Property Outline
Freehold Estates
Terminology
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Will
o Testator, Testatrix – the person who makes the will
o Devise – real property divided
o Bequeathed: - personal property divided
o Intestate: Person dies without a will
o Heirs: Those who inherit, anyone linked through ancestry or otherwise noted
o Issue: Decedents
o Escheat: Return to the state – die without heirs, will etc, the state gets it back.
Statutes
o Hypo – Alice has 3 children – assuming no will
 Betty, Christina, David
 Betty’s kids – Edward and Frank (betty is dead)
 David’s kids – Greg and Harry
 Per Stirpes (intestate) – when Alice dies the direct decedents divide the
property – a third for each kid but Betty is dead so it splits to her kids (1/6 each)
 Per Capita – Because betty is dead her two kids are included. The property is
split into 4ths between E, F, C and D.
Trusts
o Separate the burden of property management from the benefit of ownership
 Settlor – establishes trust in trust document
 Trustee – manages the property for the benefit of the beneficiaries.
o Mechanism that separates possession from control
o Used by individuals and corporations
(Will Substitutes) Life Insurance, Joint Checking Accounts, Pension
o These have designated beneficiaries – or a joint owner
 Way of avoiding probate (the state dividing up your money).
 Probate can be long and costly
Estates in Land – a legal interest in real property that may become possessory and is measured by
some period of time (even if that time is indefinite).
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Either possessory interests or future interests.
Estate system concerns the way govt. regulates private agreements between landowners in
which they are trying to divide property between diff. parties.
Estate in land is an interest in the land that may become possessory
o Measured by some period of time
o Owner can designate a present owner and possessor and a future owner and possessor.
 The interests can be possessory or future.
 Possessory – the right to possess the land now
 Future Interests –Either might or will give you a right to land in the future.
 A possessory interest – still has some immediate rights
Fee Simple (or Fee Simple Absolute)
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Connotes an absolute ownership
Fee – interest in land
Simple – unlimited duration
Absolute – no future interests to cut ownership short
With few examples, adverse possession etc, you can do what you please with it –
transfer, sell, have for the rest of your life and pass down to decedents
 Under modern law a will or deed is meant to pass the fee simple unless marked
otherwise. The wording is no longer necessary.
 You can say “to Ben” – enough
Words of Purchase – who gets it
Words of Limitation – what type of estate it is
Policy Goals – want a limited number of estates – want to prevent tons of future litigation. We don’t
want to leave this to contract because then the dead hand of the past controls.
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Life Estate
o “to A for life” that is a possessory interest for life
 Words of limitation are “for life.”
o Terminology
 Will
 Testator, Testatrix – the person who makes the will
 Devise – real property divided
 Bequeathed: - personal property divided
 Intestate: Person dies without a will
 Heirs: Those who inherit, anyone linked through ancestry or otherwise
noted
 Issue: Decedents
 Escheat: Return to the state – die without heirs, will etc, the state gets it
back.
o Statutes
 Hypo – Alice has 3 children – assuming no will
 Betty, Christina, David
o Betty’s kids – Edward and Frank (betty is dead)
o David’s kids – Greg and Harry
 Per Stirpes (intestate) – when Alice dies the direct decedents divide the
property – a third for each kid but Betty is dead so it splits to her kids
(1/6 each)
 Per Capita – Because betty is dead her two kids are included. The
property is split into 4ths between E, F, C and D.
o Trusts
 Separate the burden of property management from the benefit of ownership
 Settlor – establishes trust in trust document
 Trustee – manages the property for the benefit of the beneficiaries.
 Mechanism that separates possession from control
 Used by individuals and corporations
o (Will Substitutes) Life Insurance, Joint Checking Accounts, Pension
 These have designated beneficiaries – or a joint owner
 Way of avoiding probate (the state dividing up your money).
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Probate can be long and costly
Defeasible Estates
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Estate held to the happening of another proposed event – a present interest that terminates
when a certain event occurs.
Questions to Distinguish
o Who gets the property back when the event happens – the original grantor or a 3rd party
o Does the person get it automatically when the event happens or only when they assert
their interest.
Fee Simple Determinable: Future Interest Automatically returns to Original Grantor
o Example: Fred gives Green Acres to Lucy so long as it is used for residential purposes.
 Fred has possibility of reverter
 Lucy has fee simple determinable
o Use words that talk about Duration.
 “so long as”, “while used as”, “until”, “during the time that”,
 “Otherwise to revert to grantor” – most clear case.
o SO… Automatic reversion, durational language – possibility of reverter is the future
interest.
Fee Simple Subject to Condition Subsequent – Original grantor retains right to assert her right
to get her property back.
o Language: “but if”,
o Example: Lucy uses the property incorrectly but still retains the property until Fred
asserts his right –
 Claim to quiet title, ejectment.
o SO… Reversion has to be exercised, not automatic, the language is conditional (best to
have re-entry included), future interest is Right of Entry.
Lessoned value to these interests – there is no guarantee that the owner of these interests have
a claim – requirement of some condition for reversion or the opportunity for reversion – i.e. a
reversionary interest.
Reversion
o Interest left in the owner when they carve out an estate that is smaller than what they
own.
 Example: To A for life – assumption of a reversion in the original owner.
3rd Party Future Interests
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Remainders (Vested and Contingent)– an interest that is created in somebody other than the
original grantor, it is capable of becoming possessory at the natural termination.
o To A for life then to B – A has the life estate and the remainder is B.
Vested Remainders
o Absolutely Vested – not subject to changes, clear language – look at B in example
above.
 the holder of the remainder is certain to acquire the interest
o Vested Remainder Subject to Open – may be divided among people who may be born
in the future
 Example – To A for life and then to A’s children (when A currently has 1 Child)
 There is the possibility that it is divided further if A has more children.
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Different than fee simple – to A and his heirs –
o The fee simple allows A to sell the property – the vested
remainder guarantees the pass to the children.
o Vested Remainder Subject to Divestment – May be clearly left to B, but there is
language that it could be divested elsewhere.
 Key phrase is “but if”
 Example – To A for life, then to B, “but if” B does not survive A, then to C.
 So the remainder is certain
Contingent Remainders
o only take place on the happening of a certain event – “Condition Precedent”
 Subject to an event whether the estate is divested.
 Example – A for life, then to B if she reaches 21, otherwise C. (Need B
to reach 21)
 Or to a person who is not ascertained – like leaving something to A’s children
if A does not have children.
 Example – A for life, then B’s children (B has no kids)
 Contingent on B having children
Difference between Vested Remainders subject to Divestment and Contingent Remainders.
o Vested subject to Divestment – A for life, then to B, but if B fails to graduate, then to C
 The condition follows after the interest is vested – so B has the property until
the condition is met
o Contingent Remainder – A for life, then to B if he graduates, otherwise C.
 B doesn’t possess until he graduates.
Executory Interest – (just need to be able to name one on test)
o An executory interest is any future interest held by a third party that isn't a remainder
 Cuts short the grantors fee simple
o Springing –
 A future interest in a grantee that springs out of the grantor at a date
subsequent to the granting of the interest divesting the grantor.
 O conveys land to A if A quits smoking –
o A’s interest springs once he quits smoking
o Shifting
 An interest in a grantee that divests a preceding estate in another grantee prior
to its natural termination
 O conveys to A and his heirs, but if B returns from Rome, then to B and
his heirs
 O has a fee simple subject to a springing interest
Concurrent Interests/Ownerships
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Common law:
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(1)Tenants in commons
o Example: Sub agreement where one tenant lives specifically in one place of the
property and another tenant lives in another part, but each tenant has entire
property interest.
o Property right can be passed on to heirs.
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(2) Joint tenancy
o Difference – if one person dies, the other person gets the whole thing = right of
survivorship.
o If one joint tenant dies, nothing passes because there is ability to transfer because
the other person already owns it.
o Requires 4 Essential Unities: (Necessary, but not sufficient)
 (1) Time – must be acquired at the same time
 (2) Title – tenants must get tenancy by the same document
 (3) Interest – must have equal interest
 (4) Possession – must have right to possess the whole
 and MUST explicitly to have a joint necessary
o Advantages of joint tenancy:
 Avoid probate
o Why it cannot be conveyed in a will?
 Because the joint-tenancy interest expires upon death!
Construe things when in doubt under a “Tenancy in common”.
(3) Tenancy by the Entirety
o Can only be created in husband and wife.
o Cannot be severed like in joint tenancy
o Right of survivorship cannot be defeated as easily as in joint tenancy
 Not recognized by CA
Rule for breaking Joint Tenancy onto yourself - one joint tenant may unilaterally sever joint
tenancy without use of intermediary device, and thus wife unilaterally terminated joint
tenancy by conveying her interest from herself as joint tenant to herself as tenant in
common.
Partitiono Right to split up the Co-Tenancy
 Partition by kind
 Physically break up into parts
 Partition by sale
 Sell it to break it up
 Test: Partition by sale only appropriate if
 (1) the physical attributes of the land are such that a partition in
kind is impracticable or inequitable and
 (2) the interests of the owners would better be promoted by a
partition by sale.
Ouster
o Denying one party possession of the property - when occupying tenant acts to
make it so other tenants can’t make use of property.
Remedy
o Can sue for contribution – sue for a value of the contribution you gave to the land
while receiving nothing in return – right as an owner.
 Could happen if joint tenant rented property and received payment
Martial Property
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Community Property (Cal uses this)
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8 other states have this (AZ)
Community Property: Earnings of both spouses during the marriage and whatever is
purchased with such earnings regardless of which spouse has title or has brought in the
money.
 Salary, pensions, property purchased.
 Tenants in common
o Separate property – things that are brought into the marriage, as long as it is not co
mingled with marriage property, gift property or inheritance property, anything co
mingled after the date of separation (date of separation heavily litigated)
What approaches have various jurisdictions taken towards degrees or other professional
advancement attained during marriage?
o Reimbursement alimony, the advancement or degree is not property, but they allow
this reimbursement alimony - mahoney
o Some jurisdictions find that a degree has no exchange value, cannot be transferred,
and is not inheritable and is thus not included in community property. - Graham.
o When looking at celebrity – Elkus found it was community property where a
husband had directly helped his wife rise to fame
Landlord and Tenant Law – Leaseholds
Types of Leases –
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Term of years –
o For a fixed period – could be a day, week, month, years.
 A lot of state statutes put limits on the terms
o Document that establishes a term of years has to make clear the starting and ending
dates.
 No need for notice if you do not want to renew (distinction between this and
other leases)
o Neither party can terminate it early without the others consent.
o Death does not extinguish it
Periodic Tenancy
o Specific period of time – year to year lease, month to month lease.
o Automatic renewal when period ends unless party gives notice of no renewal.
 The renewal stuff matters in terms of liability of who is in charge of premises
o At a common law you need 6 months notice to get out of year to year
 Most states do 1 month.
Tenancy at Will
o No fixed period – last until either party decides to end it
o Disfavored because of hardship of person who wants to retain it
 Cannot be assigned (no sublease)
o Death does distinguish this.
o Either party can end it – not a tenancy at will if only one party can end it.
Creation –
o Landlord almost always own fee simple absolute – right to possess, exclude, to use, to
enjoy, to convey.
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Leasehold arises when owner grants another party present right of exclusive
possession but less than the whole estate. Not a life estate.
 If more than a year it must be in writing – Statute of Frauds.
o Generally in writing anyways
Assignment – entire interest under the lease
 i.e. right of possession
 Rule For Assignment - such consent(to allow for assignment) may be
withheld only where the lessor has a commercially reasonable objection
to the assignment, even in the absence of a provision in the lease
stating that consent to assignment will not be unreasonably withheld.
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Sublet – retains reversion, transfer of less than entire interest
Landlords Rights and Remedies for Defaulting a Tenant
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Rule Against Self Help – The only lawful means to dispossess a tenant who has not abandoned
nor voluntarily surrendered but who claims possession adversely to a landlord's claim of breach
of a written lease is by resort to the judicial process.
o No Self Help.
Mitigation: The landlord has a duty to mitigate by making reasonable efforts to re-let the
apartment.
o Landlord has burden of proving those reasonable efforts.
o Test for carrying burden
 Whether the landlord offered or showed the property or advertised in
newspapers.
 Question of fact – question for the jury based on the circumstances.
o Can differ in every case
 Tenant can rebut by proffering rejected tenants.
Tenants Rights and Remedies –
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Constructive Eviction Rule: Any act or omission of the landlord or of anyone who acts under
authority or legal right from the landlord, or of someone having superior title to that of the
landlord, which renders the premises substantially unsuitable for the purpose for which they are
leased, or which seriously interferes with the beneficial enjoyment of the premises is a breach of
the covenant of quiet enjoyment and constitutes a constructive eviction of the tenant.
o The tenants right to claim this is lost if he does not vacate the premises within
reasonable time after the right comes into existence
Covenant of Quiet Enjoyment: Landlord has duty not to disturb the tenant
o This is breached only when the landlords conduct had the effect of depriving the lessee
of the beneficial use of the demised premises whether by positive acts of interference
or by withholding something essential to full enjoyment and within the terms of the
lease.
Implied Warranty of Habitability
o an implied warranty exists in the lease, whether oral or written, that the landlord will
deliver over and maintain, throughout the period of the tenancy, premises that are safe,
clean and fit for human habitation.
 No assumption of risk arguments for landlord when handing over property
In order to bring action for implied warranty of habitability
 Show that you are not up to the municipal code
 If claimed defect has impact on safety and/or health
 the tenant must show that he notified the landlord of the deficiency or defect
not known to the landlord and allowed a reasonable time for its correction.
Illegal Lease - rent a building that violates law/code, it is an illegal contract that can’t be
enforced
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Fair Housing Act:
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FHA – prohibits discrimination in renting, selling, advertising for such selling, renting on the basis
of race, color, religion, sex, familial status, national origin
Civil Rights Act – “all citizens of the United States shall have the same right, in every State and
Territory as is enjoyed by white citizens thereof to inherit, purchase, lease sell, hold and convey
real and personal property.
Problems on 380
Duty to Disclose Defects –
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Fiduciary Duty – legal relationship of confidence or trust between two or more parties.
o Acting in the other party’s best interest. i.e. a realtor has a fiduciary duty to the seller.
Defects
o A zoning ordinance in itself is not an encumbrance but the violation of said zoning
ordinance is an encumbrance.
Caveat Emptor – no duty to disclose or point out defects (no longer the rule)
Exception Rule for Disclosure: Where a condition which has been created by the seller
materially impairs the value of the contract and is peculiarly within the knowledge of the seller
or unlikely to be discovered by a prudent purchaser exercising due care with respect to the
subject transaction, nondisclosure constitutes a basis for rescission as a matter of equity.
Disclosure Rule: where a seller of a home knows of facts materially affecting the value of the
property which are not readily observable and are not known to the buyer, the seller is under a
duty to disclose them to the buyer.
o A seller is liable for misfeasance not nonfeasance.
o An “as is” clause will be upheld if the defects are reasonably discoverable and there is
no fraud.
Implied Warranty of Workmen-like Quality:
o Privity of contract is not necessary for a subsequent purchaser to sue a builder or
contractor under an implied warranty theory for latent defects which manifest
themselves within a reasonable time after purchase and which cause economic harm.
o Uniform Land Transactions Act§2-312(b) –
 The warranty of quality runs with the land to subsequent buyers. Thus a waiver
by the first buyer could not prevent a subsequent buyer form suing the builder
on the warranty.
Remedies for Breach of Sales Contract
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Damages;
o “Loss of Bargain Rule”
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vendors measure of damages is the difference between the purchase price and
the market value of the property at the time of the breach
 Resale price is not dispositive of market value but can be used as indication
o “Special damages” may be awarded by the fact finder in a breach of contract case if the
damages are shown to have resulted as the natural and probable consequence of the
breach and at the time of the formation of the contract the breaching party
reasonably knew or should have anticipated form the facts that the damages would
probably be incurred.
 Reasonableness Standard.
Retention of the deposit (sellers) or restitution of the deposit (buyers);
o Common Law: where a vendee of real property makes a part payment on the purchase
price, but fails to fulfill the k without lawful excuse, he cannot recover payment.
o Restatement §374: If a party justifiably refuses to perform on the ground that his
remaining duties of performance have been discharged by the other party’s breach, the
party in breach is entitle to restitution for any benefit that he has conferred by way of
part performance or reliance in excess of the loss that he has caused by his own breach.
 Seller can only keep the deposit so long as it pays for the damages – no unjust
enrichment
Specific Performance
Deeds
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General Warranty
o Most common
o Warrants title against all defects in the title – whether they arose or after the transfer of
title
Special Warranty
o Warrants only against the grantors own acts not the acts of others.
Quit Claim Deed
o No warranties whatsoever – the interest is given without promises as to the wideness of
the scope of the interest in the property
If a deed is procured by fraud –
o Voidable by the grantor against the grantee – but a subsequent bona fide purchaser
who does not know of the fraud prevails over the grantor
If a deed is procured by forgery –
o Voidable – the grantor whose signature is forged to a deed prevails over all persons,
including subsequent bona fide purchasers who do not know the deed is forged.
Covenants –
Present Covenants – Statute of Limitations runs immediately – upon delivery of Deed.
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Covenant of seisin – the grantor warrants that he owns the estate that he purports to convey
Covenant of right to convey – grantor warrants that he has the right to convey the property –
possible for a person who has seisin not have the right to convey i.e. a trustee.
A covenant against encumbrances – The grantor warrants that there are no encumbrances on
the property. Encumbrances include, among others, mortgages, liens easements and covenants.
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No latent violations on restrictive land use statutes does not affect marketability and
should not rise to a level of encumbrance.
Future Covenants –
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A covenant of general warranty – the grantor warrants that he will defend against lawful claims
and will compensate the grantee for any loss that the grantee may sustain by assertion of
superior title.
A covenant of quiet enjoyment – The grantor warrants that the grantee will not be disturbed in
possession and enjoyment of the property by assertion of superior title
A covenant of further assurances.
Encumbrances - every right to or interest in the land which may subsist in third persons, to the
diminution of the value of the land, but consistent with the passing of the fee by the conveyance
Mortgages –
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Duty of Lender – similar to fiduciary – must protect interests of the mortgagor
o Mortgagee must exert every effort to obtain a fair and reasonable price (i.e. in the case
of a foreclosure).
o Duty of Due Diligence by Mortgagee
Land sale by an installment contract will be treated like a Mortgage for public policy reasons.
Easements –
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Limited interest in someone else property that is not possessory – on going right to enter or
control property possessed by another
o Dominate estate
 The property that is advantaged by the use of the easement
o Servient estate
 Property that is seemingly disadvantaged by the use of easement
Exception to Statute of Frauds –
o Real property – generally – except leases less than 3 years
o Not going to let interests in land be transferred without written instrument
 Exceptions
 Easements – implied, prescription and estoppel
Profit
o Right to take a product off of the land
 Think lumber, minerals, etc.
Affirmative easement
o Someone going and using somebody else’s land
Negative easement
o Right to prevent the servient owner the right to use her land in some way.
Pertinent easement
o Easement attached to the dominant land – it travels with the land
In gross easement
o Easement granted is attached to the person – so it travels with the person
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Think the right for your neighbor buddy to fish on the lake on your land.
 Can’t be transferred to someone else – similar to a license but not as
immediately revocable
Express Easements
o Subscribe to Statute of Frauds
Easements by Estoppel
o Permissive use
o Acquiescence
o Expenditure of money due to reliance
o These three raise the permission from a license to an easement
Prescriptive Easements – like adverse possession
o If enjoyment is consistent with the right of the owner of the tenement, it confers no
right in opposition to such ownership.
o Open, notorious, hostile, continuous for statutory period
Easements by Necessity
o Must be implied
o Rule: The mere fact that the claimants land is completely surrounded by the land of
another does not, of itself, give the former a way of necessity over the land of the latter
where there is no privity of ownership.
It is dependent upon an implied grant or reservation and cannot exist unless it is affirmatively
shown that there was formerly unity of ownership of the alleged dominant and Servient estates.
Implied Easement –
o Find that an easement was intended but not expressly written in
 Policy – the land ought to be accessible
o Implied by Necessity –
 Quasi Easement before land is separated
 O gives land to B – only way for B to get to road is across O’s land
o Implied by Prior use that is Continuous and Apparent
 Quasi Easement before land is separated
 Use must be continuous and apparent
 Intent evinced to continue use
 Question of necessity
o Example – one big parcel, utility lines running under one half to serve the other half.
 No easement at that point – can’t have an easement against yourself – quasi
easement
 Parcel then divided but quiet on the easement – courts will imply an easement
because it is obvious and necessary
o Granted v Reserved
 The owner reserves the easement to the use
 The owner grants an easement to a buyer for the use. Used for Necessity – if the
party was not granted the easement they can show they need it and have it
awarded impliedly.
Scope of Easements
o General rule against easement extension
 An easement appurtenant to one parcel of land may not be extended by the
owner of the dominant estate to other parcels owned by him, whether
adjoining or distinct tracts, to which the easement is not appurtenant.
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Rule for Adjustment
 The scope of an easement may be adjusted in the face of changing times to
serve the original purpose, so long as the change is consistent with the terms of
the original grant.
 May allow for an expansion of easement but does not permit a change
in use not reasonably foreseeable at the time of establishment of the
easement.
Abandonment of Easements
o Abandonment – in addition to nonuser, acts by the owner of the dominant tenement
conclusively and unequivocally manifesting either a present intent to relinquish the
easement or a purpose inconsistent with its future existence.
 Non use does not extinguish the easement.
 This is the usual way, though, that an easement is extinguished.
Creation of Validity of Covenants
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Covenants – promises to use or not to use land in some way
o Can be affirmative promises or negative promises
 Promise to maintain a fence
 Promise not to use certain chemicals on your property.
Real Covenants and Equitable Servitudes
o Promises to use and not to use land in a certain way
o Equitable servitudes are enforced by injunction or equitable relief (no damages)
o Negative promises – restrict the land for the benefit of a neighboring land owner
 Tend to be more common
o the most common issue litigated is how covenants bind to future owners
o courts are tending to find equitable relief – requirements easier
Real Covenants –
o Remedies for breach – money damages, injunction, specific performance
o Promise to use or not use land in a certain way which runs with the land at law.
o Enforceable at law by a successive owners against successive owners – it runs with the
land
o Creation of Real Covenant
 Common law – in writing and under seal
 Cannot be implied nor arise by prescription
o Enforcement of Real Covenant
 Requirements for Burden of covenant to run at law
 Covered by Statute of Frauds
 (1)Contracting parties must intend that the successors to the promisor
be bound by the covenant
 (2) Must be privity of estate between the original promisor and promise
as well as privity of estate between the promisor and assignee.
o Original promisor and promise is horizontal privity
o Promisor and assignee is vertical privity
o In this you are buying the same estate – Vertical Privity
 If the original promisor owned a fee simple the
covenant only runs to assignee purchasing a fee simple
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(3) Must appear that the covenant is one touching and concerning the
land
o Does the covenant in purpose and effect substantially alter
these rights associated with the land?
 (4) A subsequent purchaser of the promisor’s land must have notice of
the covenant.
 Requirements for Benefit of covenant to run at law
 (1) must intend that the successors to the promisor be bound by the
covenant
 (2) must be some form of privity of estate
 (3) Must appear that the covenant is one touching and concerning the
land.
o No notice requirement
o Termination of Real Covenant
 Expressly written into covenant to end after a certain amount of time –
Expiration
 Release – agreement of landowners to release the covenant
 If one does not agree the covenant does not end
 Public Policy – Changed Circumstances
 In order to alter the covenant as a matter of public policy it must be
shown that changes in the land are so great as to make it inequitable or
oppressive to continue the restrictive covenant.
Equitable Servitudes
o Remedies for breach – injunction, specific performance, (no money damages)
o Covenant, whether or not running with the land at law, that equity will enforce against
assignees of the burdened land who have notice of the covenant.
o Privity not required like in Real Covenants –
o Creation of Equitable Servitudes
 As with Real Covenants – Statute of Frauds requires a writing
 Negative Equitable Servitudes may be implied.
 Usually implied from a general plan for the development
 For it to be implied it must be Reciprocal Negative Easements
o A similar covenant must bind other lots in the subdivision.
o Necessary Requirements of Equitable Servitudes
 Touch and Concern that land
 Notice of Servitude
Rules of Construction for Covenants
o (1) if the language is unclear or ambiguous, we will resolve the restrictive covenant in
favor of the free enjoyment of the property and against restrictions.
o (2) we will not read restrictions on the use and enjoyment of the land into the covenant
by implication
o (3) we must interpret the covenant reasonably, but strictly, so as not to create an
illogical, unnatural or strained construction
o (4) we must give words in the restrictive covenant their ordinary and intended meaning
Rule For Covenants in Common Interest Developments:
o Restrictions in the Master Plan are presumed to be reasonable and will be enforced
uniformly against all residents of the common interest development unless the
restriction Is arbitrary, imposes burdens on the use of lands it affects that substantially
outweigh the restriction benefits to the developments residents or violates a
fundamental public policy.
 Not arbitrary
 Burden cannot outweigh benefits
 Cant violate public policy
Advantages of comprehensive zoning vs. servitudes/covenants
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Zoning can come after the fact –
Establishes a rule – prevention of future litigation
City has the chance to collect revenue based on administrative fees of complying with zoning
The city can use experts to establish the zoning rather than just residents.
Gives the city the ability to “master plan” – large scale vision of what you want the community
to look like.
How Zoning Works
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Comes from the police power
o Police power – to enact and promote regulations that promote health and safety, state
power
Power typically delegated to municipality through constitution or zoning enabling act
Use zoning – divides into districts, regulating the uses in different districts, usually cumulative
o Euclid case
Area zoning – regulates size of lots, shape of lot, height of buildings, setback requirements
General plan to start and then a more specific zoning code is enacted
Power usually given to planning commission or planning board that makes the decisions about
planning, which can usually be appealed to the city council
Courts deferential to upholding the zoning power
Exceptions do exist through a specific process
Use Zoning:
Facial Challenge to a Zoning Ordinance: A challenger of a zoning ordinance, a facial challenge, will have
to show that the law in question is discriminatory and has no racial basis.
Challenges of a Zoning Ordinance from Stroyanoff- need to show that an ordinance is an arbitrary and
unreasonable use of the police power to conquer ordinance.
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Goal of the ordinance is a concern for the general welfare of the neighborhood, economic
impact of such a different looking house would have a negative impact on the general welfare.
Exclusionary Zoning:
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After a showing that the ordinance is a facial violation of substantive due process or equal
protection under the state constitution, burden shifts to the municipality to establish a valid
basis for its action or non-action
Fiscal or economic benefit to just the current community does not constitute a benefit to the
general welfare.
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General welfare is everybody – so a fiscal argument for an entire community is not a
justification like it was in Stroyanoff.
 Stroynoff prevented one house that would drive down the value of an entire
neighborhood while Mount Laurel was excluding any and all housing for low
income residents.