary
proceedings, and summary ejectment.
2. Landlord’s Remedies When Tenant Breaches and Leaves
Three remedies for landlord if tenant stops rent payment & moves out before end of lease
1. Accept the tenant’s surrender
o If landlord accepts lease surrender, tenant not relieved of all financial liability.
 Landlord may still sue for back rent owed but not paid for the time before
tenant abandoned the premises by moving out.
 Landlord may sue immediately (without waiting for end of lease term) for
damages for breach of the lease (different from the amount of the future
rent…it is the agreed upon rent minus the fair market price).
2. Re-let on the tenant’s account
o Landlord may find new tenant and sue the former tenant for the difference
between the old rental price and the new rent received from the new lessee, if
the new rent is lower than the original.
 New rent must be reasonable – can’t rent to sister for $5/month and
recover the difference.
 Note: In some states, very act of re-letting apartment will be taken as
evidence that landlord has accepted surrender of leasehold. Others
require notice to the tenant that surrender is not being accepted.
3. Wait and sue for rent at the end of the lease term versus mitigate damages
o Traditional rule – landlord may do nothing, wait for end of lease, then sue
tenant for unpaid back rent (to sue for entire rent, must wait until it ends).
 Most states now reject the traditional rule and apply the contract doctrine
that requires the aggrieved party to mitigate damages.
 Obligation on landlord to act reasonably in seeking another tenant.
o If landlord fails to mitigate damages and waits until end to sue 
amount of damages will be reduced by amount that would have
been avoided had the landlord mitigated damages by acting
reasonably to find replacement tenant.
o If landlord does mitigate damages  can still recover from the
tenant the reasonable costs of finding a new tenant, the rent for
the premises while vacant, and difference between old and new
rental price if lower than the original.
Sommer v. Kridel (p.663)
- ▲ signed year lease for apt. with Π (owner). Before moving in, ▲ notified landlord
of changed plans leaving him unable to take possession and surrendering all rights
with forfeiture of 2 month’s rent already paid. Π did not answer letter and refused to
let another interested tenant rent it. Didn’t exhibit to anyone until a month later.
- Π sued Kridel, before re-letting the premises, for total amount due for full two-years
 amended complaint after mistrial but did not reduce claim to reflect six week
concession provided for in lease, or payment already made to Π after ▲ signed.
- ▲ alleged that Π breached contract, failed to mitigate damages, and accepted ▲’s
surrender of the premises. Counterclaimed to demand repayment of security deposit.
- Trial judge ruled for ▲. Appellate division reversed.
- Holding: Overturned pre-existing rule that landlord under no duty to mitigate
damages, requiring mitigation where claim is for damages under residential lease.
o Should be governed by more modern notions of fairness and equity.
o If landlord has other vacant apartments besides one which tenant abandoned
 must treat apartment in question as if it was one of his vacant stock.
o As part of cause of action – landlord carries burden of proving that he used
reasonable diligence in attempting to re-let the premises (he is in better
position to demonstrate whether such is the case).
Notes:
- If new tenant fails to pay all or party of rent, landlord can go after original breaching
tenant for unpaid rent only if landlord never accepted original tenant’s surrender of
the lease (if accepted then can only go after new tenant).
- Some landlords attempt to contract around duty to mitigate damages through
“acceleration clause” making the remaining rent due immediately if tenant breaches
the lease in a material way or abandons the premises. (Form of liquidated damages).
o Some courts enforce the provision since the parties agreed to it, but most
do not allow such a clause to waive the duty to mitigate damages.
- Most states put burden of proof that landlord attempted to mitigate damages on the
landlord (as in Sommer case) but a few put the burden on the tenant.
III. Conflicts about Occupancy
1. Landlord’s Duty to Deliver Possession
-
Majority rule: Landlord has duty to deliver possession of rented premises to tenant
at beginning of leasehold. If prior tenant wrongfully holds over after his lease term
expires, the landlord must evict him or convince him to leave.
o Failure to deliver premises = breach of lease by landlord.
 Tenant who is shut out may terminate lease and collect
compensatory damages, or affirm the lease and recover damages
for the period that she had to find alternative housing while waiting
for holdover tenant to leave.
-
Minority rule: Landlord only has duty to deliver right to possession but no duty
to deliver actual possession (new tenant’s duty to evict holdover tenant, and new
tenant must pay rent even though not in possession, with remedy coming from
damages in suit against holdover tenant).
2. Tenant’s Right to Leave and Transfer Leasehold v. Landlord’s Right to
Control Occupancy
A. Transfer of the Landlord’s Reversion
-
Both landlord and tenant may transfer their property interest. If landlord sells the
property  new owner receives what the landlord was able to sell (the landlord’s
reversion – right to obtain possession when the lease term ends – and the current
right to collect rent and enforce the other terms of the lease).
o New owner does not obtain an immediate right to possess the property –
the tenant’s leasehold interest survives.
B. Tenant’s Right to Assign or Sublet
- When the lease is silent:
o General rule: if the lease says nothing, tenant is entitled to transfer possessory
interest by assignment or sublease. (Justified by policy of promoting alienability).
o Transfer of the leasehold is either:
 Assignment – coveys all of the tenant’s remaining property interests
without retaining any future rights to enter the property.
 Landlord and assigned tenant are in privity of estate  assignee is
responsible to landlord for all the undertakings of the original
lease. All of former tenant’s covenants run with the land.
 Sublease – tenant retains some future interests or right to future control
 Covenants do not run with the land. Landlord has no right to sue
the subtenant to enforce any of the covenants in the original lease,
including covenant to pay rent if requested relief is damages.
 Exception if subtenant expressly promises tenant to pay
rent to the landlord Landlord may sue subtenant as third
party beneficiary of contract between tenant and subtenant.
 Some courts will allow landlord to sue subtenant for
injunction to pay rent.
* Note: Both subletters and assignees can enforce covenants/servitudes but
sub can only use equitable servitude while assignee can use real covenant.
- When the lease requires the landlord’s consent:
o Clauses requiring landlords consent may be stated in the negative (“no subletting
w/out consent”) or affirmative (“subletting allowed subject to landlord consent”).
Kendall v. Ernest Pestana, Inc. (Cal.)(p.683)
- City, owner of space in question at airport, leased it to Pertlich, who assigned interest to
Ernest Pestana, Inc. Prior to assigning to Pestana, Perlithes entered into sublease with
Bixler, who then sold his business to appellants Kendall and O’Hara who were willing to
be bound by terms of his lease. Lease required written consent of lessor before lessee
can assign interest  Bixler requested consent from Pestana, Inc who refused to consent
without acceptance of demands for increased. Proposed assignees sued.
- Issue: Whether, in absence of a provision that consent will not be unreasonably
withheld, a lessor may unreasonably and arbitrarily withhold his assent to an assignment
in a commercial lease.
- Holding: Minority rule - that where a lease provides for assignment only with consent
of lessor, consent may be withheld only where lessor has a commercially reasonable
objection to the assignment - is preferable.
(Note: Majority rule = absolute right to refuse allowance of assignee if it’s in the lease).
o Civil Code forbids unreasonable restraints on alienation.
o Restatement supports – lessor’s interests are protected by fact that original lessee
remains liable to lessor as surety even if lessor consents to assignment and the
assignee expressly assumes the obligations of the lease
o Determination of whether lessor’s refusal to consent was reasonable is question of
fact. Factors to consider for good faith/commercial reasonableness standards:
 Financial responsibility of proposed assignee,
 Suitability of the use for particular property,
 Legality of proposed use,
 Need for alteration of the premises
 Nature of the occupancy
Slavin v. Rent Control Board of Brookline (Mass.)(p.688)
- Landlord applied to ▲, rent control board, for certificate of eviction of tenant Myers on
ground that Myers violated obligation of his tenancy by allowing an unauthorized person
to occupy his apartment without first obtaining landlord’s written consent.
- Board found landlord acted unreasonably by categorically refusing to let tenant to bring
in someone new after original cotenant had moved out  tenant did not violate lease.
(Based on implicit notion that provision requiring landlord’s consent includes agreement
to consider prospective tenants/permanent occupants and not withhold unreasonably).
- Issue: Whether tenant’s obligation, as specified in residential lease, to obtain written
consent of landlord before assigning lease/subletting/permitting other occupants implies
as matter of law an obligation for landlord to act reasonably in withholding consent.
- Holding: Court rules for landlord.
o Almost all cases that board cited involved commercial not residential. Only
purely residential was NY where reasonableness requirement statutorily imposed.
o Finds no necessity of reasonable alienation of residential building spaces, and
little economic incentive to withhold consent in residential lease context because
landlord has such limited control over rent that can be charged so no compelling
basis based on control of rental rate.
Note: Trend in commercial leases is toward adopting an implied reasonableness term in
lease clauses that give landlord the right to consent to sublet/assignment. Trend in
residential lease is to apply absolute right to restrict if it’s in the lease but goes both ways
C. Tenant’s Rights to Habitable Premises
1. The Covenant of Quiet Enjoyment and Constructive Eviction
Minjak Co. v. Randolph (NY)(p.701)
- Lndlord sued ▲, 4th flr tenants, for nonpayment of rent. ▲ gave affirmative defense
that, since unable to use part of loft space due to landlord’s renovations and other
conditions, entitled to abatement of rent. Also claimed breach warranty of habitability.
- Due to 5th floor tenant’s activities, ▲s dealt with major water and sand leaks into their
loft – complaints to Π went unheeded. Π also began construction work causing dust to
pour into apartment, rendering ▲ use of music equipment (tied to his occupation)
impossible because had to keep everything covered to protect it (thus making 2/3 of the
loft unusable). Construction work was also hazardous and brick dropped on ▲’s head.
- Holding: Judgment in favor of ▲.
o Tenant may assert doctrine of constructive eviction as defense to non-payment of
rent even if he has abandoned only portion of demised premises due to landlord’s
acts making that portion unusable (East Haven). Social policy and fairness.
o ▲ was substantially deprived of beneficial use of the music studio part of loft.
o Punitive award found by jury (and reduced by civil court) should be reinstated
because landlord’s dangerous and offensive conduct was morally culpable.
Blackett v. Olanoff (p. 703)
- ▲s (tenants) failed to pay rent and moved out in timely manner after Π (landlord)
leased nearby premises to bar, which caused incessant/intrusive noise in ▲s apartments.
- Trial Ct. judgment for tenants. Found that tenants were substantially deprived of quiet
enjoyment of their leased premises for a substantial time violating tenants implied
warranty of quiet enjoyment. Further found although landlord did not intend to create
the conditions, it was within Π’s control to correct them constructive eviction tenants.
- Holding: Affirmed for ▲s.
o Landlord’s conduct, not intentions, controls whether there’s constructive eviction.
o Landlord had right to control objectionable noise/ability to control the conditions.
o Landlord entered into lease with bar tenant which landlord knew permitted that
tenant to engage in activity that would interfere with rights of other tenants.
o Since disturbing condition was natural/probable consequence of landlord’s
permitting lounge to operate, and could control it shouldn’t be permitted
to collect rent for residential premises not reasonably habitable.
- Structure of Landlord-Tenant Litigation:
o Claim by landlord against tenant for failure to pay rent, or breach lease agreement
 Complaint may seek:
 Back rent
 Possession of premises (eviction)
 Damages
 Tenant may respond by
 Denying breach
 Raising defenses (admit nonpayment but assert breach was entitled).
 Make counterclaims against landlord:
o For damages resulting from landlord’s breach in form of “rent
abatement” or independent of rental value for any significant harm.
o For injunctive relief (Ex: Order landlord to fix apartment).
Note distinction:
- Constructive Eviction – tenant is essentially denied use of premises by landlord
by whatever problem has arisen (in Minjak partial constructive eviction is argued
for the 2/3 that is the music studio).
o Defense of CE allows tenant to stop rent payments and move out before
end of lease term. To claim full CE, need to have vacated premises.
-
-
-
o Some courts allow Partial Constructive Eviction claim if part of
premises became uninhabitable  only necessary to have vacated part of
premises that’s been constructively evicted. Remedy = rent abatement
Breach of Warranty of Habitability – premises is uninhabitable because of
problem (in this case – breach of habitability is argued for the 1/3 that was
residential). Has to do with state of repair of apartment (to do with building
codes, state statutes etc) – should always be same as its initial habitable state.
o General rule is that this implied warranty does not apply to commercial
leases. Some jurisdictions do apply “implied warranty of suitability.”
Implied Covenant of Quiet Enjoyment – Tenants have right to live peacefully
without unreasonable interference of noise, etc. Landlord’s promise not to disturb
tenant’s quiet enjoyment of property is implied by common law or statute.
Landlord’s Liability for Acts of Other Tenants:
o Traditional Rule: Landlord not responsible for acts of other tenants unless
lease specifically includes obligation to control conduct of other tenants.
 Exception (Blackett) – if landlord knew in advance that one tenant
was likely to interfere with rights of other tenants and had it in his
control to block that interference  landlord is responsible.
2. Implied Warranty of Habitability
Javins v. First National Realty Corp. (p.709)
- Issue: Does housing code violations during lease effect tenant’s obligation to pay rent?
- Landlord sued for nonpayment of rent. Tenants asserted defense that they were entitled
to not pay because of uninhabitable standards that did not meet housing regulations.
- Holding: Warranty of habitability, measured by standards of State’s Housing
Regulations, is implied in leases of urban dwelling units covered by those regulations and
breach of this warranty gives rise to usual breach of contract remedies.
a. Old rule, based on factual assumptions no longer true, can no longer be justified.
b. Consumer protection cases require old rule be abandoned to bring residential
landlord-tenant law into harmony with principles on which those cases rest.
c. Nature of today’s urban housing market also dictates abandonment of the old rule.
d. Since lease specifies period tenant has right to use apartment for shelter, he may
expect that it will be fit for habitation for the time period which it is rented.
e. Unequal bargaining power, tenants little leverage to enforce housing demands
f. Poor housing is detrimental to whole society
g. Brown held lease void where landlord knew, before lease signed, that housing
code violations existed  this court holds landlord undertakes continuing
obligation to maintain premises in accordance w/ applicable law after it is signed.
Note: Majority Rule – implied warranty of habitability for residential tenancies.
- Some states measure landlord’s obligations by state/local housing codes (warranty
is breached when landlord fails to comply with applicable code provisions).
- Others measure landlord’s obligation independently, holding obligation to
“conform to general community standards of suitability for occupancy.”
(Ex: Lack of heat or water, broken windows, pest infestation, leaky roofs.)
 Most courts hold warranty not violated until landlord has been notified of
the problem and had a reasonable opportunity to fix it.

-
-
Some courts hold violation the moment the condition occurs, and others
that it begins as soon as landlord is notified.
Remedies to vindicate tenant’s rights under implied warranty of habitability:
o Rescission/right to move out before end of lease term - When breach of
warranty of habitability results in a material change in housing conditions
even when that change would not amount to constructive eviction.
o Rent Withholding - Tenant should advise landlord of problem before
withholding rent. Unlike rule for constructive eviction, breach of implied
warranty of habitability allows tenant legal right to stop paying rent
without first moving out.
o Rent Abatement - Can result from injunctive relief ordering
reimbursement of full rents already paid, or from tenant withholding rent,
waiting to be sued, then arguing rent should be abated for violation period.
 Amount of abatement depends on test used in jurisdiction:
o Fair market value test – amount of rent owed back based on fair
market value of premises “as is” or with defects.
o Reduce based on seriousness of violation and amount of
discomfort experienced by tenant.
o Repair and Deduct - Tenant pays for repairs then deducts from rent.
o Injunctive Relief or Specific Performance
o Administrative Remedies - Use of local housing inspector
o Criminal Penalties - As provided for by state building code statutes for
landlords who fail to fix dangerous and unlawful conditions.
o Compensatory Damages - If violation harms personal property of tenant,
or if tenant seeks reimbursement for staying in hotel while premises were
uninhabitable  compensatory damages (because damage exceeds
amount of rent) but usually rental amount constitutes tenant’s loss.
Commercial Leases
o Most hold commercial leases have no implied warranties.
o Some states find implied warranty of “suitability” for commercial lease.
VIII. Zoning: Government Land Use Planning
I. The Planning Process
A. Legislative Process: Enacting the Zoning Ordinance
1. Zoning Enabling Acts
-
Zoning Enabling Acts = Legislation by which states delegate zoning power to
individual municipalities to regulate land use.
o Enabling acts authorize municipalities to engage in two kinds of regulation:
 Use Zoning – accomplished by dividing the municipality into districts and
regulating the kinds of uses allowed within each district. (Ex’s of uses:
Agricultural uses, residential uses, commercial uses, industrial uses.)
 Area Zoning – regulates size of lots, height of buildings, and requirements to
set back structures a certain distance from the property borders.
2. The Comprehensive Plan and Zoning Ordinance
-
Zoning enabling act generally requires municipal govt to establish a comprehensive
plan for whole municipality separate from zoning ordinance itself, showing general
divisions of use and objectives/policies to avoid nuisances before they arise.
o Zoning ordinance is equivalent of a local statute – enforceable until changed by
the governing body (elected by voters in municipality).
 Rezoning petitions – submitted to planning commission (community members
appointed by local legislative body) from landowners seeking amendments to
the zoning law as it applies to their particular parcels. Commission holds
hearing/makes recommendation to city council to accept/reject the petitions.
3. Conditional or Contract Zoning
-
Contract/Conditional Zoning – Governing body negotiates with owner over zoning
change and then allows rezoning subject to specified conditions designed to ensure
that the development is not harmful to the neighbors or community.
o Contract zoning more likely to be struck down if bilateral than if it is unilateral.
 Unilateral restrictions are often called conditional zoning (rather than
contract) because no promise is made by governing body that effects a
bargaining away of the police power.
B. Administrative Procedures: The Zoning Board of Adjustment
-
Zoning board / Board of Adjustment – local agency whom municipality delegates
power to administer the zoning laws.
o Has power to grant:
 Variances - permit to develop a parcel in a way that otherwise violates the
zoning ordinance – granted in cases of special hardship
 Special Exceptions – permit to develop in ways that are conditionally
authorized by the zoning ordinance
II. Zoning: Police Power and Property Rights
14th Amendment – “[No] State [shall] deprive any person of life, liberty, or property,
without due process of the law.” (Restricts State Government)
Euclid v. Ambler Realty Co. (U.S.,1926) (p.919)
- Developer challenged zoning law that prohibited industrial uses on most of his parcel,
causing 75% reduction in market value of land.
- Supreme Court read 14th Am. broadly and held that since ordinance served a legitimate
public interest, it did not unconstitutionally deprive the Π or his property rights.
Nectow v. City of Cambrdige (U.S.,1928) (p.920)
- Vacant lot was bisected by new zoning ordinance on parcel mostly zoned for industrial
use, but one vacant part of parcel was limited to residential use.
- Held that statute infringed on constitutionally protected property rights because no
practical uses could be made of the land for residential purposes.
- Regulations of the zoning ordinance will not promote public safety, health, morals,
general welfare of the inhabitants of the part of the city affected  banned by 14th Am
(public purposes underlying the law were not thought to justify the imposition here).
A. Limits to Zoning Laws Designed to Protect Preexisting Prop. Rights
1. Prior Nonconforming Uses
Town of Belleville v. Parrillo’s, Inc. (p.922)
- Parrillo’s operated restaurant when town enacted zoning ordinance which did not allow
restaurants in zone where it was located. Since had been in existence prior to effective
date of new zoning ordinance, ▲’s establishment qualified as preexisting nonconforming
use  allowed to remain in operation. 23 years later ▲ changed establishment to disco.
- Issue: Whether converting restaurant to disco is substantial change making it improper.
- Holding – new disco was improper use under zoning ordinance.
a. ▲ had abandoned all pretences of the continued existence of a restaurant as it
was before – entire character of business had been altered.
b. General welfare of the neighborhood was affected adversely by its conversion
Rule: Courts have permitted municipalities to impose limitations on nonconforming uses
to prevent any increase or change in nonconformity. Such restrictions usually relate to:
(1) Change of use, (2) Enlargement/extension of repair/replacement of nonconforming
structures, (3) Limiting nonconforming uses duration of abandonment/ discontinuance.
2. Variances
Cochran v. Fairfax County Board of Zoning Appeals (p.925)
- Held that no variances should be authorized by board unless it finds that the strict
application of the ordinance would produce undue hardship. The board does not have
authority to grant variance unless the effect of the ordinance, as applied to the piece or
property under consideration would, in absence of variance, interfere with all reasonable,
beneficial uses of the property, taken as a whole.
o Each of the cases failed to meet the foregoing standards – without the variances
each of the property retained substantial beneficial uses and substantial value.
Note: Most states only allow zoning boards to grant variances when application of
zoning ordinance results in exceptional and undue hardship to the owner.
a. Undue hardship generally only found if there is no economically viable use of the
property (or no reasonable return on owner’s investment) if zoning law is enforced.
b. Variance won’t be granted where hardship is self-imposed.
c. Many states add requirement that property must be different in some unique way
from other property and hardship arises out of this unique condition of the land.
d. Some states allow variances on lesser showing of practical difficulties.
i. To show practical difficulties owner must prove significant economic injury
from enforcement of zoning ordinance.
ii. Some states require both unnecessary hardship and practical difficulties, some
allow variance if either is met. Some only require that variance can be
granted without substantial detriment to public good and will not substantially
impair the intent/purpose of the zoning ordinance.
Variances are generally granted to relax lot and building restrictions, not use restrictions.
a. Some states prohibit use variances expressly and entirely.
b. Some allow use variances only with stricter test of unnecessary hardship, while
allowing area variances based on lower standards of practical difficulties.
VIIII. Regulatory Takings Law
5 Amendment – “takings clause” – “Nor shall private property be taken for public
use without just compensation.” (Restricts Federal Govt)
th
I. Property as a Mediator Between Citizens and the State
A. Defining Versus Defending Property Rights
-
Fifth Amendment attempts to fulfill dual function by prohibiting federal government
from “taking” private property “for public use without just compensation.”
-
o Limitation applies to state governments through fourteenth amendment, which
prohibits states from depriving citizens of property w/out due process of the law.
 Has been interpreted to include a substantive component that prevents the
states from taking private property without just compensation.
o If exercise of state’s police power is legitimate  infringement on private
property interests is damnum absque injuria – damage without legal redress.
o Eminent Domain power of states (in contrast to police power) is power to take or
“condemn” private property, expropriating it, paying just compensation to the
owner and transferring the property to use designed to further the public welfare.
 Ex: State takes private property to build a highway.
Problem of regulatory takings – state actions regulating private conduct to promote
public welfare may disproportionately negatively effect some property holders.
o The takings clause – mediates between police power and eminent domain power
by defining when a purported exercise of police power has gone “too far” in
infringing on private property rights without adequate public justification, thus
constituting exercise of eminent domain power that can be accomplished only by
compensating the owner for the loss of her property rights.
 Takings Clause = 1) Taking, 2) For public use, 3) W/out just compensation
B. Per Se Takings and the Ad Hoc Test
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-
To determine when justice/fairness require the economic injuries caused by public
action be compensated by the government, court engages in ad hoc factual inquiries
pertaining to the particular circumstances focusing on three major factors:
o The “character of the government action”
o The protection of “reasonable, investment-backed expectations”
o The “economic impact” of the regulation on the particular owner.
 Takings clause serves to bar gov from forcing some people alone to bear
public burdens which, in fairness/justice should be borne by public as a whole.
While court normally applies ad hoc multi factor test to determine when a regulation
becomes a taking – there are some per se tests to identify types of regulations that
constitute categorical takings for which compensation is required regardless of how
important the public interest is in the regulation.
o Two categories of regulatory action that generally will be deemed per se taking:
 Government-mandated “permanent physical invasions of property”
 Regulations that “completely deprive an owner of all economically viable use
of her property [unless] background principles of nuisance and property law
independently restrict the owner’s intended use of the property.”
 Even these two classes of cases are not always deemed property takings.
o Three categories of cases that have significantly more chance to be deemed
unconstitutional takings of property under ad hoc test.
 Deprivation of certain core property rights or estates in land
 Retroactive deprivation of vested rights belonging to owners who invested in
reasonable reliance on a prior regulatory authorization.
 Required dedications of property imposed as conditions on land use
development permits when those “exactions do not substantially advance the
same interests that land-use authorities asserted would allow them to deny the
permit altogether.”
II. Ad Hoc Test: Fairness and Justice
Miller v. Schoene (U.S., 1928) (p.957)
- ▲ state entomologist ordered Π to cut down large number of red cedar trees growing
on their property as means of preventing the nearby apple orchards from getting a rust
plant disease that the cedar trees were infected with (statutory regulation).
- Holding: Accepts Supreme Court of Appeals conclusion that state was under
necessity of making choice between the preservation of one class of property and that
of the other wherever both existed in dangerous proximity.
o When forced to such a choice the state does not exceed its constitutional powers
by deciding upon the destruction of one class of property in order to save another
which, in the judgment of the legislature, is of greater value to the public.
 Red Cedar has occasional value as lumber but is not deal with commercially
on large scale. Value throughout state is small compared to….
 Apple growing – one of the principal agricultural pursuits in VA. Millions of
dollars invested in the orchards which employ large portion of the population
o Public interest, when involved, is preferred over private interest of individual,
even to the extent of its destruction – one of the distinguishing characteristics of
every exercise of police power which affects property rights.
 Since choice unavoidable, can’t say its exercise controlled by considerations
of reasonable social policy involves any denial of due process.
Penn Central Transportation Co. v. New York City (U.S.,1978)(p.959)
- Π Penn Central was denied right to build 50 story high office building above the
Terminal by Landmarks Preservation Commission because Grand Central Terminal
has been designated as a landmark – imposes duty upon owner to keep exterior
features of building in “good repair” and approval of Commission of any proposal to
alter the exterior architecture or construct any exterior improvement.
- Penn Central sued NY claiming that Landmarks Preservation Law had “taken” their
property without just compensation in violation of 5th and 14th amendments.
- Issue 1: Whether city may restrict development of landmarks w/out effecting taking.
a. Denied argument that city took Penn’s airspace because court focuses on
nature and extent of interference with rights in parcel as a whole (“taking”
jurisprudence does not divide single parcel into segments and determine
whether rights in particular segment have been abrogated).
b. Denied argument that “taking” on basis of diminished value of the Terminal –
diminution in property value, standing alone, cannot establish a taking…must
focus on the uses of the regulations permit.
c. Denied argument based on fact that law only applies to individuals who own
selected properties – owners have been benefited by law in addition to burden.
- Issue 2: Whether interference with appellant’s property is of such magnitude that
“there must be an exercise of eminent domain and compensation to sustain it.”
(Question of severity of the impact of the law on appellant’s parcel).
a. Can’t find that Π has been prohibited from occupying any portion of airspace
above Terminal (Penn hasn’t sought approval for construction of a smaller
structure so no proof that use of any portion of airspace will be denied)
b. Not accurate to say they’ve been denied all use of pre-existing air rights.
Holding: Application of New York’s Landmarks Law has not effected a “taking” of
appellant’s property. Restrictions imposed….
a. are substantially related to promotion of general welfare
b. permit reasonable beneficial use of landmark site
c. afford appellants opportunities further to enhance not only the Terminal site
proper but also other properties.
Keystone Bituminous Coal Association v. DeBenedictis (U.S., 1987, p. 965)
- Statue required Coal Mining Co.’s to leave 50% of coal beneath surface of land
supporting public buildings, non-commercial buildings used by public, dwellings, and
cemeteries, undisturbed to prevent subsidence of surface land.
Holding: Statute did not constitute a “taking” of property because law was designed to
conserve surface lands, enhance public safety by preventing collapse of land, preserve
water drainage and prevent harm to water supply.
Also, property retained economic value, only 2% coal required to be kept in place
Notes:
Central Principle of Takings Clause –bars gov from forcing some people alone to bear
public burdens which, in fairness / justice, should be borne by public as a whole.
Relevant Factors – economic impact of regulation, its interference with reasonable
investment backed expectations, and the character of the government action.
Character of the Gov. Action – Goal is to identify regulations whose effects are
comparable to government appropriation or invasion of private property.
(Regulations found to be takings under this test include…)
i. Construction of a dam that results in flooding of property
ii. Gov-mandated permanent physical invasion by wires and boxes of cable co.
iii. Low-flying military planes made prop uninhabitable/ruined owners business
(Regulations upheld under this test include…)
i. Laws that prevent owner from causing harm to neighbors/public as a whole,
such as laws prohibiting commission of a private or public nuisance.
ii. Regulations that limit land use in manner that benefits society/creates an
“average reciprocity of advantage” such as zoning laws, public
accommodation statutes, and historic preservation statutes.
Economic Impact – Greater the diminution in value the more likely held as taking.
i. Complete deprivation of any “economically viable use” likely to be a taking
unless the regulation denies property rights that never existed (nuisance).
ii. No owner is guaranteed the most beneficial use of his property. Regulatory
laws can be passed and applied to economic conduct even if this has the
effect of depriving the parties of bargained-for contractual rights.
Interference with Reasonable Investment-Backed Expectations - Regulation is more
likely to be held a taking if a citizen has already invested substantially in
reasonable reliance on an existing statutory or regulatory scheme.
less likely to be ruled taking if regulation prevents owner from realizing an
expected benefit in the future, imposing a mere opportunity cost.
Takings Statutes – A few states have passed statutes that go beyond the takings
clause in protecting owners from uncompensated deprivation of property rights.
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Summary of Takings Factors
Character of
Government Action
More likely to be held to be
a taking requiring
compensation
- A forced permanent
physical invasion of
property.
More likely to be held legit
application of police power
(no compensation)
- Regulation of property use
in a manner that achieves an
average reciprocity of
advantage. (Euclid)
- Extraction of a benefit for
the good of the community or - Limitation on property use
a forced transfer of property
designed to protect the
rights from A to B
community from harm or to
respond to negative
externalities. (Keystone)
Economic Impact
- The regulation denies the
owner any economically
viable use of the land.
- The regulation destroys
almost all the value of the
property in a manner
unjustified by a sufficient
public interest.
Interference with
Reasonable InvestmentBacked Expectations
- It interferes with vested
rights, such as investments
based on reasonable reliance
on prior regulatory approvals
or laws unless those
regulations can be justifies as
preventing a nuisance or
other ham caused by the
property use.
- Choice btwn incompatible
property interests (Miller
Keyystone)
- Regulation leaves owner
with economically viable use
of land or “reasonable return
on the owner’s investment.”
(Keystone, Penn Central)
- Diminution in value, even
if great, is justified by a
strong public interest in
protecting the public from
harm. (Keystone)
- Imposes opportunity loss –
prevent owner from realizing
benefits of a contemplated
future use (Penn Central).
- The change in the law is
one that could or should
have been anticipated such
that the owner’s reliance on
the continuation of prior law
- It interferes with an existing was unreasonable.
present use of the property.
- The regulation of a
contractual relationship
rather than a forced transfer
of property interest from one
person to another.
III. Per Se Takings
1. Physical Invasions
Pruneyard Shopping Center v. Robins (U.S.,1980)(p.976)
- Π high school students petitioning peacefully on Pruneyard Shopping Center’s privately
owned land were told they could not do so. Customers showed no objections. Sued to
enjoin ▲ from denying them access for the purpose of circulating petitions.
- Holding: Requirement to permit Π on land (judgment of lower court) is not a taking
a. Nothing to suggest that preventing appellants from prohibiting appellee’s activity
will unreasonably impair the value or use of their property as a shopping center.
b. Since Π was orderly, and limited activity to common areas of shopping center 
“physical invasion” of property by Π cannot be viewed as determinative.
c. Pruneyard may still restrict expressive activity by adopting time, place, and
manner regulations that will minimize interference with its commercial functions.
*Note: This allows mall to not let right of petitioners spiral out of control – which
would infringe on mall owner’s right of use in a sense (since he may be more
opposed to extreme views that petitioners try to promote) vs. just right to exclude.
*Note 2: Comp. to Lloyd - mall protesters claimed 1st Amendment right. Here,
5th Amendment claim as a defense.
Loretto v. Teleprompter Manhattan CATV Corp. (U.S.,1982)(p.979)
- Π, owner of rental apartment building, sued for taking because statute required
residential landlords to allow cable co. to install boxes/cables for tenants access cable TV
- Holding: Reverse finding that statute is constitutional. Finds it’s a taking.
a. Rule: When physical intrusion reaches extreme form of a permanent physical
occupation a taking has occurred  character of government action (being
permanent and physical invasion) is determinative, regardless of whether action
achieves important public benefit or has only minimal economic impact on owner.
b. Constitutional protection for the rights of private property cannot be made to
depend on the size of the area permanently occupied.
2. Deprivation of Economically Viable Use
Lucas v. South Carolina Coastal Council (U.S, 1992)(p.991)
- Π bought land intending to build homes, but two years later state legislature enacted
Beachfront Management Act, barring Π from erecting permanent habitable structures.
- Issue: Whether the Act’s effect on the economic value of Π’s property accomplished a
taking of private property under 5th and 14th Amendments requiring just compensation.
- Trial court found that the prohibition rendered Lucas’s parcels “valueless” and found a
taking. Supreme Court of South Carolina reversed. Certiorari granted.
- Holding: Reversed (for Π) If action of State’s police power has effect of depriving
someone’s land of all economically beneficial use, then just compensation must be paid
unless the proscribed used interest was not part of his title to begin with (thus, if State can
show that background principles of nuisance and property law would already prohibit the
uses he now intends in the circumstances in which the property is presently found).
Palazzolo v. Rhode Island (U.S,2001)(p.1004)
- State Supreme Court rejected Π’s takings claim (he was barred from filling his coastal
marshlands to develop homes on it) on basis of denial of all economically viable use:
o State had merely rejected several development proposals, not issued ruling that
clearly denied any right to develop the marshland.
o Had not been deprived of all economic value b/c could develop upland property
o No reasonable investment-backed expectations when he acquired title because the
law regulating coastal development was already in place.
- Supreme Court reversed first and third findings, reserved judgment on the second.
o Was clear that coastal agency would not allow any of the marshland to be filled
in, so scope of permitted development was clear.
o Fact that owner took title with notice of regulation did not immunize state from
facing a challenge to the regulation as a taking of property.
o Since lower court found not 100% taking of property value, Lucas rule did not
apply. But, the general multifactor Penn Central test did  Supreme Court
remanded to have case addressed under different standard.
Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (US)(p.1007)
- Court refused to find that temporary building moratorium was a per se taking of
property, even though it effectively banned construction for 6 years
- Lucas rule could not be applied because it was not a 100% diminution in property
value since ownership extends over time as well as space.
Facial versus “as applied challenges to regulations:
a. Facial challenge to regulation is a claim that enforcement of the regulation would
necessarily constitute a taking of private property in every case. Under no
circumstance would the application of the statute be constitutional.
i. Only likely to succeed where a law imposes a permanent physical invasion
of property or completely extinguishes a core property right.
ii. May bring suit in federal court.
b. Challenge to regulation “as applied” argues that effect of regulation on a
particular parcel/parcels owned by Π constitutes taking of his property.
i. Must demonstrate the economic impact on the value of a particular parcel to
show that the law effects taking as applied to that property.
ii. May only bring suit in federal court if all state remedies have been exhausted
(must appeal through state court system and seek certiorari).
Ripeness – If court says claim that property has been unconstitutionally taken is “not
ripe” it means it is premature because agency empowered to regulate has not made a final
decision on the scope of the permitted development. (Owner applying for permit to
develop land must have been denied a right in a manner that suggests that further
applications will be fruitless for the claim to be ripe).
Civil Rights – Owner may sue city for violating its civil rights by taking its property
through repeatedly rejecting development proposals over 5 year period, thus arguably
denying owner economically viable use of the property.
Inverse Condemnation – refers to lawsuit for damages by property owner against public
body whose regulations allegedly “took” owners property without just compensation.
Denominator Problem – To determine how great the diminution in value has been, must
determine the denominator of the fraction.
- Possible to use the whole property, or the developable tract
o When air rights at issue, courts consistently hold height limit doesn’t
constitute 100% taking of air rights  denominator is whole tract.
o Recently held denominator for wetlands regulations is developable tract.
IV. Special Cases
A. Exactions and Linkage Requirements
Linkage Ordinances – Zoning ordinances requiring developers of commercial property
and/or residential housing either to directly provide something (ex: low income housing,
or child care facilities) or to pay a fee that is devoted to a fund for those purposes.
Dolan v. City of Tigard (US,1994)(p.1026)
- Petitioner, owner of plumbing and electric store, applied for permit to redevelop site and
was told that it would be granted subject to conditions imposed by the city’s Community
Development Code. It demanded that petitioner dedicate:
a. Portion of property within 100-year floodplain for a storm drainage system and
b. 15 foot strip of land adjacent to the floodplain as a pedestrian/bicycle pathway
- Petitioner contends city forced her to choose between the building permit or her right
under 5th/14th Amendment  All state courts held that since required dedications of land
had an “essential nexus” to the development of the proposed site they were reasonably
related to the impact of the expansion of the petitioner’s business  not a taking.
- Holding on Appeal: Reversed and remanded (favor of petitioner).
a. Found that nexus does exist (requirement under Nolan that what government
requires in return for what it grants meets its purpose) between preventing
flooding along Creek and limiting development w/in creek’s 100-year floodplain.
b. Using “reasonable relationship” test, found that city did not show required
degree of reasonable relationship based on rough proportionality between the
floodplain easement and the petitioner’s proposed building.
i. Would have total loss of ability to exclude others from that land (unlike in
Pruneyard, right to exclude here would not be regulated but “eviscerated”).
ii. Note, must have reasonable certainty that taking will solve problem that
government anticipates creating if it grants owner’s request for variance, etc.
V. Public Use
A. Federal Constitution
Kelo v. City of New London (U.S.,2005)(p.1051)
- City of New London, after being designated a “distressed municipality” activated a
development corporation (NLDC), approved its plan, and authorized it to implement the
plan by purchasing or acquiring property by exercising eminent domain in City’s name.
- Issue: Are economic development takings constitutional?
- Holding: The takings for economic development satisfy the public use requirement
of the 5th Amendment.
a. Court applies broad interpretation of “public use” as “public purpose” so not
problematic that condemned land would not be entirely open to general public.
i. Plan serves public purpose because it is to provide benefits to the
community (new jobs/increased tax revenue).
ii. Endeavors to coordinate variety of commercial, residential, and recreational
uses of land that will form a whole greater than the sum of its parts.
b. Government pursuit of public purpose will often benefit individual private parties.
i. Also, can’t say that public ownership is sole method of promoting the
public purposes of community redevelopment projects.
c. Too impeding on plans to create rule requiring postponement of judicial approval
of condemnation until likelihood of plan’s success has been assured.
2. Precedential Cases Considered:
a. Berman – held that even though dept. store wasn’t blighted, didn’t have to
look at land on piecemeal basis b/c public use underlying taking affirmed.
b. Hawaii Housing Authority – “social and economic evils of a land
oligopoly” qualified as valid public use so, reaffirming Berman, takings
purpose warranted taking the land to give to other private owners.
3. Dissent: Distinguishes the other two cases on fact that eliminating the existing
property use had been necessary to remedy the harm and each taking directly
achieved a public benefit so it did not matter that property was turned over to
private use. Here, petitioners’ homes are not source of any social harm.
B. State Constitutions
-
Most State Supreme Courts interpret state constitution consistent w/ fed interpretation
Different interpretations that some courts use instead:
o Public use test is not met unless the public benefits and characteristics of the
intended use substantially predominate over the private nature of that use. (Test
proposed by J. Kennedy)
o Property cannot be taken and transferred from one owner to another unless the
nature of the property itself justifies the taking. (Test proposed by J. O’Connor).
o Taking must be justified by public purpose that could not be achieved in any other
way than through taking of one owner’s property and transfer to another.
o Public use interpreted to mean either “public ownership” or “use by the public”
thus denying power to take from private person if it is to be transferred to another
and used privately rather than by public at large. (J. Thomas)