PROPERTY I
KORDESH
Examinations are open-book and open-note
The three hallmarks of private property: exclusion, alienation, and use, can be
in tension with one another.
The goals of a private property system: investment, incentive, and
predictability, can be in tension.
The legal system’s goals can be at odds with a private property regime: clear rules
can lead to unjust outcomes; fair outcomes may be hard to prove or enforce. The
provenance of the property right may be murky, or internally in conflict. The
correct remedy may not be imposed because of its cost. And so on.
In this course, it is my hope that you will develop an understanding of some
basic property doctrines, namely acquisition of property rights, estates in land
and future interests, marital and community property; landlord and
tenant law, easements and servitudes, nuisance law, zoning, eminent
domain, regulatory takings, and policy governing property rights.
Acquisition of Initial Property Rights
By Discovery (or conquest and maintained by force) p. 10 note 2
 Johnson v. M’Intosh, 3-9
 property rights are relative to others
 Possession taken by “the sighting” or “finding” of previously unknown or
uncharted territory.
 Taking from non-christian people (John Marshall dicta)
 Indians has occupancy rights, not ownership rights
 Absolute title of land cannot exist at the same time in different persons, or in
different governments.
 An absolute title must be an exclusive title or at least a title which excludes
all others not compatible with it.
 Conquest is a transfer of property rights
By Capture
 Pierson v. Post, 17-21.
 Gave a clear standard that everyone could follow to preserve the peace and order
in society. (predictability, certainty)
 BRIGHT LINE RULE : An entity can only become property through occupancy
or physical possession. Pursuit alone cannot grant occupancy or right to the
property.
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Capture Theory – a wild animal must be caught or domesticated before it
becomes ones property.
DISSENT Property in wild animals may be acquired without bodily touch,
provided the pursuer be within reach, or have a reasonable prospect of taking,
what he has thus discovered an intention of converting to his own use.
Applies to oil, animals, water
Ferae Naturae – wild animals are part of nature
By Creation
 Moore v. Regents of the University of California, 69-81
 If you create something, if in the sense you are first in time, then that something
is most certainly yours… Locke=Labor theory
 The court then considered the meaning of property, essential elements are:
o Dominion, or rights of use
o Control
o Disposition
 No possession therefore, no conversion
 Court says that in order for property to be created…
o He has to have possession or interest in ownership in order to have
property in human tissue
 Value of the potential research is greater than the value to the past possessor
 Some things will not be comidifiable…human tissue, body parts
By Find
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questions court asks
o who has possession?
o is property lost or mislaid?
o is it private or public property?
o is finder honest or a cheat?
ANALIZE
FIRST
1st owner
state of
mind
Rights of
possessor

Lost
Misplaced
Abandoned
Armory v. Delamirie; McAvoy
v. Medina
unintentionally
McAvoy v. Medina
McAvoy v. Medina
voluntarily placed in a
particular place,
intending to retain
ownership
intentionally and
Fails to reclaim it or
forgets where it is
Mislaid property: a
finder of property
acquires NO rights in
mislaid property.
Does not want to claim
or chooses not to claim
Abandoned property:
the finder IS entitled to
keep abandoned
property.
involuntarily parted with it
through neglect or
inadvertence
does not know where it is
Lost property: finder IS
entitled to possession against
everyone except the true
owner.
Armory v. Delamirie, 96; Question 1 at 96-97.
voluntarily relinquished

o if you are a finder, your title is superior to everyone except the rightful
owner (prior finder has superior title to later finder)
 more likely property will get back to original owner (key concern
is to protect the owners)
 idea of first in time comes in with law of finders
McAvoy v. Medina, 105; Notes and Questions 1-3 at 106-107.
By Gift
 A voluntary transfer for no consideration
 Inter vivos- given during life…requires
o Acceptance (presumed unless direct evidence to contrary)
o Intent (Q of fact) present intent to give the gift NOW, in the
future NOT good enough
o Delivery (Q of fact)
 symbolic- giant lottery check, paper that says “I give you my car”
 constructive- key to a safe box
 manual or actual
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Causa mortis- deathbed wish…requires
o Acceptance (presumed)
o Intent (Q of fact) present intent to give the gift NOW, in the
future NOT good enough (competence may be issue)
o Reasonable fear/expect impending death
o Delivery (Q of fact)
 manual or actual REQUIRED
 A Rule, but not the ONLY Rule…(b) constructive MAY be
allowed, ONLY IF actual not physically possible… NEVER
SYMBOLIC!!
Actual death must occur…time lapsed between wish & death may be an
issue
Policy arguments under Statute of Wills and Statute of Frauds are
considered: widower did not have a will, a gift causa mortis is usually not
written, a will contains written intent, and courts take it seriously because
the giver cannot be present to defend it himself. Recognizing it as a gift would
reduce the value of the estate for other heirs, taxes may have been avoided
rather than paid if gift causa mortis is recognized
Newman v. Bost, Rule of Law
To constitute a donatio causa mortis there must be an intention to give a gift
and delivery of the gift. Intent may be inferred from the delivery.
Constructive delivery is permissible when the subjects of the gift are not
present, but when the objects are present and actual delivery is possible, it is
required.
By Gift
Bright line gift law requires actual delivery at the time the gift is given (delivery and intent
coincide)
If O gives a ring to A, A accepts it & tries it on, but hands it back to O because it is too big,
and O will get is sized. O dies. A sues executor for ring. The ring belongs to A.
The elements of a gift is satisfied: intent & delivery.
Bailment occurs when O is holding ring for A
If same facts, but O says, “I will give you the ring when I die”
A does not have possession, no present intent, & no delivery.
Under the no-fault, An engagement ring is returned to the donor regardless of who breaks
the engagement
The traditional rule is that the donor cannot recover if
he/she is at fault
B writes a check and hands it to C as a gift. B dies before
check is cashed.
-court held that there is no gift until the check clears
because donor could stop payment at any time
Exclusivity can be established by
naming it, ex. Lutz’s farm, public
perception, inviting people on
your land, chasing people off the
land, putting up a fence,
By Adverse Possession
Either by claim if right or claim of title
Claim of right is most common- squatter, no title
Claim of title- bad title
Elements:
1) Actual entry giving
2) Exclusive [usually hard to prove]
a. (in a manner that reflects the possessor’s dominion/control over land)
3) Possession
4) Open
a. (visible and not surreptitious)
5) notorious (known) [usually hard to prove]
a. (in opposition to the true owner’s title and in opposition to how the true owner would
use it)
6) Adverse (sometimes hostile) and under a claim of right
a. (w/out true owner’s permission)
7) Continuous for a statutory period
a. (without interruption to claim of ownership; Abandonment isn’t continuous)
Statute of Limitations begins to run when there is evidence of adverse possession, some
action that should alert the owner
Ordinary Adverse Possession Doctrine protects
 Owners interest in property before that statute of limitations runs out, then protects
 The adverse possessor’s interest after the statute runs out
Con: Benefitting from a wrong, outdated: boundaries are better defined now, creates
uncertainty
Pro: Promotes vigilance/punishes neglect, maximizes productive use, prevents self-help
(violence), acknowledge equity of reliance
If statute of limitations runs out, then…
Prior owner loses the right to eject them
Prior owner loses the right to claim title
Title transfers to adverse possessor
Possession merely raises the presumption of title
(prescription [a path through one’s property] gives rise to rights of use, not ownership)
NY statute mentions cultivated and improved; and substantial enclosure
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Color of Title – a deed or other instrument of conveyance that purports (but fails)
to convey title to the land described in it…defective and invalid…open and notorious is
presumed…statute of limitations is shorter …you get what the deed describes, not what
you actually occupy
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Claim of Right – an interest in property by adverse possession without color of
title. You only get what you actually occupy
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Law of Prescription - Statute of Limitations for Adverse Possession
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Quieting Title – an action to resolve title against adverse claims
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Ad Coelum – He who owns the soil, owns the sky above and the depths below
A. Tacking, only under claim of title…where you use someone else’s adverse
possession time to tack on to your own
1. The summation of an interest in a property by successive relationship to the
same rights of property
2. adverse possession cases may use it when a statute of limitations is either
partially fulfilled by one and then voluntarily surrendered to another who in turn
completes the statute of limitations requirements to achieve actual adverse
possession,
3. or where one fulfills the adverse possession requirement and then transfers the
property to another who in turn receives full ownership rights from the first
a) Manillo v. Gorski,
(Stairwell encroaching on neighbors property) Gorski built an outside stairwell connected
to his mom (D’s) house, which encroached on the property of Mannillo by some 15 inches for
20 years.
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Rule – If someone occupies land the presumption is that it is adverse to the title
holder
o Where the encroachment is not sufficiently open (hidden), the owner will NOT be
presumed to know of its existence.
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Where a boundary encroachment is shown to be executed in bad faith, the
encroacher may be forced to remove it regardless of the cost entailed.
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Reasoning – Allowing adverse possession of a tiny portion of a property puts an
undue burden of constant surveying of land by the true owner, while it may put undue
hardship on the adverse possessor who under an innocent belief of title put in extensive
work on home improvement.
3 different views of claim of title
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The Maine Doctrine – states that an intention to claim the land not embraced in title is
a necessary element of adverse possession (doesn’t help those who take the land
accidentally). Bad Faith or Aggressive Trespass Standard’ I thought I didn’t own it, but
I decided to make it mine.”
The Connecticut Doctrine – Motives are of no importance in determining whether an
adverse possession claim has been made. Instead the very nature of the act is an
assertion of one’s own title and the denial of the title of all others (protects those who
mistakenly take land). Objective- Intent is irrelevant
IGNORANCE DOCTRINE - Good Faith- “I thought I owned it”
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The Doctrine of Agreed Boundary – if there is uncertainty between neighbors to the
true boundary line, an oral agreement to settle the matter is enforceable if the neighbors
subsequently accept the line for a long period of time.
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The Doctrine of Acquiescence – long acquiescence (which may be shorter than the
statute of limitations) is evidence of an agreement between the parties fixing the boundary
line.
II.The Law of Landlord and Tenant
Leaseholds or tenancies: “An unintended stepchild of a defective conveyance”
 Term of years
 Periodic tenancy
 Tenancy at will
 MISNOMER: not a tenancy…tenancy at sufferance
The Term of Years is an estate that
 lasts for a fixed period of time, or (a day, month, year, 3000 years)
 for a period computable by a formula that results in fixing calendar dates for
beginning and ending
 No notice necessary for termination because end was known at onset
Periodic Tenancy
 A lease for a period of some fixed duration that continues for some fixed duration
 Self-renewing
 Ex…. the month-to-month lease
 Have to give notice to terminate
o 6 months notice must be given for a one-year lease
 Must be given on anniversary of renewal date, otherwise another 6
month term is extended
 If no notice is given, then L may require T to pay for another year
 Expense for L to recover cost
o One month lease
 Must give 30 days notice that ends at end of month
 Ex. if notice is given on June 13, tenant must pay for June & July &
be out by July 31
 Courts can rule that notice given on any date other than the 1st is
improper and therefore NO notice has been given
Tenancy at will
 No fixed term
 At will of L or T
 30 days notice required by statute
 If no notice given, then L can charge 1 month rent
A. Crechale & Polles, Inc. v. Smith, pp. 369-371
Rule of Law
"When a tenant continues in possession after the termination of his lease, the landlord has
an election either to evict him (treat him as a trespasser it is said) OR to hold him as a
tenant [for a full new term]." However, if a landlord "accepts monthly checks for rent due,
he in effect agrees to an extension of the lease on a month-to-month basis."
****Look for facts to see how the landlord initially treats the tenant:
 Prove the tenant was being treated as a trespasser or not
 Double rent or eviction = trespasser
 L accepts check= extension of lease
Max holdover term is one year by statute
1. Discrimination in selection of tenants
a. Federal Fair Housing Act § 3604…classic civil rights statute
i. Unlawful to refuse to rent or sell based on race, color, religion, sex, familial
status, or national origin or disability
ii. publishing/ads that send a message that there is a preference are unlawful
b. Is the person a member of a protected class?
c. Prima facia case: A discriminating motive is not necessary, just a disparate
impact…burden shifts to Landlord
i. Ex. forcing single parents to rent a 2 bedroom apt rather than a 1 bedroom apt,
so they just find an apt elsewhere.
ii. If there were 3 apts in a 200 unit building with single parent families, there is a
disparate impact
d. Only Landlord defense is demonstrating that the business necessity was a pretext for
engaging in discrimination
i. If successful, then burden shifts back to Tenant
e. Civil Rights Act of 1866 Law: 42 U.S.C.A § 1982
i. Only prohibits discrimination based on race
Know that during tests…explain all possibilities
 Under Fair Housing Act: In the event that the court finds this discriminatory, then there is
another issue:
o Does this fall in the single family home sold or rented by an owner exception of the fair
housing act?
 The exception does not apply to published ads
 The exception does apply to single family home owner, Mrs. Murphy exceptions
o However, if the court did find this racially discriminatory, there is no exemption under
the Civil Rights Act of 1866
Subleases and Assignments
Privity of K…a direct obligation between the parties…damages claim
Privity of estate… is an expression of a relationship between a grantor of land and a grantee of
land
…obligations that run with the land…ex. keep the premises in repair….fix doors and windows…rent
claim
L & T end up in privity of K and privity of estate with each other
A lease is partly a K and partly a property interest
Assignment – a new tenant agrees to takeover
the lease, “for the balance of the term”
Sublease- tenant rents out to a second tenant for
part of the term of the lease
L
T (1)
l
L
T (1)
T(2)
T(2)
L & T(1) have privity of K and privity of E
T(1) & T(2) have privity of K and privity of E
L & T(2) have privity of E, NOT privity of K
L only has right of eviction to T(2)
L & T(2) have privity of E
L & T(1) have privity of K
[L can grant novation to create new K with T(2),
then L & T(1) no longer have privity of K ]
Sublease v. Assignment : look for the term that is being granted. If the term is for
everything it is an assignment. If there is any time left on the lease that is not
conveyed then it is a sublease.
Test Q’s will say” what are the L rights against T(1) and T(2). Answer should say if
the court considers this transfer an assignment, then… If the courts consider the
transfer a sublease, then…
Covenant is K language
Interest is Property language
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Defaults
Sommer v. Kridel,
-overturned the rule that L had no duty to mitigating damages in the event of
abandonment by tenants
Presumption was that the landlord had no duty to mitigate damages
(came from agricultural/sharecropper times)
In commercial rentals, L is expected to mitigate damages and make reasonable
efforts
Space has to be added to available stock to avoid accumulating damages
Residential Ls have more discretion than commercial Ls
Efficiency- keeps product in stream of commerce
Reasonableness- L has to make reasonable efforts
Lost volume? Unique feature- -doesn’t work here
Fairness to T
Remedies
Damages
Specific performance
Recission/reformation
Surrender is the Ts perspective on novation
-a T surrenders the lease & if the L agrees then the T has no obligation to the T; &
the L has no rights against the T
- If a L relets “on the Ts account” (this language means that the L has not released
the T on novation) for an amount less than the fair market value and less than the
original lease, what can the L recover? L can recover the difference of the amount of
the relet and the fair market value.
When the L breaches…conditions of the premises
Quiet Enjoyment and Constructive Eviction
Rule…The right of quiet enjoyment is implied in every lease
The elements of a constructive eviction are
1. The conditions must be substantially unsuitable and permanent
2. The Landlord must be aware
3. L must have opportunity to make repairs; Tenant must show attempts at redress rather
than acceptance of conditions
4. Tenant has to leave within a fairly quickly time period once it has become unbearable
Construction Eviction - has to go on long enough that the landlord is not going to
cure.
T is a T at the will of the L.
Maximum damages available would be the rent, not the cost of a new rental
T has a term of years. L fails to control excessive noise of neighbors. T has recourse under
constructive eviction
L has a duty to take care of common areas such as parking lots and lobbies
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Hilder v. St. Peter
 The Vermont Supreme Court found that the rental of any
residential dwelling unit comes with an implied warranty exists
in the lease, that the landlord will deliver over and maintain,
throughout the period of tenancy, premises that are clean, safe,
and fit for human habitation. This warranty covers all latent and
patent defects in the essential facilities of the residential unit.
 "Essential facilities" are facilities vital to the use of the premises for
residential purposes.
 The Vermont Supreme Court found that any substantial violation of an
applicable housing code shall constitute prima facie evidence of a breach
of the warranty of habitability.
 The Court further held that damages should be calculated as the
difference between the value of the property as warranted and
the value as it exists.
 In addition, compensatory damages can be awarded for tenant's
discomfort and annoyance.
 However, in order to recover,
 the tenant must show that they notified the landlord of the problem,
AND
 the landlord failed to correct it within a reasonable period of time.
 Although punitive damages are not normally awarded under Contract
law, they can be awarded in especially "willful, wanton, and fraudulent"
cases to set an example.
Differences between Reste (constructive eviction) & Hilder (implied warranty of
habitability):
 She stayed-Why?... maybe conditions were worse elsewhere, no opportunity, no $
 Residential v. commercial
 Hilder situation worse?
 Implied warranty of habitability (designed to protect poor & maintain public health)
o Leave
o Stay and withhold rent
o Stay, repair and charge L
o Punitive damages (not available in constructive eviction)
o Compensatory damages (not available in constructive eviction)
o Actual damages: rent and repairs
Implied warranty of merchantability can be waived;
Most courts will not recognize a waiver of an implied warranty of habitability
As time goes on and the situation remains bad, the option of constructive eviction goes
away and the only remaining option is implied warranty of habitability
Hypo:
High end apt, high rent, pool, elevator, gym,
State law requires that leased dwellings be fit for habitability, safe, and healthy, & in
accord with “the uses reasonably intended by the parties”
Xtra services not included in implied warranty; not intended to extend beyond basic health
& safety
Nuisance-a private action to control use of land
Morgan v. High Penn Oil Co.
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Morgan’s owned house, restaurant and trailer park
Jury found Oil refinery emitted nauseating odors was a nuisance
Rule: Private nuisance is any substantial non-trespassory invasion of another’s
interest in the private use and enjoyment of land by any type of liability forming
conduct; either intentional or unintentional
If it is unintentional…conduct must be negligent (standard of care is reasonableness),
reckless, or ultra-hazardous (strict liability, no standard of care)
“Unreasonable” looks at person affected by conduct, cannot be hypersensitive
plaintiff
“Negligence” looks at actions of the perpetrator
Classic nuisance does not ask about social utility of offending conduct
 Remedies
o Injunction/abatement…most common
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Recurring frequency
Annoying density
Continuing
Irreparable injury
o Damages
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Permanent
 If this conduct continues indefinitely into the future, what
amount covers the damages minus present value
 How does asking the social utility question pose a problem?
o The larger business usually wins
o Economic impact of closing plant
o Denser population=increased nusances
Temporary
 Covers damages up until a defined point in time
Boomer v. Atlantic Cement Co.
 Boomer (and his neighbors) lived near a cement factory. Dirt, smoke and vibrations
came out of the factory. Boomer sued on the basis that this was a nuisance.
 The Trial Court found for Boomer and awarded temporary damages. However, they
did not award an injunction. Boomer appealed to get the injunction.
o Temporary damages are to pay the plaintiff for damages already accrued, but
they say nothing of the future.
 In theory you are supposed to stop the behavior that's causing the
damage. But if you don't, you might get dragged back to Court and
have to shell out more money.
o Permanent damages are to pay the plaintiff for all damage they could
possibly ever accrue from a continuing, long-term problem.
 Permanent damages make the Court's job easier. They are admitting
that there is a continuing harm which Atlantic will continue to rack
up liability for, but Boomer won't have to keep coming back to Court
over and over again to collect more and more damages.
 The New York Supreme Court partially reversed and awarded Boomer permanent
damages, but no permanent injunction.
o The New York Supreme Court felt that an injunction didn't make economic
sense, and there was nothing Atlantic could do to fix the problem.
o This court factored in social utility
o In some situations, like this one, injunction is too harsh a remedy
 People lose jobs
 Plant shut down
 No incentive to clean air
o Boomer's damages were relatively small in comparison with the value of
Atlantic's operation and with the consequences of an injunction.
 Under the economic theory of law, the law has a duty to encourage
economic growth. Factories bring in jobs after all.
o However, New York law has traditionally granted injunctions even if the
damage to the defendant from the injunction significantly outweighs the
damage to the plaintiff from the nuisance.
 Of course, the damages the plaintiff sustained must not be
"unsubstantial".
 In a dissent, it was argued that the award of permanent damages instead of an
injunction was tantamount to licensing a continuing wrong. It also eliminates the
incentive for Atlantic to ever alleviate the problem, since it's already been fully paid
for.

Btw, when this case went back to Trial Court to assess permanent damages, the
total bill to Atlantic came out to $710k, which was considerably more than Boomer's
property was worth.
Traditionally at law, no easement for light and air
HWHs and homes for the disabled scare people, hard to prove as nuisance
Spite fences….might block air/light…court will see if as a nuisance
Aesthetic nuisances
Lateral support…the right of subjacent support…
Spur Industries, Inc. v. Del E. Webb Development Co.
 Spur Industries ran a cattle feedlot that was originally way out in a rural
area since at least 1911..
 Over time, the area people moved to the area, and in 1959, the Sun City
housing development was built by Webb.
 Webb sued Spur because the smell from the feedlots was a nuisance to the
residents of the houses he built.
 Trial Court held that Spur's operation was an enjoinable public nuisance.
o "Enjoin" is the verb form of an injunction. The Trial Court was saying
that an injunction could be granted to stop Spur from using the feedlot.
 In general, the courts have held that if you enter an area reserved for
industrial or agricultural use and are damages by a nuisance, you can't get
relief due to the doctrine of coming to the nuisance.
o Webb could not get relief based on Spur being a private nuisance.
 However, the courts have also held that Spur is required to move not because
of any wrongdoing on the part of Spur, but because of a proper and legitimate
regard for the courts for the rights and the interest of the public.
o Sun City could get relief on the basis of Spur being a public nuisance.
 However, since Webb brought the city to Spur, Webb is responsible for the
nuisance. Therefore, since Webb caused the foreseeable detriment of Spur,
Webb must pay a reasonable amount of the costs of relocating Spur's
business.
 Basically, in this case, the Court is saying that if you put yourself in the way
of a legal business and are nuisanced by it, then you can get an injunction to
get rid of the problem, but you will have to pay the costs incurred by the
business!
 This case also explains the difference between a private nuisance that
annoys a particular landowner, and a public nuisance that annoys the
general public at large. There are different standards for relief depending on
which nuisance you are causing.
o Spur was both a private and a public nuisance.
 Private nuisance- only owners of interests in the land can bring suit
 Public nuisance- any member of the publican sue, but only if the person
bringing suit can show “special injury” or “special damage” or “particular
damage” which is injury of a different kind than what is suffered by the
general public.
The System of Estates
Estates in Land
Freehold Estates grants the holder seisin (title rights)
Leasehold estates grant possessory interest w/o granting title rights
Three basic
 Fee Simple (absolute)…all the rights that are available
 Fee Tail…limited to heirs of the grantee…can go on forever, but only to lineal
descendants
o I could sell it, but when I die, it goes back to my heir
 Life Estate…lasts for the life of the grantee or for the life of another (pur autre vie)
Essential terms
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Grantor/grantee
Grant, convey
o A transfer or a conveyance made during a grantor’s life
Transfer
o More general term, can be a devise, a conveyance
Devise
o Transfer by will (written into the will)
Inheritance
o Property transfer that happens when a person dies without a will
Remainder
o Leftover that happens on an estate that does not last forever
o A leftover piece of a fee simple
Words of purchase
o “To Bob”
o Without “and his heirs” creates a fee simple
Words of limitation
o “and his heirs”
o Secret lawyer code
 Means “in fee simple”
 Gives alienable rights
Heirs
o When a person dies without a will
 The people who are related to that person, who will get something
 Don’t know who the heirs are until the inteste dies
Issue
o Lineal descendants of the dead person
o A particular kind of inheritance
Ancestors
o People in the line before whoever is dead
Collaterals
o People on the sides of whoever is dead
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Escheat
o When there is no will, no heirs, all goes back to state…Eleanor Rigby law
Intestate
o Someone who dies without a will
Per stirpes
o Default in most jurisdiction
o How things are distributed
o Estate is split at first level
Per capita
o Whoever is alive, takes an equal share
Fee Simple
o Freely alienable
o Inheritable
o Devisable
o Otherwise transferable
o “and his heirs”
Fee Tail
o Inheritable only by issue of Grantee’s body
o Limited alienability for the grantee
o Continues to be a fee tail until line of descendants run out, then reverts back
to O and his heirs, if none then escheats back to the state
o Not devisable
o “and the heirs of his body”
o “in fee tail”
o “and his heirs male”
o “and the heirs of his body by his wife, X”
The Fee Simple and the Fee Tail





a system of estates in land developed From feudalism
tenant had status as a tenant of the fee or a tenant for life
status became estate
each is defined by length of time it may endure
A fee simple may endure
o Forever
o A life estate, for the life of a person
o A term of years, for some period of time measured by a calendar

The fee system developed out of a Rise of Heritability
o The land was not owned by the possessor, but held by the possessor as a tenant of
someone else
o Tenants had lifetime tenure
 Could not pass on to heir
 Personal nature of landlord-tenant relationship
 Tenant’s holdings called fief or fee
o After tenant’s death
 Heir may request that the lord recognize the heir as successor
 Lord under no obligation
 Lord may regrant the land for ($) a relief
 Would secure homage and oath of loyalty
o Eventually, consent to descent could be obtained before tenant death
o

Rise of Alienability (transferability)
o
o
o
o

Fee was not freely alienable inter vivo (within the living)
Fee not divisible by will
Conveyance was necessary
By the end of the 13th century, a tenant could convey the fee without the lord’s
consent
 It became freely alienable
Rise of the Fee Simple Estate
o
o
o
o
o
o
o
o

 Would be written by a conveyance from the lord “to Bob and his heirs”
By the 13th century, conveyance of a fee was a right, but payment to the lord was
still required
The land will escheat only if the current tenant dies without heirs
Thus the fee which started out as a holding became an alienable fee simple
 A freehold estate not terminable upon the will of the landlord
 With an existence all its own
Instead of thinking of the land, we think of an estate in land
 Has an existence apart from the land
Ex. O has an estate known as a fee simple
 If he owns it at death, it passes under his will or descends to his heirs
 Creditors may reach the fee simple and sell it to pay debts in default
Modern analysis says that an estate is a bundle of rights
Estate is a word that denotes legal relationships between persons with respect to a
thing
Fee simple is as close to absolute ownership as our law recognizes.
 Largest estate in terms of duration
 May endure forever
Interests in personal property
 Usually fee simple is only in land
 Sometimes there is a fee simple in personal property
Creation of a fee simple
o
o
o
o
o
Early common law created by grantor conveying land to heirs
 Land was inheritable, but no interest during lifetime of grantor
Judges interpreted “and his heirs” as words of limitations which define the estate
granted as a fee simple
Heirs do not take as purchasers
 Purchaser is a old common law term that refers to a person who is given an
interest in land by an instrument as opposed to an intestate succession
In a conveyance, the words “to Bob and his heirs” the words “to Bob” are words of
purchase
The words “and his heirs” are words of limitations
A creditor can sell a life estate, then it goes back to the original grantor after the grantee dies
The Law of Primogeniture (assume in place in 1800s)




Only the eldest son could inherit
If the eldest son died before the father and the son left a son, that child would take
before any daughters
o Eldest son of the eldest son of O takes before youngest son of O
Keeps the land parcels large
Daughters could only take if there were no boys at all
o Women ceased to exist when they married

o Land would transfer into other families
In modern law, all heirs share equally.
o A wife of a dead son does not inherit from O’s fee simple
Dying without issue does not mean dying without heirs
Estate does not escheat to the state,
Estate goes to ancestors and/or collaterals
Future interests are in themselves valuable property rights
The Life Estate…shift in presumption



Life tenant has limited seisin rights and possession
Pre-modern presumption
o w/o evidence to the contrary, a grant not clearly transferring fee simple title was
presumed to grant only a life estate pre 1600
modern fee simple
White v. Brown
 Handwritten will Wishes White to “have home to live in and not to be sold”
o Is it a life estate?
 “to live in”
o Is it a fee simple?
 She chose not to put conditions on this that she could have
o What happens to the remainder is missing from the will
 A life estate leaves a remainder
Rule: In ambiguous cases, the court looks to the testate’s intent
o
o


In this case, common law default rule is preceded by statutory presumption
 Presumption against partial intestacy
 Cannot have some pass by will and some pass by inheritance
 Fee simple is presumed
In all states, unless there is no language specifying, fee simple is presumed
Restraint against alienation
o Against public policy
o Repugnant in fee simple
o Possessor cannot sell life estate
 Goes back to owner
Fee simple with a restraint against alienation
o Makes property unmarketable
o Perpetuates the concentration of wealth by making it impossible for owner to sell
o Discourage improvements on land
o Prevents owner’s creditors from reaching the property
Restraint types
 Disabling restraint- Void
o Withholds power of transferring interest
o You cannot sell
 Forfeiture restraints- Usually upheld
o If you attempt to transfer, then property will go to someone else
 Promissory restraint
o Grantee promises not to transfer
o



Rare
Fee simple
Fee tail- lineal descendants
Life estate- for the life of a person
Defeasible estate
 Any freehold estate can be made defeasible
o Fee simple
o Fee tail
o Life estate
 A condition is imposed on the grantee’s seisen
Determinable v. Condition subsequent
Determinable estate




Language created a limitation on the power of the grantee to retain title
The condition has durational aspect
Title is terminated automatically upon happening of stated event
“inherently limited”
Just because a clause says “reverts” does not make it automatic
Only an original grantor can have a reversion
Can have a right of entry
Can have a possibility of reverter
Every fee simple determinable is accompanied by a future interest retained by the
transferor and called a possibility of reverter
Estate subject to condition subsequent
Subject to condition subsequent retains right of entry
-requires an action of eviction against party occupying land or actual reentry onto the land
If you confront a problem that contains conflict…do not skip over the analysis that it may be an
ambiguous grant, address that first.
Default rule is if you cannot tell, then it is an estate subject to condition subsequent
Inheritability of future interest
Leasehold Estates and Defeasible Estates
Marenholz v. County Board of School Trustees, 208-213.
-discussion on what constitutes “school purposes”
-conditions
Release- future interest released to possessor
problem where Blackacre is conveyed to A and his heirs so long as premises are not used for
sale of beer, wine, or liquor. Restaurant cooks with wine and gives complimentary wine
with dinner. A wants to sell to B so he can open a bar.
First…is it a life estate, is it a fee simple?
determinable language
condition subsequent…when there is conflicting language, then condition subsequent
Has the condition been met?
Is cooking with liquor selling liquor? No license=no sale
Is giving away wine selling wine?
Does sell mean consumption?
when the condition subsequent has been violated, the property should go back
to O, if this does not happen, then doctrine of laches (adverse possession) may apply
because statute of limitations may run out, A would still need to sue for quiet title. (a
declaration of rights)
Fee simple is the whole pie (no termination…no reversion)
Anything less than a fee simple has a remainder that potentially belongs to someone else
…that is the future interest
When we talk about future interest we look at two things to give a complete answer to what
is the state of the title:
1) Present possessory estate …what the current possessor possesses now +
2) future interest + estate Future Interest holder will get
Future interests questions
-who receives the future interest?
-whether conditions are imposed to take
-whether conditions are imposed to keep
-whether condition lasts too long
Only two things can happen
Either original grantor retains interest
OR
A third party gets an interest
An original grantor retains an interest
Condition is sure to happen = natural terminating estate (death) = REVERSION (goes
back to original grantor)
-to A for life LIFE ESTATE
-to A and the heirs of his body (line of lineal descendants may die out, if it ends it ends
when the last issue dies) FEE TAIL
Reversion?
-to A for life, then to B and her heirs.
A has a life estate, B gets a fee simple…nothing left…O cannot get a reversion
-to A for life, then to B and the heirs of her body
A has a life estate, then B gets a fee tail, B may have no issue, then estate will go back to
original grantor
Fee tail has a remainder…YES REVERSION
-to A for life, then to B and her heirs if B attains the age of 21 before A dies
A has a life estate, B will have a fee simple if B reaches age 21, if B dies before 21 , then
only a life estate exists YES REVERSION, if B gets to 21 before A dies, then B gets fee
simple NO REVERSION
B has a present right to a future interest
-to A for 20 years
A has a term of years, YES REVERSION
-to A for life, then to B for life
A life estate, then B has a life estate, something is left, O has REVERSION in fee simple
-O dies testate, devising O’s property to C
The fee simple is property, C gets O’s REVERSION, still called a reversion
-Then A dies and B dies then C is left with fee simple
Naturally
terminating
Non-Naturally
terminating
Original
Grantor
Third Party
Grantee
Non Naturally Terminating Estate
-to A as long as she never shoots a gun
POSSIBILITY OF REVERTER
-to A and her heirs, but if she ever travels outside the United States, then O retains the
right to reenter and take as of his former estate (the grant is complete, but subject to
condition subsequent)
RIGHT OF ENTRY
-To A so long as she never serves alcohol on the premises, otherwise to B
EXECUTORY INTEREST
-To A upon her marriage (A is 7 years old)
O has a fee simple, until/unless A marries
EXECUTORY INTEREST
Original grantor or Third party receives an interest (either or, one or the
other)
-if a third party gets the future interest it is called a REMAINDER
-to A for life, then to B and his heirs---REMAINDER goes to B’s heirs
-To A and the heirs of her body, then to B---REMAINDER goes to B
Vested and Contingent Remainders
-a remainder is vested if
1) the taker is ascertained; AND
2) no pre-conditions exist to take…DEATH is NEVER a pre-condition…SURVIVAL is
different from death, it is a condition
-if one condition is missing, then remainder is contingent
-To A for life, and in the event of A’s death to B and her heirs.
A has a life estate, then B gets a fee simple. B’s heirs really have nothing.
This is written as though there is a condition, but death is not a condition.
A has a life estate, b has a VESTED interest in fee simple
-To A for life, then to B for life, then to C and her heirs
A has a life estate, B has a VESTED remainder in a life estate, C has a VESTED remainder
in fee simple
-To A for life, then to B for life, then to C and her heirs, if C survives A and B.
A has a life estate, B has a VESTED remainder in a life estate, C has a CONTINGENT
remainder in fee simple and possible revision to Original grantor
-To A and B for their joint lives, then to the survivor in fee simple
A and B have a joint life estate, each have a CONTINGENT remainder in fee simple,
possible REVERSION to Original grantee if both A and B die together
-To A for life, then to A’s children who reach 21.
A has a life estate, A’s children have a CONTINGENT remainder, O has REVERSION until
B reaches 21
-If B reaches 21
B has a VESTED interest in fee simple, but so do any other A’s children if/when they reach
21
Vested interest subject to divestment by third party
-to A for life, then to B and her heirs, but if B does not survive A, to C and his heirs
EXERCISES
-To A and his heirs
A has a fee simple, no future interest
-To A and the heirs of his body, then to B and his heirs if B married at the time A’s issue
runs out
A has a fee tail, B has a CONTINGENT remainder in fee simple, O has REVERSION
-To A and his heirs so long as none of A’s children enters the military
A has a fee simple determinable, O has the possibility of REVERTER
-To A for life so long as A remains married
A has a life estate determinable, O has the possibility of REVERTER, if A remains married,
she has a life estate until she dies, O also has the possibility of REVERSION
Executory Interest
-Interest to third-party grantee cuts vested interest short
-Power to take
-reads like a determinable estate or an estate subject to a condition subsequent
BUT when the condition is met, the interest passes to a third party, rather than back to the
original grantor
-shifting- going to some other third party
-springing- O holds title until it goes to third party
Ex. To A and his heirs, but if A dies without issue surviving him,…to B and her heirs
…A has a FEE simple subject to an executory limitation in B, and B has an executory
interest in fee simple
Ex. To A for life, then to B and her heirs, but if B dies under age 21, to C and her heirs.
…A has a life estate, B has a vested remainder in fee simple subject to an executory
limitation in C, and C has an executory interest in fee simple
What does this mean?
-Figure out who gets it next
Problems at 238
1.(A)-To A for life, then to A’s children and their heirs, but if at A’s death he is not
survived by any children, then to B and her heirs.
---A has a life estate, A’s children have a contingent remainder in fee simple, and B has an alternate
contingent remainder in fee simple, O has reversion in fee simple until A’s death
LIFE ESTATE FORFETURE: There is always a possibility of a life estate being
forfeited, so a LIFE ESTATE can end up not transferring and ending before the life
of the holder ends
So A’s kids and B may never get it.
Whenever there is a contingent remainder, O has a reversion
Two years after the conveyance, twins, C & D, are born to A. What is the state of
the title?
--A has a life estate, C & D have a vested remainder in fee simple subject to open (because A can have
more children)and subject to complete divestment (executory limitation) (because C & D can fail to
survive A), B has executory interest. (O has no reversion)
Class gift, subject to open OR subject to partial divestment…means the same thing
There cannot be a contingent remainder after a vested remainder in fee simple
C dies during A’s lifetime, A is survived by B and D.
--A has a life estate, D has a vested remainder in fee simple subject to open (because A cannot have
more children)and subject to complete divestment (executory limitation) B has executory interest in fee
simple. If any child survives A, then A’s children take. D & C’s heirs each take ½ interest in fee simple.
(b) to A for life, then to such of A’s children as survive him, but if none of A’s children survives him,
then to B and her heirs.
-A has a life estate, C & D have a contingent remainder in fee simple, B has a alternate contingent
remainder in fee simple (C & D’s interest is not subject to open because nothing is vested, nothing is
sure), O has reversion
At the time of the conveyance, A is alive and has 2 children, C & D.
-A has a life estate, C & D have contingent remainder in fee simple, B has alternative contingent
remainder in fee simple, O has reversion.
(c)To A for life, then to B and her heirs, but if A is survived at his death by any children, then to such
surviving children and their heirs.
-A has a life estate, B has a vested remainder subject to complete divestment (executory limitation), A’s
surviving children have a shifting executory interest in fee simple
T devises: $10K to my cousin, Don Little, if and when he survives his wife. (T is
dead)
- T’s heirs have fee simple (seisin) subject to complete divestment (executory limitation) in Don Little,
Don Little has springing executory interest (comes out of original estate)
The Rule Against Perpetuities: RAP
- Rule intended to free up land so it can be bought and sold
- if we have to wait too long to see it interest will vest, it’s too long
- Prevention of “dead hand control”
- we will wait a certain amount of time, but no longer
- the rule applies to all future interest
- Q is: does it waive the future interest?
- No interest is good unless it must vest, if at all, not
later than 21 years
after some life in being at the creation of the interest.
Working problems
-What is the state of the title w/o RAP? First work the problem as if there is no RAP
-What has to happen for the interest to vest or fail?
Will you know for sure that the condition will happen w/in 21 years of the death of whoever?
Is it possible that you won’t know for sure that the condition will either happen w/in 21 years
of the death of whoever?
If the rule is violated, if it is possible you won’t know for sure, then that clause is struck from the
state of the title leaving what ever is still good
Whenever a taker is categorized as a class as opposed to identified with names, need to look at an
individual in a closed class when calculating 21 years after death
Notice that whether the problem begins with an O or a T makes a difference in the
state of the estate
More problematic when there is an open class
More… Rule Against Perpetuities
-First set up the state of the title w/o rule
-then figure out what contingency needs to be resolved
-will you know for sure within 21 years of the death of someone alive at the time of the xfer
[the clock starts ticking when the person dies]
-apply the rule if it applies, then identify the state of the title
Ask not what did the grantor intend, but what is left after the rule is applied
TEST:
1)
2)
3)
4)
State the title w/o RAP
What will happen for the interest to vest
Will we know for sure w/in 21 years of the death of someone alive at the time of the transfer?
Is it possible we will not know for sure?
Rule is about possibilities, (ex. Fertile octogenarian, precocious toddler)
To A for life, then to B if B attains the age of 30. B is age 3.
A has a life estate, [B is 3rd party grantee following naturally terminating estate] B has a contingent
remainder and fee simple [condition] if B turns 30. O maintains a reversion in fee simple.
TEST: Look at B, will U know for sure within 21 years of B’s death whether B made it to age 30 or
not?
Yes, we will know. B will live or he will die within 21 years of his death. We will know at the moment
of his death whether he reached 30 or not. We will know when he turns 30 whether he turned 30 or
not.
This entire grant is valid and does not violate the RAP.
++++++++++++++++++++++++++++++++++++++++++++
To A for life, then to A’s children for their lives, then to B if B is then alive, and if B is not alive then to
B and his heirs. A has no children at the time of conveyance.
A has a life estate, A’s children have a contingent [not all children exist & no preconditions, so its not
vested] interest in a life estate.
B has a contingent remainder in fee simple, B’s heirs [they are a third party grantee following a
naturally terminating estate] have an alternate [single condition] contingent remainder in fee simple.
There is the possibility that A or A’s children abandon the life estate before A’s death, so O
maintains reversion.
TEST: A’s life estate and children’s interest in life estate satisfy RAP.
B will die before A’s children or survive them all, so this conveyance satisfies RAP.
This entire grant is valid and does not violate the RAP.
Interest has to be VESTED before it is subject to divestment (subject to open)
There is no such thing as a contingent remainder subject to open!
Executory interest only applies to VESTED interest
++++++++++++++++++++++++++++++++
O holds $1K in trust for all members of her present property class who are admitted to the bar. Is the
gift good?
O has fee simple because no one in class has been admitted to bar yet, but it is subject to springing
executory limitation and the class has springing executory interest. The class is closed because no
one else can join.
For a class gift to vest, (1) the c lass must be closed and (2) all conditions to join the class must be
met, The gift must be vested for ALL members of the class to satisfy the RAP.
Everybody who gets admitted to the bar gets a gift. All members of the class serve as their own
measuring life.
Suppose that O said for the first child of A who is admitted to the bar?
A child of A must be admitted to the bar.
It is possible that we will not know within 21 years that A’s child is admitted to the bar. A could die
and her child may not be admitted to the bar within 21 years of her death.
This grant violates RAP.
O would retain fee simple.
++++++++++++++++++++++++++++++
To A for life, then to A’s children who reach 25. A has one 26 year old child, B, alive at time of
conveyance.
A has a life estate, A’s children, particularly B, have a vested remainder subject to open. [the
remainder is vested because there is a named member of the class who satisfies conditions for
membership of the class]
For the interest to divest indefeasibly, A has to die to close the class.
If A has an afterborn child, X and B dies, it would take more than 21 years for his/her interest to
vest.
This conveyance violates the RAP.
++++++++++++++++++++++++++++++
To A for life, then to A’s widow, if any, for life, then to A’s issue then living.
Is the gift to A’s issue valid?
A has a life estate, A’s widow has a contingent remainder [not vested because we won’t know who she
is until A dies] in life estate.
Then to A’s issue with a contingent remainder in fee simple.
O maintains reversion in fee simple.
TEST: only A can be measuring life because A’s widow cannot be ascertained.
Since it is possible that we will not know for sure who A’s issue still living at time of W’s death, this
conveyance violates the RAP.
++++++++++++++++++++++++++++++++++
T devises property to A for life, then on A’s death to A’s children for their lives, and upon the death of
A and A’s childen, to…
B if A dies childless. A and B survive T.
-A has a life estate, A’s children have a contingent remainder in life estate; B has a contingent
remainder in fee simple. T’s heirs have reversion.
Apply RAP: Looking at A as the measuring life, we will know at the time of A’s death whether or not
she has surviving children.
The grant is VALID.
T devises property to A for life, then on A’s death to A’s children for their lives, and upon the death of
A and A’s childen, to…
B if A has no grandchildren then living. A and B survive T.
-A has a life estate, A’s children have a contingent remainder in life estate; B has a contingent
remainder in fee simple. T’s heirs have reversion.
Apply RAP: We need to identify the living grandchildren of A within 21 years of someone alive at
the time of the transfer.
We will not know for sure within 21 years of T’s heirs death, A’s death, B’s death, or A’s children’s
death. [A’s children cannot be measuring lives because they are in an open class]
The contingent remainder to B is VOID.
So, then -A has a life estate, A’s children have a contingent remainder in life estate; B has a
contingent remainder in fee simple. T’s heirs have reversion.
T devises property to A for life, then on A’s death to A’s children for their lives, and upon the death of
A and A’s childen, to…
B’s children. A and B survive T.
-A has a life estate, A’s children have a contingent remainder in life estate; B’s children has a
contingent remainder in fee simple. T’s heirs have reversion.
Apply RAP: We need to identify B’s children within 21 years of the death of someone alive at the
time of the transfer.
Using B as the measuring life, we will know for sure at the moment of B’s death whether or not he
has children.
The contingent remainder to B’s children is VALID.
T devises property to A for life, then on A’s death to A’s children for their lives, and upon the death of
A and A’s childen, to…
B’s children then living. A and B survive T.
-A has a life estate, A’s children have a contingent remainder in life estate; B’s children has a
contingent remainder in fee simple. T’s heirs have reversion.
Apply RAP: We need to identify the children of B who survive A’s children within 21 years of the
death of someone alive at the time of the transfer.
We will not know for sure within 21 years of T’s heirs death, A’s death, B’s death, or A’s children’s
death.
The contingent remainder to B is VOID.
So, then -A has a life estate, A’s children have a contingent remainder in life estate; B’s children
have a contingent remainder in fee simple. T’s heirs have reversion.
T devises property to A for life, then on A’s death to A’s children for their lives, and upon the death of
A and A’s childen, to…
A’s grandchildren. A and B survive T.
-A has a life estate, A’s children have a contingent remainder in life estate; A’s grandchildren have a
contingent remainder in fee simple. T’s heirs have reversion.
Apply RAP: We need to identify the grandchildren of A who survive A & A’s children within 21 years
of the death of someone alive at the time of the transfer.
We will not know for sure within 21 years of T’s heirs death, A’s death, B’s death, or A’s children’s
death.
The contingent remainder to A’s grandchildren is VOID.
-A has a life estate, A’s children have a contingent remainder in life estate; A’s grandchildren have a
contingent remainder in fee simple. T’s heirs have reversion.
T devises property to A for life, then on A’s death to A’s children for their lives, and upon the death of
A and A’s childen, to…
T’s grandchildren. A and B survive T.
-A has a life estate, A’s children have a contingent remainder in life estate; T’s grandchildren have a
contingent remainder in fee simple. T’s heirs have reversion.
Apply RAP: We need to identify the grandchildren of T who survive A & A’s children within 21 years
of the death of someone alive at the time of the transfer.
The death of T’s last living child closes the class of grandchildren.
This grant is valid.
T devises to A and B as joint tenants for their joint lives, remainder to the survivor.
A and B have JT in life estate. Contingent remainder to A or B in fee simple. O reversion.
-If A & B had a JT in fee simple, then O has no reversion and there is no right to sue for waste
Symphony Space v. Pergola properties
Broadwest sold building to non-profit Symphony Space with option to buy back at certain intervals.
The intervals exceded 21 years
Symphony Space sold property to Pergola based on the theory that the Purchase option violated the
RAP.
Broadwest argued that the RAP does not apply to commercial options.
Businesses have a potentially infinite lifespan, so RAP looks at date of Xfer + 21 years.
The argument against applying RAP:
-Rule was not designed to regulate transactions between two sophisticated business entities
RAP voids the condition which violates the rule, not the entire K.
The condition was invalid from the moment it was signed, but no one tried to exercise the option, so
neither party noticed it was void for many years.
The NY court cannot apply “wait & see doctrine.” NY statute prevents this.
Rights of First Refusal v. Option to Buy
Cannot force sale v. Can force sale
Rescission is only available in mutual mistakes of fact, not mutual mistake in interpretation
IN this case, allowing rescission would provide the same consequences of forcing the option to buy.
Underlying policy…tax dodging by Broadwest
++++++++++++++++++++++
If, on a test, the language makes the tenancy unclear because of conflicting
language be sure to discuss it.
Concurrent Interests
Joint Tenancy [JT]
Tenants are together
Tenancy in Common Tenancy by the
[T/C]
Entireties [TBE]
Tenants have separate Tenants are together
regarded as single
owner
Right of Survivorship
Right of survivorship
Unilaterally
severable- one tenant
can sever JT on his
own by creating a
new deed
Transferable during
life, but destroys the
interest of the one
who transfers it, the
remaining tenants
still have a joint
tenancy in their
common share
but undivided
interests
No right of
survivorship
---------------------
When there is
ambiguity as to
whether a tenancy is
joint or in common,
courts tend to construe
as tenancy in common
Avoid Probate
Rights extinguish
upon death
Not inheritable
Not devisable
Offers some
protection from
creditors; attackable
only to the extent of
the debtor’s interest
4 unities
-time
-title
-interest
-possession
regarded as single owner
Right of survivorship
Right of survivorship
Cannot be destroyed
unilaterally
Transferable by joint action
of both spouses protecting
certain marital assets, the
marital home designed to
protect wives, but in effect
also protects the husband
(Sawada) and the family
unit
Divorce terminates the
marriage and the TBE
Can be conveyed by
deed or will
Devisable
Offers some protection
from creditors;
attackable only to the
extent of the debtor’s
interest
Unities do not apply
Not inheritable
Not devisable
Best protection from
creditors; creates an
absolute protection for both
spouses
5 unities: 4 + Marriage
Harms v. Sprague
-IL views the mortgage as a lien rather than a property interest
[lien theory]
-taking out a mortgage does not destroy a JT
-the mortgage only has a lien on the title, not ownership
-the debt does not survive the death
-title theory holds that a mortgage is a transfer of ownership
Delfino v. Vaelencis
Developers want to partition by sale. They are T/C with a lady who owns a garbage
business.

Joint Tenancy
o Tenancy in Common
o Partition in Kind..default rule
 Presumption in favor of Partition in Kind
o Partition by Sale (Divorce)
 Presumption that partition in kind is the action that should be
taken
 Rebuttable
o Physical partition is impractical
AND
o Promotes owners’ interest, not detrimental
Developers argued 4 points why partition by sale is best action
1-land cannot be zoned for residential use if garbage business stays…no permits to
build
2-lots might not sell if garbage business stays- reduction in property value
3-access to her home, if it remained, would affect 3 lots- reduction of profitability
4-road would have to be rerouted if her home remained
[Partition by Sale is an elements test, yet trial court did not require P to meet both
factors…also this trial court did not look at both owners’ interests…but it is just
rebutting a presumption]
Land is not hard to partition, not a pond, not hilly
Garbage lady’s points
- her livelihood is threatened
-her residence is threatened
-no evidence that license will not be threatened
-forcing the little guy out
Appellate court remanded and ordered that the land be partitioned in kind.
-the elements were not satisfied
-the land was physically partitionable
-legally it was the right thing to do
-her business was a preexisting nonconforming use & permits will not transfer; no
obligation for council to grant permit in new location
-her livelihood was important to the community by dealing with the garbage
-her business may not be movable; people would not want her to move nearby
When zoning, it is not uncommon for government to take land that doesn’t fit in
zone. Often these properties are allowed to stay as a preexisting nonconforming use.
Public policy supported…people do not like forcing people out of their homes.
Marital Interests
 Based on English law
 Women as non-entities
 Legal fiction that man and woman are one
 Husbands and wives can hold jointly
 Husbands and wives can hold in common
Hypothetical p.313
W agrees to care for H personally at home for the rest of his life and in exchange he
will will her certain property. W did care for H until his death. When he died H
devised his property to a daughter from a previous marriage.
Court found K between H & W unenforceable due to lack of consideration. K should
have been worded to define W’s consideration naming what she gives up, ex. other
employment.
Ruling that a K existed would be opening the door for
commercializing/contractualizing maritial duties.
Sawada v. Endo
 Hawaii is an unusual state
 Ruled by sovereignty until taken over by US
 Land was parceled out from center of island to the shore
 Oligolopy
 Few landowners; high rent
 Challenge as to how to not take land
Endos owned their home and conveyed property to sons a month after suit was filed
against Endo in personal injury.
Judgment entered against Endo. Endo wife dies.
Court ruled that tenancy by entireties protects homeowners from creditors.
Transfer to sons was valid because both spouses agreed to transfer. Transfer to sons
was not fraud to creditors because they had no right to the property under tenancy
of the entireties. Home would have ceased to be protected after death of wife.
Without transfer to sons, creditors would have been able to get house.
Elkus v. Elkus
Divorce of opera singer and husband. Husband claims her celebrity status is marital
property to be divided.
NY statute defines marital property is “property acquired during the marriage
regardless of the form in which title is held.”
Court found that she did have to pay something to compensate husband’s efforts.
 Use
Property
 Exclusion
 Alienation
Celebrity status and professional license as a divisible marital asset is discussed.
 Gained through personal labor
 Innate talent
 Conferred upon a person
 Inalienable (not transferable)
 Cannot just buy it
 May have some measurable earning capacity
 Usually has effort of spouse in building it
Hypo discussed: Jennifer Gray of Dirty Dancing. After movie, her prospects looked
great but she never did anything else. What if her husband and her split up when
her career was up and he gets a share of projected future earnings?
Dower was replaced with Forced elective share or taking against the will which
amounts to a one-half share, so if deceased spouse left surviving spouse less than
one-half, he or she should take against the will to get a larger share. If there are
children, the surviving spouse typically gets one-third.
problem
H dies in a state that gives the surviving spouse an elective forced share of one-half.
Insurance policy is not part of estate, it goes to beneficiary. Surviving party gets all
of title to house since they were joint tenants. Wife can take against the will and get
half of the estate that was willed to daughter. If he left each half under the will,
each would get half. Wife would not be able to take more than half.
Basic assumption is that married couples split things evenly no matter who generates the
income
-community property can only by husband and wife
-like any t/c you only get to will the part that belongs to you
-no survivorship,
Favorable tax status of community property
-No forced elective share
 Community Property System
 10 states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas,
Washington, Wisconsin, Alaska
 Earnings of each spouse during marriage should be owned equally in undivided
shares by both spouses
 A spouse can will his or her share
 Includes rents, profits and fruits of earnings
 Whatever is bought with earnings is community property
 All property that is not earnings is separate




 Acquired before marriage
 Acquired during marriage by gift, devise or descent
 In some states the income from ALL property is community property
Property acquired or possessed during the marriage by either spouse is presumed to
be community property
 Can only be overcome by preponderance of the evidence
Deeds prepared by one spouse that property is separate property are not controlling
In most states, a spouse can freely “transmute” (change) the character of their
property by written agreement and in some states by oral agreement
 They can convert community property into separate property
 And separate property into community property
Divorce
 Some states…equal division of community property
 Some states…equitable division of community property
 Management of Community Property
 Community property can be conveyed to a third party only as an undivided whole
 All original 8 community property states enacted statutes giving husband and wife
equal management powers
 Most community property states allow either spouse to act alone in managing
community property
 But in certain situations, only one spouse may be empowered to manage
 Title of property in one name
 Business
 Most states statutes require both spouses to join in transfers or mortgages of
community real property
 Manager of community property is a kind of fiduciary
 Must be managed for good of community
 Each spouse must act in good faith in exercising authority
 Good judgment not necessary
 Manager may sell community personal property
 If joinder of other spouse is not required by statute, real property can be be sold
Community Property
No dower or curtesy
No tenancy by the entirety
Common Law Concurrent
Interests
Husband and
wife
Conveyance
of share
At death
At death
At death
At death
Sale after
death
Tenancy in Common OK as separate
property, but 2 spouses cannot hold
community property & T/C simultaneously
Joint Tenancy OK as separate property, but
2 spouses cannot hold community property
& JT simultaneously
Can exist only between husband and wife
Neither spouse acting alone may convey his
or her undivided ½ share of community
property except to the other spouse
Neither spouse can change community
property into separate property w/o consent
of the other
Each spouse has the power to will ½ of the
community property at death
No survivorship
In most states, if a spouse dies intestate, his
or her share of the community property
passes to the surviving spouse
In some states, if a spouse dies intestate, his
or her share of the community property
passes to the descendants of the decedents
Some states allow spouses to create right of
survivorship in the surviving spouse
The entire community property receives a
“stepped-up” tax basis for federal income
tax purposes. (The difference between
“basis” which is what the item cost, and
selling price is income to the taxpayer) The
new basis is the value of the property upon
the date of the decedent’s death.
T/C or a JT can exist between
any 2 or more people
a tenant in common or a joint
tenant actions alone can convey
his or her undivided share to a
third party, can change the
form of an estate (ex. from a JT
to a T/C) and has the right to
partition
JT has survivorship
Goodridge v. Dept. of Health, 346-56, Notes and Questions at 356-59
 3 reasons to distinguish between hetero and homo couples

1. Rational relationship to legitimate state interest
a. Human experience/procreation
b. Does excluding same-sex couples from marrying
2. Treating similarly situated individuals equally/differently
a. Genderb. Optimal child-rearing setting
c. Some religious traditions doctrine
d. “unnatural” and therefore wrong
3. Statutory interpretation: statute is clear, but….
4. Legislative intent
Servitudes: Easements
 Private Land Use Controls
 The Law of Servitude
 Covenant
 REMEDY OF DAMAGES
 Servitute
 REMEDY OF SPECIFIC PERFORMANCE
 Easement- (ex.Pass and repass- most common)
 Appurtenant/In gross

Appurtenant
 Adds value to someone’s land
 Land benefit
 In gross
 Doesn’t benefit anybody’s land
 Personal benefit
 Negative /affirmitive
 Negative
 Affirmitive
 Tenement (estate)
 Dominant (
 Servient (the land subject to restriction)
Servitudes: Easements and Covenants Running with the Land
Willard Case = Stranger to the Deal
Oral and knowledge of easement is not sufficient to pass the easement.
Property = bundle of rights
This case represents the notion that property can be divided. The seller has the
right to divi up the rights that are sold. So it is logical to move from the
conservative old rule that denied "reserves" to now accept that the seller can
create and gift an interest in a 3rd party.
Statutes will not apply retrospectively unless the legislature says that they
will.
Courts feel freely to change the common law because the understand that the
right and true rule is out there and if it came up before they just did not realize
it.
Courts Retroactivity discussion
 Unjustness to apply (the rules that apply
 Expectations (reliance on the old rule)
There are no expectations which rule should apply because it was open and
obvious that the parking lot would and had already been used by the church.
The new rule may or may not apply prospectively now. Page 675 "We must
balance the injustice which would result from refusing to give effect to the
grantor's intent against the injustice, if any, which might result by failing to
give effect to reliance on the old rule and the policy against disturbing settled
titles."
To get around this - McGuigan could have deeded to the Church and then have
the Church deed to Peterson.
(Don't worry about the differences between Reservations and Exceptions on
page 676 - most of the things we will deal with are reservations
-----------------------------------------------------------------------------------------------------------------Van Sandt Case = Implied Reservation
Easement by reservation
Bailey failed to express that there was a sewer running across the partitioned
lots. The two other owners thought that they had a fee simple (absolute title)
with no reservations or conditions.
If Van Stand and Royster got free and clear deeds how did the court get to
saying there was an implied reservation.
1. Easement must be of strict necessity
2. Whether the claimant is the conveyor or conveyee (conveyee's needs get
more weight)
3. The extent of prior use/notice
4. Whether there are reciprocal benefits
What is the standard for notice? Even if there is no knowledge 1. They were presumed to have thoroughly inspected the land
2. Notice to the parties = They knew the house with modern plumbing so you
have to know the house connects to a sewer.
----------------------------------------------------------------------------------------------------------------Mathews Case = Public Trust Doctrine
Complete public access up to high tide line. The upper dry sand is called the
tidal waters beach.
There is no disagreement that the public has access to the lower area. Who
owns the dry sand? - the private people say they do, but people have to walk
across it to get to the beach and when the tide goes out the private/public land
line is not clear.
Why is this not a taking?
Public trust doctrine renders poor shore argument null. You can't take in order
to give people access to the poor shore. By the court did turning Bay Head into
a quasi public agencies it socialized/subsided the entity. Can the gov. exercise
eminent domain over another gov entity? - NO
Finding Bay Head as a quasi governmental organization was CRITICAL for
them to find that it was not a taking.
-----------------------------------------------------------------------------------------------------------------Brown v. Voss
Normal Rule - if you have an easement to go from parcel A to parcel B. That
gives you a right to get from parcel A to B period. It does not give you the right
to get to parcel C. It is a miss use of the easement if you use the easement for
any other use.
TC: Both awarded $1 in damages. The court did not grant an injunction.
CA: Did not speak to damages, just reviewed the denial of the injunctive relief.
TC judgment was affirmed.
Abuse of discretion is the standard for review - a lot of deference is given to the
court
Why does the court still allow, what is technically a violation of the easement?
The reaffirmed the rule that the easement is being violated, but there was no
injury to the parties. No increased burden to the servient parcel.
Violation of property law, but this violation is not making a difference in their
property rights.
What kind of an award is an injunction? An equitable remedy!
1. Legal question = resolved and not appealed and that was the $1 damages
2. Equitable issue = defendant says just because there was a legal wrong it
would still be to harmful/burdensome on us even though we are a little in
the wrong. So the refusal to grant the injunction is on the equity side and
where the abuse of discretion is being reviewed by the Supreme Court.
-----------------------------------------------------------------------------------------------------------------Prescriptive Easement
An easement by adverse possession. They come about by long periods of use,
and often tide to adverse possession statutory limitation ejections. It arises
because someone has cut across the back 40 and no one has stopped the person.
What is different is - the easement exists only so long as the use continues!!! It
can be extinguished by nonuse. But most easements end by non use anyway
though.
When the kids stopped going over the ladder to get to the sledding hill the
prescriptive easement ends.
-----------------------------------------------------------------------------------------------------------------Preseault Case
Railroads had been granted condemnation - they were able to condemn land for
public railroad usage. Took them by eminent domain or purchased.
What is at issue is whether the railroads took the land with fee simple. If the
railroads owned fee simple then it would not matter if the railroads stopped
using the land for railroad purposes = because it still owns the land. If it is an
easement, then when the use stop so does the easement.
Limited eminent domain - the railroad could only take what they needed to
pass through land. The railroads were not granted all of the land by fee simple.
The purpose of granting eminent domain was to serve public service = run
trains and transport goods. If they did not have eminent domain it would have
been to costly for the railroads to have negotiated with each individual person
to get access or inability to make a straight and efficient track route.
Vermont Problem
Either by state or by reasonable interpretation of federal law - the only thing
the railroad ever purchased was a fee simple. It was limited by scope and
distance/space. Width was dictated by the needs to clear brush and lay track.
The consequence of owning an easement - once it is not used anymore it goes
back to the original owner!! Title merged then goes back to the owner of the
underlying land. (Same thing with a sidewalk in your front of the house - you
own the land but you cannot exclude people from using the sidewalk)
The court says the railroads abandoned the easements.
How is this different then the school land/school purpose case previously
discussed? The railroads had removed all of the tracks and effectually
abandoned the space. There was no argument that the land as far as for
railroad use was not abandoned. This is beyond the outer limit of what
constitutes still proper use. They could not argue that they were going to come
back and use that space for rail use in the future just because there was some
spare line in places.
Does this mean the US is not allowed to do this project? No, the government
has to exercise eminent domain and pay just compensation for the land. The
government would have to take individually and determine who the fee owners
are. Even with an express easement - when people sold their land to the
railroads - and easement can be extinguished by abandonment as evidenced by
non use, removing the means of use, and acting as though there is no future
intent to use.
Easement = temporary property right.
Servitudes: Covenants Running with the Land
 Easements and servitudes are essentially the same thing
 No need to know the difference
 American courts agree with English courts in that there are 4 types of negative
easements (negative servitudes)
 Blocking your windows
 Interfering with air flow
 Removing building support
 Interfering with flow of water in an artificial stream
 When there are reciprocal promises…work out each promise separately
 often each has a benefit and a burden
 If you want damages you have to plead real covenant
 Harder to prove…six requirements
 Horizontal privity
 Vertical privity
 Promise in writing
 Promise intended to bind successors
 Promise touches and concerns land
 Successor in interest has notice of covenant for burden to run
 No notice for benefit to run
 Most people want equitable servitude
 Promise in writing
 Promise intended to bind successors
 Promise touches and concerns land
 NO notice of covenant required
 NO horizontal privity

NO vertical privity
 Horizontal privity
 An agreement about land use is created Between the original parties
when title is being carved out of a larger parcel and promise is part of
the title transfer
 Not required for Benefit to run in REAL COVENANT or SERVITUDE
 Vertical privity
 Between one of the covenanting parties and a successor party
 Must be same amount of property right, ex. fee simple & fee simple
 Not required for Benefit to run in SERVITUDE
 Does not exist in adverse possession
 Burdens and Benefits (a vertical privity question)
 B accepts burden (I will not build a factory on my land)
 A accepts benefit (Because of B’s promise, A benefits)
 In order for B’s successor (C) to be bound by B’s burden
 C needs
 Horizontal privity
 Vertical privity
 Promise in writing
 Promise intended to bind successors
 Promise touches and concerns land
 Successor in interest has notice of covenant
 For Benefit to run of REAL COVENANT
 No horizontal privity required
 Vertical privity required
 No notice required
 For Burden to run of REAL COVENANT
 Horizontal privity required
 Vertical privity required
 Notice required
 Equitable servitude
 Differs from real covenant because of remedy available
 Wants to enforce promise rather than collect damages
 Less that has to be proved to establish
 For Burden to run in SERVITUDE
 Promise in writing

 Promise intended to bind successors
 Promise touches and concerns land
 Successor in interest has notice of covenant
 NO horizontal privity, NO vertical privity required
For Benefit to run in SERVITUDE
 Promise in writing
 Promise intended to bind successors
 Promise touches and concerns land
 NO horizontal privity, NO vertical privity, NO notice required
Covenant
Servitude
For Burden to Run
Promise in writing
Promise intended to bind successors
Promise touches and concerns land
Successor in interest has notice of
covenant
Horizontal privity
Vertical privity
Promise in writing
Promise intended to bind successors
Promise touches and concerns land
Successor in interest has notice of
covenant
For Benefit to Run
Promise in writing
Promise intended to bind
successors
Promise touches and concerns land
Horizontal privity
Vertical privity
Promise in writing
Promise intended to bind successors
Promise touches and concerns land
 Sanborn v. McLean
 McLean wanted to build gas station
 Does the successor in interest have notice? Constructive notice?
 Court says yes to INQUIRY NOTICE
 because all the other houses looked the same
 They should have checked to see if that was required
 Court says that once Owner sells the first lot with the restriction, then all the
lots are bound by the restriction
 Court proved that restriction attached even though it was not in the deed
 Burden did pass because there was a general plan and successor should have
inquired
 Hill v. Community of Damien of Molokai
 Home for 4 AIDS patients
 Neighbors claimed that members of Community were not a family and
therefore violated the negative covenant
 Court found the group to be a family
 Neighbors complained about increased traffic
 Court found that covenant was not intended to control traffic
 Court ruled that there was no violation of the covenant
 Court ruled that Neighbors violated Fair Housing Act
 Community members were members of a protected class (disabled)
 Court found there was no legitimate purpose to the discriminatory effect
of denying housing to the handicapped
 Court found that in balancing the neighbors interest in reduced traffic
against the Community’s interests, the community’s interest wins
 Under FHA claim, a discriminator must make reasonable
accommodations by changing some rules to make the burden less onerous
on the handicapped individual
 Even if the restrictive covenant was enforceable, not enforcing it would be
a reasonable accommodation.
 Shelley v. Kramer
 39 property owners signed a restrictive covenant prohibiting sale or rental of
property to white people only; intent is to keep out “negro” or “mongolian”
race
 Black family purchased property
 Covenant signers went to court to enforce covenant
 Higher court ruled that enforcing covenant denies petitioners equal
protection of the laws and the action of the state cannot stand
 Western Land Co v. Truskolaski
 Terminating covenants
 Courts zealously guard the private rights under restrictive covenants
 Western land asserts there were significant changes that make the purpose
of the covenant nullified
 Increased traffic
 Increase in commercial development
 Because the restrictions are still of real and substantial value to those
homeowners living within the subdivision the covenant is not unenforceable
 Later the homeowners sold the injunction and some commercial development
was allowed
 Rick v. West
 Rick subdivided land & declared a restrictive covenant on the lots restricting
to residential use
 West bought a lot
 Rick tried to have land rezoned for industrial use
 West refused to consent to release covenant
 Court affirmed that she cannot be involuntarily separated from her property
right just because someone else wants to develop the land.
 Pocono Springs v. MacKenzie
 Courts hold that membership dues are covenants that run with the land
 MacKenzie asserted that they abandoned their property
 The property could not be built on because it was not suitable for on-site
sewerage
 They tried to sell it, they tried to abandon it
 But Pennsylvania law holds that perfect title of fee simple cannot be
abandoned
The Law of Zoning
 What goes where
 Public land use control and its consequences
 “A nuisance may be merely a right thing in the wrong place-like a pig in the
parlor rather than the barnyard.”
 Justice Sutherland in Euclid
Private
Public
Bargaining
Judicial
-Public Nuisance
Nuisance
Legislative
-Zoning
Trespass
Executive
-Planning
Real covenant
Equitable servitude
 Costs of private solutions
 Isolation
 Transaction costs can be very high
 Limitation of remedy
 Injunction
 Damages
 Enforcement
 Can be problematic bringing multiple injunction suits year after year
 After-the-fact
 Benefits of Public solutions
 Comprehensive
 Democratically controlled decisions
 Enacted by democratically elected city councils
 Efficiency in transaction costs
 Distribution of cost across all taxpayers in a municipality
 Problem prevention- maximize the beneficial location of uses
 Deliberate segregation of uses avoiding the ‘pig in a parlor’
 Authority to Zone
 State creates municipalities
 State delegates power to zone and plan
 “POLICE POWER”
 Municipal planning bodies create plans
 Municipal legislatures enact zoning ordinances (municipal statutes)
 Review of Zoning statutes
 Judicial deference to legislature
 Police Power:
 Is there a substantial relationship to a legitimate public interest in the
public health, safety, morals, or welfare?
 Euclid: If the validity of the legislative classification for zoning purposes be
fairly debatable, the legislative judgment must be allowed to control.




Presumption of validity…it’s good enough as long as there is some
benefit
 Burden of proof on challenger
 Must prove that there is no legitimate public interest
 Rationally related to health, safety, and welfare
 Must prove there is no connection or goal is not legitimate
Is there an arbitrary deprivation of a right to property?
Constitutional Facial attack
 A limitation as to the use of the land
 The mere existence of this ordinance has taken the value from my
property
 Zoning the land residential reduces the property value
 Property zoned industrial has more value
Zoning ordinance in this case was intended to preserve the small-town
character of the village
 Courts found this to be a legitimate public interest
 Cumulative zoning Euclidean–
 Residential-single family-highest use
 Residential-dual family use
 Civic & high residential use
 Retail
 Warehouse
 Industrial
 Ranks single family residences as highest best use even though
it is not the most profitable
 Does not necessarily result in segregation of residential and
industrial use
 Segregates poorer populations
 Often results in race segregation
 And marital status segregation as single parents often have
less income
 Separating residential and retail zones increases traffic
 Types of Zoning
 Cumulative Zoning
 “smart” growth (higher densities, mixed uses, cost-effective design)
 Cluster zoning




Performance zoning (looks at effects on impervious coverage, retained
open space, protection of water resources); “density, intensity, & scale.”
 Allows for more mixed uses
Planned unit development (aggregation of plots and development of
mixed-use areas)
Neo-traditional/new urbanism zoning; mixed-use, walkable neighborhoods
Overlay zoning: Identifies critical environmental areas and developable
areas and protects/clusters development simultaneously
 Zoning typically comes in after-the-fact
 One of the goals of zoning is to eventually get rid of nonconforming uses
 Amortization of non conforming uses
 It forces the people with nonconforming uses to leave or conform
 PA Northwestern Distributors v. Zoning Hearing Board
 People have a vested right in their property
 Property cannot be taken away from them without compensation
 PA Supreme Court said you cannot amortize ever
 Facial attack- amortization is unconstitutional per se
 Concurrence stated that amortization provision could be reasonable if there
was more time allowed for eliminating nonconforming use
 A good reason for amortization is that remaining businesses get stronger, for
example if dry cleaners are zoned out and one remains, it will have a
monopoly on dry cleaning business
 Division of Labor
 Legislative
 Commission
 City Council
 Comprehensive Plan
 City Council
 Zoning Ordinance
 Zoning Amendment
 Executive/Judicial
 Variance/Special Exception
 Zoning Hearing Board
 Zoning Officer
 A zoning code is a statute
 It might be too narrow
 3 ways to change it
 Request zoning amendment- legislative
 Apply for permit & it is denied
 ask for variance from Zoning officer or zoning hearing board
 It allows you to do something that is unlawful under the code
 ask for special exception from Zoning officer or zoning hearing board
 requires a review before permit is issued
Exercise authority co-extensive w/legislative power
Exercise beyond delegated authority
Appropriate exercise of delegated power
 Not every city that has zoning has engaged in comprehensive planning
 Most cities have the authority to plan comprehensively, but are not required to have a
comprehensive plan
 Comprehensive plan are not always required to be addressed in zoning code
 Sometimes zoning ordinances do not work for everyone
 Quasi judicial- subject to scrutiny under review
 Variance -authority extended to a landowner to use his property in a manner
prohibited by the ordinance…made by zoning board
 Area variance- size, shape, height
 Use variance- residential, commercial, etc….burden of proof greater for use
variance
 Special exception- allows landowner to put his property to a use which the
ordinance expressly permits, but regulates with an approval process
 Legislative- more deference given to this
 Zoning amendment
 A court can only invalidate a statute if it is unconstitutional
Commons v. Westwood Zoning Board of Adjustment
Supreme Court of New Jersey, 1980
Lot is too small to put a house on according to the code. P was denied an area variance.
There was no zoning code when the lots were subdivided which is important because he did not
cause the hardship himself.
P tried to purchase strip of land from neighbor to increase the width of his land, but neighbor
refused.
P also offered to sell his land to neighbor, but neighbor offered a ridiculously low price.
P choices are limited, if he cannot build on the land he can file a lawsuit to claim taking due to
zoning.
In order to justify the issuance of a variance
Must prove…Undue hardship involves the underlying notion that no effective use can be made of
the property in the event the variance is denied.
Must prove… No impingement on public good as defined by code…can be aesthetic reduction in
property values,
Rule of Law and Holding
"Undue hardship" When the regulation renders the property unusable for any purpose, the analysis
calls for further inquiries which may lead to a conclusion that the property owner would suffer an
undue hardship.
Both parties have a role to play is determining if there is a detriment to the public good.
Special exception case….
Cope v. Inhabitants of the Town of Brunswick
Supreme Court of Maine, 1983
Plaintiffs filed for an exception to the zoning rules which would allow the plaintiffs to construct
apartment buildings on undeveloped land. The board denied plaintiff's exception and plaintiffs
appealed.
The Board was not specific enough in their explanation of why exception was denied.
The ordinance was worded in such a way that gave the zoning board (executive branch) the same
power as the legislature which is way beyond their scope. The ordinance should have gave them
some standards.
The authority (law) was invalid, so the decision was invalid.
Rule of Law and Holding
A special exception use differs from a variance in that a variance is authority extended to a
landowner to use his property in a manner prohibited by the ordinance while a special exception
allows him to put his property to a use which the ordinance expressly permits. An exception is a
conditional use under a zoning ordinance and results from a legislative determination that such use
will not ordinarily be detrimental or injurious to the neighborhood within the zone. There should be
no discretion for a Board to grant an exception to a legislative ordinance. That is a legislative
question and should not be resolved by the Board.
Spot zoning is a legal conclusion….when you see rezoning of a small parcel
of land, ask yourself, could this be a spot zoning problem…(1) small parcel
of land, (2) establishes a use classification inconsistent with surrounding
uses, (3) creates an island of nonconforming use within a larger zoned
district, and (4) dramatically reduces the value for uses specified in the
zoning ordinance of either the rezoned plot or the abutting property.
Benefits a small number of people
State v. City of Rochester
Supreme Court of Minnesota, 1978
Defendant City rezoned 1.18 acre tract of land from single-family residential use to high-density
residential use. Plaintiff homeowner's association sued claiming that the act was illegal spot zoning.
P argues that this amendment should be viewed as administrative or quasi-judicial like a special
exception, which it is not.
The city council rezoned.
 A zoning amendment changes legislation that has the effect of changing the appearance of a
space.
 Context matters…is it a significant deviation from existing use?
 The more similar its use it to the buildings around it the easier it will fit into the
comprehensive plan
 More beneficial than detrimental to the community
 Will it be a significant drain on the public service?
 Is there a demand/need for this kind of use?
 Legislative pronouncements are presumed valid unless unconstitutional or arbitrary.
 To attack zoning amendments litigant must prove the amendment is unconstitutional or
arbitrary.
 Any detriments in this case?
 Bring down property values of neighboring houses
 Increased traffic
Rule of Law and Holding
"Spot zoning" is a label applied to certain zoning amendments invalidated as legislative acts
unsupported by any rational basis related to promoting public welfare. The burden of demonstrating
that a particular zoning amendment is spot zoning rests with the litigant attacking the ordinance,
and the usual presumption of validity attaching to zoning amendments as legislative acts applies.
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5th Amendment: No person shall …be deprived of life, liberty, or property, w/o due process
of law; nor shall private property be taken for public use, without just compensation.
14th Amendment: No State shall…deprive any person of life, liberty, or property, w/o due
process of law; nor deny
Eminent Domain:
-the power to take private property for public use by the state, municipalities, & private
persons or corporations authorized to exercise functions of public character with just
compensation (fair market value has the seller been a willing seller and the buyer been a
willing buyer)
-typically considered an explicit confiscation of private property
Limitations are built into constitution
Just compensation is required. Most litigation is about the amount.
When a govt entity pays for property, the $ comes from taxpayers, do it is redistributing the
burden of the loss
The courts give great deference to the government choice of use in property.
Public use used to mean something that a public would actually use and have access to, like
roads.
Kelo v. New London-Is private taking ever permissible? Yes,
-financially depressed area target for new development
-the Supreme Court held that local govts have the right to seize private property and turn it
over to private developers for economic developers
-clear economic development plan benefitting the community as a whole
-[seems to have components in common with spot zoning]
-the smaller the parcel of land, the more suspicious the taking is
-hard to argue a small parcel can benefit the community as a whole
-In response, many states have passed statutes that define what constitutes a public use
and do not include economic development
-other states have held that govt justification of such a project must be reviewed under a
stricter standard of review
Regulatory takings-a govt regulates land in a way that makes the property valueless.
The govt has effectively condemned the land and is required to invalidate the law or acquire
title and pay just compensation
Always a taking if there is a physical invasion
-Loretto v. Teleprompter Manhattan 1982 US Supreme Court
-3.5 cubic space taken on top of apt building for cable is a taking
Always a taking if there is a deprivation of all economically viable use…95% not
enough…must be all
-Lucas v. South Carolina Coastal Council 1992 US Supreme Court
Remedy
Rescind regulation OR pay just compensation
Never a taking…
-elimination of a nuisance
-Hadacheck v. Sebastian 1915
-brick firing, noxious fumes, town spread out closer
-Mugler v. Kansas 1887
-brewery in dry state
-Keystone Bituminous Coal v. DeBenedictis 1987
-Supreme Ct held that land subsidence is a public health hazard
-impermissible under background principles of state law
-First Evangelical Lutheran Church
-not allowed to rebuild camp after flash flooding
-prevention of loss of life
Everything else is subject to the ad hoc
-character of the governmental action
-economic impact
balance test
The more compelling the character of the govt intrusion, the more detriment will be allowed
to be imposed on the individual property owner
Must be a nexus between the regulation and the goal it is trying to accomplish
Penn Central v. City of NY
-one impact was air rights lost
-still able to use existing structure as is stands
-landmark law did not restrict current use
-govt does not have a continuing obligation to pass laws to increase a business’ profits
-offset provision
-even though you cannot build in this airspace, we will allow you to build taller on
other properties
Land Transfers
Contract for sale
Warranties of title
General Warrantry Deed
-Best
-Warrantor warrants defects in title no matter who created them
Special warranty deed
-Warrantor warrants defects in title created by person signing deed
Quit claim warranty deed
-makes no promises at all
-typically between family members
Present covenants of title in warranty deed
 covenant of seisen
o You own the property
o You have the right to convey it
o You are not a trustee on the deed
o You warranty that there are no encumbrances that you have not given
buyer notice of
Future covenant
 Warranty of quiet enjoyment
 Further assurances
Foreclosure
 Action to recover the collateral that is promised in security
ESSAYS
IRAC
The first issue is…
The second issue is…
The rules are…
These facts tend to show outcome one which is…
These facts tend to show outcome two which is…
The most probable outcome is…