Property Law – Professor Hsu
Spring 2003
Stephanie Deckter
I. Intro
Relations between people
Ownership: Right of individual vs. Right of the public
Rights vs. Responsibilities
Ownership to protect things that are valuable, but not TOO valuable, i.e. Grand Canyon
II. Why do we have property?
A. Rule of Capture
 First person to capture or kill a wild animal owns it  ferea naturae
 Only wild animals... if my cow wanders onto your land and you “capture” it, I still own it
 Easy to apply
Pierson v. Post = The party who killed the fox owned it. The party who chased the fox was SOL.
Dissent: The majority rule provides no incentive to chase/capture foxes (which are bad). Better to
reward a hunter in continued pursuit if he had a “reasonable prospect” of taking the fox with ownership.
Public gets social benefit and you get the fox  social utility, more fair, leave rule-making to custom of
hunters.
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
Mineral Rights:
o Non-ownership theory: Surface owner does not own the oil/gas under the land but
has the right to extract or “capture” it.
o Ownership-in-place theory (majority): Landowner owns all oil/gas in place under the
surface, but will lose ownership if someone else extracts or “captures” the oil/gas
first.
Ground Water subject to pure Rule of Capture, i.e. first to capture it, owns it
Eliff v. Texon Drilling Co. = Each neighbor is entitled to and can produce their fair share of the oil/gas
beneath their land. Δ had to pay for Π’s fair share that was wasted by the explosion.

Problems: People running around trying to get the most oil/gas before everyone else dips in
– serious depletion of natural resource
B. Tragedy of the Commons
 Rule of Capture is inefficient
 Collective Interest vs. Individual Interest
 No one owns the fishery and therefore don’t care what happens to it – if A owned the fishery,
he’d be crazy to over-fish
 Property rights is the answer
Fishery Example = Together A & B can catch 30 fish/year forever. If either A or B takes 1 too many
fish, i.e. 31 are caught, then the capacity reduces to 29. Both A and B expect the other to cheat and
therefore they each cheat and catch extra fish. Before too long, there are only 26 fish each year. Both A
& B are deprived of 4 fish a year.

Some common ownership OK, i.e. roads and condominiums
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C. Labor Theory
 Ethical instinct = reward people for investment and labor
 If no labor reward, goods are not produced to the detriment of society
INS v. AP = INS pirated and resold news that AP had gathered. No real property right in the actual
information, i.e. “news,” but AP did have a temporary “quasi-property” right in its news as long as it
retained commercial value. AP could copyright its articles, but not the information therein.
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Why no property right in information/news:
o AP did not create news
o The more information, the better – news is ALWAYS valuable
o Want all papers to carry the same information
o Monopoly of such valuable asset  skyrocketing prices
o Danger that AP hide news from the public
Relativity of Title: AP has right against INS (who can’t sell AP’s news), but not against
public (can share AP’s news)
Not always good to grant labor with property rights
Moore v. Regents of the University of California = Π’s unique lymphokines were stolen by
doctor (without Π’s consent) from removed spleen and made into a cell-line that made doctor
very rich. Π only owned, & had a property right in, his spleen & cells UNTIL they were
removed. No conversion. Relied on specialized statute regarding disposal of human waste +
utilitarian theory that social benefit of research outweighs Π’s property right to spleen.
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
Doctors did the work to recreate the cell line, but it existed in Π’s body
Should they get property rights for this naturally occurring thing?
D. Patents
 An item is patentable if:
o Novel
o Non-Obvious
o Useful
 NO patents for naturally occurring things
 Difficult in context of biotechnology
o Cell lines are patentable
o Synthetic microbe that eats oil is patentable
o Genes are patentable (the finding it and determining its job) when isolated and
purified – problem is that there are only so many... stifle research if no one but
patentee can use the gene
o No incentive  no race to discover genes and maybe no cure to disease
 Patent requires full disclosure – helps spark research (usually easy to work off of existing
research, genes notwithstanding, to invent something new)
 Patentee gets exclusive rights to make, use, sell the patented invention for 20 years
 Limits on Property Rights for Labor
o Loss of something of value to society
o Stifle the flow of information/innovation
o Things that do not belong to anyone, i.e. naturally occurring (Salk = sun)
o Things that are finite in number
E. Public Interest
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
Public rights trump private property rights
Usually Federal law = public property rights & State law = private property rights
Christy v. Hodel = Endangered Species Act only allows killing of grizzly bears in self-defense or in
defense of another. Π in trouble for killing bears to protect sheep. Decision by Congress that the
public’s interest in preserving grizzlies overrides Π’s right to defend his sheep. In effect, the public has
exclusive ownership of grizzly bears.
F. Public Trust Doctrine
 Lands intermittently submerged by water are owned by state – as trustees for the general
public – for purposes of navigation, fishing and recreation
 Some states – public trust doctrine covers conduct on non-navigable waters that affects use of
navigable waters
 Water property rights in California
o Riparian = If you own the land, you own the water on it – proportionate share if the
water sits on several parcels
o Appropriative = Own water that you have been using to some useful end
o Permit System of 1923 = Existing Rights OK – Apply to board for new water right
regardless if you would have regular Riparian/Appropriative ownership
Matthews v. Bay Head Improvement Association = Δ-association owned 6/76 parcels of beach property
in town and public could not get to public trust beaches without crossing over this private land. Court
held that since Δ opened itself up to the responsibilities of serving the public by its quasi-public nature,
i.e. providing lifeguards, beach cleaning, etc. There must be access to the public.
National Audobon Society v. Superior Court of Alpine County = LA water department diverting water
from Mono Lake, causing it to shrink and no longer be a feeding site for certain birds. Court recognized
ecological purposes and recreation (sight-seeing of the birds) as legitimate public trust land purposes.
State must balance needs for water appropriation with public trust concerns.
III. Acquiring Property
A. Creation
 Create something and receive ownership rights to that thing
 Intellectual Property rights given for things that are useful and valuable to society
 Patents
o Right to an invention reduced to practice
o Full disclosure required for right/monopoly
o Gov’t. statute
o No research exemption as in Europe
 Trade Secret
o Right to any piece of business/technical information vital to product
o No real monopoly, but no disclosure
o No government statute/common law protection
o Very limited right
 Copyright
o Right to expression of things for creators lifetime + 90 years
o Not the idea, itself, but the way it is expressed
o Prevents copying exactly, but derivations are ok
o To register: (1) original (not done before) & (2) fixed in a tangible media
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o Fair Use = reasonable and limited use of a copyrighted work without author’s
permission, i.e. quotation or parody
o Facts not copyrightable, but compilations usually are (need incentive there)
o Low threshold, limited right
Feist Publications, Inc. v. Rural Telephone Services Co. = Δ regional phone book stole
information from Π’s local white pages to put in a compilation white pages of many small areas.
Both received revenue from ads placed in the books. Because local phone book not compiled in
any original way (just alphabetical), i.e. it did not have even a minimal degree of creativity, not
copyrightable. Rewards originality, not effort. Creation vs. discovery.

Trademark
o Right to symbols used to identify and distinguish maker of product
o Incentive to make quality goods and disincentive to palm off
o Ensure that trademark is market-specific, i.e. want to trademark Apple w.r.t.
computers, not apples
o To register: (1) distinctive & (2) used in commerce
o Again... labor theme: reward buildup of good will by creating a good product with
property right
o Must be continuously used in commerce to retain right
Qualitex Co. v. Jacobson Products Co. = Dry cleaner machine pad manufacturer had always used greengold color. Created “secondary meaning” for that color, i.e. that color meant Qualitex. Qualitex’ patent
for that color was valid and Jacobson was not allowed to use the same color on its pads.
B. Adverse Possession
 Use it, or lose it
 Elements
o Actual possession
 Must actually be present on land and using it
o Open & notorious
 Notice of adverse possession
 Public must know you are present on land
 Owner must have a chance to eject you
o Continuous
 Related to actual
o Exclusive
 Treat land as if it were your own
 Exclude others
o Adverse or hostile
 Must be on land without permission of owner
 Acting as a reasonable land owner would, i.e. treating the land as if it were his
own
 Lack of permission is presumed – other party has burden of proving
permission was given
o For the statutory period
 Satisfy all elements over a long period of time
 Statute of Limitations on ejectment action
 Don’t want bringing of stale claims
 Want certainty at some point
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o Color of title
 Void/defective deed, i.e. faulty transfer/conveyance
 Narrows all A.P. claims to border disputes
 Deed says 10x10, but possessor is only on 9x9, can get entire parcel
 If no color of title, i.e. no deed, then adverse possessor can only get
that part he actually possessed (if all elements satisfied)
 If boundaries at issue  question of permission, i.e. was adverse
possessor given permission to be on that extra 19 square feet?
probably not if neighbor thought the extra was his land
 Shortened statutory period (sometimes)
 Disfavored element
Policy/Why do we have Adverse Possession?
PRO
CON
o Land is not idle
o Owners right to do whatever he wants
o Incentive for absentee landlord to visit
with his land, i.e. not use it
o Possessor values land more
o Older attitude of land that has not
o Before deeds, adverse possession did the
caught up with modern trends
important job of quieting title, i.e. settle
o Legalizes stealing & trespass
conflicting claims to land
o Unfair to true owner who has a
o Protects reliance interests of adverse
defective deed, or none at all before
possessors
recording system
o Distributional purposes – if rich own too o Not cool to rely on illegal activity to
much land that they can’t look after,
create a property right
better that poor/homeless utilize it
Two Contexts
o Defense to ejectment action (owner suing adverse possessor in trespass)
o Claim to quiet title (adverse possessor seeking declaratory judgment and title of land)
Brown v. Gobble = Π wanted to build road on small tract of land fenced into Δ’s land. Doctrine of
Tacking: time spent on land by Δs + time spent on land by predecessors in interest can add up to reach
the statutory period. Πs here were expected to bring claim on the difference between the deed & the
survey before buying the land or soon thereafter. Not 5 years later.
Romero v. Garcia = The defective deed was sufficient for color of title because it adequately described
the parcel. Even if it was unclear what the actual boundaries were, the subsequent acts by the “owner,”
here living on the parcel for 50 years and building a house, is enough to create adverse possession.
Nome 2000 v. Fagerstrom = Δs were on the land owned by Π and used it in all kinds of ways from
1970-1978. Δ’s parents used the land as early as 1945 as a summer camp. Question of exclusivity and
continuousness. Court found that both elements were satisfied because the Δs used the land as a
reasonable land owner would use that parcel, i.e. as a summer camp and some weekends, as well as
allowing some strangers to travel on the paths and pick berries, but asking others to leave for burning
Δ’s firewood.
C. Voluntary Transfer
 Problems with Voluntary Transfer
o True Ownership – Do they own it and can they sell it to me?
 Ex. Brooklyn Bridge
o Conflicting Transfers – Did they already sell it?
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o Missing Documents – transfer/ownership depends on them
o Mistakes – Ex. Romero = deed mis-described land & what if adverse possession not
available?
o Missing People – Do they know they own it?
 To deal with problems
o Adverse Possession (missing people & documents)
o Statute of Frauds (mistakes)
o Rules of Deeds (mistakes)
o Recording System (true ownership, conflicting transfers, and missing documents)
1. Deeds and Warranties of Title
 Paper needed to transfer title
 Manifests/evidence of ownership of real property
 MUST
o Identify parties
o Contain description of property, i.e. metes & bounds, plat, survey
o State grantor’s intent to transfer/convey
o Be signed by grantor
o Be delivered from grantor to grantee (really escrow company)
 SHOULD
o State or refer to any easements/covenants affecting property (even if not
stated, new owner still bound)
o Contain any warranties by seller, i.e. promises that
 Covenant of seisin = grantor owns the property
 Covenant of the right to convey = grantor has power to transfer the
property interest
 Covenant against encumbrances = nothing encumbers the property
other than that acknowledged in the deed
THESE THREE ARE BREACHED AT TIME OF CONVEYANCE –
PRESENT COVENANTS
 Covenant of warranty = promise to pay grantee for any monetary
losses by grantor’s failure to convey title
 General warranty deed = all defects in title
 Special warranty deed = limits covenant to defects in title
caused by grantor’s actions
 Quitclaim deed = no warranty of title whatsoever – only
purports to convey whatever interest the grantor has in the
property, if any
 Covenant of quiet enjoyment = grantee’s possession will not be
disturbed by any other claimant with superior lawful title
 Covenant for further assurances = requires grantor to take further steps
to cure defects in the title
THESE THREE ARE BREACHED AFTER CONVEYANCE WHEN A
DISTURBANCE OF GRANTEE’S POSSESSION OCCURS – FUTURE
COVENANTS
 Warranties in General
o Imperfect remedy, i.e. seller already gone
o Better to buy title insurance – company pays if the title is defective or they
will clear the problems, also does the title search for ya’
2. Recording Acts
 What do you do with a deed?
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
o Keep a copy
o File a copy at the recorder’s office
Deeds indexed at recording office by
o Grantor & Grantee
o Refer to place in book of deeds
o Indexed by date recorded, not date transferred
o Better plan: Index by tracts, but too expensive to change over now
Title Search (in 3 easy steps and an example)
1. Search backward in time using the grantee-grantor index to locate each past
conveyance of title in order to find a historical starting point for the title search.
In theory, the search should end when a “sovereign” is reached, i.e. the
government. However, statutes and practice only require a search back for 20 to
50 years.
 A knows that Oscar Owner is selling her Greyacre
 A will search for the conveyance from someone TO Owner
 A will search the grantee-grantor index under Owner’s name as
grantee until she locates the entry
 A locates the entry in 1997 showing that Owner acquired title to
Greyacre FROM Paula Pond in 1997
 A then searches the grantee-grantor index further backwards in time
searching for the conveyance TO Pond
 A finds an entry in 1950 showing that Pond obtained title FROM
Quentin Quan
 A repeats the process looking for the conveyance TO Quan
 A finds that in 1922 Quan acquired title FROM Rita Ramsey
 A repeats the process looking for conveyances TO Ramsey
 A finally discovers that in 1878 Ramsey acquired title to the land from
the U.S. under the homestead laws
2. Search forward in time using the grantor-grantee index to learn whether any
grantor made any conveyances during his period of ownership other than the
known conveyances.
 A now moves to the grantor-grantee index
 A is looking for any conveyances made BY Ramsey before the 1922
conveyance to Quan (assume the U.S. did not grant title to anyone
before Ramsey)
 A will examine each index covering the period between 1878 and
1922 to locate any conveyances BY Ramsey as grantor
 A finds none & is probably not required to search for any conveyances
BY Ramsey prior to 1878 and after 1922
 A now repeats the process for each of the later grantors in the chain,
i.e. Quan, Pond, Owner, to determine if any of them made any
conveyances during their respective period of ownership OTHER than
the known conveyances to each other
 A finds a conveyance from Quan of an easement over part of Greyacre
to Ellen Estrella in 1948 before conveying title to Pond
 A discovers that Pond’s only conveyance was to Owner
 A continues her search to determine if there were any conveyances by
Owner after 1997
 A finds that Owner has mortgaged Greyacre in 1999 to Midtown Bank
to secure repayment of a $100,000 promissory note
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3. Read the documents discovered during the search of the grantor-grantee index
and evaluate their legal significance.
 A has discovered 6 documents that potentially affect title to Greyacre:
1. 1878 deed from the U.S. to Ramsey (called patent)
2. 1922 deed from Ramsey to Quan
3. 1948 easement from Quan to Estrella
4. 1950 deed from Quan to Pond
5. 1997 deed from Pond to Owner
6. 1999 mortgage from Owner to Midtown Bank
 A will determine if Owner owns fee simple absolute in Greyacre by
ensuring that each deed in the clear chain of title conveys fee simple
absolute rather than some lesser estate or interest and that each deed
properly describes Greyacre as the conveyed property
 A will determine if there are any liens, easements, or other
encumbrances on Owner’s title that may affect the value of the land –
the easement (Quan, Pond, and Owner all took title subject to the
Estrella easement & A will want to review what it is) and the mortgage
(If valid, A will either refuse the purchase or insist that the price be
lowered)
 The entire title search depends on EVERYONE duly recording their deeds
 Deeds only have to be delivered to be effective, NOT recorded
 Types of Recording Acts
o Race = first to record, i.e. later grantee must record first to win over previous
grantee
o Notice = must lack constructive notice (deed has been recorded) of prior
conveyance regardless of whether or not later grantee records first
o Race-Notice = later grantee must record first and lack notice
o Exceptions:
 Bona Fide Purchaser for Value = In a title dispute between a first-intime claimant and a bona fide purchaser for value (with no notice), the
bona fide purchaser prevails – just like Notice type acts
 *Shelter Rule = One who acquires an interest from a bona fide
purchaser also prevails over a first-in-time claimant – i.e. if X has
good title, then so do his true successors in interest
o Examples:
 O to A
O to X (X has no actual notice of prior conveyance)
X records
A records
X conveys to C (C has notice of O to A)
A v. X
race = X, notice = X, race-notice = X
A v. C
race = C, notice = C, race-notice = C  Shelter rule
 Monday: O to A
Tuesday: O to B (no notice)
Wednesday: A records
Thursday: B records
race = A, notice = B, race-notice = A
3. Chain of Title Problems
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
Wild deed = recorded too early or recorded too late
o Examples:
 OO to O
Step 2:
O records
Forwards in Time
O to A
Step 1:
A to B
Backwards in Time
B records (A to B deed)
O to Z
B records (O to A deed)
B v. Z
Title Search: Z finds O got from OO & only O to Z – Z will NEVER
find O to A (as recorded by B) since recorded too late
 O to A
A records
OO to O
O records
O to X
X records
X v. A
Title Search: X does not find O to A deed since it was recorded before
O actually got the land from OO
Sabo v. Horvath = S wins since he had no constructive notice of H’s recording, i.e. if S did title
search, he would start at (L to S) and find that L got the land from the US at (US to L), S would
then move forward from (USSR to US)  (US to L)  NOTHING between (US to L) and (L to
S). S would have never found the conveyance from L to H. H should have waited until L truly
had the land to buy it or should have at least re-recorded once the patent issued. L’s quitclaim
deed to H only transferred any/all rights that L may have had in the land
USSR
to US
L for
Patent
L to H
H records
L’s patent
L to S
issues – US to L
D. Miscellaneous
1. Will
2. Intestate succession – relative dies without a will
 General order of succession
o Spouse
o Child
o Grandchild
o Parent
o Siblings
o Grandparents
o Other heirs
o State
3. Prescription – partial property right
4. Legislation – ex. West Homestead Act
5. Court decree – ex. Divorce
IV. Property Rights Against Private Parties
A. Trespass
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S records
S v. H
1. Common Law Trespass
 Unprivileged, intentional intrusion on property possessed by another
 Privileges – property rights are NOT absolute (may have rights, but rules exist as to
how they can be exercised)
o Consent
o Necessity
 Public
 Private
o Public Policy
State v. Shack = NJ farmer who hired and housed workers called the police when Δs (NJ social
authorities) entered land to help/talk to a worker. Court says public policy rationale, i.e. rights of
underprivileged persons to have access to legal counsel, creates a privilege (could have, but
didn’t, call this necessity  kinda created new privilege). Also NJ.
Uston v. Resorts International = Π was a professional gambler/card counter. Δ-casino said “get
out and stay out.” Court found that since Δ is open to the public, Π’s exclusion from the casino
was unreasonable and Δ must allow Π to play.  SPECIAL NJ LAW
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

FOR Uston’s right to play
No law against card counting -unreasonable to exclude for no good reason
Nevada court will always find for casino...
in NJ not as important to economy
Most casinos have hotels and therefore
exclusion must be reasonable
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
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AGAINST Uston’s right to play
Reasonable to exclude someone who is
stealing from you
Uston not as sympathetic as Shack farm
workers – limit to the facts
Bring every card counter to NJ
Uston already lost same case in Nevada
Majority Rule = As long as no violation of civil rights laws, can exclude ANYONE
o Unless the business is an inn or common carrier
o Fundamentally necessary to right to travel
o Higher duty not to exclude unreasonably
Madden v. Queens County Jockey Club = Ok for club to exclude Π (for sole reason that Π had
same name as a bookie) since Δ is not a common carrier. Unreasonable exclusion A-OK.

Bundle of Sticks = Property rights
o Best Buy Article – Trying to part with some sticks (allow public to enter
premises), but keep others (right to exclude people checking prices unreasonably)
o New Hampshire (“No Trespassing with Bear Dogs”) – Same thing: part with
some sticks (trespassing widely tolerated), but keep others (exclude people who
try to catch & shoot bears by having dogs chase them into trees)
o NJ Law = Some sticks are stuck together – can’t give away 1 without some others
2. Remedies
 Two Types:
o Damages
 Change in fair market value – default rule
 Cost of restoration/repair – ONLY if (1) cost to repair is not
disproportionate to the change in fair market value AND (2) there are
“reasons personal”
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o Injunction
 Traditional Rule = always appropriate when continuing trespass
 New Rule: Relative Hardship Doctrine = public good vs. private property
ownership
 If innocent trespass, harm minimal AND cost to remove/fix the
continuing trespass BIG (public good wins)  damages &/or
forced sale
 If intentional/bad faith trespass and really hurts the use/enjoyment
of land (private ownership rights win)  injunction
Samson v. Brusowankin = Δ-Samson hired Lincoln to clear some land and he did, plus clearing
2.5 lots belonging to Π-Brusowankin. Court finds impossible to restore big/old trees on lots
(reason Π bought the land) and gives damages measured by the cost to replant other trees and
make the property about the same. Really compromise since WAAAY too expensive to restore
the exact same size trees, plus can never tell just how much the trees were personally valued.
First Baptist Church v. Toll Highway = Δ built a highway between the church and the DuPage
River. After each rain, there is no more run-off site and the church land floods. This is a
continuing trespass (water = intrusion/invasion, Δ knew/conceded this would happen, and
property of church). Injunction traditionally proper in this case (better than suing each time there
is a flood), but the court applies the new relative hardship doctrine. Holding: Many more people
use the highway than the church and it would cost too much to dig up and re-place the interstate.
Don’t want every landowner suing – no more highway system. Therefore, church only entitled
to damages.

Elements of Trespass:
1. Intentional
2. Intrusion
3. Property Possessed by
Another
Trespass Flow Chart
YES
Privilege?
1. Consent
2. Necessity
(public/private)
3. Public Policy
Overriding Law?
1. Constitution
2. Federal Law
3. State Constitution
4. State Law
NO
NO
NO
Remedies:
1. Damages
a. Change in fair
market value
b. Cost to restore
2. Injunction
YES
YES
NO CASE
3. Public Accommodations Law
a. Civil Rights
 Civil Rights Act of 1964 – Commerce clause power
 If business involved in interstate commerce (especially interstate travelers)
and is a “place of public accommodation,” that business cannot discriminate
on the basis of race, etc.
 Narrower than holding in Shack (Tedesco’s farm was private land), but
broader than NY/majority rule (only inns and common carriers subject to nonexclusion laws)
 Elements
o Place of “public accommodation,” i.e. receives federal funding,
interdependent with such a place, relies on public for existence
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o Not “distinctly private,” i.e. membership cap, selective criteria, etc.
Heart of Atlanta Motel v. United States = Hotel near highways – convenient for interstate
travelers, solicits out-of-state business, and 75% guests are from out of state. C.R.A. says
hotel is a place of “public accommodation” and cannot discriminate against ANY patron
(regardless if they are from the state or not) because the act applies to the motel as a
whole.
Frank v. Ivy = Princeton U. had eating clubs where 5/13 were selective of members. Π is
a female who was excluded from the clubs on that basis. Δ claims the clubs are
“distinctly private” and therefore exempt from the NJ LAD. Court applies NJ Law
Against Discrimination (broader than C.R.A. and meant to be liberally construed) in
holding that the clubs are public because of the symbiotic & interdependent relationship
between the clubs and the public university (no university, which itself is a place of
public accommodation, no eating clubs). Therefore, they cannot exclude based on
gender.
b. Statutory Construction
 Canons
o Llewellyn = for each thrust, there is a parry
o Shapiro = 2 types
1. Linguistic canons – inclusion of something  exclusion of
others
2. Substantive canons – ex. rule on lenity = ambiguous penal
codes are construed narrowly; statutes in derogation of common
law construed narrowly, too
 Canons make legislature think about how statute may be construed
Dale v. Boy Scouts of America = BSA asked Π to leave the organization after
discovering he was gay. Issues: (1) Is BSA a “place” of “public accommodation?” (2)
Is it “distinctly private?” BSA argues thrust #1 that the statute does not go beyond its
text, i.e. “place” means actual, physical place; #15 ordinary meaning of words; and $20
inclusion of only real places excludes membership organizations. Holding: (1) BSA is a
“place” because really places do not discriminate, people (i.e. the members of the
organization) do & LAD = stop discrimination. BSA is a place of “public
accommodation” because of its large-scale advertising, charter by Congress and close
relationship with state/federal government. (2) BSA is NOT “distinctly private” because
there is no membership cap and no selection criteria.
c. Legislative History Use
 Usually ambiguous and can go either way
 Consists of floor debates, previous legislation, previous cases and Congress’
response thereto, legislation from other jurisdictions, previous versions of
legislation & amendments, committee reports, interpretations by bill sponsors,
post-adoption materials, i.e. agency regulations & failed amendments
U.S. Jaycees v. Iowa Civil Rights = Iowa Jaycees wanted to allow women members, but
US Jaycees said no. Used earlier version of the statute: only “places” as public
accommodations and compared to current version: place, establishment, facility as public
12
accommodations. Court held that since the enumerated list did not state “association” or
“organization” that the Jaycees do not qualify as “public accommodations.” Dissent:
The Δ-agency sponsored the bill and therefore more weight should be given to their
interpretation, i.e. that Jaycees are covered.
d. Free Speech
 Tension between 1st Amendment right of free speech and 5th/14th
Amendment private property rights
 1st Amendment only limits STATE action against speakers, not private action,
i.e. malls, homeowners, etc.
 How much private limitation on speech = spectrum depending on how much
you act like a private entity
o Marsh = acting like state  can never limit speech
o Lloyd = quasi-public nature  can sometimes limit speech (perhaps
can limit all speech, but cannot limit based on content)
o My living room = completely private  complete power to exclude
 Bigger chunk out of property right (when not allowed to exclude one from
speaking) than before
 Appears constitution may override trespass elements, but hard to apply
constitution... easier with statutes/regulations
 Oregon (Lloyd) vs. NJ (Shack)
o Oregon = more interested in property rights – more owner-friendly 
can pick & choose which sticks you give away
o NJ = more interested in public rights – more public-friendly  some
sticks are stuck together
Lloyd v. Tanner = War protestors not allowed to hand out leaflets in the new mall (1972),
but political candidates and small groups were allowed to speak. Court finds that the
mall has not opened itself up to the public so much as to require them to allow Δ to
speak, i.e. can give away some sticks (let public in to shop), but not others (can still
exclude non-shoppers). Dissent: Less & less public places exist  more isolated society,
and therefore powerful public policy to allow/require speech in shopping malls (if
dissent’s rule... public policy = privilege and never get to overriding law question).
Marsh v. Alabama = Opposite conclusion. Private corporation bought a small town and
ran it as a municipality would. Therefore, since private entity ACTING as state, could
not limit speech in business district.
e. Fair Use in Copyright
 Copyright elements
o Original
o Fixed in tangible medium
 IP trespass = right to exclude, i.e. stop people from copying, publishing, using
your IP
 FAIR USE = privilege to overcome an IP trespass
o Derivative work based on copyrighted material
o Ex. The Wind Done Gone
o Must be different and original enough
o 4 factors to be balanced:
1. purpose of use
13

goes to fairness & if the use betters society, is the use
useful? important? necessary to the work?
2. nature of copyrighted work
 goes to whether or not it is something already out there, i.e.
is the work published/unpublished?
 scope narrower w.r.t. unpublished works  unpublished
work = living room (probably do not have to part with any
sticks), published work = street corner (may be required to
part with other sticks)
3. effect on the market for copyrighted work
 published letters are worth less than unpublished ones
(especially if written by celebrity, dead author, etc.)
4. amount/substantiality of portion used
 the more copied/paraphrased, the less market-value and less
privacy
Salinger v. Random House = Δ-Hamilton authored biography of Salinger by using letters
S wrote to others. Letters are copyrightable. Factors: (1) criticism and analysis of
Salinger’s life requires use of the letters (for Δ), (2) Π had no intention of publishing the
letters, i.e. recipients gave them to libraries, not Π (for Π), (3) letters are worth much less
to Π w.r.t. future publication, sale, auto-biography, once they’ve been published piecemeal (for Π), and (4) big chunks copied and paraphrased are big effect on other 3 factors
(for Π). Factors play out for Π overall. Court notes that facts and a description of the
letters’ style can be used, but no paraphrasing of words and no copying of the style.
B. Nuisance
1. Common Law Nuisance
 Substantial and unreasonable interference with the use or enjoyment of land
o “Substantial” if:
 Π’s loss in $ is large
 observable, physical property damage
 costly/difficult for Π to avoid harm
 harm is long in duration or non-remitting
o “Unreasonable” if:
 land use activity is NOT customary/suited to the area NOW (may have
changed over time)
 reasonable person finds effects disagreeable – but can’t be
oversensitive
 less intrusive method is available, but not currently in use
 activity is not terribly important
 area not zoned for activity
 commenced after Π’s bought land
o Who was there first IS a factor, but not dispositive (if no “coming to the
nuisance” defense in that jurisdiction)
o Justice Sutherland: “Right thing in the wrong place.”
 Limit on property right
NUISANCE
TRESPASS
 infringe right to use and enjoy
 infringe exclusive possession
 actual damages required
 NO actual harm required
o nominal damages = enough
o can get punitive damages
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






“privileges” less clear
 some privileges exist
no intent requirement
 intent requirement
intrusion not necessarily physical*  physical intrusion (usually)*
less direct/substantial
 direct & substantial injuries
damage to property &/or owner
 damage to property
+
losing “right to use/enjoy” stick
 losing “right to exclude” stick+
not necessarily vice versa
 most T actions can sustain N actions
* superficial distinction
+
sticks stolen, i.e. not given freely by owner


2 Flavors of Nuisance
o Public – affects more than a few
 OLD RULE = To bring action for Public Nuisance, must represent all
affected or suffer a harm different from the general public
 Why?
 practical – Δ can deal with 1 suit/harm
 collateral estoppel – no one person should prejudice right to
recover, i.e. precedent may hurt other Πs’ cases
 OLD RULE = public nuisance = strict liability
 Examples:
 Blasting – crime at CL and precursor to environmental law
 Chicago sewage disposal caused typhoid  decided to reverse
flow of the Chicago River and send all the sewage to the
Mississippi River  St. Louis got all the typhoid
 Public nuisance less important today, but still used by private
attorney’s general in environmental actions
o Private – interferes with a small number of properties (unclear as to how
public it has to be)
COMING TO THE NUISANCE
o If Δ there first, Π can’t sue
o Defense in some states
 possibly prevents land use and the changes in land use we see today
 gives Δ right to all land around their land – against “best use of land”
theory
 factories can build wherever they want and get off scot-free later
 nuisance devalues land and if Π “came to the nuisance” probably
already compensated by paying less for land
o Not in others
 want highest & best use of land
 someone owned land before Π and THEY could have sued, so why not
let Π do so?
 furthermore, someone should recover – Π’s predecessor in interest lost
money when selling to Π, therefore better that Π recovers than no one
 factors are more careful about where they set up & when to move as
the area changes
Borland v. Sanders Lead Co., Inc. = Π owned 159 acres to raise cattle and grow crops. Δ started
lead smelter next door with a “bag house,” to filter the particulate emissions, but the bag house
caught fire and exploded all over Π’s land, twice. Court held that both an action in trespass
AND nuisance can lie in Π’s favor.
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2. Liability
 3 Approaches to determine who should bear cost:
o No balancing (not common)
o Balance interests (substantial, unreasonable)  majority rule
o Balance utilities  Restatement of Torts
Page County Appliance Center v. Honeywell & ITT = Π owned appliance store next to travel
agency using Δ-computer equipment. The computer equipment emitted a strange frequency,
which interfered with the picture on the TVs for sale in Π’s store. Travel agency won on
summary judgment (no injunction for Π against them), but court held that jury improperly
instructed  remand to weigh factors to decide if substantial and unreasonable. Probably
radiation not enough for trespass.
Jost v. Dairyland Power Cooperative = Court held that injuries by power co. to farm must be
compensated regardless of utility/social value of power co’s. activities. Under OUR rules, Δ’s
activities are important to determine the unreasonableness. Probably find not unreasonable
(supplying power to Wisconsin kinda important) and therefore, no nuisance.


Jost v. Page
o Jost




o Page



No balancing
More like strict liability
Throw-back to pre-industrial revolution Nuisance law
Rejects Restatement of Torts § 826
Balancing interests
Analysis seems fairer
Newer Nuisance law of post-industrial revolution – important to
balance interests, i.e. social utility of Δ’s actions
Restatement of Torts
o More quantitative than balancing test – more of an economic inquiry
o Looks to social value of BOTH Π and Δ’s activities
o Utility only cares whose activity is better, not first
o Raises bar of substantial  harder for Π to win
o FLOW CHART
1. Is harm severe (§ 829A – worse than serious – don’t care if useful,
activity unreasonable as matter of law)?
Yes  Δ pays
No  Go to 2
2. Is harm serious (§ 826(b) – even if harm outweighed by utility of Δ’s
activity, still serious and don’t want 1 Π to bear cost alone – spread out
over customers – but pro-business since damages always better than
injunction)?
Yes  Δ pays UNLESS damages would put Δ out of business
No  Go to 3
3. Balance utilities (§ 826(a))
Look at social value of BOTH Π’s and Δ’s activities
Figure out which is better, not just if Δ’s actions are good/bad
16
o FLOW CHART Take 2
Severe?
Yes
Δ pays
No
No
Serious?
Δ out of
business?
Yes
No
Yes
Balance Utilities
3. Remedies
 Damages always available  modern rule
o Change in market value
o Cost to repair/restoration  still need reasons personal (same policy
considerations)
 Injunctions issued within discretion of court  traditional rule
 Purchased injunction, Cf. Boomer, i.e. Injunction granted, but will be vacated if Δ
pays prescribed damages to Πs  forces parties to negotiate
 Economics + Industrial Revolution changed legal view of Nuisance & remedies
Boomer v. Atlantic Cement Co. = Δ has cement plant near Albany, NY. Traditional rule
(granting injunction) not followed here, instead purchased injunction. Why? plant = $45 million
& 300 jobs, damages = $185,000. Society must think cement is pretty important since they are
willing to pay $45 million to create/maintain plant. Therefore, injunction is not a good idea.
Lose $45 million to save $185,000 doesn’t make sense. But Nuisance should not go unpunished.
Both damages & injunction have some incentive-creating effect on plants to do R&D to find out
how to stop polluting. Even if court granted plain injunction, Δ probably try to pay off Πs to not
bring enforcement action later  same effect, but bet your ass that Πs will want more $ than
court would have granted as damages.
4. Law & Economics – Coase Theorem
 Problem of Social Cost by Robert Coase
o Not as simple as Π = victim & Δ = tortfeasor
o Should A be allowed to harm B or should B be allowed to harm A?
o Balancing utilities approach – maximizing social utility, i.e. wealth
 Want most efficient rule of law & most utilitarian allocation of resources
 Ways to determine if a law meets the goal
o Pareto Superior = At least 1 person in the world is made better off & no one
is made worse off
 A has milk & B has Oreos
 Trade half the Oreos for half the milk
 The world is now pareto superior
 Voluntary exchanges are most likely to create p.s. world
o Pareto Optimality = The world is in such a state that no more pareto superior
trades/moves exist, i.e. no more changes can be made without harming others
or making them worse off
17


Utopia!
Hard to create a pareto optimality world – better overall world actually
makes some people worse off
o Potentially Pareto Superior/Kaldor-Hicks Efficient = An overall better off
world, even though some people are worse off – benefits of the change
outweigh the costs
 The winners could compensate the losers to create a pareto superior
world, but compensation is NOT required
 A has milk & B has Oreos
 Take all Oreos & give them to A
 A could pay B for the Oreos so he is no worse off & A is better off
 Easier alternative to pareto superior policies
o Wealth Maximization = Monetization of a potentially pareto superior world,
i.e. quantification of overall wealth
 Ex. Air pollution
 Costs of air pollution = doctor bills, shorter life, less productive
at work (sick days), etc. = $1 million
 Cost to prevent air pollution = $200,000
 Wealth maximization = reducing pollution saves $800,000
 Ex. Car Factory & Neighborhood Association
 Factory profits = $75/year, i.e. value of cars to society
 N.A. health damages = $100/year
 To maximize wealth, call pollution Nuisance & enjoin Factory
OR grant damages > $75/year
 Getting rid of factory = saves $25/year
 TAKE 2
 Factory profits = $150/year
 Enjoining does NOT maximize wealth
 Forcing Factory to pay damages $100/year  maximizes
wealth
 Factory still makes its profit (now $50/year) and the N.A. is no
worse off – maybe even better off since their medical bills are
now paid for by the factory
 Cars have more social utility than the neighborhood association
 Damages created an internal “externality” = An effect of a decision on a party other
than the decision-maker that the decision-maker does not take into account
 In other words – Factory now thinks about both profit AND cost of pollution
 Coasian Bargain  THE REAL POINT OF COASE
o Wrong to award damages because this harms the “injurer”
o Does not matter who gets the entitlement, parties will negotiate extralegally anyhow
o People tend to make arrangements among themselves that are in their
collective best interests
 BUT... income-invariant (assumes N.A. has the $100/year)
 & ignores transaction costs (all obstacles to solving the problem,
e.g. freeloaders, suing, negotiating, organizing, etc.)
 also problem of imperfect information
o What a party is willing to pay to get rid of the Nuisance is different than what
the party is willing to receive to allow the Nuisance to continue
5. Light and Air
18





The use allegedly blocking the light & air will be measured by several factors:
o Useful
o Beneficial
o Reasonable
o No spite or malice
Spite fences have much less utility than any other use
“Ancient lights” = historical right to light & air after having same for statutory period
American courts rejected doctrine of ancient lights since electricity made sunlight less
important
Light & air  more importance as sunlight becomes important source of energy
Fountainebleau Hotel v. 45 25 Inc. = Δ wanted to build tower that would cut-off sunlight to Eden
Roc’s pool area. Π invoked ancient lights doctrine. Court held that since the tower served a
useful and beneficial purpose, there is no cause of action even though it cuts off the light and air
or interferes with the view of an adjoining landowner.
Prah v. Maretti = Π heated house with solar panels and the Δ’s house blocked Π’s sunlight.
Court held that Π had a claim for private nuisance (not that it was a private nuisance) even
though Δ’s use of the land may be found reasonable, useful, beneficial, etc. by lower court. Jury
will compare Π’s utility of solar power with Δ’s utility in building a house to live in
V. Property Rights Against Government
A. Zoning
1. Generally
 5th Amendment = “...nor shall private property be taken for public use without just
compensation” (14th Amendment as to state governments)
 Power to zone  Police power of the states to protect the public health, welfare,
safety, morals, etc.
 Must be a “substantial relation” to protection of the public.
 Zoning plan – actual zones MUST meet the goals/purpose of the overall plan
 Pyramid Zoning Scheme – U-1 is most restrictive, U-6 is least restrictive and each
level in between is cumulative, i.e. U-1 = single-family homes only; U-2 = singlefamily homes + apartment buildings...
Pennsylvania Coal Co. v. Mahon = Use regulation held an unconstitutional taking. “Taking”
under 5th/14th Amendments no longer had physical requirement. “If regulation goes too far,
[i.e. property rendered useless,] it will be recognized as a taking.”
Village of Euclid v. Ambler Realty Co. = Pyramid zoning scheme put into effect. Ambler’s land
was between a RR track and Euclid Avenue and had 3 zone areas: U-6 closest to the track, U-3
in the middle, and U-2 closest to the road, which made most of the land unsuitable for the use
Ambler anticipated. Argued zoning violated 5th & 14th Amendments. The court upheld the
zoning because it is a proper use of the police power, Π had not been singled out and had not
really suffered, either. Just because land no longer available for use Π foresaw, doesn’t mean
land no longer suitable for any use. Also, court will not second guess zoning board’s
decision/policy in enacting the zoning laws as they did. Zoning is a presumptively valid use of
police power – even though Π lost 75% of its ability to determine the use of his land.
Nectow v. City of Cambridge = New zoning carved Π’s lot into 50% industrial with no access
and the other 50% as residential. Π wins to enjoin enforcement of the zoning in this manner
19
because court finds there is no public purpose to rezoning through the middle of his lot, i.e. no
“substantial relation” to welfare, health, etc. Court orders zoning line redrawn around outside of
Π’s lot.
2. Exceptions
 Prior Nonconforming Use
o Goal of zoning is conformity
o If “substantial change” in function/use, or intensity  lose status as prior
nonconforming use
o If unclear as to whether change is “substantial”  lose status
o Status runs with the land (e.g. restaurant sold to be operated as restaurant, ok
for next owner to do so)
Town of Belleville v. Parrillo’s Inc. = Conversion from a restaurant to a disco is a
“substantial change” and therefore cause for loss of Δ’s prior nonconforming use status
(restaurant in residential zone).
Hantman v. Randolph Township = Campground use changes from seasonal to yearround. This change in intensity constitutes a “substantial change.”


Variances granted if:
o Undue hardship caused by
o Extraordinary/exceptional situation of land (only isolated instances...
exception, not the rule)
o Undue hardship cannot be self-imposed
o Variance will not substantially impair purpose of zoning laws
2 Types of Variances
o Area = allows modification of height, location, setback, size, etc. for a use that
is permitted in the zone (much more common)
o Use = allows a use that would normally be prohibited in the zone (changing
use is more serious violation of zoning scheme)
Commons v. Westwood Zoning Board = Large-lot zoning to keep property values up and
density down. Court held that because Π owned last vacant lot and tried to conform with
the zoning by attempting to sell the land, attempting to buy a 10-foot strip from a
neighbor, etc. plus fact that 25 of the lots in the neighborhood were also non-conforming,
Π had met all requirements. Granted variance.

Vested Rights
o General Test = “substantial investment” in good faith reliance on existing
zoning laws
o Bright-line = has building permit been issued? – like town estopped from
saying you can’t do this even though we already said it was ok
Stone v. City of Wilton = Π bought land, secured federal funding, and paid for plans, to
build low-income apartment building in reliance on pre-existing zone. The land was then
re-zoned to exclude this type of use. Court compares facts with Board of Supervisors of
Scott County v. Paaske and determines that Π’s efforts & expenditures were not so
substantial to have created a vested right.
20
B. Takings
1. Regulatory Takings  “Taking In Form”
 Evolution of Test
 A regulation is a “taking” when it goes “too far” Penn Coal – to figure out when “too
far,” case-by-case, but weigh factors:
o Economic impact upon claimant
o Interference with investment-backed expectations
o Character of the gov’t. action
o Also consider – reciprocity of advantage
 Permanent Physical Occupation = per se taking & no other analysis required Loretto
 If regulation EITHER, then per se taking:
o Does not substantially advance legitimate state interests (hard to prove) OR
o Denies owner all economically viable use of his land
 FLOW CHART
Does Regulation create a
Permanent Physical Occupation?
No
Yes
Does Regulation deny owner of all
economically viable use of land?
TAKING PER SE
Yes
No

Weigh Penn Central factors
to decide if Regulation goes
“too far”
Takings in view of Nuisance Law (EARLY formulation)
o Harm-prevention = regulation is valid exercise of police
power, prevents nuisance,  NOT taking
o Benefit-conferring = regulation confers benefit upon large segment of population, not
necessarily exercise of police power  taking
Penn Central v. NYC = NYC passed landmark laws denying alteration of city landmarks
including Grand Central Station. Station not allowed to build office building tower atop station.
The law did not affect a “taking” because the law did not interfere in any way with the present
use of the Terminal, the law does not interfere with Penn Central’s primary expectation
concerning the use of the parcel, and the law allows Penn Central to profit and obtain a
“reasonable return” on its investment in the Terminal. The benefit of the public outweighs the
rights of the private property owner. Dissent: Multimillion dollar loss (not offset by any benefits
flowing from the preservation of the other landmarks)  taking.
Loretto v. Teleprompter = Law stating that apartment building owner must allow cable wires,
boxes, etc. on building. Court declined to follow Penn Central’s factor approach. New Rule:
when physical invasion  permanent physical occupation = per se taking and just compensation
required as a matter of law. Very obnoxious regulation.
Pruneyard v. Robbins = Similar facts to Lloyd v. Tanner, i.e. HS students wanted shoppers to
sign petition supporting Zionism. Guard asked them to leave, they did, but sued. Court held that
students were allowed to speak at the mall under the CAL. Constitution. This superceding “law”
did not constitute a taking because Pruneyard failed to show that the right to exclude others is so
21
essential to the use/economic value of their property that the state-authorized limitation, i.e.
students can speak,  taking.

Pruneyard v. Lloyd, Loretto
o PROPERTY LAW = STATE LAW
o Pruneyard
 California Constitution – more rights granted, i.e. freedom of speech in
shopping malls, than US Constitution
 However, property rights (5th & 14th) trump any contrary state law, but
Court finds OK with 5th
 Cal. Constitution = overriding law to this “trespass”
 Speech trumps CATV wires + already gave up one stick (let public on
land to shop)
 Protestors cannot be permanent
 BUT if allowed to leaflet all the time, could approach permanent
 Maybe THEN  taking
o Lloyd
 U.S. Constitution – only basic freedom of speech granted
 If Court allowed leafletters, always have the right to be there 
permanent physical occupation?
o Loretto
 Physical invasion forced on property owner  taking
 No sticks previously given away
 CATV not as important as speech and therefore, less protection given
 PERMANENT
Lucas v. South Carolina Coastal Council = Lucas bought undeveloped lots on barrier island. 2
years later, Council amends law and now Lucas cannot develop his land (too close to water).
Court creates another per se rule: if regulation either (1) does not substantially advance
legitimate state interests or (2) denies owner all economically viable use of his land  per se
taking. Here, remand to determine if (2) is satisfied and if the regulation is harm-preventing or
benefit-conferring.
“Taking In Fact”
2. Just Compensation
 Eminent Domain = Government has right to appropriate private land for public use
upon payment of just compensation
o Gov’t. files eminent domain proceedings against owner
o Can get compensation for improvements on property, too
o Leasehold interests & improvements
 U.S. v. Petty Motor = leasehold interest is not compensable beyond
existing lease term
 Gov’t must compensate for property during the lease term
 No compensation of property based on reasonable expectation of
renewal
 BUT gov’t must value buildings and other improvements with the
reasonable expectation of renewal in mind, i.e. how long was the party
going to be able to use/derive value from the buildings they placed on
the leased land
 Just compensation = loss of property, NOT loss of business
 JUST compensation
22
o Fair market value award  MOST AWARDS ARE THIS
o Cost to restore (reasons personal only)
o Competing policy considerations:
 Importance of landowner’s personal subjective values
 Concerns about extortion/lying for higher damages
o Fair market value = amount that “willing buyer” would pay for property only
(e.g. buildings & land) in general sold by a “willing seller”
o NO expectation interests (no requirement that owner be placed in as good a
position as he was in before eminent domain/regulatory taking)
o NO compensation for value of business, i.e. good will, value in established
customers, strategic location, etc.
o Exception to “willing buyer” rule:
 Fair market value not discernible
 Manifestly unjust to award fair market value
 Then courts can fashion other damages, e.g. cost to restore.
Almota Farmers Elevator & Warehouse v. U.S. = Almota had lease interest in property on which
they made improvements. Gov’t condemned the estate and did not value the improvements.
Almota argued that he should be compensated for the improvements regardless of whether the
gov’t. finds them valuable. Court finds that just compensation is due, i.e. amount that a “willing
buyer” would pay a willing seller for the property because Almota had reasonable expectation of
renewal in the leasehold interest (if leasehold interest ONLY included remaining 7years, then no
compensation).
U.S. v. 564,54 Acres of Land, More or Less = US condemns land owned by religious summer
camp. Property worth $485K, Acres wants $5.8 to build new camp (much more expensive, since
new regulations will affect new camp, but didn’t affect old camp, i.e. grandfathered in). Court
applies objective just compensation rule, i.e. what “willing buyer” would pay “willing seller”
ONLY. However, this does not fully compensate landowner – Court says only if (1) too difficult
to determine the fair market value or (2) manifestly unjust to only award fair market value, then
other damages are appropriate. This case falls into neither exception since f.m.v. accessible &
court has always held that nontransferable values arising from unique need for land (i.e. value of
the exempt from new regulation status) is not compensable.
3. Public Use
 Eminent domain requires that the land be taken for PUBLIC USE
 What is a public use?
o Abuse of Discretion Standard – very deferential
o If state legislature calls it “public use” AND
o “Rationally related to a conceivable public purpose” Hawaii
o Also – public use/benefit MUST be “clear and significant,” not speculative or
marginal
 Eminent domain that benefits private entity
o As long as legitimate legislative goals, ok if private entity receives benefit of
eminent domain Poletown
o MUST be direct & specific plan for how private entity can use land to ensure
public use/benefit, e.g.. jobs created must clearly exist Vicksburg
Hawaii Housing Authority v. Midkiff = Land ownership in Hawaii highly concentrated (47% in
hands of 72 owners & 49% owned by gov’t.). Gov’t plan = Put ownership of the actual land in
23
hands of the tenants who own houses and lease the land underneath. Court finds the purpose of
the taking (not the means) is rationally related to a conceivable public purpose, and the state
legislature calls it a public use, so it is ok.
Poletown Neighborhood Council v. Detroit = GM is leaving Detroit and taking hundreds of jobs
with it. The City chooses the Poletown neighborhood (mostly 1st/2nd generation Americans
whose only asset = their land/homes) to sell to GM. Court finds eminent domain truly for “public
use” because the benefit to be received is clear and significant and the project was a legitimate
object of the legislature (keeping jobs, property values, tax revenue, prevention of poverty,
crime, etc.), even though private party ultimately receives the benefit.
City of Vicksburg v. Thomas = City to take Thomas’ land (he wouldn’t sell) to give to casino
who has been given surrounding land. This is NOT a public use because Harrah’s has been
given complete discretion by the city on how to use the land, i.e. no clear public purpose or
benefit in taking land away from Thomas.
VI. Dividing up Concurrent Property Rights
A. Servitudes
1. Generally
 Concurrent ownership – two parties co-own some sticks of the same bundle
 Servitude = non-possessory interest in land belonging to another
 Dominant Estate = party/land receiving benefit of servitude
 Servient Estate = party/land burdened by servitude
 Both A (dominant estate owner) & B (servient estate owner) exist at time servitude
created
 4 Types of Servitudes
o Licenses = A has revocable right to enter B’s land – usually temporary & not
transferable
o Easements = A has permanent, irrevocable right to enter B’s land
 Positive Easement = A has right to enter B’s land
 Negative Easement = A has right to prevent one, or many, uses of B’s
land (e.g. prevent B from building higher than 3 stories to preserve
light & air)
o Profits = A can enter to take something, e.g. minerals, water, oil – really
easement + right to remove something (CL  statutes today)
o Real Covenants & Equitable Servitudes = A has right to enforce obligation
relating to B’s land either in law (covenants) or in equity (equitable
servitudes)
 Positive = B must do something (e.g. pay fees to condo/homeowners
association)
 Negative = B cannot do something (e.g. change the façade of his
building/home)
2. Easements
a. Creation
i. Express
 Express agreements must be in writing a la Statute of Frauds
(MYLEGS)
 ALWAYS BEST TO PUT IT IN WRITING & RECORD IT
 Easements are supposed to be in writing… other methods of creation
are exceptions to this rule
24
ii. Prescription
 Same elements as adverse possession (reward people who treat
property interest as their own)
o Adverse/hostile – lack of owner’s permission
o Actual
o Continuous
o Open & notorious – if yes, presumed adverse unless D can
show permission actually given
o Exclusive – use as a reasonable owner would Nome 2000
o For statutory period
Community Feed Store v. Northeastern Culvert Corp. = Store and Corp. share
gravel lot that before 1984 both thought was owned by Feed Store. Survey shows
Corp. really owns most of it and they put up a barrier to block Store’s use. Since
use based on mistaken ownership, Corp. could not given permission to use land
they didn’t think was theirs, open & notorious (customers always used lot) 
presumed adverse as long as no permission granted. Not completely exclusive,
but reasonable owner would grant licenses to customers to park on lot, so OK.
Therefore, meets all requirements and court grants prescriptive easement to use
lot.
iii. Estoppel
 A license becomes irrevocable, i.e. creates an easement, when licensee
makes investments or improvements in reasonable reliance on an
expectation of continued access based on representations or conduct of
licensor
 Reasonable reliance?
o Licensor must, or should, have known that licensee was
improving/investing on their land
o AND had an opportunity to object  deals with notice
o Licensor should have known licensee was relying
o If licensor expressly states licensee has conditional/revocable
license, then no reasonable reliance on continued use
o UNLESS the license goes on long enough
 Sometimes easement by estoppel given form of constructive trust
Holbrook v. Taylor = Taylor had an initial license to use road over Holbrook’s
land to build a house on lot behind H’s land. T relied on the license and modified
the road by $100. Court held this modification based on T’s reasonable reliance
that he’d be able to use the road both to build the house and get to it later created
an easement by estoppel.
Rase v. Castle Mountain Ranch, Inc. = Cabins build on property owned by
Tavenner with his consent & invitation. However, the cabin-owners were not
sold the land because T wanted to keep the water rights. T’s attorney told him
later to sign lease agreements with cabin-owners but he promised them he would
never terminate the agreements. T then sells land to Ward stipulating that the
cabin-owners can stay. Ward agrees and then tries to terminate license
agreements by letter. Statute of Frauds and parol evidence rule = property
interests must be written & oral evidence inadmissible to show true intent of
25
drafters. Court finds that Tavenner created a constructive trust where T = grantor,
Ward = trustee, and Cabin owners = beneficiaries. Ward has legal title to the
land, but must make decisions for the benefit of the cabin owners. Therefore, in
balancing cabin owners reliance on T’s oral promise with W’s right to own &
control his land (including the right to sell it free & clear), the court orders that
W’s equitable lien (because he’s the trustee) can be satisfied by either continued
use by cabin owners for 13 years or fair market value paid to cabin owners within
6 months. Easement by estoppel is inappropriate because cabin owners did NOT
rely on the conduct of Ward, but ultimate result still gives some effect to the
reliance on T’s promise.
iv. Implication from Prior Use
 Three elements
o Previous common ownership and then severance of adjoining
parcels
o Use of one parcel for the benefit of the other… must be
apparent, obvious, continuous & permanent
o Claimed easement is necessary and beneficial to enjoyment of
the second parcel – only “reasonable necessity” required
 PLUS strong showing of prior use
 The greater the evidence or prior use, the less necessity required
 Restatement of Property = 8 factors to be balanced – most important:
Is claimant conveyor or conveyee?
 Why imply easement from prior use?
o Utilitarian = best use of land (but if grantor dumb enough to
sell land he needed – tough shit, but then again, if grantee
dumb enough to buy land with active driveway…)
o Effectuate actual intent of parties
Granite Properties v. Manns = Granite owned adjoining lots and sold middle lot to
Manns. Supermarket in Granite’s shopping center needed easement over Manns’
land to allow trucks to deliver to the back of the store, which is set up for
deliveries, even though trucks could deliver to the front or deliver in the back and
then back out into the street, rather than using Manns’ property to turn around.
Court finds that use of Manns’ driveway is a “reasonable necessity” and that
Granite would not have sold the parcel without having continued use of the
driveway. Manns also on constructive notice that Granite intended to continue
use of driveway. Important to give effect to parties’ intent.
o Necessity
 2/3 elements same as Prior Use
o Previous common ownership and then severance of adjoining
parcels
o Claimed easement is necessary and beneficial to enjoyment of
the second parcel – ABSOLUTE necessity required
 No requirement of prior use
 Necessity must have existed at time of separation/severance of two
parcels
 Even if necessity, courts never recognize easements by reservation
26

Easement by necessity is appurtenant – runs with the land (doesn’t
care who owns it… necessity is necessity)
Finn v. Williams = Finn’s land is behind Williams’ land. Old roadways no longer
exist to allow egress from Finn’s land to the road. Only way out is on road
through Williams’ land. Court finds easement by necessity since Finn’s land is
entirely surrounded by property of strangers and the land of Williams’ from which
it was originally severed. The easement was implied in the conveyance and even
though Finn was using the other roads, i.e. the easement here was dormant, it still
existed then and still exists now.
o Other ways to create easements
X
ROAD

Grantor sells hatched land and keeps road to get to X  Easement by
Reservation
o DISFAVORED
o Why sell hatched land without express easement if grantor
obviously knows that grantor obviously knows that he will
need access to X by way of the road
o Better to sell the X area and allow grantee to use road to exit,
i.e. create easement by necessity.
 Grantee buys X and given road access to get to it  Easement by
Grant – if not expressly given road access, easement by necessity
created
b. Burdens & Benefits Running With the Land
 2 Questions
o Do we make successor to servient estate bound by existing servitude
i.e. does the burden run with the land?
o Do successors to dominant estate receive the benefit of the existing
servitude, i.e. does the benefit run with the land?
 For BURDEN to run with the land
o Writing – best if in deed & recorded (creates constructive notice)
o Intent that it run – courts can imply intent
o Notice – actual, inquiry (obvious & party has duty to ask), or
constructive (servitude recorded)
 For BENEFIT to run with the land
o Mostly matter of intent
 Look to written instrument
 If ambiguous, look to parol evidence for intent
 Strong presumption AGAINST easements in gross -therefore, if still ambiguous  appurtenant
 Good idea – limit number of parties having easements
and easier to find out about appurtenant easements
since it must be a neighbor (easements in gross could
belong to anyone/anywhere)
27
Bad idea – easements in gross can/should be recorded
and usually visible, e.g. power lines, sewers, so inquiry
and constructive notice would exist, also if all
easements are appurtenant, easy to ask neighbors and
no incentive to record
o If benefit runs with the land  appurtenant easement
 Not useful to anyone except those who own nearby land
 Not transferable from person-to-person, only transferable when
ownership of dominant estate is transferred
 Benefits anyone who owns dominant estate, not necessarily
one particular person/owner
 Dominant estate = actual parcel of land
o If benefit does NOT run  personal easement/easement in gross
 Useful without owning nearby land
 Transferable from person-to-person
 If pepco owns easement in gross to place power lines on my
land, want that interest to go to power company that buys out
pepco
 Benefits easement owner, personally – if you are not a power
company, the easement is useless to you
 Dominant estate is a person/company (no actual parcel of land
being benefited)
 Commodity that can be bought and sold – has value of in & of
itself – “commercial in nature”
 If transferable, then easement in gross can also be
apportionable OR not apportionable
 Can easement be licensed to someone else?
 Can the dominant estate holder give away some of the
sticks he received from the servient estate holder?
 Question: Is the easement exclusive (can easementholder exclude grantor)? Really: Does the owner of the
servient estate have any reserved rights in the easement,
i.e. can the servient estate owner still use that easement
or say how/when grantee can use it?
 If NO  grantee gets total control over easement and
can license, sell, etc.
 If YES  grantor has some control left over how
grantee uses easement, i.e. who they license to, when/to
whom they sell, etc
 VERY unlikely that grantor will maintain any control
when easement given to utility company
 Apportionability turns on intent

Green v. Lupo = Green owned a large parcel and sold top half to Lupo by lending him the
money (therefore Green kept a security interest in the part he sold). Lupo asked Green to
release a small part of the land so he could get a loan to build a house. Green releases the
land and gets an easement over part of Lupo’s property in return. Lupo is upset that
trailer part lessee on Green’s land is using the easement to rev his motorcycle. The
easement is held to be appurtenant since it was granted for access to the land. Therefore,
trailer park lessees CAN use the easement, but not for motorcycles (this creates a
nuisance).
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c. Scope
 Is kind of use the same as grantor intended?
 Is use so heavy that it causes an unreasonable burden on the servient estate
that was not intended by the grantor?
 Can easement be subdivided, i.e. does the grant/conveyance prohibit it?
Cox v. Glenbrook Co. = Glenbrook granted an easement to Quill, then to Johnson, now to
Cox upon the purchase of the same 80 acres. The “Quill Easement” is appurtenant and
granted as a one-way road for use by one person in and out of a home. Cox wants to use
the easement, i.e. road, for ingress/egress by 40 families he plans to build houses for
when he subdivides the 80 acres. Problem of scope: 1 person vs. 40 families. Court finds
that Cox can maintain/repair the road or relocate it at his own expense, but that he may
not widen it or cause any other undue burden on the servient estate. Use by 40 families is
ok, but widening road  exceeds scope of easement.
Henley v. Continental Cablevision = Easement in gross owned by both SW Bell & Union
Electric that they leased to Continental. The only difference is cable TV wires rather than
telephone/electric wires. Does this use exceed the scope? This easement in gross is
apportionable, i.e. grantor has surrendered all rights to that land. Therefore, Utilities can
license the easement to Continental.
d. Termination
 Easements last forever unless they are terminated:
 Ways to terminate
o By agreement in writing, i.e. release of the easement by the holder
o By their own terms
o By merger – when the holder of the servient estate becomes the owner
of the dominant estate
o By abandonment – requires intent to abandon, can be shown by
conduct
o By adverse possession or prescription by the owner of the servient
estate or by a third party
o If easement by necessity – loss of necessity terminates easement
o By frustration of purpose or changed conditions doctrine
o States may have “marketable title acts” providing that if easements are
not re-recorded periodically, the easement will expire
3. Promises Enforceable as Real Covenants & Equitable Servitudes
 B sells part of his parcel to A on condition that A only uses it for residential purposes.
A sells his land to C who uses it as a pig farm. B cannot enforce A’s promise against
C in regular contract law. This is WHY WE HAVE PROPERTY LAW, and more
specifically covenants/equitable servitudes.
a. General Concepts
 Eq Servitudes & Real Covenants are both promises that affect land
 Equitable Servitude = right to enforce an obligation with respect to another’s
land in equity, i.e. injunctive relief or specific performance
 Real Covenant = right to enforce an obligation with respect to another’s land
in law, i.e. damages
29
Negative easements (prevent a use) are disfavored, but RC/ES are ok to create
negative requirement – we want them to be difficult to create, therefore lots of
requirements
Whittinsville Plaza v. Kotseas = Kotseas sells some land to Trust and promised not to use
the retained land for a discount store.. Trust then sells the land to Whittinsville Plaza.
Kotseas leases the retained land to CVS (both drugs & discount products). Plaza sues
both Kotseas and CVS to enforce promise between Kotseas and Trust. In the suit against
Kotseas, need to determine if the benefit ran with the land… in the suit against CVS,
need to determine if both the benefit & burden ran with the land. Court overrules
Norcross v. James, which held that covenant not-to-compete does not touch & concern
the land. EQ. SERVITUDE: Since the promise relates to what Kotseas can/can’t do with
the land  burden runs; greater market value for store if no other competing stores
allowed nearby (Trust paid more for the land with the covenant, probably)  benefit
runs. Plus these two  touch & concern the land. REAL COVENANT: At moment
Kotseas & Trust made covenant, horizontal privity existed. There is only vertical privity
between Trust & Plaza, but NOT between Kotseas and CVS. Therefore, in REAL
COVENANT, Plaza can sue Kotseas (and can enforce anything Trust could have
enforced), but cannot sue CVS for damages (Kotseas’ burden does not run to CVS). In
EQUITABLE SERVITUDE, Plaza can sue both Kotseas & CVS for equitable relief. The
Court holds here that “reasonable covenants not to compete” may run with the land if
they facilitate orderly and harmonious development of land for commercial use.
b. Requirements
 Equitable Servitude
o Writing
o Intent that both burden & benefit run with the land
o Notice
o Touch & concern – obligation must relate to the land
 Burden side = If promise relates to use of the land
 Benefit side = If promise either (1) improves use & enjoyment
of the land OR (2) increases the market value
 Real Covenant
o Writing
o Intent that both burden & benefit run with the land
o Notice
o Touch & Concern
o Horizontal & Vertical Privity
 Privity = mutual interest in piece of property
 Horizontal Privity
 Directness of connection between promisor & promisee
 Landlord/tenant have horizontal privity – concurrent
interest in the land
 TRADITIONALLY grantor/grantee did NOT have
horizontal privity – no concurrent interest in same land
 NOW legal fiction that grantor/grantee have
simultaneous interest at moment of transfer 
horizontal privity satisfied
 Legal fiction = privity at time of transfer, therefore
promise must be at time of transfer for horizontal
privity to exist
30
Hypo: O sells to A & B half his land each; later A & B
promise that they will each keep their lawns mowed; A
& B then sell their respective land to C & D –
benefit/burden of the promise does NOT run to C & D
 therefore NO horizontal privity
Vertical Privity
 Relation between original covenanting parties and
successors in interest
 Transfer of entire interest is the only type of
relationship that creates vertical privity
 Grantor/grantee  vertical privity; Landlord/tenant 
NO VERTICAL PRIVITY
 On burden side, not fair to hold lessee responsible for
landlord’s promise (probably doesn’t even know about
it) – on benefit side, want to ensure proper plaintiff
(don’t want to be sued by a party who no longer has any
interest in the land)
 Can be different on burden and benefit sides



For both
o In order for burden to run, benefit MUST run with the land.
 If burden runs, but benefit does not  covenant in gross
(personal promises) – courts usually do not uphold since
burden greatly outweighs benefit
 Condo Association = exception to rule against covenants in
gross
o Restatement of Property = no more “touch & concern” element
c. Subdivisions & Implied Reciprocal Negative Servitudes
 Subdivision Problem – how does one neighbor enforce a covenant against
another neighbor if there is no privity or the earlier buyer was not a party to
the later purchase, i.e. relationship/timing problems
 Intended Beneficiary Doctrine
o Legal fiction where intended beneficiary of the covenant can enforce it
without horizontal privity
o Hypo: Promise made by earlier buyer into subdivision, A to O,
enforceable by later buyers, B & C (successors in interest to O 
vertical privity) even though A and B & C lack horizontal privity
o BUT earlier buyers cannot enforce covenants against later buyers (A
did not receive his land from O after O conveyed land to B) 
relationship AND timing problems
o Intended beneficiary doctrine only solves privity problem – if later
buyer breaks covenant, earlier buyer cannot enforce because they were
never a party, forget about privity, i.e. timing problem
 If non-party wants to enforce covenant, courts use Implied Reciprocal
Negative Servitudes
 IRNS elements
o No writing required
o Common owner sold all lots
o Evidence of a common plan with intent to bind all lots and evidence
that plan/restriction benefits all lots – doesn’t have to be overwhelming
o Notice to buyer (actual, inquiry, or constructive), i.e. is it fair
31
o If found, both burdens and benefits run with the land
McQuade v. Wilcox = Wilcox owns a farm that she subdivides and sells to create highend residential neighborhood. Each deed restricts use of the lot for residential purposes
except the one for Wilcox’ own lot. Wilcox then sells her lot to Jacob who sells it for use
as a restaurant. Court implies the same restriction on Wilcox’ deed/lot because a general
plan for the subdivision existed, i.e. high-end residential neighborhood. Reasoning is that
sub lot owners relied on the fact that each lot had the restriction and that there are
reciprocal benefits & burdens on each lot. Restaurant should have known that the other
deeds showed the general plan, he was on inquiry or constructive notice, intent to bind
future owners of other lots, so probably Wilcox’, too, and burden relates to use/benefit
increases value  touch & concern. Therefore, Restaurant is S.O.L.
Sanborn v. McLean = 53/91 lots restricted to residential use only – all lots on
Collingwood are residential, lots on Woodward & Hamilton can be commercial.
McLean’s lot does not have a restriction and he wants to build a gas station. McLean is
not allowed to build the gas station because the court finds a common plan exists and
implies a reciprocal negative servitude. McLean was on inquiry notice since all land
surrounding his lot had cookie-cutter houses.
d. Termination
 Goal of RC/ES/IRNS = preserve character of a neighborhood and create stable
expectations of owners
 BUT – things change
 A party wishing to not have a RC/ES enforced against their land may raise a
defense of changed conditions, relative hardship, or that the covenant has
terminated
 Doctrine of Changed Conditions
o Covenants are not enforced if conditions have changed so drastically
that enforcement will be of no substantial benefit to the dominant
estates.
o Changes outside the neighborhood don’t count unless it creates no
benefit whatsoever to each & every lot within the neighborhood
El Di, Inc. v. Town of Bethany Beach = Bethany started as religious retreat where 1/3
lots restricted to residential use and no sale of alcohol (now only 15%). Brown-bagging
is tolerated and El Di requested and received liquor license. Covenant’s purpose was to
create a quiet, residential neighborhood, but for 80+ years, there have been commercial
purposes & liquor sales in areas nearby, El Di’s land zoned for commerce, the town
granted him a liquor license, no more real benefit outweighing the burden. Court applies
doctrine of changed conditions to find covenant unenforceable, but ONLY in the
commercial areas of the town.

Doctrine of Relative Hardship
o Focuses on servient estate
o No enforcement of covenant if hardship to the owner of the servient
estate will be greater by a “considerable magnitude” than the benefit to
the owner of the dominant estate
32
o ONLY IF benefit (from enforcing covenant) is small & harm is great –
difference must be “considerable magnitude” will covenant NOT be
enforced
o More flexible than changed conditions doctrine
Blakely v. Gorin = Back Bay landfilled to create housing. Gorin wants to build on the
empty lot next to Blakely’s apartment building, and extend a bridge over the alleyway
from the new building to the Ritz-Carlton hotel. Restriction = alley-way must be kept
clear & open and no mercantile purposes are allowed, plus Blakely argues that the
building and bridge take away his right to light & air. Still some benefit from restriction
therefore, changed conditions doctrine does not apply. Court balances the interests of
apartment owner (right to light/air, reliance on covenant) against those of builder
(neighborhood has changed so much, restriction would prevent a reasonable land-use,
public interest = build hotel & build up neighborhood) and determines that there IS
relative/undue hardship on builder if covenant is enforced which outweighs benefit
received by apartment owner. Since apartment does lose some benefit, builder can build,
but must still pay damages.

RC/ES terminate when
o Party seeking enforcement has violated covenant himself (unclean
hands doctrine)
o Party seeking enforcement has tolerated previous violations of the
covenant by the owner of the servient estate (acquiescence)
o Party seeking enforcement has tolerated violations of the covenants by
owners of other restricted parcels in the neighborhood covered by the
covenant (abandonment)
o Estoppel – reliance on an oral representation that party will not enforce
covenant
o Laches – unexcused delay in enforcing the covenant
o Marketable Title Acts – failure to rerecord
o Language in instrument
o Merger
o Release – agreement in writing to terminate
o Prescription – open & notorious violation of the covenant without
permission for the statutory time
 Easier to terminate RC/ES than easements
B. Tenancy in Common – Joint Tenancy – Tenancy by the Entirety
 Concurrent ownership – two parties co-own all the sticks of a single bundle
Tenants in Common
Joint Tenancy
Requirements
Unity of possession
4 unities: time, title,
interest, possession
Words of
conveyance/devise
“to A and B” OR “to
A and B as tenants in
common”
If ambiguous
language  tenants
in common = default
“to A and B as joint
tenants”
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Tenancy by the
Entirety
5 unities: time, title,
interest, possession,
marriage
“to A and B as
tenants by the
entirety”
Transferability of
individual share
Right of survivorship









Yes
Yes, but destroys
right of survivorship
Yes
No
There is no separate
share
Yes
Tenancy in Common
o Default type
o If someone dies intestate, children take property as tenants in common
o Only one unity required: possession = each tenant has undivided right to whole
property and to possess it
o Individual shares are freely alienable – can sell without consent of other tenants
o
Joint Tenancy
o 4 unities:
 Time = all tenants take title at same time
 Title = all tenants take title by the same instrument
 Interest = each tenant has an equal share
 Possession = everyone has undivided interest in whole property
o Disfavored, so must use magic words
o A tenant can purport to transfer their share, but this destroys the right of survivorship
and creates a tenancy in common between the transferee and remaining tenants
(although if more than one remaining tenant, they still have a joint tenancy among
themselves with the right of survivorship in tact)
Tenancy by the Entirety
o Most jurisdictions have abolished tenancy by the entirety
o 19 still do including DC, VA, MD
o 5 unities:
 Time, Title, Interest, Possession
 Marriage
o NOT transferable
Termination of concurrent ownership
o Voluntary Partition = sell land & divide proceeds in accordance with each tenant’s
share
o Judicial Partition = sue and show cause for TC/JC – must prove divorce for TE
Each tenant has right to possess entire property
If possession denied  “ouster” and creates cause + duty to pay $ for part that the tenant was
ousted from
Cotenants entitled to pro rata share of rents
Cotenants liable for their share of taxes, mortgage and SOME maintenance/repairs
Cost of improvements do not have to be shared
Schwartzbaugh v. Sampson = Mr. S rented part of land he owned in JT with his wife to Sampson over
wife’s objections. Lease does NOT destroy the joint tenancy since both parties have a right to possess
the entire land and therefore have a right to lease the entire land or part thereof. Since JT in tact, so is
right of survivorship – Sampson can never have more rights than Mr. S had, i.e. if Mr. S dies, entire
property  Mrs. S and she can continue or terminate lease at her pleasure. Mrs. S’s remedies: (1) kill
husband, (2) sue for partition on grounds she was ousted from portion leased to Sampson, (3) sue for her
share of the rent, or (4) build something else on land before Sampson gets there.
Sawada v. Endo = Mr. Endo has car accident with Sawadas. Mrs. Endo on death bed and if she dies,
land TE goes to Mr. Endo and can be used to satisfy judgment for Sawadas. Endos (together) convey
34
land to sons just in case Hawaii allows alienation of a share of a TE to satisfy debts of one spouse.
States in groups 1, 2, 4 = alienation of a share of a TE ok, i.e. creditors can put a lien on the property for
one spouse’s debt. States in group 3 (DC/VA/MD) = neither spouse can alienate his/her share, i.e. no
levy can be placed against property for debt of only one spouse. Court finds the conveyance is not
fraudulent because the Judge did not know Mrs. Endo was about to die.
C. Condominiums and Cooperatives
 Cotenants can do any dumb thing they want to concurrently owned property  new tragedy
of the commons
 Condos/Coops help fix this problem, but…
o Tension between best interest of the group and rights of the individuals
o Sometimes what the board decides is in the group’s best interest is NOT really in the
group’s best interest  can get very political
 Main difference is the structure
 Condominium
o Declaration  Condo Association  Board of Directors  Bylaws  Condo
Members
o Each member owns a share of property, i.e. own their unit and share in ownership of
the common areas
o Each owner pays her own mortgage
 Cooperative
o Articles of Incorporation  Cooperative  Board of Directors  Bylaws 
Shareholders/Tenants
o One corporation (cooperative) owns the entire property – Each tenant is a shareholder
in the corporation and pay rent to cover their unit and their share of the common areas
o Each shareholder pays rent to help corporation pay one big mortgage
 RULES
o Rules must be “reasonable”
o New rules generally apply to previous purchasers, BUT may not if there is an
overriding statute (see Breene)
o Owners acquired condo subject to rights/decisions of others, including decisions to
create new rules
O’Buck v. Cotton wood Village Condo = Condo fixes leaky roof caused by constant repair of TV
antennae. New rule = no more antennas on the roof or side of the buildings & each owner can get cable
(Condo pays for installation) for $10/set/month. O’Bucks argue that they bought the condo in reliance
on their ability to put a TV antenna on the roof/side of the building. Court employs a balancing test and
determines that a leak-free roof trumps O’Buck’s right to TV antenna (and saving $10). This rule is
found to be reasonable even though it was not in place when O’Buck’s bought their unit. They can
always sell.
D.
Restrictions on Condo Alienation
 General policy = land should be freely alienable in order that it move to the highest & best
use in an open market
 Balance the right individuals (right to freely alienate their land) with interests of group (want
to ensure that all tenants in common are compatible)
 Restraints on alienation are OK as long as they are “reasonable”
 Strike balance? Bylaws must contain “right of first refusal” clause – if association does not
approve of the buyer, it can buy the unit in some reasonable way (at f.m.v. or matching bona
35

fide offer) and then sell it to whomever they want – if they do not buy the unit 
approval/consent to sale
Lease as alienation in condo context?
o Condo has interest in preventing Charles Manson from either buying OR leasing
o Renter has less incentive to follow condo rules (even though the owner can be held
liable)
Aquarium Foundation v. Sholom House = Coop Rule = Association can prevent/not consent to the sale
of any unit by any member – if they do not consent and the owner sells anyway, ownership of the unit
reverts to the association which must pay f.m.v. for it. Aquarium bought unit from Bertha without
consent for sale. Bylaws = reverter clause, NOT right of first refusal. Association only obligated to buy
the unit AFTER owner sells without consent. Unreasonable restraint on alienation since no member will
sell without consent (except here, she did, but…) and no buyer will buy if possible the land will autorevert to association.
Breene v. Plaza Tower Association = Breene bought condo in 1974. In 1980, new rule = leasing
prohibited in most circumstances. Breene wants to lease. Because of N.D. Statute stating that bylaw
amendments apply retroactively to present owners ONLY if they pertain to certain things, not including
leasing, court finds it unreasonable to prevent Breene from leasing her unit. Therefore, an amendment
to the bylaws concerning leasing is NOT enforceable against a previous purchaser without her
acquiescence.
McElveen-Hunter v. Fountain Manor Association = Amendment to bylaws prohibits renting – same
facts as Breene. However, no statute overrides usual rule that bylaw amendments are binding on
previous purchasers  opposite result.
E. Restraints on Alienation Generally
 There ARE legitimate reasons to restrain alienation
o Ex. Grantor donates property to charity ONLY if it is used as a hospital
o If grantor’s intent is not given effect, people are unlikely to make gifts like this
o Therefore, restraint on alienation outweighed by the incentive we want people to have
to make charitable donations
 Only reasonable restraints are OK – for example
o Right of first refusal with right-holder buying land at f.m.v. OR matching a bona fide
offer
o Partial restraints
o A short time-restraint may be upheld if reasonable under the circumstances
 Unreasonable if (for example)
o Discriminatory
o Direct restraint on alienation (e.g. requirement of consent to sale)
o Options to buy at FIXED price
o Prohibitions on alienation for a certain, long period of time
o Full restraints
 Exception to “reasonable” rule = if conveyance to charitable organization, restraint may be
unreasonable, and still upheld
 Restraints imposed on an estate less than a fee simple absolute (e.g. a life estate)  more
likely valid... since estate does not last forever and therefore, neither will restraint
o Disabling
 Directly forbids transfer of land
 E.g. A to B, but B cannot transfer the land to anyone
36




Attempt to transfer by B is completely null & void
Hardly ever upheld  creates land that can NEVER be conveyed – hardly
highest & best use for land to be owned by someone who does not want it,
can’t sell it, and will probably leave it unused
o Promissory
 Grantee makes a promise not to transfer
 Contractual in nature
 Remedy = money damages for breach
o Forfeiture
 If transferred the property vests in someone else
 E.g. A to B, but if B transfers, then to C
 If B transfers, the property springs to C
 Courts more willing to uphold forfeiture restraints  property will flow to
highest & best use... if B no longer wants it and tries to convey, property will
go to C who can then use it or sell it
These restraints can be...
o Full restraints – generally void
o Partial restraints can be held valid – examples of valid partial restraints
 Limiting transfer to a specific person
 Provisions that require neighborhood or association approval
 Rights of first refusal
If restraint invalid  strike out the language containing the restriction and leave the rest of
the conveyance in tact
Riste v. Eastern Washington Bible Camp = Riste’s parents bought lots subject to two restrictions (8) lot
can only be sold to those who agree to abide by church teachings + the church must consent to the sale
and (6) owner cannot do anything not sanctioned by the church. Court finds BOTH restrictions void. #8
is a direct restraint on alienation (this is NOT a right of first refusal, which IS reasonable) and therefore,
per se unreasonable. #6 is void because Washington state law = no discrimination in the sale of property
on the basis of creed/religion. Camp cannot only sell to like-minded people because this does not ensure
the highest & best use of the land  serious restraint on alienation.
Horse Pond Fish & Game Club v. Cormier = Club conveyed land to two members who conveyed it right
back with restriction that Club cannot alienate the land without 100% vote of membership. 30 years
later, Club wants to sell off part of the land and swap the rest for different land. Cormier is the sole nayvoter. Court finds restraint on alienation would be valid, even though the restraint would normally be
considered unreasonable, if the Club is a charity.
VII. Dividing up Property Rights Over Time
A. Estates and Future Interests
1. System
Definitions PLUS SEE CHART IN APPENDIX
IMPORTANT NOTE: Name of an interest is fixed at time of creation – If interest is
conveyed to another party, that interest retains its original name/properties even though it
may now, for example, be in a 3rd party and not the grantor
 Fee Simple Absolute
o Property ownership without an associated future interest
o Infinite in duration
o The most complete interest in property that one can create
o If owner dies, land  devisees in will or heirs by intestacy statute
37

o About 99% of all private land in US
 O to A
 O to A and his heirs (words of art; doesn’t go to heirs)
 O to A in Fee Simple
Defeasible Fee
o Interest that terminate at the happening of a specified event
 O to A while used for residential purposes
o Associated future interest can be in
 Grantor
 3d party
o Associated future interest may become possessory
 Automatically
 Fee Simple Determinable (future interest in grantor)
 Fee Simple Subject to Executory Limitation (in 3d pty).
 Upon assertion of right by interest holder
 Fee Simple Subject to Condition Subsequent
o Future Interest in Grantor
 Fee simple determinable
 O to A so long as used for residential purposes
 O has possibility of reverter  future estate
o Once A stops using the land for residential purposes,
A’s estate automatically ends and O is left with a fee
simple absolute
 Fee Simple Subject to Condition Subsequent
 Condition Subsequent = grantee gets the property, but will lose
it if the condition later fails, i.e. condition will fail (or not) after
the estate becomes possessory
 O to A, but if A fails to use the property for residential
purposes, O shall have right of entry
 O has right of entry  future estate
o Once A stops using the land for residential purposes, O
must take affirmative action to end A’s estate
o Future interest in 3d Party
 Fee Simple Subject to Executory Limitation
 O to A, but if not used for residential purposes, then to B
 B has executory interest  future estate
o Once A does not use the land for residential purposes,
B’s interest automatically cuts short A’s interest and
becomes possessory
o Two Types of Executory Interests:
 Shifting = executory interest that divests another
transferee, e.g. O to B, but if C returns from
France, to C
 Springing = executory interest that divests the
transferor following a gap in time during which
no other transferee has the right to possess, e.g.
O to C, if C returns from France
o Future interest cuts short or divests another estate or
interest in order to become possessory
38
o Only future estate created in 3d party that is not a
remainder

Life Estate
o An interest held for the life of the designated individual
o Person holding the life estate cannot determine what happens to the estate on
the holder’s passing.
 Holder can only convey the interest she has, i.e. a life estate
 O to A for life; A to B
 B has a present interest in the land until A’s life is over – a.k.a.
life estate pour autre vie
o Future interest can be in grantor, or 3d party.
 In Grantor—Reversion
 Once A’s life estate ends, O’s reversion automatically becomes
possessory  O has fee simple absolute
 In 3d Party—Remainder
 Upon the natural termination of the life estate, i.e. A dies, 3d
party’s remainder automatically becomes possessory
 Remainders do not cut short the previous estate
 Remainders only follow life estate, fee tail, or term of years
o Types of Remainders
 Contingent Remainder
 Contingent if:
o Subject to a condition precedent (other than natural
termination of the prior estate) OR
 Condition Precedent = grantee cannot receive
the interest until the condition is satisfied, i.e.
the condition must occur before the estate can
become possessory
o Created in an unascertainable person
 An element of uncertainty exists, i.e. will the condition occur
OR will the person become ascertainable
 Vested Remainder
 Vested if:
o Created in living, ascertainable person AND
o NOT subject to any condition precedent
 Types of Vested Remainder
o Absolutely (or Indefeasibly) Vested Remainder
o Vested Remainder Subject to Open
 Vested remainder in one or more ascertainable
members of a class
 Class may be enlarged by the addition of
presently unascertainable persons
 Rule of Convenience on Class Closing
o Class closes naturally by death of
one parent OR
o Class closes when any member
of the class can take possession
of the interest
 The interest is certain to become possessory, but
the size of the share in the estate is uncertain
39

Present Interest
Estate
Fee simple absolute
Fee simple determinable
Fee simple subject to condition
subsequent
Fee simple subject to executory
limitation
Life estate absolute
Defeasible life estate
Fee tail
O to A for life, then to the Children of
Clinton
 Vested in Chelsea, but Clintons may
have more—the OPEN means it might
change, i.e. is subject to dilution –
Chelsea has whole interest now, but if
another child born, they each get ½
interest
o Vested Remainder Subject to Divestment
 Really just vested remainder subject to a
condition subsequent
 Remainder is certain to become possessory
unless some specified event occurs
 O to A for life, then to B, but if B
becomes a lawyer, then to C
Future Interest
Created in
Created in Transferee
Transferor
N/A
N/A
Possibility of
N/A
reverter
Right of entry
N/A
N/A
Executory interest
Reversion
Reversion
Remainder
Remainder or
executory interest
Remainder
Reversion

Leasehold OR Nonfreehold Estate
o Freehold = ownership of land, e.g. fee simple, life estate, fee tail
o Nonfreehold = lease of land
o Types – defined below
 Term of Years
 Periodic Tenancy
 Tenancy at Will
 Tenancy at Sufferance
2. Interpreting Conveyances
 Fill gaps with reversionary interests (back to O)
 There must be clear intent to create a future interest
 Fee simple absolute is the presumed estate if conveyance is ambiguous
 If no time frame is given for a condition to be satisfied, courts imply “reasonable”
time
 Tension: promoting free alienability vs. effectuating the grantor’s intent
Wood v. Board of County Commissioners of Fremont County = Π sold land to Δ to be used as a
hospital. At some point, Δ ceased this use. Π argued the deed conveyed a fee simple
determinable OR fee simple subject to condition subsequent and therefore, he kept a reversion if
the building was not used as a hospital. The court finds a fee simple absolute due to the lack of
40
clear intent on the part of the grantor, in the language of the deed, to convey an interest that
would create a reversion for himself. Promotes free alienability.
Forsgren v. Sollie & LeFleur = Land conveyed by Forsgren to Sollie on condition that several
things occur, i.e. land used as residence or church, build fence, do survey, etc. After 10 years,
conditions not met and Forsgren re-entered land and brought suit to quiet title. In the meantime,
LeFleur bought land at tax sale and found Sollie to purchase a quitclaim deed from him. Court
finds the conditions in the deed enough to create a fee simple subject to a condition subsequent
and that Forsgren has a latent right of entry that she asserted by physically reentering the land
and making improvements.
3. Rule Against Creation of New Estates
 Goal is to promote the free transfer of property
 Courts will not allow the creation of new types of estates
 Conveyance which does not fit within any of the established categories must be
interpreted to create the most closely analogous estate
 E.g. “To A and his heirs on his mother’s side” becomes “To A and his heirs”
Johnson v. Whiton = One third of an estate was devised to Whiton and “her heirs on her father’s
side” from her grandfather. Later, Whiton attempted to sell her portion of the estate in fee
simple absolute and was sued by Johnson, another of the grandfather’s devisees. The court held
that granting an estate to heirs on one parent’s side was not a recognized estate and therefore was
not allowed. Therefore, the words “on her father’s side” were removed from the conveyance,
leaving a fee simple that Whiton could later convey in fee simple absolute.
4. Rule Against Perpetuities
a. Mechanics
 “No interest is good unless it must vest, if at all, not later than twenty-one
years after some life in being at the creation of the interest.”
 If there is any remote possibility that a covered interest may remain contingent
(i.e. uncertain – the interest will not change to a vested interest or a possessory
estate), after the perpetuities period, the interest is void
 Interest must necessarily vest or forever fail to vest during a period equal to
any relevant life + 21 years
 Perpetuities period = period where all lives in being at the creation of the
interest are alive + 21 years after the last death
 If interest violates the rule  null & void when created; judicially stricken
from conveyance language
 Five-Step Approach
o Determine if RAP applies to the future interest at issue
 RAP ONLY applies to
 contingent remainders
 vested remainders subject to open
 executory interests
 Restatement also exempts options to repurchase &
rights of first refusal
 RAP does not apply to
 present estates
 future interests held by grantor (except options to
purchase & right of first refusal)
41

 reversion
 possibility of reverter
 right of entry
 vested future interests in 3rd party (except for vested
remainders subject to open)
o Decide when the perpetuities period begins
 Period begins when the instrument that creates the interest
becomes legally effective
 Will = effective when testator dies
 Testamentary Trust (by will) = when testator/settlor dies
 Inter Vivos (during life) Trust = effective only when it
becomes irrevocable, i.e. when settlor declares it irrevocable or
settlor dies
 Only a person who is living at this time can be a “life”
o Determine what must happen for the interest to vest or forever fail to
vest
 What is the condition?
 A future interest may become vested before it becomes
possessory
 Once the contingency is met  contingent remainder will vest
 Contingent executory interest is contingent until the holder is
entitled to possession of the land
 CLASS GIFTS – all or nothing rule
 Interests of all class members must comply with the
Rule in order for the interest of any class member to be
valid
 Class closes if (1) no new members can be added to the
class OR (2) under the “rule of convenience” – any
class member’s share becomes possessory
o Identify the persons who can affect vesting
 Relevant lives are persons who are alive, or in gestation, at the
time the instrument becomes effective
 Relevant lives may be:
 Holder of the interest
 Person creating the interest
 Any person who can affect a condition precedent
attached to the interest
 Any person who can affect the identity of the holder
 Corporations cannot be relevant lives – perpetuities period
usually found to be only 21 years
o Test each relevant life to determine if any one validates the interest
 Create a perpetuities period for each relevant life
 Try to logically prove that the interest will either vest or
forever fail during that person’s life, at his death, or within 21
years after his death
 If the answer is yes for any relevant life  that life is the
validating life
Modern RAP Reform
o “Wait & See” Approach = Wait for perpetuities period to expire and
determine if the future interest actually vested/failed in that time
42

o Cy Pres or Equitable Reformation = Reduces an age contingency that
violates RAP to cone that is valid, i.e. 25 to 21
o Uniform Statutory Rule Against Perpetuities (USRAP) = Validates
future interests that otherwise violate the traditional RAP if the future
interest vests at any time within 90 years of the date of its creation
Policy for RAP: Eliminates dead hand control by grantor who tries to control
future interests too far into the future – marketable property vs. intent of the
grantor
b. Scope
 Court looks at why RAP exists (free alienability) and decides if subjecting the
instant interest to the RAP serves that policy
 Non-traditional future interests may be subject to RAP
o Right to Repurchase
 Even though grantor owns future interest still subject to RAP
 Rights to repurchase are akin to executory interests (especially
if fixed price)
 Public policy rationale may cause a right to repurchase NOT to
be subject to RAP
o Option to Purchase
 Generally subject to RAP
 If no time limit included (or not exercised within lease term) 
void
 Leasehold + Option = incentive to improve the land since
lessor gets it later if he chooses to buy  not subject to RAP
for public policy reasons (better serve RAP by NOT applying
it)
o Right of First Refusal
 Courts always uphold right of first refusal in condo/coop
context
o Contractual Rights
 RAP does not apply to “exclusively contractual” transactions
 Restatement
 Transaction must “concern no specific land”
Central Delaware County Authority v. Greyhound Corp. = Baldwin Locomotive
conveyed land to Del. County for public use. The conveyance gave BL a right to
repurchase if the land was ever not used for a public purpose at the fixed price of $5500.
BL (now Greyhound) argued that the conveyance created a fee simple subject to
condition subsequent and therefore was not subject to the RAP. Del. County argued that
the interest was a right to repurchase and therefore subject to RAP. Court holds that the
future interest is an option to repurchase and subject to the RAP. Relies on the
Restatement and general public policy that if conveyance ambiguous (no clear intent on
part of grantor to create a specific estate/future interest), err on the side of free
alienability.
SEPTA v. Philadelphia Transportation Company = On any July 1st after 1957, SEPTA
has right to repurchase all property conveyed to Co. Court finds this is a contract
provision and not a contingency on the conveyance. Therefore, it is not subject to the
RAP. Importance of ensuring RR service for the city residents helped court decide that
city should retain right to repurchase free from RAP. DISSENT: Strong free alienability
43
argument here – no one will purchase any property from Co. if this limitation is not
subject to RAP.
Texaco Refining and Marketing, Inc. v. Samowitz = Leasehold with option to buy at end
of lease term. The lease term was 15 years with an option of 3 renewal periods of 5 years
each. The lease was actually renewed twice, therefore, tenant held land for 25 years.
Court holds that since option to repurchase at end of lease jives with policy of RAP, then
it is valid without regard to the RAP, itself. Furthermore, since the options had to be
within the lease term (here after 15, 5, 5, and 5 years, respectively), it would be valid
under the RAP anyway since the interest would vest/fail within 21 years.
Cambridge Co. v. East Slope Investment Corp. = Condo had a right of first refusal clause,
i.e. right to purchase for same terms and conditions as a bona fide offer, if the potential
buyer is rejected by the board. The board exercised this right and East Slope conveyed
property to buyer anyway. Strict application would find the right of preemption in
violation of the RAP (uncertain that the future interest would vest/fail within 21 years).
Court finds that right of first refusal is not a direct restraint on alienation and therefore
serves the policy of the RAP and is held valid for public policy reasons.
B. Relations Between Owners of Successive Interests
 Balance future interests & present interests
 Waste = Present interest holders are not allowed to “waste” land so that it has less value
when the future interest becomes possessory
o Voluntary Waste = Result of deliberate affirmative acts of the possessory tenant to
diminish the value of the subsequent interest
o Permissive Waste = Result of the failure of the possessory tenant to exercise ordinary
care in the protection/preservation of the estate
o Ameliorating Waste = Changes made to the property that increase the value – usually
this is OK and remainderman cannot recover damages
 Waste shows why legal life estates suck  better to set up a trust, i.e. equitable life estate
Moore v. Phillips = Brannan dies and leaves a life estate to his wife, Ada, and the remainder to his
daughter, Moore. Ada lets land go to pot and after her death, Moore sues the estate for waste. Court
finds that the conveyance (including both present & future interest) created a quasi-trust with Ada as the
quasi-trustee and Moore as the quasi-beneficiary. Therefore, Ada had a duty to act in the best interest of
Moore and has failed to do so.
Baker v. Wheedon = John estranged from kids and leaves property to wife Anna and then to his
grandchildren if Anna dies without any heirs. Anna is old & living on the land but not making enough
money by leasing it for crops. Anna wants to sell the property since a new highway will be built nearby
in the future. Grandkids want to force her to hold on to the land since it will be more valuable after the
highway is actually built. Court finds this would be “economic waste” – even though the theory of
waste doesn’t really fit here – and orders an equitable remedy other than sale of the entire property.
C. Leasehold/Nonfreehold Estates
1. Generally
 Interest holder does not/will never own the property
 License vs. Leasehold
o License = Right of access but NO right to exclude
o Leasehold = Right to exclusive possession of the property
44

License  Leasehold  Freehold – Number of sticks interest-holder has in the
bundle increases to the right
 Types of Leasehold Estates
o Term of Years
 Lasts for specified period of time
 Terminates at the end of that period
 May terminate before the end of the fixed period upon the happening
of some event/condition stated in the lease agreement
 Future interest retained by landlord = reversion
o Periodic Tenancy
 Renew automatically at specified period unless either the landlord or
tenant chooses to end the relationship
 Month-to-month
 Notice is required before either party can terminate the relationship
 Death of landlord/tenant does not terminate the tenancy
o Tenancy at Will
 Similar to periodic tenancy except that it can be ended with no notice
by either party
 Most states have abolished this type OR created notice requirement
rendering it the same as periodic tenancy
 Death of either landlord or tenant terminates the relationship
o Tenancy at Sufferance (a.k.a. Holdover Tenancy)
 A tenant rightfully in possession who wrongfully stays after the
leasehold has terminated
 Meant to distinguish between holdover tenant & trespasser
 Owner may be able to physically eject a trespasser, called self-help
 Owner usually required to go bring eviction proceedings to remove
tenant
 Landlord who accepts rent checks from holdover tenant may be held to
have agreed to a new tenancy calculated by rental payment schedule,
i.e. monthly payments  month-to-month tenancy
 Landlord/Tenant Law Generally
o Mostly statutory
o More concerned with people than the land  contractual in nature
o Consumer protection flavor
o Statute of Frauds applies – any leasehold for term greater than one year
MUST be in writing
 Assignment/Subletting
o Assignment = give balance of lease, i.e. tenants entire interest, to another
party
o Sublet = give up something less than tenant’s entire balance, i.e. let someone
take over part of lease with tenant retaining a right of re-entry
o In DC...
 Landlord can say NO in lease, but usually not given effect
 Landlord can only be reasonable in not consenting to the
sublessor/assignee
2. Tenant’s Duties & Landlord’s Remedies
 Tenant’s Duties
o Pay rent
o Not to commit waste
45

o Not to use property for illegal purposes
o Return possession to landlord at end of lease period
o Specific statutes/lease provisions pertain to one of the three or may expand the
duties
Landlord’s Remedies
o When Tenant Breaches & Refuses to Leave
 Breach = stop paying rent OR breach of material term in lease
 Landlord may sue for back rent (rent already due but not paid)
and for possession
 Tenant’s Defenses
 Landlord’s breach of implied warranty of habitability
 Landlord’s breach of covenant of quiet enjoyment
 Eviction based on discrimination
 Retaliatory eviction
 If Tenant holds over, but continues to pay rent, Landlord can...
 ACCEPT new tenancy relationship –
o If landlord accepts a month’s rent check  new
tenancy created as month-to-month
o OR if landlord accepts any rent , a new term
(equal to previous term) is created
o Some jurisdictions = if landlord accepts any rent
payment he necessarily creates a new tenancy
 REJECT new tenancy
o Tenant  tenant at sufferance
o Landlord should sue immediately for possession,
refuse to accept tenant’s proffered checks, and cash
checks but write on back purpose = cover rental
value & NOT new tenancy
 Self-Help
 Common law rule = self-help is ok IF
o Landlord is legally entitled to possession of the
property AND
o Landlord uses peaceable means of reentry (probably
only peaceable if property abandoned or tenant
consents to reentry)
 Majority of states say NO self-help  Landlord has duty to
use judicial process to evict tenant after breach
 Why?
o Protect tenants with less bargaining power than
landlords
o Don’t want landlords to be the “judge of their own
rights” and decide if they had legal entitlement to
possession
o Requires landlord – who probably has more
resources – to bring suit rather than requiring tenant
wrongfully evicted by self-help to sue
o Residential leases  strong policy to ensure that
tenant has truly leased before removing someone
from their home
46
Berg v. Wiley = Tenant remodeled rented building without authorization in violation of the lease
agreement (related to duty not to commit waste). As per agreement, landlord tries retake
possession by self-help, i.e. changing the locks on the building. The court finds that the
traditional requirements for self-help were not met, i.e. landlord’s reentry was not peaceable even
though no actual violence took place. Furthermore, the court tried to steer the common law away
from self-help by holding that the landlord had a duty to go through summary procedure to evict
tenant in breach of lease agreement.

Assume there is a duty to
mitigate for the exam
Summary Process
 Relatively fast judicial determination of the landlord’s
claim of a right to regain possession of her property
 Limited issues that can be addressed, but more & more
defenses allowed
o When Tenant Breaches & Leaves
 Breach = stops paying rent AND moves out before expiration of
lease term
 Landlord has three remedies
 Accept Tenant’s Surrender
o Tenant not legally obligated to pay future rent
o Landlord can still sue for back rent owed &
damages (not all future rent) for the breach
o Damages = rental price – fair market price +
reasonable costs in finding new tenant
 Re-let on Tenant’s Account
o Refuse to accept surrender (difficult to convey this
to tenant & court)
o After notice to tenant, find a new tenant to finish
out previous tenant’s lease term
o New rent must be reasonable
o If re-lets for less than rental price, landlord can sue
for damages
o Damages = old rental price – new rental price
 Wait & Sue
o If no duty to mitigate
o Landlord can wait until end of lease term and sue
tenant for the remaining unpaid back rent
 Landlord’s duty to mitigate
 About 50% do NOT require landlord to mitigate damages
by re-letting apartment or accepting surrender
 About 50% DO require landlord to mitigate
o If landlord fails to mitigate  damages reduced by
amount that would have been avoided if landlord
had mitigated by acting reasonably to find a
replacement tenant
o If landlord does mitigate can recover from tenant
(1) reasonable costs of finding new tenant, (2) rent
for premises while vacant, and (3) difference
between rental price and new rent (if lower)
 Trend towards requiring mitigation
 Landlord only required to make reasonable efforts to
mitigate damages
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Sommer v. Kridel = Existing law in NJ = NO duty to mitigate. After signing a lease, Kridel told
Sommer that he could not take the apartment, i.e. he surrendered. A third party inquired about
taking the apartment and Sommer flatly refused to rent it until 14 months later. Perosio
surrendered his apartment after having lived there for one year. During the second year of the
existing lease, Riverview Realty did not re-let the apartment. Court articulates a new rule that
landlords DO have a duty to mitigate. Relies on policy reasoning that the best use of the
property is to have it rented, rather than sitting around collecting damages, leases should be
governed by contract law (which traditionally held that duty to mitigate damages exists), and
unfairness to tenant.
o CAN put liquidated damages in lease for any breach, but courts may find
them void if unconscionable, against public policy, or constitute a penalty
3. Landlord’s Duties & Tenant’s Remedies
 Landlord’s Duties
o Duty to deliver possession
 Landlord must actually make property exclusively available to tenant
 Typical breach = holdover tenant stops new tenant from taking
possession
 Tenant dispossessed before he moves in
o Covenant of quiet enjoyment
 Promise by landlord that no third parties have better title to property
than tenant does
 Tenant dispossessed after he has moved in
 Ways to breach covenant:
 Actual Eviction = Cause tenant to be dispossessed of property
(landlord by self-help, bank foreclosure, etc.)
 Constructive Eviction = When property becomes uninhabitable
such that tenant cannot reasonably live there anymore
o Ex. floods, bringing prostitutes around, noise at night,
construction, persistent rodent problem, etc.
o Traditionally, tenant actually had to leave premises
o Minjak Rule = NO requirement that tenant leave
 Partial Constructive Eviction = Landlord has made part of the
property completely uninhabitable
o Response to rule that tenant actually had to leave for
constructive eviction to exist & tough market
o To prove, tenant must tell landlord of the situation &
give him an opportunity to fix it
o CAN move out after part of property becomes
uninhabitable, but new rule = don’t have to
 Landlord is responsible for breach of covenant if it is within the
landlord’s control and would be the natural & probable
consequence of the landlord’s actions
 Ex. landlord knew the nightclub would be too loud, but would
not know an elderly tenant would play the trumpet every night
o Implied warranty of habitability
 At common law standard = “fit for human habitation”
 Most important landlord duty
 Promise by landlord that premises are habitable
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Habitable has been held to include heat, a/c, hot water, elevator,
plumbing, no pests/rodents, etc.
 Landlord also has affirmative duty to repair property if it becomes
uninhabitable during lease term
 Both common law & statutory duties exist – may differ
 Violation of housing code may  breach of warranty
 Many jurisdictions have followed Javins in holding that warranty is
non-waivable  policy considerations
Should be waivable
Should NOT be waivable
If willing to get less rent, why not let
 Shouldn’t be allowed to waive rights to
LL/T strike deal with no warranty –
sanitary conditions  black plague
freedom of contract
 LL has certain duties
Can use apartment for purposes other
 Ts are receiving a package of goods &
than residence
services, not just the building/land
People have different ideas of what is
 Could lease to worse & worse
habitable
neighborhoods
Still enforceable as housing code
 LLs cannot coerce Ts to take a place
violations
without warranty just because its the
only thing available
LLs pass costs on to T & now Ts can’t
afford rent
 Too much litigation to decide if waiver
is unconscionable
Tenant’s Remedies
o Breach of duty to deliver possession
 Tenant can sue for damages &/or affirm the lease and wait for landlord
to deliver the apartment
 Damages = cost of staying in a hotel, looking for new apartment (if no
affirmation of lease), etc.
o Breach of covenant of quiet enjoyment
 Usually used as a defense to nonpayment of rent suit by landlord
 Tenant will not be liable for all or part of the rent, i.e. rent abatement
(usually if partial constructive eviction – only pay for part that was
habitable) and may be entitled to both compensatory and punitive
damages
 Compensatory damages beyond rental price = damage to personal
property, cost of staying in hotel, looking for new place, etc.
o Breach of implied warranty of habitability
 Rescission (right to move out before the end of the lease term) –
Tenant may stop performance, i.e. stop paying rent & leave without
being liable for rent during the remaining portion of the lease term
 Tenant can withhold the entire rent while still living in the premises –
even if tenant later forced to repay portion of rent (only receive
abatement for landlord’s breach) after suit – best to put the rent into
escrow just in case)
 Tenant can sue for declaratory judgment that landlord has violated
warranty and ask for rent abatement as relief
 Rent abatement
 Based on percentage of rent that tenant is entitled to withhold –
depending on how serious the breach was
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Based on fair market value test, i.e. amount tenant owed during
period of disrepair = fair market value of rent landlord could
get if he leased the apartment “as is” on the market
Tenant can make repairs herself and then deduct cost from rent
Tenant can sue for injunctive relief or specific performance, i.e. that
landlord make all necessary repairs
Administrative remedies
Criminal penalties
Tenant can sue landlord for compensatory damages resulting from
breach of warranty
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Minjak Co. v. Randolph = After numerous offenses by landlord, tenants stopped paying rent. Landlord
brought suit for possession and nonpayment of rent. Tenants’ defense is breach of covenant of quiet
enjoyment, i.e. constructive eviction. However, tenants did not leave the premises – only 2/3 completely
uninhabitable. Court finds this to be a “partial constructive eviction” and that as long as tenant apprises
landlord of situation and gives him reasonable time to fix, there is no duty to move out. Tenants were
awarded rent abatement (reduction to reflect part of property not usable) and punitive damages.
Blackett v. Olanoff = Landlord leased bottom floor of building to a nightclub with a provision in the
lease that the music can’t be too loud. Music was too loud and upstairs tenants did not pay April rent.
Landlord sued for back rent. Tenants’ defense was breach of covenant of quiet enjoyment. Court found
that since landlord had power to control the nightclub-tenant (he could have evicted for breach of lease
agreement), he should be liable for the breach of the covenant with the other tenants. The landlord was
chargeable with the “natural and probable consequences” of making the lease with the offending tenant.
Javins v. First National Realty Corp. = Tenants stopped paying rent and landlord sued. Tenants’ defense
was breach of implied warranty of habitability and alleged numerous housing code violations. New Law
in DC = violation of the housing code is the same as breach of implied warranty of habitability (but not
necessarily vice versa). Furthermore, the warranty is non-waivable. The change was warranted by the
major changes in landlord/tenant law including: shelter is the new basis of value in the leasehold (not the
actual land), tenants no longer able to make repairs themselves, landlord/tenant law more & more
governed by contracts and therefore implying warranty ok, landlord/tenant really seller/buyer
relationship, tenant has right to expect premises are habitable for entire lease period, unequal bargaining
power between landlords and tenants, anomalous to void a lease for violation of housing code at time of
lease, but ok to afford no remedies if same property violates code during lease term.
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