TENANCIES
Term of yearsa tenancy of (1) fixed duration where (2) no notice is required
for termination, and termination occurs EITHER (3) at the end of the duration
OR (4) when a specified condition occurs (determinable).
Periodic tenancya tenancy of (1) successive fixed durations that requires (2)
a minimum of half a year notice OR notice equal to the length of the lease for
termination, depending on (3) the length of the lease, and (4) terminates upon
adequate notice by EITHER party.
Tenancy at willa tenancy of (1) no fixed duration that requires (2) no notice
of termination, and terminates (3) by choice of either party, (4) nonpayment of
rent OR (5) upon the death of either party. Some statutes require 30 day notice
OR notice equal to time of interval between rent payments.
Power of terminationMutual power of termination must be expressly stated
to create tenancy at will.

Garner v. GerrishForm lease said the lease continued for a term of quiet
enjoyment, but gave P right to terminate at a date of his choice. P lost
property.
Tenancy at sufferancea (1) periodic tenancy of (2) maximum one year
duration with (3) same terms of original lease that occurs where a landowner
treats his tenant as a (4) holdover (rather than trespasser) and in some
jurisdictions is allowed to (5) charge the tenant double rent.
Holdover tenanciesIf landlord does not eject and accepts rent monthly,
tenant becomes holdover and gets an implied, month-to-month lease extension.

Crechale & Polles, Inc. v. SmithD sent P a rent check, which was
cashed and accepted by P. P could not recover back rent and damages
because tenant was holdover.
LeaseAn instrument conveying a tenancy and creating a contract, which must
be documented in writing if duration is more than one year.
LEASE DELIVERY, SUBLEASE AND ASSIGNMENT
Lease Delivery/AmericanLandlord has (1) no duty to put lessee in actual
possession, so (2) lessee must enforce remedy against the holdover.

Hannan v. DuschD liable because he was supposed to make the
premises open for entry to P when P’s term began, but allowed prior
tenants to remain on property.
Lease Delivery/England/TXImplied covenant, extending (1) no later than
first day of new lessee’s term, which (2) requires landlord to put the lessee in
actual possession.
Subleasecontract (1) between sublessor and sublessee to which the (2)
landlord does not have privity, created (3) by the transfer of the lessee’s estate
(4) for less than the entire term, and (5) NOT by the word “sublease.”
Assignment of leaseconveys (1) the entire interest, (2) leaving no interest,
reversionary interest or liability in the grantor or assignor, (2) for the entire
term.

Ernst v. CondittOriginal lessor built a go-cart track, D subleased the
property and owner sued for rent and to remove the go-cart track. Original
lessor was liable because instrument was an assignment of lease, not
sublease.
Approval Clause/Majority ViewIf lease contains clause requiring approval
for assignment, landlord can (1) arbitrarily refuse to approve a proposed
assignee and (2) avoid consequences via estoppel and waiver.
Approval Clause/Minority ViewIf lease contains clause requiring approval
for assignment, lessor may only refuse to approve a proposed assignee IF (1) he
has a commercially reasonable objection to the assignment.

Kendall v. ErnestLandlord City of San Jose refused to allow lessees to
assign their interest in a hangar, but lessees could imply consent because
there was no express provision granting permission.
TERMINATION/ABANDONMENT/EVICTION
Termination and Recapture ClauseBefore subletting/assigning, tenant (1)
must give notice to landlord, and landlord may (2) terminate and enter into new
lease with assignee/sublessee (3) without giving tenant any of the profit.
Self-Help/modern ruleThe only lawful way to dispossess a tenant who (1)
claims adverse possession and (2) has neither abandoned nor (3) voluntarily
surrendered the property, is by (4) resort to the judicial process, with remedies
such as the summary judgment.

Berg v. WileyD reserved right of re-entry if P failed to maintain a
sanitary restaurant, and P failed to maintain the restaurant, but D was
liable because he re-entered before the lease was over and thus before P
abandoned property.
Self-Help/common law ruleIf a landlord is (1) legally entitled to re-enter in
a (2) commercial lease and (3) his tenant may harm the property (waste), the
landlord may use self-help to retake leased premises provided that he (4) is
legally entitled to re-enter and that he exercises the self-help (5) in a nonviolent
manner (6) using only RSBL force.
Abandonment/majorityLandlord has no duty to mitigate.
Abandonment/minorityIf a tenant defaults and wrongfully vacates the
apartment, a landlord is under a duty to mitigate damages with RSBL diligence
by re-letting an apartment.

Sommer v. KriedelD sent landlord a letter beseeching to be released
from lease and yielding rent already paid. Landlord did not respond,
refused to re-let the property to interested party and sued D for full amount
of two-year term. D not liable.
Constructive evictionTenant’s obligation to pay is terminated by a (1)
shortcoming in the leased property that is (2) substantial enough to be (3)
equated to eviction.
Material failure of considerationSubstantial interference with the beneficial
enjoyment of the premises.
LANDLORD’S DUTIES
Moral hazardTendency of insured to relax his efforts to prevent the
occurrence of the risk he is insured against because risk has been shifted to the
insurance company.
Breach of quiet enjoymentThe landlord’s conduct renders the property (1)
substantially unsuitable for the purpose leased or (2) deprives the lessee of the
beneficial use of the property, whether (1) by positive acts of interference OR
(2) by withholding something (3) essential to full enjoyment AND (3) included
in the lease terms.

Reste Realty Corp. v. CooperAdjacent driveway caused water to run
into office space. Lessor was liable for his failure to repair, even though
cause of flooding was not on the property because after building manager
died, because breach of covenant of quiet enjoyment and material failure
of K consideration.
Landlord’s implied dutiesLandlord has implied duties to (1) keep premises
habitable (short-term leases only), (2) disclose latent defects in the property he
knew or should have known about, (3) maintain common areas, (4) undertake
repairs carefully and (5) abate immoral conduct/nuisances (some jurisdictions
only).
Implied Warranty of Habitability (IWH)Lease of any (1) residential
dwelling unit comes with an (2) unwaivable (3) implied warranty that the (4)
premises are safe, (5) clean and (6) fit for human habitation.
Breach of IWHTenant must establish (1) breach of local or municipal
housing code, (2) defect that has an impact on safety or health of tenant, and
that he (3) notified the landlord and (3) allowed RSBL time for correction.

Hilder v. St. PeterTenant P was able to recover her rent when landlord
D failed to repair his tenant’s leaky ceiling, missing lock, broken toilet,
broken light, lack of electricity and broken sewage pipe in the basement.
Withholding RentFuture rent may be withheld if tenant shows that (1)
landlord had notice of previously unknown defect, (2) failed within RSBL time
to repair, and that the defect (3) affects habitability and (4) existed during the
time when rent was held.
Damages for breach of IWHDamages may be awarded for (1) discomfort
and annoyance or breach of a (2) willful and wanton, manifesting a reckless
disregard of one’s rights OR of a (2) fraudulent nature, manifesting personal ill
will.
Landlord’s DEFENSES to IWHLandlord does not breach IWH if (1) code
violations develop after the lease was made, (2) violations are minor and
technical, (3) landlord never had constructive or actual notice of the violations.
No IWH/Illegal leaseIn jurisdictions that don’t protect IWH, tenant under
illegal lease becomes tenant at sufferance and may stave off an eviction action
by withholding rent.
TENANT’S DUTIES
Tenant’s implied dutiesTo not commit waste by changing (1) a
vital/substantial portion of the property, (2) appearance, (3) fundamental
purpose of building or (4) uses that would affect the property, and (5) NO
DUTY to repair.
Tenant’s DEFENSESTenant not liable for breach of duty if (1) degree of
use is not great, (2) length of term remaining is great and (3) express lease
covenants exclude liability for wear and tear, damage by fire or other casualties.
LANDLORD/TENANT PUBLIC POLICY
Chicago Board of Realtors, Inc. v. ChicagoCourt struck down an
ordinance that codified IWH, landlord/tenant rights, and fixing rate of
interest landlords could charge.
Deprived parties w/o political efficacy, benefited non-leasing middle class and
reduced resources of landlords to devote to quality of housing.
Rent Control DebateRC is good if (1) demand for units rises and (2)
production of units decreases. RC is bad because it encourages stasis,
discrimination on the basis of non-rent factors, decrease of quality and quantity.
NUISANCE
Nuisance (acc. to Burke)Nuisance is any (3) substantial, (4) non-trespassory
(5) interference with USE & ENJOYMENT of land through (6) negligent,
reckless or ultrahazardous activities, OR (7) activities that are intentional and
UNRSBL.

Martin v. ReynoldsD’s aluminum plant liable for poisoning cattle with
fumes because intrusion may be either visible (physical) or invisible
(particles).

Morgan v. High Penn Oil Co.D was liable for intentionally and
UNRSBLY interfering with P’s ability to enjoy his property by allowing
gases to escape on P’s property, as a result of D’s properly operating an oil
refinery near P’s property.
DEFENSES to nuisanceSpite, ugliness, assumption of risk, equitable
hardship doctrine, balancing hardships test and abnormally sensitive uses
EXCEPT malice in abnormally sensitive use cases.

Spur Industries v. Del WebbCourt enjoined cattle feedlot to shut down,
even though it got there before the retirement community, because it was a
public nuisance, but allowed it to recover damages. Assumption of risk
defense failed because it was public nuisance.
Private nuisanceInterference with a (1) private group or (2) landowner’s (3)
use and enjoyment of (4) property or (5) property rights not common to public,
where only (6) owners in interest may sue and where (7) courts protect the
rights in use & enjoyment of the land, (8) favoring damages over injunction.
Public nuisanceInterference with (1) rights common to a considerable
number of people in a community or neighborhood, where (2) any member of
the affected public may sue if he can show (3) special injury and where (4) the
court seeks to protects public rights.
TrespassTort that a person is liable for if he (1) interferes with the (2)
exclusive POSSESSION to someone else’s property.
Recovery/Equitable hardship doctrine To decide between damages and an
injunction in a nuisance case, one must (1) balance the equities and allow
injunction only if (2) the benefits and disadvantages to the injured party AND
the public outweigh the (3) benefits and disadvantages to the other AND the
public, or else (4) allow damages only.

Estancias Dallas Corp. v. SchultzCourt enjoined from operating massscale A/C equipment for its apartment complex because Houston already
has a lot of apartment complexes, and there was no public benefit in
allowing the noisy A/C systems.
Recovery/Balancing Injuries TestTo decide between damages and
injunction in a nuisance case, examine (1) the total damage to P’s property
versus (2) operation costs of D, and if (3) damages are substantial, then (4)
injunction should be granted. (Problemother harms, like health damages, not
considered.)
Lowest-cost avoiderAfter examining the (1) extent and character of harm,
(2) social value of use, (3) location and (4) burden of avoiding harm, the (1)
utility of the lowest-cost avoider’s conduct (2) does not outweigh (3) the gravity
of the harm.

Boomer v. Atlantic CementCourt awarded temporary damages, but
refused to award an injunction to P, who suffered property damage from
dirt, smoke and vibration caused by D, a nearby cement plant. Damages
were not substantial compared to operating costs.
Nuisance Possible Case Results(1) postponement of injunction so D may
decrease harm, (2) give D the ultimatum of permanent damages or injunction,
(3) let activity continue, (4) give D damages if he abates the activity.
EASEMENTS
Lateral/subjacent supportExpressly waivable duty of surrounding land to
provide the lateral and subjacent support to a parcel that it would need and
receive under NATURAL conditions.
EasementsIrrevocable interest in land (1) created by a written instrument and
(2) signed by the bound party, (3) created by implication or created by
prescription, and (4) available in fee simple in perpetual duration, life or term of
years. (6) Valid without written agreement only if compliance with SOF would
be a hardship.
Affirmative EasementEntitles the holder to the privilege of using the land of
another, e.g. a right of way
Negative EasementEntitles the holder to prevent the owner of the land from
making certain uses of the land, e.g. easement to not block use of beach
Easement AppurtenantEquitable covenant where (1) the dominant tenement
is benefited by the easement while the servient tenement is burdened and where
(2) the benefit is tied to the use of a certain piece of land and (3) runs with the
dominant tenement to successive owners, (4) unless someone expresses a
contrary intent and (5) both parties consent to termination.
Easement in GrossFavored by the law, this equitable covenant (1) does not
run, (2) benefits the owner of the easement, (3) is not tied down to any parcel of
land and (4) may be terminated without consent by the dominant owner.
Assignability/Divisibility of EasementsEasements may be divided,
easements in gross may be assigned and appurtenant easements may be
assigned, provided that they don't burden the land more than the original parties
intended. Profits in gross from an easement are assignable, provided that the
parties intended to make them assignable, but an easement is not divisible.

Miller v. Lutheran Conference & Camp AssociationFrank acquired
boating/fishing privileges by easement in gross that became an easement
appurtenant, since the owner Katherine was aware of the regular exercise
of bathing rights for commercial purposes. Frank was able to assign this
easement in gross, and by assigning Rufus a 1/4 interest, he gave Rufus
interest in the entire easement, but the interest could not be divided, so
Rufus could not commercially use his interest or subdivide or license it.
Reservation as regrantA grantor may reserve a reservation, or interest in
property to a stranger to the title, if he expresses his intent in the deed. The
reservation is treated like a grant of the easement from grantee to grantor.

Willard v. First Church of Christ ScientistDisregarding P's reliance on
the old common law rule (no reservations), the court refused to get rid of
easement on a deed "subject to" an easement that "runs with land" and
permitted church parking, since the deed suggested that grantors intended
to convey the easement to the church.
LicenseLicensor may revoke a right of entry license at any time EXCEPT if
the license also includes the right to erect structures and thus becomes an
interest (easement) in the land OR if an implied license.

Holbrook v. TaylorLandowner D, in exchange for a royalty, gave
permission to P to create and use a haul road for moving coal, but
withdrew permission. P successfully sued because he had made
improvements on the road, on the basis of estoppel.
Implied easementRetained by grantor when (1) grantor divides up his land,
selling and retaining part, OR when grantor subdivides property, provided that
there is (2) unity of ownership, (3) easement existed before the land severed by
original owner (Royster), (4) necessity (strict necessity in Texas).
Implied right-of-way easement of necessityRetained by grantor when
grantor sells land surrounded by partly by his own land and partly by other land,
provided that (2) grantor may show that the easement is strictly necessary for
the easement-claimer to get out, though (4) degree of necessity varies according
to jurisdiction and (5) the easement endures only so long as it’s necessary.

Othen v. RosierNeighbor Rosier built a levee on Rosier own property
and muddied the path that Othen often used. Othen could not claim
implied right-of-way easement because at the time that the grantor granted
Othen's parcel, the grantor still owned the parcel where the easement was
situated and therefore did not really had no need (necessity) for retaining
the easement.

Van Sandt v. RoysterD was not liable for using and maintaining a sewer
across P's land because a valid prescriptive easement was created by
implied reservation upon severance of the servient estate from the
dominant estate and because P had actual knowledge of the lateral sewer
and should have reasoned it would drain somewhere.
Grantor’s language in creation of easementGrantor's plain words in the
conveyance TRUMP an implied reservation provided that the easement is not
claimed in strict necessity.
Prescriptive Easement (By Adverse Possession)Assuming that (1) owner
consents to the use and (2) the use is not adverse since we have the owner’s
consent, claimant must, in order to get a prescriptive easement, (4) show the use
was not permissive and that (5) the owner did not object.
Lost Grant TheoryLost grant could be presumed because holder of claimed
servient estate granted an easement to holder of claimed dormant estate.
DEFENSES to Prescriptive EasementOwner has (1) effectively stopped or
(2) interrupted all use.
Public Property EasementEasement may be obtained by long continuous
use by the public under a claim of right if landlord is put on notice that the
public is claiming an adverse right.
Beach Access EasementStates hold the beach from water to mean high tide
line in trust; the dry sand portion is subject to private ownership.
Extension of EasementIf the easement was created via express grant, we
must look to the intent of the parties. Extension of the easement would be
misuse, even if it does not burden servient estate.

Brown v. VossP purchased parcel B and C with the intention of building
a single family home on the border of these parcels, with no increase in
traffic, but the grantor granted the easement only to parcel B. Intent when
original easement was created did not include intent to extend easement to
parcel C, but court balances the equities and lets P remove the obstructions
to the easement.
New Use for Old EasementScope of easement may be adjusted in the face
of changing times as long as scope consistent with intention of original grant.
To determine whether there is an easement, ask (1) whether the new use is
RSBLY foreseeable at the time of the easement's creation and examine (2)
whether the new use increases burden on servient estate.

Preseault v. U.S.Government was liable to property owners for
converting right-of-way RR easements into public trails because despite
the intent of the owners expressed in the language of the deed, it went
beyond the scope of the original easement, increasing the burden on the
servient estate.
ConservanciesNon-profit orgs that work with government to (1) buy land
and (2) negative easements and (3) to accept donations in exchange for breaks
in income taxes and estate taxes for heirs.
REAL COVENANTS
Real covenantA covenant is (1) written and within SOF, (2) requires the
intent of grantor and grantee and (3) touches and concerns (runs w/) the land by
affecting legally enforceable advantages and burdens, (4) requires horizontal
privity (between benefited and burdened party) in order to run and (5) does not
overly burden alienation. May not arise under estoppel, implication or
prescription.
EXCEPTIONSEnglish rule (adopted by NY Courts)If affirmative
covenant, it doesn’t have to “touch and concern” the land.

Tulk v. MoxhayP gains an injunction to prevents D from building on
recreational space which D's predecessor agreed in covenant not to build
upon, since it would be unfair for D to buy land, knowing it is cheaper
because it is burdened by covenant, and then discard the covenant to resell
the land for a higher price.

Neoponsit Property Owners’ Assn., Inc. v. Emigrant Savings BankAfter
acquiring land through a judicial sale, D was not liable for paying a lien
owed to the property owners' association on land, even though the land
was subject to a covenant requiring annual fees to be paid to the realty
corporation. The court conceded that a valid affirmative covenant did not
have to touch and concern the land, but there had to be privity of estate
between the property owners' association and the corporation for the
association to collect.
Equitable ServitudeA type of real covenant (1) binding in equity and (2)
enforceable against later BFP that (3) may be enforced if the original parties (4)
conveyed the land under a covenant and (5) the subsequent buyer has actual or
constructive notice of the covenant, where there is (6) no requirement of vertical
or horizontal privity (i.e., runs to all assignees, including A/P).
Affirmative CovenantThis covenant, which (1) runs to adverse possessors,
(2) forces the burdened owner to perform an act to (3) successors to same estate,
EXCEPT where (4) the successors hold a lesser estate, and tenants are only (5)
bound to perform covenants more RSBLY performed by lessee than landlord.
Negative CovenantThis covenant, which (1) may be treated as an easement
and (2) which runs to all subsequent owners and possessors of the burdened and
benefited property, (3) forces the burdened owner not to permit some use of his
land.
Reciprocal negative easementA type of real covenant where one landowner
owns several lots, i.e., in a subdivision, and whoever buys land from him is on
inquiry notice for covenants. This covenant is (1) not personal to owners and (2)
operative upon use of the land (3) by any owner with actual or constructive
notice.

Sanborn v. McLean (c.f. Gilette v. Daly)Court did not allow D to build
a gas station on his property, located in a subdivision, because the deed
was subject to a reciprocal negative easement and the character of use put
D on inquiry notice.
Rules of Covenant ConstructionLanguage is construed with (1) ordinary
meaning, and (2) ambiguous language is resolved in favor of free enjoyment of
property against restrictions, while balancing public policy interests.
FHA (Fair Housing Act)It is unlawful to discriminate for (1) discriminatory
intent, through (2) disparate impact or (3) refusal to provide RSBL
accomodation.

Hill v Community of Damien of MolokaiCourt held that an AIDS group
home did not violate a restrictive covenant requiring family dwelling,
since the home was non-profit and had a familial structure, since increased
traffic is not mentioned in the covenant and since the group home could be
construed to fit within the definition of family, which was not defined in
the covenant.
EP @14th @ protects the rights to acquire, enjoy, own and dispose of
property. Racial restrictive covenants cannot be enforced in land.

Shelley v. Kraemer & The Michigan CaseUnder the 14th amendment,
the court struck down a restrictive covenant with the purpose of excluding
a person of a designated race from ownership or occupancy of real
property.

Covenants Under Changed ConditionsRegardless of (1) whether the
subject property would have greater value if used for other purposes and
regardless of (2) zoning ordinances, the covenants stand provided that (3)
the original purpose of the covenants can still be accomplished AND (4)
the substantial benefit goes to the restricted area by the enforcement of
covenants.
Damages v. Injunctive ReliefDamages give the property owner the potential
gains from trade. Injunctive relief gives neighbors a large portion of the gain if a
transaction could take place.

Western Land Co. v. TruskolaskiCourt would not allow P to construct a
shopping center in a subdivision that subjected the lots to certain
restrictive covenants, which limited the land to single-family dwellings
and prohibited commercial use, since a zoning ordinance cannot override
privately-placed restrictions, even if the property would have greater value
if used for other purposes.
Getting Rid of CovenantTo determine whether to get rid of a covenant,
examine the homeowner’s reliance rather than balancing the equities.

Rick v. WestCourt refused to force D to allow P to release the covenant
to allow P to build a hospital, since D had relied on the covenant and had a
right to insist on adherence.
TerminationIf (1) there is a change of conditions AND (2) it is impossible to
accomplish the purpose of the servitude, then the court should (1) first modify
the covenant before (2) otherwise terminating it.
ModificationIf (1) purpose may be accomplished, but (2) changed conditions
make it impossible to carry out the uses of servitude, a court may (3) modify the
servitude while (4) preserving benefits of original servitude.
AbandonmentProperty is abandoned if the owner (1) voluntarily (2)
relinquished all right, title, claim and possession with (3) intention of
terminating his ownership, but (4) without vesting it in any other person and (5)
with intention of not reclaiming further possession, ownership or enjoyment.

Pocono Springs Civic Association, Inc. v. MacKenzieCourt refused to
excuse D from liability for association fees and rejected D's argument that
they had abandoned their lot and therefore were not eligible for the fees,
since D still held perfect title to the property.
COMMON INTEREST COMMUNITIES
Common interest communitiesCommunity of proximate units where (1)
owners of units must contribute to common property, whether or not owner
agrees to join the association, and (2) the community is organized according to
a statutory scheme, such as the Uniform Common Interest Ownership Act.
CondominiumCommon interest community (1) created by the filing of a
declaration of condominium before the first sale, where (2) each unit owned
separately in fee simple, (3) exterior walls, land beneath and hallways are
owned as tenants in common and (4) each owner obtains mortgage financing by
a separate mortgage to his unit and (5) pays a monthly charge to maintain
common facilities and insure against casualty/liability.
CooperativesCommon interest community (1) subject to a single, blanket
mortgage and (2) able to deny entry to anyone for any reason except for reasons
that would violate civil rights laws, where (3) title to the land and building are
held by a corporation, but (4) residents own all the shares of stock, (5) each hold
a long-term renewable lease of an apartment unit and as (6) owners of the
cooperative corporations as well as tenants to it, (7) are responsible for ensuring
the entire share is paid or risk foreclosure of the entire building.
RSBLITY Test for Use RestrictionsIf (1) use restrictions were set forth by
the master deed, determine whether the covenant has a RSBL effect on the
entire development, and not merely on individual homeowner.
EXCEPTIONS(1) Not properly-enacted, (2) not evenly-enforced, (3)
constitutional violation, (4) public policy grounds (benefit/burden test) and (5)
where harm caused by the restriction is so disproportionate to the benefit
produce by enforcement that the restriction ought not be enforced

Nahrstedt v. Lakeside Village Condominium Assn.--Court refused to
prevent an association from enforcing a covenant against keeping dogs,
cats and other animals, even though P claimed not know about the
restriction upon moving in, because the rule is rationally related to
condominium’s interest in maintaining the health, sanitation and noise.
Court did not acknowledge the condo's possible failure to equally enforce
the restriction or it would allow the condo to be flooded with expensive
legal complaints.
Direct RestraintsA restraint which (1) directly interferes with the operation
of free market economy and which is (2) valid only if RSBL, (3) as determined
by balancing the utility of purpose against possible harm. (4) Examples include
prohibitions on transfer without association consent; first right of refusal;
transfer only to persons meeting eligibility requirements.
Indirect RestraintsA restraint which (1) does not clearly interfere with the
free functioning of the land market and (2) which is valid only if it has rational
justification. (3) Examples include restrictions on pets, paint color, planting
restrictions and other restrictions that limit the potential market for the property.

Lamden v. La Jolla Shores Clubdominium Homeowners Assn.Court
held the association to a “business judgment” standard of review and
excused it when its failure to fumigate the building (it used spot treatment)
caused damage because, unlike Nahrstedt, Board’s action did not create an
equitable servitude and was merely an economic decision.

Mulligan v. Panther Valley Property Owners Assn.Assn. not liable for
breach of public policy when it amended community's covenants so that
no registered Tier-3 sex offenders could live there, since the court applied
the RSBLNESS standard and found that P failed to meet the burden of
proving that assn. failed to perform its quasi-municipal functions and
proving discriminatory effect.
5th AMENDMENT – TAKINGS CLAUSE
Eminent domain (a.k.a. A noun form of taking)In exchange for (1) just
compensation (fair market value of property), the government exercises its (2)
power to force a transfer (sale) of property to public/private beneficiaries OR
(3) to limit the exercise of property rights, subject to (4) constitutional
limitations (belowanalytical framework/categorical rules) in the name of a
(5) permissible, governmentally-approved public purpose, where the court acts
with (6) judicial deference in recognition of the (7) legislature's superior ability
to assess and advance the public interest.
Eminent Domain Rationale(1) State sovereignty theory provides that states
had original, absolute ownership, and individual possession derives from grants
subject to implied reservation. (2) Economic theory says eminent domain
prevents monopolies, where owners of desirable land might hold out for a very
high price in excess of the opportunity cost of the land, increasing transactional
costs.

Hawaii Housing Authority v. MidkiffUnder a rationality review
standard, the court upheld the Land Reform Act in Hawaii, which allowed
tenants living on single-family residential lots to ask the HHA to condemn
and sell the property, since the court determined that the taking was
rationally related to a conceivable public purpose.
TakingExercising its (1) 5th @ powers, the government (2) takes property
from its owners, (3) denying owners of all economically beneficial or
productive use of the land, and (4) reallocates it to a governmentally preferred
use, but must (5) provide just compensation, in order to (6) compensate for
private loss and (7) discourage the government from taking instead of using
inputs that are cheaper to society but more expensive to the government.
Compensation ConsFair market value assessment of property value does not
address (1) relocation costs, (2) sentimental attachments and (3) special
suitability of property for needs.
ANALYTIC FRAMEWORK / CATEGORICAL RULES
(1) Validity of public purpose?
Public purposeUse (1) the ends test (taking OK if ends sufficiently public)
OR (2) Merrill's test (taking OK if transaction costs would otherwise high,
except where a few individuals have captured the legislative process, seeking
private gains), to determine public purpose, which may be (1) broad, where use
benefits the community, or (2) narrow, where the actual right to use the property
goes the community.

Poletown v. DetroitThe court held that condemnation was permitted
where public benefit was "clear and significant" and private benefit was
merely incidental, permitting the city of Detroit to condemn a residential
neighborhood so that GM could build a plant there.
(2) What was the state interest in maintaining health/safety/welfare?
If you’re controlling a nuisance, it’s not a taking; no compensation.
(TWO)

Hadacheck v. SebastianNo arbitrary prohibition of exercise of property
rights, but exercise of property rights is otherwise subject to regulation.
Court could not prohibit D from removing the clay from his property, but
it did hold that D could not operate the brick kiln on his property because
the kiln could be operated elsewhere, albeit more expensively.
Eminent Domain or Police Power?Examine the purpose and effect of the
ordinance to determine whether it was designed to control a public harm or
create a public benefit.
Police PowersThe state may exercise its police powers when the free
exercise of property rights is detrimental to public interest or harmful to the
public.
RegulatingThe government (1) leaves property in the hands of the owner,
but (2) regulates use of the property in the name of (2) police powers, and (3)
does not provide compensation.
(3) Was economic value affected? If the taking diminishes or wipes out
the economic value, then it is a taking, EXCEPT where it is a
nuisance. (ONE)

LucasCourt held that the Beachfront Management Act's bar on building
habitable structure on the lots, constituted a taking because the new
regulation wiped out all of P's RSBL expectations of what he could do
with the property.
(4) Was there physical invasion by the government? (THREE)

LarettoRegulations that compel property owner to suffer a physical
invasion of his property constitute a per se taking.
(5) Investment-backed expectation and nature of regulation;
economic impact

Penn Central v. New YorkThe court held that application of the
Landmarks Preservation Law, which prevented the owners of Grand
Central Terminal from building a tower on top of it, did not constitute a
taking because (1) the law did not interfere with owners' primary
expectation of using building as train terminal and (2) because owners
benefited from the TDRs granted by the law, which permitted owners to
transfer development rights to contiguous parcels on the same city block.
(6) Exactions

Nollan v. Dolan
(7) Tests to apply
Diminution Values Balancing (DVB) TestDetermine (1) on an ad hoc (case
by case basis) (2) whether the government action constitutes a taking and (3)
whether compensation must be provided, by assessing the (4) actual loss
(limitation of use + economic impact, esp. interference with distinct investmentbacked expectations, what RSBLY-expected rights are in the bundle of stick
that is the title) on the landowner and comparing it with (5) the value that the
government receives in taking the land(6) Is the result grossly
disproportionate?
Transferable Development Rights (TDR)TDRs sever the development
rights from the other rights in the land and allow the owner to transfer his
development rights from the preserved building to nearby parcels. TDRs enable
the court to favor the state in DVB balancing and construe what would
otherwise be a taking as a non-taking, provided that the TDRs have substantial
economic value in the particular market. (Penn Station Case)

Pennsylvania Coal v. MahonPublic interest in barring D's mining was
not sufficient to destroy D's constitutionally protect land rights. D not
liable for mining beneath P's property even though new state law forbade
unsafe mining, because P assumed the risk in the deed.
Conceptual severanceA way of evaluating a parcel of land where it is
viewed as two separate portions, rather than a single parcel where the court
considers the benefits and burdens on both parcels in its determination of a
taking. (When the government takes "all"you ask, "all of WHAT?")
Post-regulatory takingsRegulation was in effect when BYR purchased the
land, but denying BYR of his claim threatens BFP
Palazzolo v. Rhode IslandThere was no regulatory taking and no compensation for
the landowner who purchased a salt marsh before enactment of coastal-protection
legislation, and then could not develop it. SC remanded for consideration, rejecting
the blanket rule that purchasers with notice have no compensation right when a claim
becomes ripe, since this could bar an innocent subsequent owner from filing a valid
takings claim he paid the price for. (inverse condemnation)
Inverse condemnationThe government performs a taking without suing for
condemnation under eminent domain, and the property owner goes to court
afterward.

First English Evangelical v. County of Los AngelesIn a suit for inverse
condemnation, compensation is required for the period between when the land
was taken and when it was determined that there was a taking. Lutheran Day
Camp was able to recover damages for the five-year period that passed before
the court determined that the regulation did constitute a taking.