Property Singer/Outline: Difference between revisions

	Property
Authors	Joseph William Singer; Bethany R Berger; Nestor M Davidson; Eduardo Moises Penalver
Text	; Property Law: Rules, Policies, and Practices [Connected eBook with Study Center] (Aspen Casebook)
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Revision as of 01:27, March 26, 2022

Basics

Bundle of Sticks (Four Big Sticks & Many Smaller Sticks): There is tension.
1. Possession/Occupancy
2. Right to Exclude
3. Use
4. Transfer/Conveyance

Policy Considerations

Property law strives to balance:
1. Administrability (To preserve order, facilitate governance)
2. Economic efficiency/social utility (To advance specific economic policies)
3. Distributional fairness (To facilitate equality of opportunity/access)
4. Sustainability (To encourage sustainable use of scarce resources)

Four Levels of Legal Reasoning

Mechanical -- dealing with rules of procedure
Doctrinal -- applying black-letter law to the facts
Policy -- why this application advances the policy
Critical -- why we should really want a different policy

Doctrinal/Legal: Right result, because applicable doctrine requires it.Normative/Policy: Right result, because it serves compelling societal priorities.

To show the policy basis for the doctrine
When the doctrine provides ambiguous guidance to adjudicators
When persuading the court or legislature to change the doctrine

State government acts as defender and definer of property rights – puts stresses on the system

'The Meaning and Origins of Property'
1. Acquisition: Possession, Labor, and Investment
  1. Natural Rights Theory of Law
    1. Certain rights are inherent by human nature, conferred by God.
      1. Property is already out there, religious idea. A body of unchanging moral principles regarded as a basis for all human conduct.
    2. Eros Asteroid
      1. Law of First Sight -- whoever is first to sight an opportunity can claim ownership

Slavery is wrong, e.g.

Positive Theory of Law
1. Human-made laws confer rights on people and groups.
2. Apply legal terms to property; there is no property unless it comes from the law.

Custom (potential source of law) vs. Statutory Law
1. Whether custom or statute should govern?
2. Parking Wars – competing source of norms which people follow as law.

Property in People
1. Slavery
2. Constitutional Protections
  1. Fifth Amendment
    1. “No person shall be… deprived of life, liberty, or property without due process of law, not shall private property be taken for public use without just compensation.”
  2. Thirteenth Amendment
    1. “Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to its jurisdiction.”
    2. Biggest taking in history?

In other words: Nobody else can own you or your labor.

Implication: You control your labor, can trade on it, etc.

'Dred Scott v. Sandford': Scott was a slave and sued Stanford for his freedom. Stanford moved to Illinois (a non-slave state) but claimed that his property rights should remain no matter which state he moved to (Constitution protects property). Issue: Can a human be a property? Holding: Yes. Reason: Property rights should be uniform throughout the states. The DP Clause of the 5^th Amdt. protects property from being taken without just compensation. Since Scott was born into slavery and slaves were considered the property of their owners, he cannot be made a citizen because it would be an unjust taking of property. This is a state issue. The status of slaves depends on the law of the state they choose to return to.

Side Issue for this Class:
1. Does the 13^th Amendment mean that human rights trumps property rights or that you can’t have property rights of human beings?
2. Ryan – does not have an answer, but feels that if it comes from the state, is that sufficient for a property right to exist, or not? This is steeped in positive law meaning it was given to us by rules our government made up- not natural law.

Institution of Slavery – was thought of at the time, as the greatest taking of property in the history of U.S.

Now people argue something similar on gun laws
A lot of property rights has to do with the law and how it is performed… thus it is ever changing
Children and Gametes
1. The labor of creating a baby, versus labor in making something else? Wet nurses?
2. Void against public policy
  1. No agreement, best interest of the baby

Voidable (by the birth mother)
1. BM not BF has right to void contract

Specific performance
1. Hand over child. Is this sale of a baby, still?
2. Otherwise a contractual issue --> damages only
Arguments for and against
1. A breeder, a commodity, less human, sanctity of life
2. A job, helpful, not unduly harmful, paternalism, human
Difference between gestation and traditional labor?

In the Matter of Baby M: Stern and Whitehead entered into a surrogacy contract for $10k. Mrs. Stern would adopt the baby for parental rights, but was not part of the contract. Whitehead became attached to Baby M, kidnapped her, and the Sterns sued for rights to the baby. Held: The contract is invalid. Reason: Cannot use money in adoptions, require parental fitness or abandonment, and surrender of custody. Consent to adoption is revocable. Whitehead not granted right to rescind agreement to contract. Concerns over “baby bartering” – harm’s mother’s mental health if enters contract without knowing bond to baby. Creates an economy for procreative capacity. Conflicts w/ law prohibiting use of money in connection w/ adoptions. Conflicts w/ law requiring proof of parental unfitness/abandonment b4 termination of parental rights/adoption is granted. Conflicts w/ law that requires a surrender of custody/adoption revocable in private placement adoptions (fact that money was involved made it less revocable for surrogate; no clause in contract that allowed her to rescind; only some legal counsel for a previous contract w/ a diff couple).

Policy reasons:
1. NJ gives equal rights to mother and father -- this contract gave sole custody only to father -- mother was going to later adopt.
2. Uninformed consent in this contract bc of lack of legal counsel, lack of clause for rescission, and getting paid for it.
3. Best interests of child were not considered.
4. Surrogacy contracts may take advantage of those needing money and may create a bad connotation.
5. Also need to know CA approach for exam
  1. Surrogacy contracts are enforceable when surrogate mothers are not biological parent of child -- surrogacy contracts must show the biological mother has no intention of keeping child.
Frozen Embryos
1. Often a conflict between personhood and property
  1. are embryos persons or property under the law?
2. Conflict between right to procreate and right to not be forced into coming a parent
  1. Often, right to not being forced into becoming a parent prevails
3. Bias towards biological connections to embryos on who has rights to them
4. Davis v. Davis (p. 260) – SCOTUS sided with the right to not becoming a parent, fetus/embryos are not persons, and they belong to both parents. Embryos were destroyed.

Capital, Labor, and Investment in Body Property
1. The same bundle of sticks is not all attached to all forms of property.
2. Problems with mixing personhood and property vocabulary at a legal level, social level.
  1. Ownership
    1. Do parents own their children’s body parts?
    2. Henrietta Lacks – genetic info, issues, cells
  2. Alienability
    1. Payment for organ donation
      1. bad for the poor, good for the wealthy
      2. Donor only person who is not compensated for altruism
      3. Paired Donation
        daisy chain, specifically legal
      4. Creates a market for organs
        reduces quality and quantity of organs
        
        blood donation?
      5. How are gametes, blood, hair, kidneys different?
        Renewability
        
        Necessity
        
        Sanctity of Life/Personhood
      6. Should selling of organs be permitted?
        Postrel: selling of organs should be permitted; rich are already exploiting black markets, so argument of “equal playing field” is null; give something to incentivize donors.
        
        Potential “commercialization effect” changing social meaning from charitable to commercial.

John Locke: labor and investment are bases for property.
1. But if I threw a can of tomato juice into the ocean, that wouldn’t make me own the ocean…
2. many questions, limitations, exceptions
3. Creative labor – how does labor factor when the resulting property is not physical?

Moore v. Regents of the UC' (1988): While treating Moore for cancer, Golde + co. experimented on his fluids and tissues to create a new cell line from which they reaped the financial benefits. Moore did not give permission, or know they were doing it. He argues he owns his own sells. Golde argues improved upon the cells and they’re not unique to individuals, so he owns them. Held: Moore has a COA for breach of fiduciary duty & lack of informed consent, but not conversion. Reason: Patented cell line is factually and legally distinct from his own cells, it’s a product of invention, and Court doesn’t want to cast a shadow over the medical field the issue of violating property rights in administering life-saving procedures. Two reasons. (1) Court found that yes, they breached their fiduciary duty. (2) Converted his cells to their benefit, the valuable cell line that is worth 3 billion. Court did not buy conversion argument. Not unique to individuals. Mosk Dissent: The wrong policy concern in mind. This is like slavery, where we take people who are weak, and exploit them for their advantage. But without Moore, there would be no cell line. *'Broussard Dissent: He believes that there were ill gotten gains. He gave consent for the spleen to be removed, but not for the test to happen. Broussard wants to give some economic value for the spleen. This would give patients more incentive to giving up their organs. Although this brings up the question of social injustice of people praying on the poor for their organs. It is agreed there IS A BREACH OF FIDIUCARY DUTY. The doctors HAVE to be honest in dealing with their patents. Now there is an adhesion clause in most physical actions.

Doctrinal Analysis
1. The lympocens where not unique to him, they could have gotten that from anyone
2. You can only patent innovations, you can’t patent naturally occurring substances (like blood)

BUT usually you would look at the value of the material and pay for that… but they justify that through the policy analysis

Policy Analysis
1. Majority: We don’t want to stifle social beneficial activity (medical research)
2. Mosk: Loss of rights more important

Broussard: Broussard wants to give some economic value for the spleen. This would give patients more incentive to giving up their organs. Although this brings up the question of social injustice of people praying on the poor for their organs.

Possession and the Rule of Capture
1. Rule of Capture – the first person to capture something is the true owner
2. Centuries later, we still follow the Rule of Capture
  1. You only own the animal once you've killed and captured it
    1. Advantages of favoring possession?
    2. Administrability/clarity
    3. Exercise possession of the fox for the public good
    4. Economic incentives
    5. Protects finite resources
  2. Of favoring labor and investment
    1. Develop economy for related market
  3. Wild Animals

'Pierson v. Post' (1805): Post pursuing a fox; Pierson shot, killed, and carried it off. Interest and labor vs. actual possession. Held: Pierson owns the fox. Reason: Post never physically possessed the fox. Rude of Pierson, but still came to physically hold the fox. Brockholst dissent: Interest and labor in pursuing fox should establish possession and occupancy if a reasonable prospect of taking fox. Policy reason to encourage fox hunting.

Policy reason: Protect the food supply, and foxes are noxious beasts
1. Fisheries are much like the wild beast… but now fisheries are a problem because it would not protect the food supply
2. If its profitable to capture as much as you can before other people get it, then it becomes a problem
Investment of Labor vs. actual possession – depends on the circumstances
1. Moore won because labor was in creation of the cell line patent, but here labor doesn’t matter.
On what basis should we evaluate RoC, or any rule of property law?
1. We want rules of law that facilitate dispute resolution -- ones that don't burden the courts
2. Social utility -- if it’s for the public good

Administrability

Economic efficiency
Distributional fairness
sustainability
Pre-possessory interest
1. How close to do you have to come to a fox, or a ball, to have a pre-possessory interest?
2. Significant but incomplete steps: When an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property, and the effort is interrupted by unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property, which constitutes a qualified right to possession, which can support a cause of action for conversion.

Law of First Sight – First to recognize an opportunity has the ability to claim it for themselves

'Popov v. Hayashi' (2002): Popov reached for a flying BBall, landed in upper part of glove, was tackled & assaulted, ball came lose, Hayashi freed himself from mob and picked up the ball lying on the ground. Held: Sell the ball and split the profits. Reason: Popov had a pre-possessory interest in the ball. Whether he could have obtained full control and possession of the ball had the mob not intervened could not be determined. Hayashi also has a strong argument for his possession of the ball since he fully controlled it once it entered his pocket and he did not engage in illegal activities to obtain it. Since they have equal rights to the ball given their equally strong arguments for possession, they must equitably divide the ball.

Problem with certainty: Was it certain that Popov would have caught it? If not certain, then Hayashi would have a stronger case
Works well were we are trying to capture as much as we can
1. Animals
2. Oil and Gas
Limitations to the Rule of Capture
1. Over incentive of capture can lead to waste
2. The fast but wasteful technology of getting gas

Over incentive to where it causes the collapse of renewable resource

Either to destroy the resource (fishery)
Or over saturate the market
When does Capture Cede to Custom?
1. Ghen v. Rich (whaling case, have to wait until whale dies, then sink)
  1. When whaling, when you harpoon a whale, it dies and then sinks… you have to wait until it fills with seawater and floats
  2. The Custom arose that the harpooner owns the whale, and the finder gets a small finder fee
2. Common Pool Resources
  1. Correlative rights
    1. Allowing each surface owner to withdraw an equitable portion of the ground water
    2. Where a “fugitive resource” spans multiple lands, land O’s own it “in severalty”—as a Common Pool subject to the Rule of Capture.

Each has right to draw from pool via own land, but none owns actual mineral until capture it. Then, no liability to others for what you take.
1. You own mineral rights until somebody renders the mineral owned.

Prior appropriation
1. Allocating rights according to the point in time when property owners begin withdrawing the water for beneficial use
  1. Arguments that it developed to privilege efficient use of water
  2. Or, was it equity or distributive justice?
2. Sufficiency principle
  1. Beneficial use (not waste) and forfeiture
  2. Ensure widespread distribution of water rights
3. Riparian doctrine
  1. Allocates those owning land bordered the by the body of water right to the water flowing past their land
  2. Disputes between riparian owners are allocated according to a reasonableness test
    1. Takes into account relative costs and benefits of the various uses, harms, and other factors

Western states: prior appropriation doctrine
1. Prioritize rights of those first to make productive beneficial use of water against later users

Eastern states: Correlative rights, reasonable use
Regulated riparianism (FL)
1. Allocating time-limited licenses to use specified amount of water for specified purposes
2. Could have fostered monopolies in the west
Waste and abandonment
1. Right to use doesn’t constitute ownership, and must be beneficial use
2. Must not waste the water

Abandonment involves relinquishment of right, and requires non-use and intent to abandon

'Elliff v. Texon Drilling' (1948): Elliff’s well was destroyed, and their cattle harmed when Texon’s well not on Elliff’s property blew out and cratered. Oil destroyed. Held: Texon was liable for the damage and waste of the oil. Reason: Oil and gas is a common pool recourse, and subject to rule of capture because it is migratory. Right to appropriate oil and gas, but not to waste or destroy as the result of negligence. Rule: Negligent waste or destruction of gas and distillate drained from a neighboring well under the law of capture is not a legal appropriation of those minerals. What we lost is a chance to get at the gas. In Texas, you have the mineral rights, the right to try to abstract it, and this is severable (can be separated) from the rights of using of the land above ground. Incentivizes competition, fairness and equal opportunity for owners, drilling for social utility, state’s interests, administrability. Common pool resource: where the resource spans under multiple lands, landowners own it in severalty. No one owns the mineral itself until they capture it. No liability if some traveled from another’s property. Oil and gas are part of the realty. Ps were deprived on their opportunity to drill for the oil. Here there is liability for waste! Common pool doctrine only protects legitimate means and reasonable waste but not neg. waste.

Groundwater & Streams
1. West: prior appropriation; rights to those who are 1^st to make beneficial use of the water; priority in time
2. East: riparian; rights those owning land that borders water; reasonableness test- draw as much as you need as long as you’re not violating neighbor’s rights

Two rules of East and West for water usage
1. East- common resource, everyone can draw on it as long as it is reasonable
2. West- first in time / first in right… first person who got has the claim
  1. Why was this chosen in the western state
    1. It protects investments
  2. Alternative Legal Regimes for Allocating Unowned Resources: Water Law
    1. Every other state rejected Rule of Capture
    2. Reasonable use rule
      1. What's best for society as a whole
      2. Deleterious effects of Rule of Capture
    3. Naked Rule of Capture (whoever captures it, gets it but can’t get it negligently).
  3. Tragedy of the Commons
    1. Exploitation of a common resource because people want to use it as much before their neighbors can
      1. Cows – If you have an open pasture, and all the farmers can graze on land, to capture as much as possible, but nobody is trying to regrow the grass
      2. Oil and gas is finite, so regardless of time to use, it will be depleted.
        Over production can cause oil and gas prices to drop
        
        OPEC designed to prevent this
      3. How do you deal with the Tragedy of the Commons?
        Privatize- grid it up into own little squares so everyone has an incentive to keep care of that shares
        
        Regulate- put rules to avoid tragedy of the commons
        It really only protects that which works with capture
Things like stream/ground water have different uses
1. In stream water values to
  1. Sustain fisheries
  2. Habitat for other wild life
  3. Boating, fishing, recreation
  4. Scenic/ Aesthetic values
2. Out of stream usage
  1. Drinking water
3. Previously Owned Property
  1. Law of Gifts
    1. Settlor/Trustor grants legal title to Trustee who holds title/manages for the benefit of the beneficiary who is entitled to the proceeds (title?)
    2. Requires:
      1. Intent to transfer title
      2. Delivery of the property
      3. Acceptance by the done
        e.g. Say I decide to give you my favorite hog, bring over the house and she says, “get out”
        Giver still owns it
        
        What if giver says, “I’m leaving it here”
        Then the property is abandoned, and the next person who comes and claims her owns her
        
        Note the rule of capture applies only to wild animals, not domesticated animals
        
        What if the giver says, “I’m leaving it here” (for Nancy Combs), and Nancy Combs rejects, and say you wonder off to car, Betsy wonders off, and Mr. Adams comes and finds the pig, where is the priority of ownership?
        First, I, the original owner, next Mr. Adams (because NC refused the gift), and finally then NC because she refused
Testamentary transfers (dead), or inter vivos (alive)
1. Property transfer by will, or in absence of will, intestacy statute
2. May not completely disinherit spouse, but can disinherit children

Transfer of actual possession not required
1. Mother with piano -- transferred a vested remainder to daughter
Law of Finds
1. Finder of P is TO until better title determined.
  1. Finder -- first person to take possession of lost or unclaimed property
    1. The finder's claim of ownership is good against everyone in the world except the true owner.

'Armory v. Delamirie' (1722): A chimney sweeper's boy found a jewel and took it to a goldsmith who took out the stones, and told the boy it was worth three halfpence. The boy refused the money and insisted to have the jewel back again. The apprentice returned to him an empty socket. Held: Boy could keep it. Reason/Rule: A person who finds a piece of chattel has a possessory property interest in the chattel, which may be enforced against anyone except the true owner of the chattel.

Lost property -- accidentally misplaces
Mislaid property -- intentionally placed, but forgot where placed
1. Lost and mislaid property may become abandoned
Abandoned -- intent to relinquish all rights in the property
1. Reasonable person standard has to be employed to understand the intent standard for abandoned goods.
If found in a private home, awarded to the homeowner
1. If trespassing, awarded to the landowner

If on public property, to the finder or landowner (divided)
1. Lost -- finder
2. Mislaid -- landowner

Embedded in the soil, land owner (to the finder???) (PAGE 152)
Treasure? Finder, as long as not trespassing
Some statutes require reporting to police, waiting a period to allow true owner to claim, then rewarding it to the finder
1. Require true owner to pay a percentage of the value of the object as a reward

Poorly understood, haphazardly implemented, and seldom obeyed
1. Japan, very high rates of turn-in (criminalization, guaranteed reward, institutions for implementation)

'Charrier v. Bell' (1986): Burying artifacts or other objects with the deceased is not an intention to relinquish ownership of those objects. Human remains in cemeteries and burial grounds are not treasure, and cannot be pilfered and owned under the law of finders. They are not abandoned property. There was no enrichment because the tribe was greatly upset by the ruin of ancestral burial grounds. There was no impoverishment because he acted negligently, it was his own fault for his impoverishment, and he took the risk. Any enrichment received by the tribe was justified.

Notes:
1. Let’s say instead of Indian burial he finds Dinosaur bones?
  1. There is a presumption when it is buried in the ground- becomes embedded in the soil and part of the realty- landowner owns it
  2. Bonafide Purchaser Rule – If left w/ a dealer who deals in such goods as the property in question- the bone fide purchaser gets title; if the property in question was outright stolen- bone-fide purchaser doesn’t apply
2. Relativity of Title -- For the purposes of everyone else, the finder is the real owner, unless the true owner comes around and asserts a superior claim.
  1. Privilege of possession: the law protects the peaceable possession against all except him who has the actual right to the possession, and no other can rightfully disturb or intrude upon it.
3. Bona Fide Purchaser Rule
  1. You can convey to someone only what you own
    1. Thieves never have title, and cannot pass title onto someone else
  2. Bonafide purchaser -- did not know it was stolen property and had no reason to believe it was
    1. When a true owner leaves an object with someone who transfers it to someone else who regularly deals in such goods, they cannot get the property back (although they might be able to get damages from the person)
    2. Mediates between rights of purchasers and bailors.
    3. Assign loss prospectively -- if you can't look back, look forward to incentivizing good decisions -- on the one who can avoid the loss with the least cost to begin with
    4. Assumes the true owner is the least cost loss avoider if they entrust their property to a person who regularly deals in such goods
    5. Want to encourage faith in the market -- don't want to discourage people buying things if there's the chance it could be taken from them
    6. Least cost avoider often the original owner, but not always. Cannot always be satisfied as rational, other reasons.

Bailment -- when you give something to someone to hold on to

'Rights to Exclude vs. Rights of Access'
1. Trespass and Right to Exclude
  1. Trespass: An unprivileged intentional intrusion on property possessed by another
    1. Privileges:
      1. Entry is done w/ consent of owner
        Entry is justified by necessity to prevent a more serious harm to persons or prop
      2. Entry is otherwise encouraged by public policy
    2. Examples
      1. I invite you over to dinner, and in the middle of dessert, I serve you with a complaint for trespass
        Motion would certainly fail, by inviting the person onto the property, they become an invitee
      2. Now say, after dinner, the guest sits on the floor, and says, I’m not leaving, Guest is a licensee
        Would succeed, once the owner says to get out, if you don’t- trespass
      3. Now say one is kicked out and thrown on another’s property,
        Not trespass against the guest, because not an intentional tortfeasor, but a trespass against the throwing neighbor
      4. Now say push onto another’s property to save from a runaway car
        Not trespass- Necessity
        If we allowed more trespass, we would undermine the right to exclude

Trespass is a strict liability tort
1. Removes our notion of fault, sometimes, people who are not at fault

Desnick v. ABC: ABC primetime live, had some reporters profile an eye clinic. They said it was merely to get the general practice of eye clinics around the countries. ABC agreed to not ambush interviews or undercover surveillance. Turns out they were doing an expose on how this business was fraudulent. There was also under cover patients who went in, not needing surgery, but trying to trap them. Desnick claims it was trespass because it an unprivileged and intentional entry upon the land. Held: The surveillance was not done for the purpose of committing an "injurious act" under the statute because "telling the world the truth about Medicare fraud is hardly what the framers of the statute could have had in mind" in forbidding a person to record his own conversations in order to commit an "injurious act." Consent to an entry is often given legal effect even though the entrant has intentions that, if known, would cause the owner to revoke consent. The actual action of entry must be disruptive, and their physical presence must be an invasion and infringe upon the interests of the owner.

Are the following trespass cases? (LOOK HERE)''''
1. Restaurant critic pretending to be a regular customer? No- bc they want customers like false friend at dinner'
2. Discrimination testers who pose as homebuyers? No- bc they want potential home buyers to look at the home'

Bluffer saying can buy same car at a lower price elsewhere? No'

False friend dinner guests? No- ppl want dinner guests'
Purported meter reader who just wants to look inside? Yes- didn’t want them in your house but felt you had to bc they were in authority'
Competition posing as a customer to get in and steal trade secrets? Yes'

Doctor’s friend presented as “medical assistant” to watch home birth? Yes- didn’t want to but thought you had to allow it'
Expose on no-charge quack healer operating out of home? Yes'

Fraudulently obtained consent (POSNER THEORY)'
1. If its property obtained by fraud, it does not hold up'
2. So, what about consent to enter property obtained by fraud?'
  1. ' The court says sometimes yes, sometimes no'

The court looks at the underlying meaning of the trespass rule.'

What are the interests that the trespass rule protects (and when do they give way):
1. Protects the interest that the trespass tort protects -- if the harm is other than this interest such as getting your feelings hurt, then it’s not protected
All the above cases are liars, but there are socially useful liars and others not a positive social externality. Hence Public Policy Cases.
1. Food Lion: Trespass occurred after initial invitation. Secret taping was not included in the initial invitation of giving the exposers employment. They went beyond the scope of invitation; violated duty of loyalty to employer.

State v. Shack: P had migrant workers working on farm. Aid workers from fed aid workers wanted to come on farm for medical treatment and legal advice. P said, I’ll come go get those guys and we can meet in my office. D said we can meet with them in the privacy of their living quarters. P says, No, get off property, D says no, P calls the state trooper. D says under the Supremacy Clause, the fed statutes that fund this organization to help orgs, this Trumps state common law. Held: Courts say, we don’t want to deal with constitutional issue…Under state law, the rights of the disadvantaged migrant workers: “A man’s right in his property is not absolute. It was a maxim of the common law that one should so use his property as not to injure the rights of others. [Sic utere tuo ut alienum non laedas..] Rights are relative, and there must be an accommodation when they meet.” The right of the farmer owners’ privacy should not interfere with the right for the farmer workers to live and associate freely. The farm workers are LIVING there. The court falls short of saying there is a tenant-landlord situation. But it certainly is something akin to when one lives there is something different than merely working. By Tedesco allowing them to live there, there is something different

Property rights serve human values. They are recognized to that end, and are limited by it. Title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises. Their well-being must remain the paramount concern of a system of law.” (106)
1. Golden rule v. Communistic infiltration
VERY policy driven opinion,
1. Trespass rights are limited when human rights concerns are of issue…
2. Balancing act of where these things meet…
3. A court will ALWAYS avoid a constitutional challenge if they can interpret it another
4. They raise the argument sua sponte.
Public Rights of Access
1. Common Law Rights of Access

Uston v. Resorts: Resorts International Hotel (Resorts) (defendant) refused to allow Kenneth Uston (plaintiff) near the blackjack tables at its casino because Uston’s strategy of card counting increased his odds of winning. Uston brought suit claiming Resorts had no right to exclude him simply because of his playing strategy. Held: An individual has a right of reasonable access to property open to the public.Resorts may not unreasonably exclude Uston from its casino. An individual has a right of reasonable access to property open to the public. The reasonableness of a decision to exclude an individual must be determined on a case-by-case basis. Here, Resorts’ casino is open to the public and Uston’s desire to enter the casino and play blackjack is not unreasonable. He does not bring danger to employees or other people at the casino and he does not disrupt the functioning of the casino in any illegal way.

Public Accommodations Statutes
1. Civil Rights Act of 1964, Title II: Public accomm. in interstate commerce. Can’t exclude patrons on basis of race, color, religion, or nat’l origin if a CC, restaurant, gas station, theater/stadium; can if pvt club. Can on basis of sex.
2. Civil Rights Act of 1866, § 1981-82: Equal rights under law re: race. All in US may K, sue, be punished, assert property rights—including rt to purchase property—just like white folks. § 1981 explicitly applies to private action too.

NJ Law Against Discrimination: Can’t on basis of race, creed, color, nat’l origin, ancestry, age, sex, orientation, marital status, family status, liability for service in Armed Forces, or nationality—or that of one’s friends, family, business partners, or customers. Broadly defines PAs.

Conclusion
The more you let the public in, the more limit your right to exclude
Public Trust Doctrine
1. “By natural law, these things are common property of all: air, running water, the sea, and with it the shores of the sea.” --The Institutes of Justinian bk. 2, tit. 1, pts. 1-6, at 65
2. Exists as a common law doctrine and within state constitutions

Without the public Trust doctrine, people could claim waterways, charge fees, and make monopolies that would claim the water.
1. “The title to lands under navigable waters, within the boundaries of the state… is held by the state, by virtue of its sovereignty, in trust for all the people.” --Florida State Constitution, Article I, § 11
2. “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.” --Pennsylvania State Constitution, Article I, § 27

Matthews v. Bay Head, IL Control: Person from general public is suing to have access to a beach whose access is controlled by an association. Homeowners situation of everyone who lives in the community (and guest, can use dry sand beach). Citizens (not in the community) suing saying they have an equal right of access to dry sand beach. Public Trust Doctrine extends from the water to the mean high-water mark. Private land is the dry sand area above the mean high-water mark. Beach values and swimming are protected by the public trust of the State of NJ. Held: For quasi-public beaches (beaches that are for everyone who are residences of the community) access must be equal to all. Further, the court sees no reason to extend this beyond quasi-public to private beach. Values of the public trust is useless if you can’t get to the wet sand beach (an easement… use rights). If there is this public trust right of beach use, there is no reason.

Massachusetts Approach:
1. Reject the NJ approach of evolving common law of public trust. say common law does not evolve.
Oregon Approach:
1. Everyone has right to access and enjoyment
2. Relied more on custom (that’s they ways its always been)
3. To beaches were public has not been going, maybe not
NJ
1. We know there are rights out there, public has a right to use these for trust values
2. Problem: Slippery Slope
  1. Once you compromise for the public trust, where do you stop
  2. Redistributing property from private property

Avon case: Public rights on the municipally owned dry sand beaches DON’T DEPEND on your residencies.
Communities can’t shut everyone out.

'Adverse Possession'
1. Six Main Elements (failure of any one fails the entire test):
  1. Actual possession that is
    1. Physically occupying it
    2. Using it as an ordinary owner would -- living, farming, business
    3. Color of title -- have the deed, but have something wrong with the deed
      1. If you can show color of title and it shows that you're supposed to own the land you're occupying (proves actual possession, and don't need to show possession of entire parcel)
    4. Open and notorious
      1. Obvious and visible to the true owner you're occupying it
      2. Burden on adverse possessor to be open
      3. Burden on true owner to notice it

Exclusive
1. Do not share use of the land with true owner
2. Co-ownership possible, but competing adverse possessors cannot hold land adversely to one another at the same time. Whoever started adversely possessing the land first has the superior interest. Can use to evict subsequent possessors, but not the TO.

Continuous and
1. Customary as owners of the property would be
2. Seasonal ok, leaving temporarily ok
3. Tacking -- allows an adverse possessor to use the time a previous adverse possessor was there if they were in privity to meet the time requirement

'Brown v. Gobble' (1996): Gobbles owned property which included a fence along the rear which had been there since 1937. Improved land by building shed, mowing, gardening in strip of land. Browns bought property adjacent to fence who later decided to build a road where this fence was. The Gobbles attempted to prevent the Browns from doing this by claiming they owned the piece of land, so the Browns brought suit against the Gobbles who used tacking to piece together continuous possession. Held: The clear and convincing evidence standard should be used because there is a higher value put on the rights and interests of property owners. Having your property taken is much different than having to pay damages. The Browns presented clear and convincing evidence, using tacking, that they have been in adverse possession in accordance with the six elements set in Somon for over 10 years. The circuit court erred in not addressing the predecessor claims.

Adverse (or hostile)
1. Did not have permission to be there
2. Presumption that an owner would not give permission if there's no proof
  1. Mens rea -- state of mind
  2. Don't try to determine either AP's or TO's -- an objective test instead
  3. ~~Interesting competing rules~~
    1. ~~Good faith: “Roots to Respect,” or “Land Piracy”?~~
      1. ~~Must adversely possess land with a good faith belief that you are the true owner~~
      2. ~~Can't knowingly adversely possess someone else's land -- land grab issue~~
    2. ~~Why have a doctrine like this?~~
      1. ~~To try to preserve order in land ownership~~
      2. ~~Sometimes it is difficult when everyone thinks boundaries~~
        ~~Assign rights where it’s been~~
        
        ~~Protect against unfairness, who one bought land from another who thought they owned it, and even the person who is trying to boot them,~~
        
        ~~Generation long misunderstand windfall~~
      3. ~~Bad Faith~~
        ~~However, we punish trespasses, so how can we reward them?~~
        
        ~~That is why some states require good faith. Should all require good faith? Then this requires us to get back into people’s mind… and that is why it’s the minority.~~

~~Intentional dispossession -- the owner knows the land is being taken and doesn't care~~
1. ~~Personality theory~~ ~~-- AP become more attached, TO less attached over time~~
  1. ~~Doesn't apply to corporations~~
2. Failure of the TO to object is tantamount to abandonment of owner's rights

For the statutory period
1. How long you must be in adverse possession, variable by state
2. Rule of thumb ~ 10yrs (jx in Ryan’s class)
3. SOL gives victims incentives to bring lawsuits within a reasonable time
4. If TO has a disability (mental or a minor), then SOL does not run until disability removed.
  1. But, will not stop running if already began adversely possessed before disability began.
  2. After disability removed, has 10 years to bring suit.
5. Examples!
  1. If I build a lean-to deep in Newport News Park and stay for 10 years?
    1. No, generally not possible to possess public lands
    2. Not adverse or hostile because they are open to the public
  2. If you hide out in the storage shack in my suburban backyard?
    1. No, not open and notorious
    2. About notice to the land owners

If for 10 summers, while I’m away, you move into my house?
1. No, Exclusivity problem, Actual possession

If it’s a summer house on a lake in Alaska?
1. Most likely no, unless a reasonable person should know
2. But a reasonable person probably only comes in summer
If you let your friends come too?
1. Exclusivity- but 2 adverse possessors doesn’t defeat exclusivity- can aquire rights jointly
If you come for 5 summers, spend 1 w/sick mother, and return next 8?
1. Are you still continuously using the land?
2. If you break the period of continuity have to start all over again
3. Have to physically be there

If you have someone post a sign on door that summer asserting O? Probably not enough
How did Mr. Nemitz anticipate the potential AP issue in his case? He gave them permission -- defeats adverse requirement

Additional elements
1. Color of title, property taxes, good faith, claim of right
2. Touchstone “ordinary use to which land is capable and such as an average owner would make of it”
Can be brought in 2 ways:
1. Quiet title: claim brought by AP herself against owner
2. Defenses: record owner claims AP is wrongfully occupying prop and seeks ejectment; AP in defense claims AP
Rural land
1. Lesser act (actual possession) or greater acts (open and notorious)
2. Assumption that possession is permissive or non-permissive?

Interference with owner's interests might cause them to be permissive or not

Even if conflicting deeds, better to rely on a rule that ownerships vests in the person whose deed recorded first. (Limit the time period)
Justice Holmes
1. Sometimes APs build their lives around the property, can't take that away
Wealth-maximizing to transfer property to an AP if it’s not being used by TO
1. Why not just sell in private bargaining? May discourage the transaction
  1. Guessing game of what their bottom line is and their strategies
2. AP places a higher value on property than TO
  1. Might not be able to come up with money to purchase it, but more willing to keep it than sell it to TO

Long term use and improvement combined with risk of sanctions may constitute strong prima facie evidence that AP places high value on the property

Money may not be ideal way to show who values property more
Boundary Disputes
1. Almost always more efficient and economical to rely on the boundaries fixed in the record title

'Romero v. Garcia' (1976): Ida Romero purchased 13 acres of land from Antonio Garcia which came out of the 165 acres that Garcia owned. Mrs. Garcia did not join in the conveyance (voiding the deed under New Mexico law). Ida Romero and her husband built a house on the land and lived there until 1962 when her husband died and she moved to Colorado and remarried. Mr. and Mrs. Garcia argue that the void deed was inadequate for color of title, and the deed's description did not describe a specific piece of property so it was inadequate for adverse possession. The deed only vaguely described the property. Held: A deed is sufficient for the purpose of color of title even though it is void because it lacks the signature of a member of the community. The deed described enough of the land that in conjunction with extrinsic evidence, and surveyor was able to determine the boundaries of the property, and the total area of the property was accurate to what was provided in the deed. Mrs. Romero also satisfied the continuous payment of taxes requirement even though she did not always pay taxes due to a lack of funds because a substantial portion was paid.

Squatters
1. Squatters can improve land that sits decaying and untended (housing crisis, e.g.)

'Nome 2000 v. Fagerstrom' (1990): In 1987, Nome 2000 filed suit to eject Charles and Peggy Fagerstrom from the disputed parcel -- a seven-and-a-half-acre tract of land overlooking the Nome River. A tract of land which overlaps the disputed parcel is held by Nome 2000. The Fagerstroms argue they have acquired adverse possession of the parcel of land. Using it since 1944/45, intended to build a cabin in north end, rec in the south, posts to take off, picnic area, camper, outhouse, fish rack, reindeer pen, spruce trees. Rest of parcel for subsistence & rec, allowed anyone to use but kicked off one group. Held: Yes, they had adverse possession, at least of the northern portion of the tract, but not the southern tract. Adverse possession is not susceptible to fixed standards with regards to exclusivity, continuity, and notoriety because the activities required for AP depends on the character of the land in question. With regards to the notoriety requirement, community repute is relevant evidence that the true owner was put on notice. In allowing others to use their land for berry picking and trail hiking, the Fagerstroms acted as any other hospitable land owner and so it does not defeat their claim of exclusivity. An investigation of the premises by the owner during the season should have alerted them that it was being used. They acted hostile by using the land as an owner would without permission. However, in the southern portion of the land between 1978 and 1977, the Fagerstroms only used the land for the trails and picking up litter which is not enough to show hostility in a way a reasonable owner could believe it was being used adversely. Also, the existence of a post does not act as a fence, and so it is also not enough.

The requirement is not about structures. So long as the use was open and notorious enough to be open. The use of this was not open and notorious enough to give notice to the owners.

Burden on the adverse possessor
1. More than a reasonable preponderance, need a clear and convincing

Difference in the markers in Nome 2000 and Garcia
1. In Garcia, there was a deed and those markets helped explain the deed
Title by Deed
1. Usual instrument for transferring interests in land, required by SoF (except: AP, wills, eminent domain). Must be delivered to take effect.
2. General requirements
  1. Must be in writing
  2. Signed by grantor
  3. Identify grantor and grantee
  4. Describe property, and
  5. Use words of conveyance
  6. Some states impose other requirements by statute (e.g. witness)

Warranty Dd: Makes promises about whether land encumbered, etc.
Quitclaim Dd: Conveys whatever interest A has to B; no promises

Prescriptive Easement
1. Easement -- limited rights to the continued use the property of another
  1. Affirmative -- right to engage in a particular use on another's land
    1. E.g. right of way -- right to cross neighboring property
  2. Negative -- right to limit or block a particular use of another's land
    1. E.g. preventing a neighbor from building a second story
  3. Prescriptive easement -- limited to a narrow use of another's land, rather than general possession of it
    1. Only affirmative
    2. More land requires more responsibility to keep track of it (adverse possession)

Elements of prescriptive easement
1. A pattern of use that is,
2. Open and notorious
3. Continuous
4. Adverse
5. For the statutory period

Burden is on PE to prove like in AP
Some courts -- use is presumptively permissive
1. Neighbors often let each other cross over the land, so limited use is more permissive than occupation
Adverse possession result in a transfer of title. **Prescriptive easement result in the right to continue the kind and amount of use that persisted during the statutory period.

'Community Feed Store, Inc. v. Northeastern Culvert Corp.' (1989): Plaintiff operated an animal feed business adjacent to defendant's neighboring business since 1956. North of Plaintiff's principal building is a 60 x 90-foot gravel area used by customer cars and shipment trucks to back up or turnaround from the 1920s to 1984, of which 28 feet was owned by the plaintiff and the rest by the defendant. In 1984, a survey was conducted which actually determined that the area was split accordingly. The defendant then erected a barricade to prevent cars from using that portion of the gravel area. Plaintiffs brought an action claiming a prescriptive easement over a portion of defendant’s land, and defendants counterclaimed for ejectment. Held: The extent of an easement created through prescription is fixed by the use through which is was created, and it does not need to be proved by absolute precision, just to the general outlines consistent with the patterns of use throughout the period. The plaintiffs were able to show the gravel area at use was 60 x 90 feet long, that they owned 28 feet of the gravel area, and the area had been used by cars for that purpose since the 1920s until the barrier was erected. This is open and notorious and continuous use of the defendant's property. Open and notorious use will be presumed to be adverse. The plaintiffs also successfully used tacking to add previous periods of use by the previous owners to establish the 15-year SOL.

If they got there prescriptive easement, they could not build on it… just use the property for the same scope and kind of use
They get everything out of it that they want with less of a chance of losing if they choose prescriptive easement, instead of adverse possession
FOR EXAMS:''''
1. Should this be preponderance or clear & convincing
2. The burden should be different, if they merely feel like they are using the land, and not try to own the land, then there should be a different measure.
Relativity of Title
1. For the purposes of everyone else, the finder is the real owner, unless the true owner comes around and asserts a superior claim.
  1. Privilege of possession: the law protects the peaceable possession against all except him who has the actual right to the possession, and no other can rightfully disturb or intrude upon it.
  2. Rules for Ejectment: P gets ejectment on the strength of P's own title, not on the basis of defects in D's title.

'Tapscott v. Cobbs': Squatter on Cobbs Property, Cobbs (D) is heir of Lewis, original owner, but hasn’t been there for a while and some question of title. Held: Court rules in favor of Cobbs because has some evidence of title where Tapscott is merely a long-term squatter. Court won’t invite” disorderly scrambles for possession” or “clothe a mere trespasser with the means of maintaining his wrong, by showing defects, however slight, in the title of him on whose peaceable possession he has intruded without shadow of authority or title.

Policy:
1. Why is Lewis, the peaceful possessor and NOT Tapscott?
2. Cobbs, stands in the shoes of Lewis, the person she is inheriting from
  1. What polices justify this rule?
    1. One should not have to stand guard on their lands at all times
    2. Would encourage people to jump on one’s land as soon as unoccupied
  2. Conquest and Government Grant
    1. Homestead Acts and Freed Slaves
      1. Most real property was not acquired through first possession
      2. Instead Principle of Discovery and Conquest

Your rights in property are only as good as your predecessors

Usually the source is the federal government, or the states, and in rare cases from a previous sovereign
United States acquired much of their land from conquest of Native Americans
Then the land gave away to some of the richest who were given the land from gov.
1. To squatters (some of the poorest)
Property & Power
1. What is the significance of this history to our understanding of the justice or injustice of the current distribution of ownership of land?
  1. Redistribution
  2. Property Clause: Fed authority to manage public domain- “Congress shall have the Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” -- Article IV, § 3, clause 2

Johnson v. M’Intosh: Lawsuit to “quiet title of Land.” Thomas Johnson bought land from Piankenshaw Indian tribes in 1773 and 1775. The defendant, William M'Intosh (pronounced "McIntosh"), subsequently obtained a land patent to this same land by the United States government. The plaintiffs, lessees of the son and grandson of Thomas Johnson who had inherited the land in the interim, brought an action for Ejectment against Mr. M'Intosh in the Illinois District Court, claiming that it was theirs by virtue of their grandfather's purchases in 1773 and 1775. Plaintiffs contended that their title ran directly from the Native Americans who owned the property and therefore it was superior to defendants’ title. Defendant M’Intosh, on the other hand, maintained that the land belonged to him by virtue of the United States’ land patent. The district court held that defendant M’Intosh’s claim was superior on the grounds that the Piankeshaw were not able to actually convey the land because they never “owned” it in the traditional sense of the word. The Plaintiffs requested review of the decision which granted title to the property in that state to defendant M’Intosh on the basis of the land grant from the United States.Held: The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. Europeans got together and said, there is land in Americas, and whoever gets there first, has the claim to the land first. Claim means the rights to conquest or arrange with the Indians the land. Principles of “abstract justice” may seem offended, but “universal recognition” for rule that discovery gave the US exclusive rights to extinguish Indian title of occupancy, either by purchase or conquest. “Conquest gives a title which the courts of the conqueror cannot deny… It is for the Courts of this country to question the validity of this title, or to sustain one which is incompatible with it.”

Discovery: confers a right to acquisition by conquest
1. What justifies such a right?
2. Current Indian Land Claims
JvM upholds U.S. title by conquest while condemning conquest as unjustifiable in modern age, limiting future injustice against Indian lands. Affirms three things:
1. US holds title by conquest to former Indian lands,
2. Indians hold occupancy rights to current lands, &

Preventing future injustice, can only oust by US purchase (or Cnq!)

Indian’s ≠ alienate title to other than US (can convey use rts, per tribal law); but non-I’s can’t just move into I-country and take land, even by AP.

'Estates'
1. Present Estates and Future Interests

Non-Natural Termination

Fee Simple Estates
1. last potentially forever
2. Interest doesn’t necessarily end because of the end of time or death

If there are no words of limitation, the presumption is a fee simple

Absolute
1. No associated future interest.
2. Because no one owns a future interest, grantor can determine who or how its owned
  1. O to A
  2. O to A and her heirs
  3. O to A in fee simple

If there is no other condition, the heirs could also have future interest if A dies

Defeasible Fees -- present interests that terminate at the happening of an event or death
1. Determinable & Possibility of Reverter (PoR)
  1. Future interests revert automatically to the grantor or their heirs on the happening of an event
    1. O automatically gets possessory interest when condition ends
    2. Future interest is called a possibility of reverter, when it reverts it is a fee simple
      1. Adverse possession is possible for A if it stops doing something and O gains possessory interest
    3. Words of duration (temporal limitation): so long as, while, during, until, *unless
      1. O to A so long as used for residential purposes
      2. O to A while used for residential purposed
      3. O to A during residential use
      4. O to A so long as used for residential purposes; if use for a nonresidential purpose, the property shall revert to O
      5. O: PoR
      6. A: FSD
    4. Subject to a condition subsequent & Right of Entry
      1. Grantor may choose to retain for herself or her heirs the right to decide at the time the condition is violated whether to retake the property
        Future interest is called a right of entry (which O has)
        
        If A stops farming land, O has to assert right and then they have fee simple absolute
        
        If O doesn’t assert right, then A still has possessory interest
        But if O does, and A doesn't leave, then adverse possession clock begins. Could theoretically wait a long time.
        
        Laches -- waited too long (modern modification)
        
        Words of condition: but if, provided that, on condition that, however
        O to A, on the condition that she farms the land
        
        O to A, provided that she farms the land
        
        O to A, but if A stops farming the land, then to O
        
        O to A for life; however, if she stops farming the land, then O shall have a right of entry
        O: Right of Entry
        
        A: FSCS

Subject to executory limitation & Executory Interest
1. Future interest in a defeasible fee belongs to someone other than the grantor (third party)
  1. Future interest -- executory interest
2. Use duration or condition language
3. Ownership automatically shifts to the third party when condition is violated
  1. O to A so long as A farms the land, then to B
  2. O to A, but if A stops farming the land, then to B
  3. O to A during the time she farms it, and then to B
    1. O: nothing
    2. A: FSEL
B: Executory Interest

If B dies, then B's heirs retain EI
Shifting -- divests a grantee
1. O to A so long as A farms the land, then to B
2. O to A until B graduates from law school then to B
Springing -- divests the grantor
1. “O to A when B graduates from law school”
2. “O to A for 25 years, then to B if she cleans up the mess A leaves behind”
  1. Someone has to have possession after the 25 years (no gaps of season)
  2. B’s condition can’t happen until the end of A’s estate until B satisfies the condition

Until B has satisfies the condition, then it goes back to the Owner

in fact, there has to be some time that passes to allow for the cleaning so it has to go back to O temporarily
When an inherently limited estate ends, it goes back to the grantor.

Wood v. Board of County Commissioners: Ambiguous language: “Wood to Fremont County for the purpose of constructing and maintaining thereon a County Hospital in memorial to the gallant men of the Armed Forces of the USA from Fremont County.” (1) FSD or (2) FSSCS? The county constructed the hospital and operated it there until 1983 when it sold the land and hospital to a private company. The private company operated the hospital there until 1984 when they moved the operation to a newly constructed facility and put the premises up for sale. Held: In either case, must clearly state conditions that would trigger the expiration of the estate, or give grantor power to terminate estate. Provides purpose, but not for how long or during what time period to be built/maintained/preserved. Solution: Add a time period, or restriction that it can’t be moved.Natural Termination

Life estates
1. Last the life of a particular person
2. Present ownership rights can be held during the life of a designated individual (per autre vie -- for the life of someone else)
  1. O to A for life
    1. A owns the property for his lifetime

Owner of a LE can convey a term of years (because you can’t convey more than what you have, can't be longer than your life)
1. Other person gets a LE per autre vie

If a life estate owner (A) sells her property to a buyer (B) the buyer gets an estate for the life of A
1. B's interest is a life estate for the life of another (per autre vie)
2. O to A for life, then to B.
Term of years -- not limited to life, can be shorter or longer
1. A leasehold
Fee Tail (abolished most states) -- "to A & heirs of his body"
1. 4 states -- limited to 1 generation
2. Dynastic/feudalistic

Edwards v. Bradley: Lilliston to Jones on the condition that she keeps it free from encumbrances and creditors, then to Jones’s six children in equal shares. Jones wanted to sell the farm with the consent of her children, but only Bradley refused, so when Jones died, she left Bradley $1 and ordered the farm sold and profits split equally among her five other children. Bradley sued them alleging that her grandmother's will created a life estate in Jones with remainder in Jones's children. Issue: Does a will placing conditional limitations on alienation of devised land create a life estate in the devisee? Held: Lilliston’s intention was for Jones to be able to have the farm free of creditors in order to protect the farm for Jones’s children in the future. In the absence of language clearly creating a specific type of ownership, a will placing forfeiture restraints on an interest in land creates a life estate.A life estate best protects Lilliston’s intentions. Although the Lilliston will does not specifically name Jones’s children as remaindermen, the children are the beneficiaries of the forfeiture restraint and this indicates an intention for them to take title to the farm after Jones’s interest is terminated.

Presumption for Alienability here – did not want to prevent the land from being alienated. Original will severely restricted alienability.
Remainders and Reversions
1. Reversion: If property reverts to the grantor when A dies, the future interest is called reversion (vested, by definition)
  1. If nothing is said, presumption is for a reversion
2. Remainder: If the grantor designates a third party to obtain ownership when A dies, the future interest in the third party is called a remainder
3. Contingent remainder
  1. If the remainder will take effect only upon the happening of an event not certain to happen
  2. If the remainder will go to a person who cannot be ascertained at the time of the initial conveyance

Possibility of Reverter always follows a grant with only CR
1. CR cannot follow VRSD

Heirs cannot be ascertained until death -- always CR
Destructibility
1. Traditional: CR disappears if it does not vest before end of preceding estate (Ryan’s Jx)****
  1. e.g. O to A for life, then to B's 1st child (B's child born after A dies)
2. CR holders that satisfy contingency later are just out of luck
3. ~~Modern approach is indestructibility~~
  1. ~~Reverts property to grantor and transforms CR into springing EI~~
  2. ~~Better for FI holders worse for law students~~
4. Vested remainders: Remainders to people who are identifiable at the time of the initial conveyance and for whom no conditions must occur (except natural end)
  1. Absolutely vested: Not subject to change
  2. Subject to open: Vested in some individuals but may be divided with others who join the class in the future
    1. Must know at least one of the persons within the class at the time of grant
    2. Rule of convenience -- courts will close class when A dies so B's children won’t have to share with after-born children (***not used in this class***)

Subject to divestment: Remainder that may be lost due to an event that occurs after the original conveyance
1. Grantee can be ascertained
2. No conditions in or prior to that grantee's grant, but the condition can come after
3. Whether the subsequent limitation could divest the remainder holder after or even before her interest becomes possessory, we still describe the remainder as "vested but subject to divestment"
4. A condition -- death is not a condition
5. The Oxymoron that is “The Vested Remainder Subject to Divestment”
  1. “To A for life, then to B, but if liquor is ever sold on premises, to D”
    1. Whether the subsequent limitation could divest the remainder holder after or even before her interest becomes possessory, we still describe the remainder as “vested but subject to divestment”
    2. Heed order & punctuation! With remainders, grammar trumps substance.
      1. O to A for life, then to B if she survives A, otherwise to C.
        (This is a Contingent Remainder.)
      2. O to A for life, then to B, but if B does not survive A, to C.
        (This is a VR Subject to Divestment.)
      3. O to A for life, then to B if she survives A, otherwise C (CR)
        Alternative CRs because one or the other could get it
      4. O to A for life, then to be, but if B does not survive A, to C. (VRSD)
        Shifting EI because CR can never follow VRSD
      5. O to A for life, then to B, but if B marries a lawyer, the property shall then revert to O
It matters because RAP only applies to CR, not VRSD.

O to A for life, then to B's children, but if they do not survive A, then to C (B has 1 Kid)
1. VRSO and VRSD
2. Condition that they must survive A cannot be met and then they're divested of their interest
Three interpretive rules
1. Cannot grant more than what one has
2. Unless the grant contains limiting language, the grantor will be presumed to have given away all of the transferred interest

Whatever is not granted remains with the grantor

Traditionally, the difference between reverter and rights of entry involved SOL for adverse possession
1. When a condition in determinable occurs, possibility of reverter kicks in automatically, giving holder an immediate right of possession.
2. If the holder does nothing for the SOL, the title will shift back to the current possessor

Right of entry doesn’t become possessory until holder asserts a right of possession, if the holder never asserts the right, the title remains with the present owner
1. Violation of condition does not trigger SOL until holder demands a right of possession

Laches -- prevent holder of a right of entry from waiting too long to assert her right of entry
1. Prevents recovery when an unreasonable delay unfairly prejudices another
2. For the purposes of this class, don't need to apply laches -- rely on common law where ROE could theoretically go on forever before assertion
**In class, always show all the different ways property could move**
If there are both magic words, then defer to words of temporal limitation
Merger: if LE/ToY and remainder and reversion end up in same person, now FSA
1. E.g. O to A for life, then to B; later, B quitclaims A. Now?
Contingent Remainders Traps
1. Unborn Widow
  1. O to A for life, remainder to A's widow for life, remainder to A's surviving children
    1. CR in A's surviving children violates RAP
    2. To vest in A's children? Must survive A's widow
    3. Even if A is married at time of conveyance, she could die and he could remarry someone who was born after the conveyance -- so they're not a life in being
    4. A's children could also be born after the conveyance -- so they're not lives in being
    5. A's widow could outlive A for more than 21 years
    6. If the conveyance did not require them to survive A's widow, interests would vest when A died.
    7. Requirement that they survive A's widow that makes their interest valid because A's widow could outlive A for more than 21 years.
  2. Fertile Octogenarian
    1. O to A for life, remainder to A's grandchildren
    2. Assumption of fertility until death
    3. CR in grandchildren or VRSO if at least one already born at time of conveyance violates rule
      1. A could have a child after the creation of the interest and the child could have a child more than 21 years after the death of A
      2. A's children alive at the time of conveyance could die before A, and reverts to O
      3. If after born child has a child more than 21 yrs later, it would have vested too remotely

The endless will contest
1. O to A for life, then to B's children after A's will is probated.
  1. Will contest could go on forever with no guarantee lawsuit will ever end, so CR in B's children is void
  2. Also, if B has no kids, then interest is CR bc they're unascertained and will could be probated more than 21 yrs after the deaths of O A and B and all other lives

Three steps for Analyzing gifts from O to A
1. Step 1: Is the possessory estate “absolute” or “inherently limited”?
  1. Fee simple? (absolute)
  2. Life Estate? (Inherently limited)

Term of Years? (Inherently limited)

~~Fee Tail?~~
Step 2: Does the estate terminate “naturally”?
1. Life Estate ends “naturally” when holder dies.
2. Term of years ends “naturally when specified time period ends

Fee simple has no inherent limitation, so ANY divesting condition makes it a “defeasible” fee
1. Fee Simple Determinable
2. Fee Simple Subject to Condition subsequent
3. Fee Simple Subject to Executory limitation

If Yes, analyze future interest as reversion or remainder
1. Waits for the natural termination
2. You ALWAYS have this after a Term of Years or Life estate
If No, condition could divest it earlier than its inherent limitation, analyze estate as Defeasible
1. The future interest is cutting the term short of a possessory estate that Could go on longer
Defeasibles Step 3; Who gets the Future Interest?
1. Retained by the Grantor…
  1. FSD w/ Poss. Of Reverter: Magic Words of temporal limitation & Automatic divestment
  2. FSSCS w/Right of Entry: Magic Words of express condition & requires action
2. Granted to a Third Party
  1. FS Subject to Executory Limitation w/ Executory Interest: includes some condition & automatic divestment
  2. N.B: Above are phrased as “defeasible fee simple” but the same “defeasibility concept applies to conditional Life Estates, Term of Years.
3. Canons of Interpretation for Ambiguous Conveyances
  1. Rule Against the Creation of New Estates

Johnson v. Whiton: Whiton's grandfather left a parcel of his land to his grandchildren and stipulated in his will that one third of the estate was left to his granddaughter (Whiton) and her heirs on her father's side. The grandchildren attempted to sell the land to Johnson, but Johnson refused stating that Whiton did not have a fee simple interest to convey. Held: A man cannot create a new kind of inheritance, and the court must interpret a conveyance to be intended to fit in one of the established types. A conveyance to an individual and her heirs on her father's side is an unrecognized kind of estate, so the court must reject that condition and leave Whiton with a fee simple which she can convey. Creates a fee simple to avoid forfeiture.

Presumption Against Forfeitures
1. Court will always try not to divest a present possessor

Rule Against Perpetuities (not tested, but should be able to recognize it)
1. life of those living + 21 years (+9 months if in gestation)

Restraints on Marriage Disfavored
1. No forcing to get married or stay married
More leniency for charitable donations
1. More likely to finds ways to allow a charitable donation to occur
The Rule Against Perpetuities
1. Invalidates future interests that may vest too far into the future
  1. Promotes alienability and productive use of the land
  2. Requires ID of those who own the property to be fixed within a certain period of time

Future interests are invalid unless they are certain to vest or fail to vest within the lifetime of someone who is alive at the creation of the interest, or no later than 21 years after their death

How to apply the Rule (4 steps)
1. Identify the future interests created by the grant
  1. If the interest is in the grantor, it is not subject to the rule
    1. Including PoR, RoE, and reversions
    2. Vested the moment they're created
  2. Third parties except if they're vested remainders
  3. Subject to the rule: executory interests, contingent remainders, vested remainders subject to open
    1. O to A for life, then to the first child of B to be elected POTUS.
  4. Also, option to purchase -- right to buy property for a state price in the future
    1. Options are rights to terminate an estate, like EI, so subject to RAP
  5. Exception: EI not subject if present estate owner and future interest owner are charities
  6. CR and VRSO generally GOOD if the contingency depends solely on the actions of someone named in the document creating the interest
    1. O to A for life, then to B if B marries C.
      1. Must occur during their lifetimes and both existed when doc created
    2. O to A for life, then to the children of B.
  7. Not subject: Preemptive rights (rights of first refusal) -- allow the holder to purchase property whenever the current owner decides to sell
    1. Absolutely vested remainders are not subject
    2. Vested remainders subject to divestment
  8. Identify what has to happen for the interest to fully vest
    1. Any conditions will have occurred/all contingencies are removed
    2. No more people can be added to the class of recipients/all future holders are ascertained
    3. Question is when we know exactly who will own the property in the future
      1. O to A for life, then to A's children
        To vest in anybody? A needs children, but they do not need to survive A. It can go to their heirs
        
        To fully vest? A needs to die. Could have more children before death, so children's FI is VRSO

Identify all the people alive at the creation of the interest who can have something to with it vesting
1. Creation of the interest -- FI created:
  1. By conveyance at the time of conveyance
  2. In a will at the moment the testator dies
  3. In a trust, the moment it is signed and the trust is created if the trust is irrevocable
    1. If revocable, it is created at the moment it becomes irrevocable (inter vivos trusts)
  4. People alive
    1. Alive or in utero at the creation of the interest who may have something to do with it vesting
    2. People mentioned in conveyance and people not but have an effect on vesting
      1. A life -- humans only.
    3. O to A for life, and then to A's children
      1. Interest created when O dies
      2. Lives: A and any of A's children alive when O dies
    4. See if you can imagine any way in which the future interest will vest more than 21 years after the death of all the people identified in step 3
      1. Even if it’s is unlikely or in defiance of normal rules of reproductive biology
      2. If you CAN, the future interest is INVALID
      3. Not what is likely to happen, but what is possible if all normal practices are suspended.
      4. When the interest is created, not at the moment you're looking at it
      5. Whether the interest might only fully vest (or become certain not to vest) outside the perpetuities period (all lives in being plus 21 years + 9 months bc gestation not included in 21 yrs)
        Ignore actual or probable fertility -- everyone is assumed to be able to have children until they die
      6. Remedy: Cross out or strike out offending language.
      7. 'Cy pres
        Permits a court to modify a grant to validate it, on the presumption that this is consistent with the intent of the grantor
        
        Most commonly used to eliminate age inconsistencies
        O to A for life, then to the first child of B to attain 25 years of age
        Reduce from 25 to 21
        
        Also, to make widow current wife, eliminates unborn wife problem

Concurrent Ownership
1. Concurrent Ownership: More than one person has right to control the same thing at the same time (Married couples. Shared leases.)
  1. Family members share property through concurrent tenancies.
  2. What about same-sex couples or opposite sex, unmarried cohabitants?

Each tenant, no matter how small fractional interest, has right to possess the entire parcel
1. Share profits from property
2. Share costs of maintaining property

Created, right of survivorship, unilateral sever/terminate tenancy, unilaterally encumber
1. survivorship – who gets property when one tenant/owner dies.
Tenancy in Common
1. Co-tenants each have an undivided possessory interest in the property
2. Default form of concurrent tenancy in the face of ambiguity
  1. Intestate succession -- death without a will

Undivided possessory interest -- right to possess entire parcel

Magic words: O to A and B as tenants in common.
Shares divisible in varying fractional amounts … but for what?
1. Profits and costs are related to the varying percentages
Created explicitly, by conveying property to more than one party as tenants in common

Each tenant has right to transfer or encumber only own interest unilaterally and devise it or have it inherited on death
1. If a property that had TIC is sold, the new owner has a fee simple. All interests merge, no more TIC.
Partition -- a court can order property physically divided among the co-owners
1. Anyone can force a partition -- does not need agreement
2. If not feasible, sold and proceeds divided in proportion to ownership shares

Time shares, fractional interests in vacation property
Condos -- exclusive right to occupy own units but single mortgage over entire property
1. Housing crisis issues, so no finance one's share of mortgage

Carr v. Deking: A tenant in common who refuses to join in a lease executed by the other tenant is not entitled to eject the lessee.

Joint Tenancy
1. Undivided interest and right of survivorship
  1. When a joint tenant dies, property interest immediately transferred to remaining joint tenants in equal shares
2. Magic words: O to A, B, and C as joint tenants.

Traditionally, only created if they shared four unities: time, title, interest, possession
1. Time: Interest for each tenant must be created at the same moment in time
2. Title: All joint tenants must acquire title by same instrument or title
3. Interest: All joint tenants must possess equal fractional undivided interests in the property and their interest must las the same amount of time
4. Possession: All joint tenants must have the right to possess the entire parcel

A joint tenant who transfers her property interest can destroy the right of survivorship of her fellow owners with respect to her share
1. A and B own property as JTs, each owner has right to obtain full ownership when the other dies. If A sells her 1/2 to C, the JT is severed and B's right of survivorship is destroyed.
2. B and C own property as TIC
Can file for partition
Divorce can convert JT to TIC
1. Murder of other tenant also converts JT to TIC

Self-severance -- convey interest from self at JT to self as TIC
1. Possibility of fraud
2. Husband does this secretly
  1. Survives wife, he gets her interest
  2. Dies first, daughter can claim his half
Strawman conveyance: convey to lawyer who conveys back to you. Did not intend to ever give it away.
1. Fake conveyance
2. Breaks the four unities to create a TIC

Severance only occurs between selling owner and remaining owner
1. A sells to D. D owns 1/3 as a TIC with B and C but B and C each own 1/3 as JT with each other
2. When B dies, D owns a 1/3 TIC with C who owns a 2/3 TIC
'Joint Tenancy Examples!' O to A, B, and C as joint tenants.
1. All live there, mortgage is due.
  1. Each pay 1/3.
2. The property is sold.
  1. New owner gets fee simple.
3. A sells her interest to D.
  1. Transaction severed 4 unities, so D becomes TIC with B and C who are JT with each other.
4. B travels to Asia; C and D rent out his bedroom.
  1. C and D give possessory rights, split money in half.
5. B returns after 20 years, C and D tell him the P is now theirs.
  1. Claim adverse possession, but probably wouldn't win.
6. C and B have a fight, B moves in with girlfriend.
  1. B probably couldn't get rent. Left of own accord -- not ousted.
7. C sues for partition by the others object.
  1. Doesn't need agreement.

Tenhet v. Boswell: A lease does not sever a joint tenancy, but expires upon the death of the lessor.

Sharing Rights and Responsibilities Between Co-Owners
1. If one co-owner chooses to live in the property, and one does not, the tenant in possession has no duty to pay rent to the non-possessing tenant
2. Only have a duty when they've committed ouster
  1. ouster -- explicit act by which one co-owner excludes others from the jointly owned property

Rent owed is the fraction share of the rental value owned by co-owners out of possession

Co-owners share rents and profits
Share burdens and costs in maintaining property
Rent Without Ouster
1. Most states require some affirmative act by which one party excludes another, then excluded tenant can request rent
  1. Changing locks, refuse to give key
2. Some allow rent without ouster
  1. Mother left property to let daughter and SIL live there
3. Adverse possession
  1. One co-tenant cannot obtain AP against another UNLESS the possessing tenant makes clear to nonpossessory tenant that he is asserting full ownership rights in the property to the exclusion of the other co-tenants
  2. Require affirmative act by which the nonpossessory tenant is put on notice that co-owner is claiming adversely to the nonpossessory tenant's interests.
4. Trespass
  1. Each co-tenant is entitled to invite others onto the premises even if their co-owners object
  2. Prohibition on unreasonable search and seizure prohibits entry over the objections of a physically present resident, even if co-owner consents
5. Accounting
  1. Co-O can force an accounting (1) to get others to pay fair share of maintenance (2) to receive fair share proceeds
  2. Co-O in possession pays taxes/mortgage if occupancy value > costs

Can only sue Co-Os for accounting if costs > occupancy value

Repairs
1. Courts split on how to allocate costs of necessary repairs
2. Some Co-Os ≠ duty to pay unless agreed; others: duty if notice

Can deduct costs from proceeds due co-Os, so if $ going out

Judicial Theme
1. courts want to stay out of internal governance
2. Don't want to decide necessary, resolve personal disputes
Marital Property
1. Tenancy by the Entirety
  1. Available only to legally married couples
  2. Half the states + FL

Originated in the idea that the married couple was one legal person
1. Linked to doctrine of coverture

Was once abolished when coverture was, but now more than half of states recognize it
1. Presumption that conveyances to marrieds are TBE unless otherwise stated and in ambiguity
Right of survivorship (ROS), but more stable because only severed by death or divorce
1. Possess entire property + indestructible survivorship
Spouses cannot encumber their interest in property without each other's consent, and creditors can't attach property held through TBE to satisfy debts of one of the spouses

Magic words: O to H & W as tenants by the entirety
In FL, any property can be held in TBE

Created to protect wives from husbands who might take their property
Examples: House to H & W as tenants by the entirety.
1. The mortgage (in both names) is due.
  1. Both responsible to pay.
2. W transfers her interest to C.
  1. Can't.
3. H runs up enormous solo gambling bill, casino wants a lien.
  1. Casino can't get a lien on the house, unless W consents.
4. H runs up enormous credit bill on joint account.
  1. Both responsible for debt.
5. W conveys to straw party and back.
  1. Doesn't destroy ROS because it's indestructible.
6. H sues for partition but W objects.
  1. Can't do it.
7. W changes the locks and bar H from the premises.
  1. H is ousted and can get rent from W.
8. H comes back, but after new fight, moves in w/ girlfriend.
  1. Not ousted. Abandoned the interest in occupancy.
9. Possession, ouster, and rent

Olivas v. Olivas: A spouse who moves out of the marital residence by his own choosing for personal reasons is not entitled to rent from the remaining spouse.

Coverture, Dower, Curtesy, Married Women’s Property Acts
1. Coverture
  1. Single women (feme sole) enjoyed all same property rights as men
  2. Married women's (feme covert) property controlled solely by husband
  3. Husband and wife treated as one person in the eyes of the law
  4. Some mechanisms by which married women could exercise property rights
    1. Antenupital agreements (pre-nups) where husbands voluntarily gave control over property to their wives
    2. Trusts created for the benefit of the wife so she could enforce the trust as the beneficiary without the husband's consent
      1. Fathers often did this
    3. Dower Interest
      1. Wife has a life estate in one-third of the freehold lands of which the husband was seised at any time during marriage and that could be inherited by their children
      2. Could not be alienated by husband without her consent or used to satisfy his debts

Curtesy Interest
1. Husband has a life estate in all lands in which his wife owned a present freehold estate during the marriage and that was inheritable by their children
2. Only if the couple had a children capable of inheriting the property

Married Women's Property Act
1. Abolished coverture and removed economic disabilities of married women
2. Married women had the same rights as single women and married men to contract, hold and manage property, to sue and be sued.
3. Advocates argued it didn't go far enough.
  1. Joint property laws -- recognize wives' claims to marital assets to which husbands otherwise had title
  2. Entitled to this by reason of the labor they contributed within the home to the family economy
4. Separate and Community Property
  1. Separate Property
    1. Marriage
      1. Spouses own their own property separately, unless they choose to mingle
      2. Owns whatever property they possessed before the marriage
      3. Individually liable for prior debts
      4. Property earned after marriage is also owned separately
      5. Can share property
        Informally -- share costs, give part of earnings
        
        Formally -- joint bank account
      6. Spouses have a legal right to support each other
    2. Divorce
      1. Equitable distribution subject to a number of factors (up to 1/2 on a sliding scale)
        Which property gets divided
        
        Intended to protect economically dependent spouses
      2. CL: if H earned Wages and W did not, H owns all (W gets dower)
      3. Judge has great discretion
      4. Alimony used to be the norm when it was presumed wives dependent on husbands
        Now, an exception -- intended to be temporary, desire financial independence
      5. Death
        A spouse can dispose of their property by will
        
        Some states -- forced share up to a 1/3 or 1/2
        Widow or widower can override the will and receive a stated portion of the estate
        
        No obligation to leave separately owned property
        
        Protect interest of surviving spouse by defining and indefeasible right to receive a portion of the testator's estate
        
        No will = inherited according to state intestacy statute
        
        FL -- rebuttable of equitable contribution
      6. Community Property
        Marriage
        Property owned prior to marriage, and gained by gift, devise, bequest, or inheritance, is separate
        
        All other property, including earnings, is community property owned equally by both
        Both own undivided 1/2 of CP
        
        Most states allow spouses to transmute property from separate to community and vice versa
        
        Each spouse may deal with the community property without the consent of the other spouse
        Act as fiduciary -- best interest of the community
        
        Divorce
        Get all separate property and 1/2 of community property
        
        Some states, also, equitable distribution principle
        
        Death
        Dispose of all separate property and 1/2 of community property
        
        No forces share rule because spouse has a vested ownership of 1/2 of community property

Premarital Agreements
1. Spouses can vary respective property rights during marriage or at divorce by signing a premarital or antenupital agreement
2. Generally enforceable if voluntary and not otherwise against public policy
  1. May encourage marriage and discourage bitter divorces
3. Courts differ on standards to determine voluntariness
  1. Time demanded before wedding, sophistication of parties, reasonable time and means to access independent counsel
4. Not enforceable if unconscionable
  1. Equitable and fair
  2. Date of execution of agreement or at time of enforcement if there has been a substantial change in circumstances since agreement made
5. Homestead laws
  1. Protect surviving spouse and children from creditors coming for their house to settle dead spouse's debts
  2. Do TBE without TBE

O’Brien v. O’Brien: In making an equitable distribution of marital property, the court considers any direct or indirect contribution to the acquisition of the property. His medical degree is martial property subject to division.

Marital Dissolution
1. Constructive Ouster on Divorce
  1. Should we presume constructive ouster whenever one moves out…
    1. Always? Never? Case-by-case?
  2. Why a default rule? Which one?
    1. Prospectiveness -- order society, allow people to plan behavior on divorce
    2. Judicial economy
    3. Courts don't want to be involved in internal governance (extramarital affairs)
  3. Best case for always?
    1. Protect the one ousted
  4. Best case for never?
    1. Don't want to do fact-finding mission
    2. Protects one left behind in the marital home
  5. Consider hostility?
  6. Consider fault?
  7. Is there a better way?
2. The role of rebuttable presumption
  1. Case law suggests efficient way to balance equities, limit inquiries
    1. Default to "always" -- but rebuttal if "pulled" (v. pushed)
    2. Or, default to "never" -- rebuttal as equity requires
      1. FL is never, with no rebuttal.
    3. Applications for the architecture of legal rules
      1. Default rules with rebuttable presumptions
        Accomplish judicial efficiency
        
        Balance competing interests

Avoid all-or-nothing results

TbE vs. SP/CP vs. ED
1. TbE: form of coownership pertaining to a specific item of P
2. SP/CP: general rules for acquisition of P during marriage, with significance at divorce, death, transfer
3. ED: rules for allocating P after divorce; mostly significant for SP states, but some CP use for additional discretion
Leaseholds and Landlord-Tenant Law
1. Leasehold Estate
  1. Landlord agrees to transfer possession of the property for a specified period to the tenant in return for the tenant's promise to make a periodic rental payment
  2. Possession reverts to landlord at the end of the lease

Division of property interests between landlord and tenant

Time, specific location required
A conveyance and a contract
Lease Sets: Location, parties, rent, duration (SoF?)
1. All else can be set either by K or legal defaults
2. CL (20, FL: URLT Act)

Entitles: T to exclusive possession (even of LL)
1. LL to reversion, rent (if specified in lease)
Duties: Waste: T promises ≠ damage beyond normal wear and tear
1. Cov. Of Quiet Enjoyment: LL promises ≠ disturb T's possession.

Leaseholds and Foreclosure? If T performs fully, but LL doesn't (pay mortgage or defaults)?
1. Most of the time, tenancy ends
Term of Years (ToY)
1. Lasts a specified period of time, which can be any length
2. Ends automatically at the agreed upon time

But can be terminated earlier on the happening of some event or condition stated in the lease agreement

Cannot be evicted unless tenant breaches a material term of the lease
Death does not terminate tenancy
If future interest retained by landlord, reversion

If future interest will shift to a third party, remainder

Periodic Tenancy (PT)
1. Renews automatically at the end of each period (year to year, month to month)
2. Unless adequate notice is given by either tenant or landlord that lease will not be renewed

Cannot be evicted without notice

Death does not terminate tenancy
Tenancy at Will (TW)
1. Like periodic tenancy, but can be ended with no notice by either party
2. Usually informally created, mostly by mistake

Death of either landlord or tenant terminates tenancy at will

Although a landlord might have to give notice for eviction, still has absolute right to evict
Defense of eviction can prevent it in PT
Tenancy at Sufferance (holdover tenant) (TS)
1. A tenant rightfully in possession who wrongfully stays after the leasehold has terminated
2. Distinguished from a trespasser who never had a right to possess the property

A court proceeding and a court judgment are generally required to evict a tenant (summary process)

Can't use self help
A landlord who continues to accept rent may be held to have agreed to a new tenancy calculated by the rental payment schedule (e.g. month to month)
Commercial and Residential Tenancies
1. Residential -- for purpose of establishing a home
  1. Usually shorter than commercial lease (usually 1 year)
2. Commercial -- any non-residential use (business, non-profit, church, hospital, school)
  1. Leases can last a decade or more

Courts often analyze two situations separately on the assumption the underlying policy considerations and justified expectations of parties may differ
1. Courts more likely to adopt CL rules for residential because they probably have less bargaining power and expertise to shape a contractual agreement in their best interests than commercial

Regulation of Landlord-Tenant Relationships
1. Procedural regulations -- formal requirements for creating the landlord-tenant relationships
  1. Statute of Frauds -- leases more than one year must be in writing, while leases under one year are enforceable written or oral & must specify the location
    1. Month to month -- can be a tenant more than one year, but period is less than one year
    2. Periodic -- as long as period is less than one year
  2. Termination of a lease
    1. Requires Notice
    2. And an Eviction Proceeding
  3. Summary Process -- expedited court proceeding for eviction
2. Substantive Regulations -- define the parties' obligations to each other
  1. Circumstances where a breach of the agreement by either party entitles the other to end her performance of contractual obligations
  2. Some terms waivable (can be contracted around) and non-waivable (compulsory)
  3. Consumer Protection Statutes -- general rules regulating the relationship
    1. Tenants can bring claims against landlords as consumers of housing services
      1. They do this, even when they have remedies under a statute or common law, because consumer protection statutes provide for multiple damages and attorney’s fees
    2. Conflicts about Rent
      1. Most suits brought by landlords over unpaid rent
      2. Possession and back rent
        Landlord can sue tenant for back rent and possession (to evict)
        
        Tenant can defend using rights based on implied warranty of habitability and retaliatory eviction
        Also, discrimination

Holdover tenant and renewal of the tenancy
1. If landlord continues to accept rent, a new tenancy is created
  1. Periodic based on the rent payment (month to month, e.g.)
  2. If a holdover tenant from a term of years, then new term of years for the same term begins
2. Can sue for possession
  1. Refuse to take rent (so to not create a new tenancy where notice and hearing is needed for eviction)
  2. Cash checks but write on back of each check that landlord is not agreeing to new tenancy, just using check to cover rental value of property
3. Self-Help
  1. Landlords cannot use self-help
  2. Must go through proper court eviction proceedings
  3. Concern that self-help may turn violent
4. Summary Process
  1. Process for fast judicial determination of landlord's claim of right to regain possession
  2. Forcible entry and detainer, unlawful detainer, summary proceedings, summary ejectment
  3. Limits issues that can be addressed in lawsuit
    1. Interpreted in ways to prevent tenants from raising defenses
    2. Increasingly, tenants able to raise defenses making them less summary
  4. Representation
    1. Majority of landlords are represented by counsel, majority of tenants are not.
    2. SCOTUS has declined to extend right of counsel to indigent defendants in civil cases

'Sommer v. Kridel: A landlord has a duty to mitigate damages when he seeks to recover rents due from a defaulting tenant.'

Landlord's Duty to Mitigate Damages
1. Accept Tenant's Surrender
  1. If tenant moves out before end of lease and stops paying rent, makes an implied offer to end the lease
  2. Landlord can accept their surrender of the lease -- agrees tenant not legally obligated to pay future rent
  3. Can still sue for back rent owed, damages in breach of contract
  4. Damages calculated by agreed-upon rental price minus fair market price
  5. Idea that all landlord loses is difference between what the tenant paid and amount landlord can get from a replacement.
2. Re-let on the tenant's account
  1. Landlord may refuse to accept surrender, actively look for a new tenant, and re-let the apartment on the tenant's account
  2. Landlord can sue tenant for different between old rental price and new rent, if new rent is lower (as long as its reasonable)
  3. Issue is how landlord makes it clear they're refusing to accept surrender
    1. Notice to tenant they're searching for a new tenant
  4. One Year Lease --> T1 moves out after 6 months
    1. L finds T2 to rent month-to-month at old rent but T2 moves out after 4 months
    2. L cannot find a new tenant for last 2 months
    3. If L accepted T1's surrender, L can't sue T1 for 2 months rent
    4. If L did not accept T1's surrender, T1 must reimburse L for 2 months rent

Wait and sue for rent at the end of lease term versus mitigate damages
1. To sue for entire rent, L must wait until lease term ends to collect back rent
2. To sue immediately for monetary compensation in middle of lease term, must ask for damages
3. Almost all states reject those, and require aggrieved party to mitigate damages

Tenant’s Right to Habitable Premises
1. Constructive eviction
  1. Abandonment of premises due to actions of landlord making premises unusable.
  2. Applies when LL:
    1. Engages in an intentional act that causes the interference, or
    2. Fails to act in accordance with express or implied duty in lease
  3. E.g. a safety hazard, imminent damage to personal property
  4. Remedies: Entitles tenant to stop paying rent and move out before the end of the lease term
  5. At CL, if you want access to CE, you need to get off the property because if you stay, its evidence conditions are not that bad
2. Partial Constructive Eviction
  1. LL violates CQE for only part
  2. Remedy: T can stay in other part and abate rent

Actual Eviction
1. affirmative actions to remove from possession (bar doors, change locks, etc.)
  1. T can sue for breach and try to get LL to let T back in
  2. Obligation to pay rent is extinguished
2. Remedy: rescission, stop rent (sue)

Partial Actual Eviction (can stay)
1. LL bars actual possession of part
2. CL: completely relieves T from obligation to pay rent, and can stay
3. MR: stay but abate rent

Minjack Co. v. Randolph: A tenant may assert a constructive eviction defense even if he has only abandoned a portion of the premises.

Implied terms -- do not have to be written down or talked about to be legally binding
1. Covenant of quiet enjoyment -- landlord impliedly promises not to disturb the tenant's quiet enjoyment of the property

'Blackett v. Olanoff' (1976): After renting residential apartments to T, LL rents neighboring P to cocktail lounge. Lounge promises in its lease not to disturb residential Ts but plays loud music until 2am on daily basis. Residential Ts complain to LL and LL reports problem to lounge but after no change, Ts bail and LL is left empty-handed on rent. T argument: Right to quiet enjoyment has been violated because the lounge is too loud to prevent them from sleeping & using the premises as they normally would. LL defense: did not intentionally act to cause the interference, did not fail to act in accordance with duty in lease. Trial court: LL did violate ROQE and T are not responsible for rent LL appeals -- not responsible, didn't do anything Held: MASC reject what the LL argues. LL tries to create an act omission distinction.

A difference between an act or an omission?
1. An act you're not supposed to do
2. Not do an act you're supposed to do
Either an act or an omission constitutes an act in the covenant in the right of quiet enjoyment
Two different way the LL is culpable:
1. LL caused conflict because it was foreseeable the lounge would be a problem
2. Bar was in breach, and LL had a duty to terminate lease
Third Party Conduct
1. LL is not responsible for third party conduct that causes problems
2. UNLESS, the lease explicitly states the duty
3. Whether the Ts are third party beneficiaries of the contract of the LL with the T to not be loud
4. Limits:
  1. Conduct has to be reasonably foreseeable
  2. LL has to be in some way contractually obligated to do something

Tenant's Duty to Repair Premises
1. Dependent Covenants -- contract
  1. If one party breaks covenant, other party doesn’t need to uphold theirs
2. Independent Covenants -- property
  1. If one party breaks covenant, other party still needs to uphold theirs
3. Warranty of Fitness -- contract
  1. Guarantee that product will be of adequate quality
4. Warranty of Habitability -- property
  1. Guaranty that the premises will be livable and structurally sound
5. Implied Warranty of Habitability
  1. Adopted in almost all states by CL or statute
  2. When violated?
    1. Code violations, community standards
    2. Common triggers: no heat, hot water, pests, leaky roof
  3. At what point in time? Immediately? On notice? LL grace period?
  4. Cannot be bargained around
6. IWH vs CE: What does it add?
  1. Can stay
  2. Reduces threshold of what needs to be shown to get CE
7. IWH: waivable?
  1. Majority rule -- not waivable
  2. Reason of doctrine is to assume a tight housing market, a lack of bargaining power
  3. If waivable, all LLs would waive it and all Ts would have to agree
  4. Remedies for Breach of IWH

Javins v. First National: An implied warranty of habitability is read into residential leases and breach of that warranty frees tenants from the obligation to pay rent.

Conflicts about Transfer
1. Assigning and Subleasing
  1. Transferring Leasehold Interests
    1. Landlord -- right to reversion, rent payments
  2. Tenant's right to transfer
    1. Tenants can generally transfer all or a portion of her possessory interest in the premises unless the lease specifically limits this right.
    2. No sublet or no assignment clauses are generally enforceable
      1. Protects LL from being forced to accept a substitute tenant that is less creditworthy
      2. Limits T's ability to get out of lease and move elsewhere
    3. Traditionally, sublet and assign distinct; modern, sublet construed to mean assign or sublet
  3. Assignments
    1. Assignment -- conveys all tenant's remaining property interest w/o retaining any future rights to enter the property
    2. Assignees are directly responsible to the LL for all the undertakings under the original lese
      1. Tenant's covenants run with the land
    3. Assignee not in privity of contract (did not reach agreement with each other), but in privity of estate (share an interest in the property)
      1. Makes assignee directly liable to the LL and vice versa
    4. LL can sue OT for rent because sublease doesn't end contract with LL, or assignee for rent

Sublease
1. Sublease -- tenant retains some future interest or right to control the property in the future
  1. May also exist if tenant retains ROE that can be exercised if subtenant violates one or more of the terms of the sublease agreement
2. Lease covenants do not run with the land as real covenants
3. LL has no right to sue ST to enforce any covenants, including to pay rent (no privity of contract)
  1. Exception: ST expressly promises the T to pay the rent to the LL
    1. LL is a third-party beneficiary of promise between T and ST
  2. Lease covenants probably enforceable by injunction as equitable servitudes, as long as ST has notice
  3. Inquiry Notice
    1. A reasonable ST would inquire whether T had made promises to LL restricting use of premises
  4. Injunctions for rent tricky -- some courts do because constitutes enforcement of affirmative covenant; some don't because it’s a money payment which seems like damages
  5. LL can only sue OT for rent because still contractually bound to pay rent
    1. If neither pay rent, LL can evict OT and end leasehold and terminate ST's right of possession
    2. OT has right to be reimbursed by ST
  6. OT can sublet for less than actual rent, just has to make up difference to LL

Slavins v. Rent Control Board of Brookline: A residential landlord may unreasonably withhold his consent to an assignment of a lease when there is no provision in the lease that his consent will not be unreasonably withheld.

Landlord Consent
1. Many leases require landlord's consent before subletting or assignment
2. Whether a criterion of "reasonableness" should be implied?
Duty of Good Faith and Fair Dealing
1. Trend in commercial leases is toward an implied reasonableness term in lease clauses that give LL the right to consent to sublet or assignment
2. LL should not withhold consent unreasonably
3. Property vs. Contracts
  1. Property -- every duty imposes an obligation of good faith in its performance or enforcement
  2. Contracts -- every contract imposes upon each party a duty of good and fair dealing in its performance and enforcement
4. First Federal Savings Bank of Indiana v. Key Markets
  1. Not the province of the courts to require parties acting pursuant to a contract to be reasonable, fair, or show good faith cooperation
  2. Puts courts at the negotiation table
  3. Would make it impossible for parties to rely on written contracts
  4. Courts should only presume parties acted reasonably and in good faith in entering into a contract when the intentions of the parties can't be readily ascertained because of ambiguity or inconsistency in the terms of a contract
5. What is Reasonable?
  1. In a commercial context, only factors relating to the landlord's interest in preserving the leased property or in having the terms of the lease performed should be considered
    1. E.g. financial responsibility of the ST, the legality and suitability of proposed use, nature of the occupancy
  2. Objection must relate to ownership and operation of leased property, not lessor's general economic interest
'Nuisance & Land Use Conflicts Among Neighbors'
1. Intro
  1. About the “Use” stick in the bundle of sticks
    1. Like the hog farm
    2. Apartment horse v. cowlick baby
  2. Instances of conflicts between neighbors who own separate property?
  3. Both and more than just these four!
    1. Stick= a particular right or stream of benefits associate with the property- (some of the sticks are being held by others in the community besides just the owner)
    2. Classic sticks held be the landlord
      1. The right to live on land
      2. Lease it to Tenant
      3. Right to sell or gift it
      4. To mortgage it for equity
      5. To grant easement over it
      6. To covenant about its use

By the Neighbors:
1. The right to tax the land
2. The right to regulate certain uses, even while remains in private possession
3. The right to take it for other use under certain circumstances

Sticks that have moved between owner and community include statutory protection:
1. The quality of public air and water supply (new stick for Community)
2. Threatened and endangered species habitat (new for Community)

Individual rights to farm in existing locations (new for landowner)

Against tax increase for long-term owners (new for landowner)
THE BIG ONE: Eminent Domain for Economic Development
Land Use Conflicts Among Neighbors
1. Land Use Conflicts Defined
  1. Defendant wants freedom to Act, Plaintiff wants security from Harm
  2. Property Law Axiom
    1. Balancing the autonomy interest of owners against security interest of neighbors proves the enduring theme (& central controversy) of land use law!
  3. Non-trespassory interferences with property rights of other can occur when the use of one's own property harms the property interests of one's neighbors
    1. Pollution, noise, orders, criminality, excavation, flooding, blocking access to light and air
  4. Tension between autonomy and security
    1. Privilege to use one's property is limited by the legal rights of other owners to be protected from uses that unreasonably harm their use or enjoyment of their own property
    2. The right to be secure from conduct that interferes with one's use or enjoyment of property is not absolute
  5. Nuisance law
    1. Principle means by which common law of property addressed land use conflicts
    2. Remedies for conduct that causes unreasonable harm to the use and enjoyment of land

Also, there are special rules to help govern conflicts over support obligations, water rights, and access to light and air

Four ways to resolve
1. Priority in Time
  1. Who was there first – coming into the nuisance
2. Assign entitlement to Privilege the ∆’s Autonomy Interest
  1. ∆ always wins!
  2. Freedom to act

Assign the entitlement to Privilege the π’s Security Interest
1. π always wins!
2. Security from Harm

Fairness under the circumstances
1. Perhaps reasonable use doctrine as a flexible standard?
Rights Based Arguments
1. Ways of determining how to best resolve land use conflicts…
2. Familiar rights
  1. Self determination
  2. Security from harm

Speech, equal protection, procreation

Rights: Freedom of Actions vs. Security
1. Appeal to fairness and justice
2. Courts must take conflicting interest into account, accommodate or choose one

Rights of neighboring landowners are relative -- uses of one can't impair uses and enjoyment of the other

Landowners do not have an absolute right to use the land in a way that injures the rights of others
Rights as freedom of action
1. Right to use property within the limits of the laws is still freedom
2. Armstrong claimed a right to develop without having to account for increased water flow

Developer shouldn’t be required to foresee and prevent or compensate all possible damage, because it would interfere too much with their freedom to develop own property

Rights as security
1. Property holders have right to be protected from land use by a neighbor who unreasonably interferes with another's enjoyment of his or her property
2. Freedom of use is limited by need to protect other's rights to security
Value Judgments
1. Must consider both rights
2. Some may try to protect both rights, others more than one based on circumstances
Social Utility: Competition vs. Secure Investment
1. Familiar indices of social utility
  1. Public/national safety
  2. Availability of food/shelter/employment

Clean environment, good health

Promoting the general welfare by enacting appropriate incentives
1. Social utility arguments appeal to goal of generating rules of law that promote socially desirable conduct and deter socially harmful conduct
2. Two components
  1. Assert that particular legal rules create specified incentives that encourage or discourage certain kinds of behavior
  2. Evaluate that behavior by asserting that a particular rule is better because it promotes a socially desirable conduct or discourages socially harmful conduct
3. Promoting Competition
  1. Rules governing land use should be chosen in a way that promotes land improvement and development by protecting landowners from ruinous liability
  2. Encourages investment in socially beneficial economic activities
4. Protecting the Security of Investment
  1. No one will invest to develop property if the investment is not secure
  2. Requires legal rules that give developers incentives to use their property in ways that minimize the harm to the other property owners

Development should be encouraged, but not to the extent its harmful effects outweigh its benefits

Development could cause social costs to outweigh social benefits
1. Require developer to compensate those burdened induces developer to take external costs into account
Balancing Interests
1. Requires a judgment about how people will actually respond to rules
2. Evaluate the relative costs and benefits
Formal Realizability or Administrability: Rigid (Bright Line) Rules vs. Flexible Standards
1. Bright Line Rules
  1. Legal rules sometimes defined in ways that allow mechanical application
  2. Offer certainty and predictability because each citizen knows their rights and obligations

Prevent judicial discretion -- like cases are treated alike
1. Easily administrable

Facilitate bargaining
If private actors know in advance the incidence of official intervention, they'll adjust their activities to take account of them
1. Private activity will follow a desired pattern
Require particular results, even if unfair under the circumstances
1. Over and under-inclusiveness requires official arbitrariness
  1. If we adopt a rule, it's because this arbitrariness is less serious than the arbitrariness of an official applying a standard directly to the facts of each case

E.g. the common enemy and civil law rules are bright line rules (rigid); strict liability is a rule

Standards
1. Legal doctrines more flexible than rules
2. Standards or principles
  1. Directly one of the substantive objectives of the legal order (e.g. due care)
  2. Factors to be considered

Benefit of obtaining justice in individual case by allowing decision make to take account of all relevant circumstances

Less predictable
E.g. the reasonable use rule is a standard (flexible); negligence is a standard
Formal realizability and social utility
1. Rules are more predictable than standards, so they better promote social welfare because people can plan and they induce actors to look out for the own interests knowing when the law will or will not protect them
  1. Sometimes innocent behavior gets punished, or guilty is not
2. Standards sometimes promote social welfare better than rules because the uncertainty of how the law will apply will discourage socially undesirable conduct
  1. Bad man can walk the line, knowing a jury would find actions reasonable they can go forward

Standards become more predictable over time

Argument that benefits of predictability of rules outweighs imprecision
Common law distinguishes cases -- rules don’t apply to every similar case
Advantages might be overstated
The Reciprocal Nature of Conflicting Land Uses
1. A balance between imposing harms on one party, or another
  1. To regulate A, would harm A and help B. To not regulate A would harm B but help A.
2. Requires comparing costs and benefits.
  1. Whether to protect π's interest in security from harm, or ∆'s interest in freedom of action?
  2. Must ask which harm is greater (magnitude), rather than what the harm is (character)

Which harm to privilege?

Deciding not to protect property interests by failing to prohibit harmful use of land is as much a regulatory choice as choosing to prohibit or limit such uses.
We should be interested not only in dollar amount value, but full range of values, even ones hard to put a price on
Reasonable Use and the BLR-Standard Dialectic
1. Starts out crystal, erodes to mud, and back again
Common Law of Nuisance
1. Private Nuisance -- a substantial and unreasonable interference with the use or enjoyment of land (common law)
  1. Typically: activities that are offensive, physically, to the senses, and which makes life uncomfortable such as noise, odor, smoke, dust, flies
    1. Historically, particles are nuisances, but technically migrate onto property so now also trespass.
  2. A flexible doctrine.

Protects stick of use, not exclusion or ownership

Removal of lateral and subjacent support
Public Nuisance -- A use that interferes w/ rights of the public in general, usually by threatening health or safety.
Second Restatement of Torts: "Nontrespassory invasion of another's interest in the private use and enjoyment of land." -- just to clarify it's actually a tort, but not what we'll use.
Two distinct issues in all nuisance cases
1. Which party has the basic entitlement?
2. What remedy can be used to vindicate the entitlement?
Unreasonable harm to the use and enjoyment of land (Reasonableness Test)
1. Substantial interference: How much interference is too much? --> Reasonableness
  1. Evaluate the manner, place, and circumstances of the challenges use against prevailing community standards.
2. (1) what interests are encompassed by the right to the use and enjoyment of land
3. (2) the harm must be substantial
4. (3) whether the defendant's conduct creates consequences for the plaintiff that a typical landowner should not be expected to bear, and whether those consequences exceed a reasonable threshold beyond which the court will conclude that the defendant has created a nuisance.
5. Restatement of Torts (Generic Factors)
  1. Fairness:
    1. Character of harm to plaintiff -- aesthetic less serious than health or safety
    2. Distributive considerations -- one individual bear costs, or spread costs
    3. Fault -- disfavored activity? Appropriate conduct for area? Plaintiff come to nuisance?
    4. Which use was established first?
  2. Utility:
    1. Costs and benefits of allowing vs prohibiting
      1. Social utility of π's harmed activity?
      2. Social utility of ∆'s harmful activity?
    2. Incentives -- how does liability or immunity incentivize engaging in nuisance activity
      1. Lowest cost avoider -- who can most cheaply avoid the cost
    3. Intentional nuisance, negligence, ultrahazardous activities, and nuisances per se.
      1. Intentional nuisance distinguished from negligence
        Negligent -- focuses on conduct itself
        Whether conduct was unreasonable
        
        Intentional nuisance -- focuses on result of conduct
        Whether the interference suffered by the plaintiff is unreasonable
        
        Unreasonable if substantial harm owner shouldn't have to bear
        
        Non-negligent conduct may still result in a nuisance or negligent even if not a nuisance

Strict liability for ultrahazardous activities
1. Toxic waste

Nuisances per se -- activities so disfavored, doesn’t matter where or what consequences
1. Criminal activity
2. A right thing in a wrong place
Who can be sued
1. Anyone who materially participates in causing harm
2. Conduct a substantial factor in causing harm
When to sue
1. Not too early:
  1. Doctrine of anticipatory nuisances -- bars nuisance before challenged use actually takes place
    1. Or for an injunction, must show the use once in place will constitute a nuisance
  2. Cost of dismantling a Bo might weigh against finding nuisance
2. Not too late:
  1. Before statute of limitations expires
  2. Temporary -- can be alleviated by changes in conduct
    1. SOL occurs intermittently

Permanent -- irreparably injures plaintiff's property, or will continue indefinitely
1. SOL begins at time nuisance begins

Nuisance defenses
1. Temporary priority & coming to the nuisance
  1. If harmful activity occurred first, better for defendant
  2. If plaintiff comes to nuisance, she created the problem herself

Not an absolute defense
1. Can’t build a house next to a pig farm
2. May enjoin activity on condition plaintiff compensates defendant for shutting down or relocating

Unusual sensitivity (Hypersensitive Plaintiff)
1. If a plaintiff is unusually sensitive, court may not regulate defendant's generally inoffensive activity or impose damages
2. Is π's harmed use so "unusually sensitive" that it would be wrong to curtail ∆'s otherwise unharmful use on basis of π's unusual harm?
Hypersensitive Plaintiff vs. Eggshell Plaintiff
1. Eggshell -- liable for injury, even if unusually vulnerable to injury when a normal person wouldn't be; focuses on conduct itself; rule about damages after established liability
2. Hypersensitive -- focuses on the result of the conduct; determining liability, not on the foreseeability but the whether the result is unreasonable. More consideration of factors.

Overlap: once liability is established, both take π as found to calculate damages

'Page County Appliance Center v. Honeywell, Inc.' (1984): Computers irradiating TV’s next door, causing them not to work. Held: In order to be liable under a nuisance theory, one’s conduct must be a substantial factor in the unreasonable interference with an individual’s use and enjoyment of his property. Damages for nuisances don't need to be based on negligence because nuisance is a condition, not an action. There can be negligence without nuisance. The existence of a nuisance is not affected by the intention of its creator not to injure anyone. Priority of occupation and location is a circumstance of considerable weight. Also, courts apply the standard of "normal persons in a particular locality."

Aesthetic nuisance and stigma
1. Historically cts reluctant to find visual annoyances by themselves nuisances
  1. Recently more willing
    1. Not if a mere difference of taste, but a result of malice or spite
  2. Most courts deny claims of lost property value as a result of stigma of living near an issue
2. Public nuisances
  1. An unreasonable interference with a right common to the general public
    1. E.g. obstruction of public highways
  2. Traditionally, only challenged by public officials but 2nd restatement of torts says anyone affected can bring a suit (current trend)
    1. Liquor stores selling to minors, motels used for prostitution, etc
  3. Some cities use public nuisance to abate harms cause by owners leaving property vacant for long time
3. Climate change as a public nuisance
  1. SCOTUS held federal environmental laws preempt plaintiff's federal common law claims, but let open possible of state law claims
    1. One court says state law claims also preempted by federal laws
  2. Statutory and administrative regulation of land use
    1. Recently, eclipsed by federal and state environmental protection laws
      1. E.g. clean air act, clean water act
    2. May place more stringent limits on environmental pollution
    3. Local zoning law may regulate and separate incompatible neighboring land uses
    4. Statutes establish agencies with power to impose fines on violators
  3. Nuisance Remedies
    1. Remedy Rules
      1. Property Rules (injunctions) -- Fix an absolute entitlement either to engage in the conduct (no liability) or be secure from harm (injunctive relief to stop harm). Treats entitlement like property -- whoever owns it can transfer it away.
        Parties free to bargain to give up rights to commit or be free from harm
        
        Price is fixed by private bargaining than by court order
      2. Liability Rules (damages) -- prohibits one party from interfering with the interests of the other unless the party is willing to pay an amount determined by the court
        ALL or NOTHING for one side or another
        
        If plaintiff wins, then ∆ is subject to damages
        
        If ∆ is entitled to engage in harmful activity, π can get an injunction by compensating ∆
        
        5th amendment takings
        
        Liability Rule & Justice in the Individual Case?
        Liability RL: when conflicting rights/utility analysis makes both sides sympathetic?
        
        Asks: why does the remedy have to be all or nothing, for one side or the other?
        Two versions? (1) Punch and Pay (2) purchased injunction
        
        Inappropriate?

Inalienability Rule -- can't give away interests or entitlement
1. Implied right to habitability

Can parties bargain around the default rule?
Who gets to decide?
Nuisance law permits decision make to consider the utility of defendant's conduct at both stages, but the relevance is different in each
1. If conduct is socially beneficial, ∆ can impose more costs on πs
2. Not decisive
Entitlement stage -- focus is on impact to the plaintiff
Remedial stage -- costs and benefits of defendant's conduct

'Boomer v. Atlantic Cement' (1970): Π sue ∆ for nuisance of dirt, smoke, and vibration emanating from their cement plant. They were awarded temporary damages, but not an injunction. Held: Where a nuisance has been found and where there has been any substantial damage shown by the party complaining an injunction will be granted. However, the court finds it should not strictly follow this rule because it would require the plant to close down all at once. The court should grant the injunction unless the ∆ pay permanent damages to the πs to compensate them for the total economic loss of their property caused by ∆'s operations. Permanent damages are allowed where the loss recoverable would obviously be small compared with the cost of removing the nuisance. Provides a remedy to the plaintiffs and limits the remedy just to this case, so it doesn't preclude public health or public agencies for seeking proper relief from public nuisances in a proper court. It also acts as a reasonable effective spur to research for improved techniques to minimize nuisance. Should not attempt to establish a policy for eliminating air pollution on its own because it is not equipped to do so – responsibility of the government.

Boomer
1. Atlantic Cement's behavior was reasonable on the social level in the sense it created overall social utility but the costs on the defendant were not fairly distributed
2. The harm was greater than any individual would be forced to bear for the good of society
3. An injunction unless damages is effective because the activity overall benefits outweighed it costs, but the costs were unfairly distributed
4. How could court determine that ∆'s conduct violates π's right but then let that continue?
  1. Isn't entire purpose of CLN to prevent them from harming others? (Punch and Pay?)
5. If factory so valuable, then why PN at all?
  1. Wouldn't the test suggest that, if it's so socially beneficial, then conduct is reasonable and thus not a nuisance?
6. Why do we think this shift happened?
Diffuse Surface Water
1. Diffuse surface water -- drainage water from rain, melting snow, and springs that runs over the surface of the earth, but does not amount to a stream
  1. Can coalesce in pools or marshed, but aren't stable to be a stream or lake
  2. Federal and state laws regulate drainage and development of wetlands
2. Courts have used three rules to deal with conflicts over drainage of diffuse surface water
  1. the common enemy rule -- states that a possessor of land has an unlimited and unrestricted legal privilege to deal with the surface water on his land as he pleases, regardless of the harm which he may thereby cause others
    1. AKA, no liability at all
      1. Except if they use pipes or drainage devices
    2. Adopts damnum absque injuria solution to land use conflicts
  2. the civil law (natural flow) rule -- states that a person who interferes with the natural flow of surface waters so as to cause an invasion of another's interest in the use and enjoyment of his land is subject to liability to the other.
    1. AKA, strict liability or veto rights
      1. Except, natural drainage ok
    2. Might inhibit land development because most development will change drainage patterns
      1. Can compensate property owners harmed by it

the reasonable use rule -- states that each possessor is legally privileged to make a reasonable use of his land, even if the flow of surface water causes some harm, as long as the harm is not unreasonable.
1. Balances social benefit and costs
2. Generic Reasonableness Factors (Restatement of Torts)
  1. Fairness
    1. Character of harm to π
    2. Which use established first?
    3. Any important rights implicated
    4. Fault and/or motives of the parties
  2. Utility
    1. Social utility of π's harmed act
    2. Social utility of ∆'s harmful act
      1. What's at stake for society re: loss of either?
    3. Any means to avoid or mitigate harm?
      1. Who is the lowest cost avoider?
    4. Specific Reasonable Use "Balancing Test" for Surface Water
      1. No clear entitlement; considers:
        Social benefit from development of ∆'s property
        
        Cost-effective means to avoid or mitigate harm
        
        Gravity of harm to π's property
      2. Applied to case
        Who should win? The π's
Now the majority rule
1. Why so popular?
2. More judicial discretion
3. Considers costs and benefits
4. A middle ground

'Armstrong v. Frances Corp.' (1956): Francis Corp. developed an area along the stream at issue, and in doing so, diverted the stream and other water, via pipe, to a point off its tract of land in order to drain the area. This caused an increased water flow downstream where the stream emerged in its natural state between the Armstrongs' and Klemps' properties. The increased flow eroded the banks up to the septic tank of the Armstrongs' and caused boulders to become dislodged and damage the masonry of the culvert (under the driveway) on the Klemps' property. The stream also became highly polluted, giving off bad odor and color, silt caused the stream to become shallower, and it has become prone to flash floods. Held: A possessor of land has a right to reasonable use of his land, even if that use causes the flow of surface waters from the land to cause harm to another. Reasonable Use Doctrine adopted. Adjoining landowners should not bear the economic costs of the expulsion of surface waters in the transformation of rural or semi-rural lands into urban and suburban communities by large home building projects.

A&K rights based argument for security from harm
1. Homeownership is a social good that we should protect
2. And if we don’t protect it by allowing the water to take their home away, why would anyone invest in a home
Francis Corps autonomy argument
1. social good for the creation of these houses and providing a market for it
2. and if strictly liable for damages, then it would be a disincentive for landlords
Easier burden for the developer company to bear the cost better then the small land owner
1. Similar to the argument in other least cost avoider arguments
2. Possible social benefit of protecting the steam and the fish in the little streams
Interference with Light and Air
1. Law of “Ancient Light”
  1. Old Common Law Rule
  2. The landowner had right to light if they had received sunlight for a specified period of time prior, and was entitled to continue to have unobstructed access to sunlight across the adjoining party.

American courts later repudiated the rule because they were trying to protect the rights of land owners to use their property as they wished as long as it did not cause physical damage to a neighbor, they believed sunlight to have an aesthetic purpose due to artificial lighting, and there was a significant interest in not impeding land development.

'Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc. '(1959): FH wanted to build 14-story addition (potentially out of spite) which would cast a shadow over Eden Roc’s pool, cabana, and beach from 2pm until the next day in the winter months. Held: At common law, the landowner has no legal right to unobstructed light and air from the adjoining land, no matter how long they had been receiving unobstructed light and air. It has been universally held that where a structure serves a useful and beneficial purpose, it does not give rise to a cause of action under sic utere tuo ut alienum non laeda., even if it causes injury to another, regardless of the fact that the structure may have been erected partly out of spite.

Fontainebleau Paradox
1. PN only if it interferes with plaintiff's lawful rights?
2. Makes sense: Of course you shouldn't be able to stop neighbors from taking action that interferes with rights you don't even have.
3. Suit: PN for interference with my right to have nicest house on the block?
4. Court's decision begs the questions how do you know the extent of anyone's rights in the context of private nuisance?
5. Criticized: US: "No PN easement for light and air"
  1. Criticized by Justice Souter -- just imagines away rights
  2. Why might this reject have been so important when case decided in 1959?
    1. Would have prevented buildings from being placed close together to avoid shadows
    2. Rapidly developing society
  3. What if the PN claim is for interference with technology installed to harvest solar or wind energy?

'Prah v. Maretti' (1982): π had a house built with solar panels on the rood. ∆ wanted to build a house next door which would block light to the solar panels. π was there first & ∆ had options to move his house to avoid this. Held: This court rejects the policies against the law of “ancient light.” Society has increasingly regulated the use of land by the landowner for the general welfare, sunlight has become important as a source of energy in which landowners invest and society takes an interest in to develop alternative energy sources, and the need for easy and rapid development is not as great as it once was. The best rule to use is the reasonable use doctrine/private nuisance law. Also, being within the laws and ordinances does not mean that one's conduct or structures are not a nuisance.

'Private Land Use Controls'
1. 'Servitudes'
  1. Servitude -- a right or obligation that runs with the land, meaning it automatically passes to subsequent owners or possessors of the land
  2. Affirmative servitude (easement) -- rights to use another's land for a limited purpose
    1. E.g. "right of way" -- right to use another's land for ingress or egress
    2. E.g. "profit a prendre" or "profit" -- allows non-owners to collect resources from the land, such as coal, water, or timber
  3. Negative servitude (real covenants) -- restriction on what owners can do on their own land
    1. Evaluate servitude law according to how successfully it balances these conflicting policy concerns.
    2. Formal requirements for making servitudes?

Rules of interpretation of ambiguous servitudes?

Substantive restrictions on servitudes?
Rules for termination?
'Licenses & Easements'
1. Affirmative Easements -- right you give to others to use your land in a certain way (permanent)
  1. Leases are possessory, easements are nonpossessory
  2. Easements are subject to SOF.

Granted:
1. Independently (e.g. right of way across land for footpath)
2. In larger conveyance (e.g. sell rear lot with easement over front driveway)

Reserve easement:
1. When you convey land but keep right of access for yourself
  1. E.g. sell land but reserve E to continue using footpath
2. Cannot reserve an easement in a third party
  1. Work around : straw conveyance -- grant everything to third party
  2. Increasingly overruled
3. Negative easement -- restrictions held by another on what an owner can do with their land
  1. generally disfavored and unenforceable
    1. Affirmative easement -- physical signs of notice
    2. Negative easement -- there's no physical notice of an easement
  2. Limited to three kinds:
    1. Right to lateral support of one's building
    2. Right to prevent both light and air from being blocked by construction on neighboring land
    3. Right to prevent interference with the flow of an artificial stream such as an aqueduct

Conservation easements -- preventing development of land for enviro purposes

Historic preservation easements -- preventing distribution or alteration of buildings that have historical or architectural important
Solar easements -- to protect access to sunlight for solar energy
Most recognized by statute
Easement vs. Covenant
1. Easements -- Affirmative right for someone to do something
2. Covenants -- If it’s an obligation that restrict what O does on own land or requires O to do something in light over ownership
  1. Unless one of permitted negative easements
3. Licenses are limited rights to enter or use land that do not run with the land are usually revocable at will by the grantor, and are not subject to Statute of Frauds or Takings Clause
  1. Sometimes transferrable (movie tickets)
  2. Can be in writing.

Revocation limited in some circumstances
1. A license granted in return for consideration may become a contract, so revocation subject to damages
2. A license to enter land and remove personal property purchased by license holder is a license coupled with an interest, and can't be revoked for a reasonable amount of time
3. State and federal law may prohibit revocation of license based on race, etc.
4. When a license is granted under circumstances that would make it unfair to revoke it, courts may find it has become an easement by estoppel

Many factors generally distinguishing licenses from easements are present in licenses -- focus on whether its intended to be temporary or permanent.
Burdened or servient estate -- land subject to the burden of an easement because it is used to service the other
Benefited or dominant estate -- land benefitting from the easement (the one served by the servient estate)
1. No dominant estate in an in gross easement.
Burdens and benefits do not have to run at the same time. Can run at different times.
1. If new owner of a burdened estate doesn’t know about the burden, it depends on whether they had notice.
Appurtenant easement -- Benefits users of a specific parcel of land that is proximate to the burdened parcel (runs with the land)
1. Burdens one parcel to benefit use of another
2. E.g. right to cross over a parcel of land from another parcel of land

Usually can't be severed from the land
1. An owner of a DE who sells the land cannot retain the benefit of the servitude while giving up the land
2. Beneficiary of easement can't transfer benefit to another while retaining ownership of DE
3. Passes automatically to whoever owns DE

Transferable by nature -- transfers automatically to the next owner of DE because attached to the land
Benefit of appurtenant easement presumed to run w/dominant estate.
Easements run with the land only if:
1. The easement is in writing
  1. Original writing creating the easement
  2. Comply with SOF
  3. Does not have to be mentioned in subsequent deeds (but good legal practice to do so)
2. Subsequent owners of the servient estate had notice of the easement at time of purchase
  1. Three kinds of notice:
    1. Actual notice -- subsequent owners know in fact about the existence of the easement
    2. Inquiry notice -- visible signs of use by non-owners, like telephone poles or a path, so that a reasonable buyer would do further investigation to determine whether an easement exists

Constructive notice -- if deed conveying the easement is recorded in the property registry of deeds and if a reasonable search would lead to discovery of deed
1. Actually knew, or should have known

The original grantor who created the easement intended the easement to run with the land
1. Easements bind future owners only if grantor intends them to be bound
2. May be clearly stated, like in a deed that it "runs with land' or "passes to owner's heirs and assignees"
3. If ambiguous, can be inferred from the circumstances
In gross -- benefit of the servitude is held by a particular individual or entity, rather than running with the land
1. E.g. utility companies; house cleaner example
2. Easement in gross burdens one parcel to benefit use by a specific person or group of persons

Used to not be transferable, but now it is, especially if commercial in nature (like utilities)
1. If for a personal convenience or enjoyment, courts may hold grantor did not intend easement to be transferable

What needed for burden to bind successors on the servient estate?
1. Must be conveyed in a writing that satisfies SOF
2. Grantor must intend that it run with the land
3. Subsequent O of servient estate must have notice
Distinguishing appurtenant and in gross
1. Intent
  1. Clear language usually answers the question, unless circumstances like misrepresentation or unfairness
  2. Ambiguity of intent? Surrounding circumstances.
    1. Usefulness -- to keep separate from land, or keep with land?
    2. Presumption -- some courts prefer one over the other (usually appurtenant)

Cox v. Glenbrook Co.: When a right-of-way granted by easement appurtenant is conveyed to a new easement holder, the use of the easement must be of the kind contemplated by the grantor and must not constitute an unreasonable burden on the servient estate that was not contemplated by the grantor.Whitinsville Plaza v. Kotseas:' Reasonable covenants against competition may be considered to run with the land when they serve the purpose of facilitating orderly and harmonious development for commercial use. In addition to the reasonableness and purpose requirements, these covenants are subject to the usual requirements for covenants to be considered as running with the land. One of these requirements is that the covenant touch and concern the land. They touch and concern the land because they increase the economic value of the land that is protected from competition and decrease the economic value of the land that has its use restricted. Additionally, this rule prevents potential unfairness: landowners who sell parts of their land and agree not to compete with businesses operated by the purchasers presumably receive compensation for agreeing not to compete, and the purchasers rely on the lack of competition in making the purchase.'

'Easement by Express Agreement'
1. Most easements created by express agreement between the owners of burdened and benefitted land.
  1. E.g. deed conveying easement by itself, or deed when selling
    1. In writing
    2. Specify parties & what you’re conveying
    3. Use words of conveyance
    4. Grantor signs it
  2. “Grant” an easement
    1. independently
    2. in larger conveyance
  3. “Reserve an easement” when you convey land but keep right of access for yourself
  4. Statute of Frauds
    1. requires easements to be in writing to be enforceable
    2. Must be contained in a writing signed by grantor and sufficiently describe the easement and the grantee.

Some states require writing to state the consideration for transfer of the easement.

CA & NY -- unenforceable when:
1. Agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein
2. Invalid if made by an agent of the party sought to be charged, unless authority of the agent is in writing, subscribed by the party sought to be charged
Some easements can be created outside SOF

Green v. Lupo: Parol Evidence may be used in determining parties’ intentions regarding the ability of an express easement to run with the land. When the conveyance of land is ambiguous on the issue, parol evidence is admissible to help determine whether the parties intended an express easement to be appurtenant or in gross. The court may consider the unique circumstances of the parties and the property as well as the parties’ conduct and admissions in making this determination. (Parol: language)

'Easements Not Created by Express Agreement (by Implication)'
1. Easements by estoppel (irrevocable license) -- when a landowner grants the claimant permission to use the property, and the claimant so changes position in reasonable reliance on the continuation of the permission that it would create substantial injustice to revoke it
  1. Estoppel (contracts) -- Make a promise and cannot break it (estopped)
  2. Normally, Licensor may revoke license at will, and if licensee presumes otherwise, out of luck! But…
    1. If, with licensor's knowledge, licensee invests as if license is perpetual, burden shifts to licensor to clarify if isn’t perpetual!
      1. Moment to correct problem, if revoke permission before any investment occurs. Revoke immediately.
    2. Erodes SOF.

Three circumstances:
1. Noncompliance with SOF
  1. Intended to create an easement, but in some way did not satisfy SOF
  2. If claimant substantially invested in reasonable reliance on the agreement, courts may find an easement by estoppel
2. Reasonable reliance on continuation of consent (Holbrook)
  1. It was reasonable to foresee that the user would substantially change position believing that the permission would not be revoked, and the claimants actually did substantially change position
  2. Don't need proof of intent to create easement
3. Fraud or misrepresentation
  1. Some courts only find easement by estoppel when there has been fraud or misrepresentation about the existence of or intent to grant an easement
  2. Some courts find that letting an individual substantially invest in reliance on a reasonable belief that the permission to enter the land will be permanent is itself a kind of fraud.

Holbrook v. Taylor: Where the owner of land has granted a license to another to use and make improvements upon the land, and the licensee, relying on this permission, does use and make improvements to the land at considerable cost, that license is irrevocable.

Dangers?
1. Manipulation to get an easement, or to unreasonably take it away
Why allow it?
1. Protect investments
2. Really allocating a loss -- both parties make a mistake. As between two innocents, who should bear the loss?
  1. Least cost avoider?
3. Why do we have these exceptions to adverse possession?
  1. To effectuate the intent of the parties
  2. To promote the efficient utilization of property

What to do when they conflict?
1. Effectuating intent more important, or demands of society to prevent holding land in perpetual idleness?
Statutory regulation
1. Empower owner of landlocked parcel to obtain easement over neighbor for access to a public road by application to a public official and payment of compensation to neighbor for burden of easement

Easements by prescription (like adverse possession) -- created through adverse and open use of the land continuously until the expiration of the SOL for trespass.
Easements implied by prior use -- when a parcel of land is divided or severed and one used by other, EPU if:
1. (1) Two parcels previously owned by common grantor
2. (2) One parcel previously used for benefit of other parcel

(3) In an Obvious, Continuous, and Seemingly Permanent way, and

(4) Continued use = reasonably necessary for enjoyment of retained land
E.g. sewer lines, maintain and repair, obtain water, access to public recreational areas.
**Appurtenant by definition**

Granite Properties Limited Partnership v. Manns: A landowner can establish an easement over land he conveyed if he still owns the adjacent tract and his use of the conveyed land is apparent, continuous, and permanent. A landowner establishes an easement implied by prior use if he proves: (1) ownership over both the dominant and servient parcels and a subsequent transfer of ownership to the servient parcel, (2) that, before the transfer, the use being claimed was apparent, continuous, and permanent, and (3) the easement is necessary and beneficial to the owner’s use of the property he kept. These requirements are in place because proof of prior use is evidence that the parties intended an easement even if it was left out of the deed.

Easement by necessity -- arises when an existing parcel is subdivided and one parcel is left landlocked (no direct access to a public road), and it can only be implied over remaining lands of grantor -- not on neighboring lands that could also connect parcel to a public road **Appurtenant by definition**
Easement by Necessity vs. By Prior Use
1. Easement by Necessity = important of easement to access landlocked parcel
2. Easement by Prior Use = Important of easement to enjoyment of existing use on retained parcel
  1. Criteria ≠ strict necessity but reasonable necessity: prior use must be "important" or "highly convenient" to enjoyment of benefitted lot
  2. Reasonable Necessity Balancing Test
    1. Required necessity is reduced by the obviousness of the prior use
    2. Concerns:
      1. Usually construe contract against grantor because they're the least cost avoider, and should have explicitly drafted the contract to confer an easement.
      2. SOF issue: Not written down, circumstances can help get out of a contract.

Finn v. Williams: An easement by necessity implied with a transfer of land may go unused through subsequent transfers of the land, but still be exercised at any time by the title holder. An implied easement by necessity may lie dormant through multiple transfers of land, but it passes with each transfer and may be exercised at any time. An easement by necessity over a conveyer’s land is implied where the only available means of ingress and egress to a highway is over the conveyer’s land or that of a stranger.

Exceptions to the SOF is based on the intent of the grantor. When there is ambiguity, must try to understand the intent of the grantor -- grantor would not try to put themselves out of business, e.g.
Modifying and Terminating Easements
1. Last forever unless they are terminated by:
  1. Agreement in writing by holder
  2. By their own terms

By merger (when the holder of the servient estate becomes the owner of the dominant estate)

By abandonment (if it can be shown that the owner of the easement, by her own conduct, indicated an intent to abandon the easement)
By adverse possession or prescription by the owner of the servient estate or by a third party
Because of frustration of purpose by courts
Traditional doctrine terminates obsolete easements by a liberal application of the abandonment principle, or by finding the purpose of the easement has become impossible to accomplish, or by finding that the easement no longer serves its intended purpose
Marketable title acts which may require easements to be re-recorded periodically to be binding on future interests
1. Limit how far back a buyer must look
2. Makes unenforceable those interests that were put in place a long time ago and were of insufficient importance to anyone
Servitudes and Dead Hand Control
1. Why can E's last forever, if FI's can't stay contingent for >90 years? (no dead hand control)
2. Worried about same dead hand control, restraints on alienation?
3. Really intended to benefit land, not land owners
4. Can bargain in an easement. Parties that come later can bargain to change or voluntarily change.
Scope
1. Three issues arise in determining whether owner of an easement is misusing it by going beyond scope of activities contemplated by the grantor:
  1. Whether the use is of a kind contemplated by the grantor
  2. Whether the use is so heavy that it constitutes an unreasonable burden on the servient estate not contemplated by the grantor

Whether the easement can be subdivided

Kinds of uses encompassed by the easement
1. Many courts hold that a general right of way may be used for any reasonable purpose
2. Where an easement has a particular purpose, the manner of use of an easement may change over time to accommodate developments in technology and normal development of dominant estate or enterprise so long as it does not unreasonably burden the servient estate
3. Grantors retain whatever rights they do not give way, but the question is what rights do they give away with the initial easement?
Unreasonable Additional Burden
1. Activity might be kind contemplated by easement, but degree or intensity causes an unreasonable burden
2. Courts must balance the interests of the easement owner in freedom to develop his property against the interests of the servient estate owners in security from having their property overly burdened in a way they should not have to anticipate
Divisibility
1. Most courts hold that the benefits of an appurtenant easement move to each portion of the dominant parcel upon its subdivision and transfer of the various pieces
2. So common, assumed the possibility of it is contemplated in the creation of an easement
Apportionability
1. Non-exclusive -- the grantor, or owner of servient estate, has reserved for herself the right to use the easement in conjunction with the grantee; Grantee shares the permitted use with the grantor
  1. Grantor retains continued rights to engage in use or to further assign it
  2. Nonapportionable -- grantor can sell further rights to others so long as those new easements do not interfere with the use of the existing easement by the first grantee
2. Exclusive -- the grantor has no right to use the easement in conjunction with the grantee
  1. Apportionable -- the grantor has no right to grant other easements, so they're not interfering with any rights the grantor might have to sell or lease use of the easement to others; Can assign benefit to others without interfering with grantor's rights
  2. Absent excessive wear and tear, grantor sustains no loss if E shared
3. Easements in gross can be divided unless the intent of the parties forbids it or it unreasonably increases the burden on the servient estate

'Henley v. Continental Cablevision of St. Louis County, Inc.:' Easements are exclusive to the easement holder and therefore devisable if the easement grantor does not maintain or reserve an interest in exercising the right granted. Where the servient owner retains the privilege of sharing the benefit conferred by the easement, it is said to be "common" or non-exclusive and therefore not subject to apportionment by the easement owner. If the grantor intends to participate in the use of privilege granted, then his retained right may be diminished if the grantee shares his right with others. The term exclusive refers to the exclusion of the owner and possessor of the servient tenement from participation in the rights granted, not to the number of different easements in and over the same land.

Changing location of the easement
1. The owner of the servient estate must obtain consent of the easement owner to relocate it
2. Some cases and Restatement allow the owner of the servient estate reasonable changes in the location or dimensions of an easement at the servient owner's expense, to permit normal use or development of the servient estate, but only if the changes do not
  1. Significantly lessen the utility of the easement
  2. Increase the burdens on the owner of the easement in its use and enjoyment

Frustrate the purpose for which the easement was created

Extension of the use
1. Most jurisdictions prohibit extension of the use absent contrary evidence of the intent of the parties
  1. Restatement: reflects the likely intent of the parties by setting an outer limit on the potential increase in use of an easement brought by normal development of the dominant estate
  2. Avoids question whether increased use unreasonably increases the burden on the servient estate
2. 'Covenants'
  1. Intro
    1. Developed from limitations of 19th century English CL
    2. Then, K-LAW ≠ allow assignment to 3rd party (Now? Yes)

Also, traditional hostility to negative restrictions

Obstacles to restricting land uses past title transfers
K exceptions in context of real property became:
1. Real Covenants (Damages)
2. Equitable Servitudes (Injunctions)
Shift from medieval farms to urbanization…to 3rd Restatement convergence?
From Easements to Covenants
1. Easement -- right you give to others to use your land in a certain way
  1. And a few negative easements, but disfavored, why?
  2. Notice: constructive unavailable, actual unreliable, inquiry impossible.
2. In medieval farm communities, not a lot of need for Nes beyond traditional
  1. As land uses became more intensive, negative promises = very productive
  2. Forestall race to bottom of intensive land use and loss of value if ≠ agree

New zoning*

CL's 1st try to resolve the problem: Real covenants
1. Second try: Equitable servitudes
NB: could have avoided in US, where always had a recording system
1. Could have just allowed NEs, but received UK system in entirety, but oh well.
  1. A habit of US to just adopt in full UK traditions
2. Result: Law of RC/EQS is confusing, because in an active state of transition
  1. Jurisdictional variation on continuum between archaic roots and modern convergence

Exciting time for legal anthropology.

Real Covenants
1. Developed to combat the problems of contracting around the limitations of negative easements
2. Real covenants bind successors in interest to the land if it was:
  1. In writing complying with SOF
  2. Intended to be binding on future tenants (presumed if appurtenant)
    1. A benefit is presumed to run if it touches and concerns the land
  3. If there was privity of estate (or mutual ownership of land) between the covenanting parties (requires a conveyance)
    1. Horizontal: covenant was created during transfer of burdened and benefited land; or parties are in lessor/ee relationship, or own mutual easements
    2. Vertical: current owners obtained land by legal transfer from original covenantors
    3. Simultaneous privity -- both parties have a simultaneous interest in the property
    4. Instantaneous privity -- privity if a covenant was created during the legal transfer of land
      1. A restriction in the deed of sale might bind future owners
    5. Touched and concerned the land: direct effect on use or value of land; both burden and benefit must touch and concern some land; benefits in gross will not run against owners of servient estates unless held by governments or non-profits
    6. Servient estate O must have notice

Necessary to get damages

Equitable Servitudes
1. Tulk: Chancellor of the equity courts created the concept of equitable servitudes
  1. Covenants that can be enforced by injunction despite the lack of privity
  2. If the covenant met the other requirements, and the current owner had purchased with notice of the restriction, the owner of the burdened estate could be enjoined from violating the covenant
    1. In writing complying with SOF
      1. Relaxes if estoppel/IRNS
    2. Intended to be binding on future tenants (presumed if appurtenant)
    3. Actual, inquiry or constructive notice to owner of servient estate; enforcer must be intended beneficiary of covenant
    4. Touched and concerned the land: direct effect on use or value of land; both burden and benefit must touch and concern some land; benefits in gross will not run against owners of servient estates unless held by governments or non-profits
  3. Does not need privity of estate
2. Necessary to get an injunction

When concern is land use, injunction is important
1. Damages might not be enough to ensure land is used properly

Tulk v. Moxhay: One who purchases property with knowledge of restrictive covenants burdening the land must honor the covenant. A party purchasing real property may not receive rights to the property greater than those owned by his seller. Here, Moxhay’s purchase of the land is in direct line with Elms’s ownership interest, which clearly had a covenant attached, and Moxhay knew of the covenant. It would be inequitable to permit Elms to sell property that he knew to be burdened to another party and receive compensation for the land as though it were free and clear, for this would render the intent of the original covenant meaningless. The lower court’s judgment is affirmed.

Third Restatement
1. In writing complying with SOF
2. Intended to be binding on future tenants (presumed if appurtenant)

Actual, inquiry or constructive notice to owner of servient estate; enforcer must be intended beneficiary of covenant.
1. For affirmative obligations (e.g. HOA fees), burden will only run to tenant if makes more sense for tenant to perform, but benefit can be enforced by either tenant or landowner

Enforceable unless "unreasonable": covenant is not arbitrary, spiteful, capricious, does not unreasonably burden constitutional right, restrain alienation or restrain trade, and does not otherwise violate public policy. Benefits in gross can run so long as benefit holder has "legitimate interest" in covenant and is identifiable.
Attempts to merge EQS and RCs
Abolish distinction between negative easements, real covenants, and equitable servitudes
1. All-encompassing "covenants running with the land"

Abolish horizontal privity requirement
Abolish touch and concern
1. Shifts burden to those challenging enforcement to prove requirement violates public policy for reasons including:
  1. Arbitrary, spiteful, or capricious
  2. Unreasonably burdens a fundamental constitutional right
  3. Imposes an unreasonable restraint on trade or competition
  4. Unconscionable
2. Some places seems to be reintroduced
  1. Burdens having nothing to do with ownership, occupancy, use may be invalidated as arbitrary and capricious or unreasonable restraint on alienation
  2. Benefit need not touch and concern land but beneficiary must be reasonably identifiable and has a legit interest in enforcing it
3. Some states abolished prohibition on benefits in gross

Traditionally interpreted to be lease burdensome to free use of land, but trend towards recognizing covenants may enhance land value and abandoning strict construction to interpret covenants to fulfill intent
1. Restatement echoes this
Touch and Concern Test
1. Obligation must T&C both SE and DE to fully run with the land
  1. The only substantive requirement for RC and EQS to run because it tell us what kind of pledge qualifies to run with the land
  2. All else = formalities (can meet by jumping through right hoops)
2. Nutshell: a pledge touches and concerns people if it is really about the land and not the people

T&C SE if relates to use of servient land
1. A pledge to do or not do something on land normally satisfies this test (Promise to not do something to the benefit of the DE)
  1. E.g. build a fence, maintain a garden, not build high rise/dig open put mine
2. A restriction to not do something

T&C DE if it improves enjoyment or increases market value
1. Must benefit not just current O, but also future Os
2. E.g. If average purchaser would pay more for DE because of benefit conferred by pledge, it probably T&Cs
3. Who will value the benefit more after transfer of the DE -- the original covenantor or the successor?
  1. Will SE pledge to not paint house purple T&C: SE? Yes. DE? Yes.
  2. SE pledge to raise poodles on premises T&C: SE? Yes. DE? Yes.
4. Implication: no personal/in-gross RC.
No Unreasonable Restraints on Alienation
1. Ideally, CL wants land to be freely marketable to anyone, for all purposes
2. Avoid feudalistic, dynastic land control by the few and the dead
3. Allow present generations to determine most beneficial uses of land as needed
4. Willing to allow 1-2 generations of O-imposed controls by FIs, some by servitudes by only to the extend improves the land
5. T&C helps achieve this end **
Privity of Estate
1. Privity tells us who has the legally operation relationship to the RC who at any given time it obligates or empowers
2. Horizontal Privity -- makes RC eligible to run with land in general
  1. Originals stand in HP on opposite sides of promise
  2. Which test?
    1. Mutual Test (England), Massachusetts (MA)
    2. Instantaneous Test (USA) -- satisfied whenever a real covenant is built into a transfer between one covenantor and the other of a property interest (beyond RC) relating to SE and DE
      1. At the instance the new property interest passes from one to the other, both hold a fleeting, simultaneous interest in land
      2. Ergo, IHP any time a fee is sold, a leasehold rented, easement granted, and the legal instrument contains an otherwise qualifying RC
        When not satisfied? There must be some conveyance, an oral promise is not enough without a transfer.
        Can get around this with a straw conveyance.
        
        In Whitinsville?

Vertical Privity -- is what enables it to run to specific successors
1. VP is what enables successors to stand in the shoes of original parties who established HP at beginning of RC life
2. When successor steps into these shoes, bc in VP with predecessors, s/he becomes the one in HP, but not all are qualified
3. 'Strict Test' -- Satisfied whenever successor acquires the same duration of estate that the original covenantor had in either the benefited or burdened estate
  1. SVP exists only when predecessor retains no kind of FI in estate; must be fully transferred to successor
  2. Ergo: SVP allows RC to run with P whenever predecessor fully conveys the underlying P interest, but never when just leases it because covenantor retains reversion
4. Common Interest Developments
  1. Implied Reciprocal Negative Servitudes
    1. An unwritten implied reciprocal pledge not to do something.
      1. A agrees for the benefit of B, which agrees for the benefit of A.
    2. When an owner sells a number of parcels with evidence of intent to create a common plan or scheme of development then…
      1. Covenants made to the seller benefit all parcels within the plan
      2. All parcels within the plan are bound by the covenants
    3. Enables O lacking privity to enforce burden of a RC as an EQS if deemed an intended third party beneficiary of the original promise (your neighbors can snitch)
    4. Presumes early/all buyers = intended beneficiaries of later RCs if the lots are all part of a common plan of development
    5. Can satisfy EQS requirements by providing means for implying that all Os in CP development = burdened for the benefit of all other Os & all should know it, regardless of privity (or even mistaken omissions)
    6. Common Plan: planned community; similar lots w/mutual restrictions
    7. Owners of other parcels within the common plan area were intended third party beneficiaries. It would be unjust to permit owners to violate covenants despite lack of restrictions on their chain of title
    8. Many states require developers to file a declaration prior to selling individual lots subject to a common plan
      1. Describes area covered by plan and recites covenants
      2. Buyers on constructive notice and deemed to impliedly agree to abide by them
      3. Grantee covenants are deemed to be made for the benefit of all lots in the plan
        Also constitutes a promise by developer to restrict the remaining lots when they are sold (grantor covenant)
      4. Earlier buyer who sues a later buyer for violating a covenant can base claim on grantee and grantor covenants
    9. Invented to deal with the intent, notice, and privity issues that arise when a developer imposes grantee covenants on all lots in a residential subdivision and when the developer intentionally or inadvertently leaves those restrictions off some of the lots
    10. A common plan can be show by various factors:
      1. Presence of restrictions in all or most deeds
      2. A recorded map showing restrictions
      3. Restrictions in the last deed
        Suggestion is intended beneficiaries are other lots in neighborhood
      4. Observance by owners of similar development of their land and conformity to written restrictions
      5. Language stating covenants are intended to run with the land
      6. Recording of a declaration stating covenants are intended to be mutually enforceable
    11. No common plan: some deeds are unrestricted and restrictions are non-uniform
    12. 'Implications'
      1. Taken over many responsibilities once associated with local gov’t
        Privatizing traditionally public facilities like roads, sidewalks, parks, recreational facilities, and even policing and sanctioning
      2. Voting rights are limited to homeowners, not residents
        Often weighted by size of property interest in development
      3. CIC rules may extend to most seemingly private realms
        E.g., where children can play, pet weight, whom Os may have living with them, exterior and even interior design.
      4. Some post guards and gates, limiting entrance to the community
      5. Servitudes enable CICs to create binding rules that may persist indefinitely, often of sort that private parties can make but public agencies cannot.
      6. At what point do HOAs enforcing CIC servitudes essentially become private governments—and how should we feel about that? Are we:
        Favoring policies that maximize individual autonomy in light of constitutional protections for contract and free association?
        
        Giving private organizations power over individuals’ lives that we have forbidden to gov’t under competing constitutional provisions?
      7. Problem of Unrestricted Lots
        If oral promise and knew of restriction, might apply equitable estoppel and third party beneficiary doctrine to allow enforcement
        
        If no oral promise:
        Buyers of unrestricted lots are on constructive notice of covenants in other deeds in the vicinity sold by the same grantor
        
        Inquiry notice if uniform pattern of development (Sanborn)
        
        Evidence of a common plan is how many lots are sold with/out restrictions
        Sanborn 53/91 -- justified?
        
        Riley clarified -- any buyer of a lot covered by a recorded declaration is bound by the restrictions in the declaration even if he deed doesn’t have them
        
        Riley's property not covered by recorded declaration
        
        Recorded declaration impliedly included in the deeds to lots covered by it

Riley v. Bear Creek Planning Committee: Rileys built a covered walkway on their lot without obtaining approval by the architectural control committee empowered by a recorded declaration to regulate land use in the area. Rileys purchased the first lot in the subdivision. Knew there was going to be recorded restriction that they were given before purchase. But, wasn't recorded until after purchase and wasn't in their deed. All other lots purchased after recording were subject to restrictions. Held: Court held Rileys not subject because not in writing and intent of owner to impose restrictions not binding on them. Evidence of their knowledge of intent not admissible under the parol evidence rule and the statute of frauds. (Parol: language)Sanborn v. McLean: McLeans wanted to build a gas station behind their house. All lots fronting on that portion of the land had been previously owned by a single buyer who imposed restrictive covenants on 53/91 lots limiting them to residential purposes. No restrictions on the chain of title to McLean lot. Held: McLeans were on constructive notice of the restrictions in the deeds to neighboring properties. The uniform residential character of the surrounding properties also put McLeans on inquiry notice to determine whether there were restrictive covenants on neighboring lots that might be interpreted to create a plan to restrict the entire neighborhood to residential uses. Court inferred an intent to create a common plan even though a great number of properties did not have restrictions in their line of title, but a majority did. Courts imposed a IRNS on their lot.

Lots retained by the grantor
1. Only parcels within the common scheme are restricted and the grantor's intent to leave a tract or parcel out of the common scheme is determinative.
2. Duvall v. Ford Leasing Development Corp (1979)
  1. Piecemeal, 25 year development period, entire property not subject to a single common plan even though in vicinity of restricted land
3. Snow v. Van Dam (1935)
  1. Tract across from subdivision in the common plan even though sold more than 15 yrs after 1st lot because included in description of the entire tract when it was registered
4. Planned neighborhood of free-standing homes
  1. E.g. yellow house neighborhood, twin rivers neighborhood
  2. Shared interest: common areas long streets, recreational areas
  3. Or even just common interests
5. Condos and Coops
  1. Apt buildings to adjoining townhomes sharing commonly owned elements
    1. Walls, hallways, elevators, entry, carpet, lights, roof, etc.
  2. Covenants, conditions, and restrictions laying out governing rules
6. Community Land Trust & Limited Equity Co-ops
  1. Creative use of servitudes to provide affordable housing where scarce
  2. By removing residentially suitable land from the speculative real estate market
  3. DSNI: a model of CLT
  4. “Grandparents sued”
  5. “Ave Maria”
  6. “Twin Rivers”
7. Doctrine of Changed Conditions
  1. Covenants will not be enforced if conditions have changed so drastically inside the neighborhood restricted by the covenant that enforcement will be of no substantial benefit to the dominant estates.
    1. Even if technically possible to perform on obligation
  2. The change must be so radical as to defeat the essential purpose of the covenant or renter the covenant valueless to the parties.
Relief is granted only if the purpose of the servitude can no longer be accomplished.
1. Some statutes require covenants to be of actual substantial benefit

The changed conditions doctrine may also apply when substantial changes have occurred outside the restricted subdivision
Fringe lots may not invoke CCD even if adjacent property is engaged in activity contrary to the covenant, if it is still possible for the restrictions to create benefit within the subdivision
The CCD is likely to apply to changes outside the restricted subdivision only when those changes have so adversely affected so many lots in the subdivision that enforcement is pointless.

Third Restatement has changed CCD:
1. (1) extends doctrine to easements
2. (2) uses termination rules to substitute for control that had traditionally been applied through the T&C test
3. (3) suggests modification of the covenant in lieu of termination if modification will allow the covenant to serve its original purpose
A court should rarely intervene if a mechanism exists for terminating the covenant in a manner that does not require the unanimous consent of the beneficiaries, such as a supermajority vote of the members of an HOA

El Di, Inc. v. Town of Bethany Beach: A court will not enforce a restrictive covenant where a fundamental change has occurred in the neighborhood such that the benefits of the restriction are rendered futile.

Damages vs. Injunctive Relief
1. Could appear now to be ready to award either an injunction or damages for violation of a covenant running with the land whether or not strict vertical privity is present.
2. Remedies are chosen on the basis of their appropriateness under the circumstances.

An alternative to complete invalidation of a covenant under the CCD is to allow the violation of the covenant to occur upon the payment of compensatory damages to the owners of the dominant estates.

Doctrine of Relative Hardship
1. RHD focuses on the servient estate.
2. A covenant will not be enforced if the harm caused by the enforcement will be greater by a considerable magnitude than the benefit to owner of the dominant estate.
  1. If hardship > benefit = unenforceable
  2. If benefit substantial, courts unlikely to enforce doctrine, even if hardship is substantial too.

Third Restatement treats RHD not as a basis for terminating or modifying servitudes, but rather, as a factor to consider in determining the availability and selection of appropriate remedies.
1. Some damages might be appropriate even if unenforcement of covenant is appropriate.

Modifying and Terminating RC & EQS
1. Easier to do than with easements. Some methods are the same, e.g.:
  1. Written release
  2. Own terms
  3. Merger
  4. Prescription
  5. Abandonment
  6. Marketable title statutes
2. Restatement: Merges treatment under law
Other Equitable Defenses
1. Acquiescence, abandonment, or unclean hands.
2. Complaining party may be barred from enforcing the covenant if he has tolerated or failed to object to other violations. This may occur if plaintiff:
  1. Has violated covenant himself (unclean hands)
  2. Has tolerated previous violations of the covenant by the owner of the servient estate -- just you (acquiescence)
  3. Has tolerated violations of the covenants by owners of other restricted parcels in the neighborhood covered by the covenant -- everyone (abandonment)

Estoppel -- An owner of a DE who orally represents to the owner of a SE that she will not enforce the covenant may be estopped from asserting her interests in enforcing the covenant if the owner of the SE changes his position in reliance on the oral statement.

Laches --- if the covenant has been ignored or breached for a substantial period of time, the court may find that unexcused delay in enforcing the covenant prompted investment in reliance on the failure to object to the violation and that enforcement of the covenant would be unconscionable
Marketable Title Acts -- terminate restrictive covenants if not re-recorded after a specified time
Language in instrument -- terminate in a ToY unless periodically renewed
Public Policy Limits on Servitude Enforcement
1. RCs violating const/laws = unenforceable per se, also if violate PP
2. RCs Implicating Public Policy Tend to Involve, even if hits all other requirements:
  1. EQP and prohibited forms of discrimination
  2. Public health and safety, access to legal system
  3. Restraints on alienation or competition
  4. Inference w/ personal liberty
  5. Inference w/ socially productive land uses

Statutes: e.g.: FL, voids RC prohibiting solar panels; TX & rain harvest

Trends: reasonableness, balance O autonomy v. N security; e.g.: Davidson bros
State Action Doctrine
1. Long settled that judicial actions are as much state action as those by leg or exec
2. Bringing the power to bear in enforcing a discriminatory RC would "hopelessly entangle the state" in violating the constitution's promise of EQP of law.

Cy pres: A rule that allows the exact provisions of a charitable trust to be carried as closely as possible when carrying out the exact provisions is impossible or impracticable.

Shelley v. Kraemer: State court enforcement of a racially restrictive covenant constitutes state action that violates the Equal Protection Clause of the Fourteenth Amendment. State court enforcement of racially restrictive covenants constitutes state action, which violates the Equal Protection Clause of the Fourteenth Amendment. That Clause guarantees equal treatment of all people under the law, including in their exercise of various property rights.

Shelley effectively ended era of commonplace racially restrictive RCs; made all unenforceable.
State Action doctrine never overruled (and SCT ducked clarifying 2x, in SC Cemetery cases!), but controversial for blurring line btw public/private action.
Some read later case law to limit it to discriminatory RCs
1. Restatement suggests doctrine prohibits enforcement of RCs that burden fundamental Constitutional rights

Evans v. Abney: The interpretation of wills, and application of the cy pres doctrine, is governed by state law. Here, the Georgia court eliminated all discrimination in the park by eliminating the park itself. Unfortunately, the loss of the park is “part of the price we pay” for freedom of testation. This Court’s responsibility “however, is to construe and enforce the Constitution and laws of the land as they are,” rather than legislate social policy based on each justice’s personal inclinations. The declaration that the trust be terminated does not violate the Constitution. The Georgia court effectuated the terms of the will as near as possible to its explicit terms, which the court interpreted to be a preference for termination of the park rather than its integration. Accordingly, the judgment is affirmed.

Community Land Trusts & Limited Equity Co-Ops
1. Creative use of servitudes to provide affordable housing where scarce by removing residentially suitable land from the speculative real estate market.
2. DSNI: A CLT with great success in one of Boston’s most beleaguered inner-city neighborhoods, a (formerly) burned-out and abandoned part of Roxbury-Dorchester.
'Public Land Use Controls'
1. Zoning and the Land Use Planning Process
  1. Legislation and the Planning Process
    1. State governments are the ultimate repositories of the police power
      1. Regulate property by delegating power to local governments to regulate land use through zoning enabling acts
        Define scope and procedures for operations
      2. Voters elect a governing body (city council or county board of commissioners)

The Legislature
1. Power to adopt local laws governing land use called zoning ordinances or by-laws

The Executive
1. Mayor, county executive, board of selectmen
The Judiciary
1. Appeal to court
Zones are meant to be established in accordance with a rational scheme for promoting development
1. Comprehensive plan shows how divided and describes objectives
2. Planning commission help develop comprehensive plan and zoning ordinance itself
  1. Often aided by planning department composed of professional planners
3. Also received petitions from landowners for amendments and makes recommendations to city council

Most zoning enabling acts authorize municipalities to delegate power to an administrative agency, called a zoning board or board of adjustment
Public Land Use Controls: The Usual Model
1. State adopts Zoning Enabling Act delegating to local govts authority to zone for the public welfare
2. Locality adopts a general or comprehensive plan
3. Sets goals for orderly development of land use
  1. Avoid sprawl
  2. Housing opportunities
  3. Support economic development
  4. Preserve natural resources
4. Segregates intensities of use into zones
  1. Heavy industl, light, commercial, residential, agricultural, etc.
  2. Often can put everything up to highest intensity zoned for
5. Facial Challenge vs. As Applied Challenge
  1. Facial challenge -- whole statute/rule is unconstitutional
  2. As Applied -- unconstitutional as applied to specific facts of the case

Euclid v. Ambler Realty: Euclid’s zoning ordinance is constitutional. Zoning restrictions are unconstitutional if “clearly arbitrary and unreasonable” and without “substantial relation to the public health, safety, morals, or general welfare.” Must also have good zoning plan. [Test for the police power]. The power to pass zoning regulations derives from states’ police powers. [Applies to zoning because derived from police power.] The common law of nuisance is built upon the maxim that one should not use her property to harm another’s use of theirs, and that principle provides guidance for determining the scope of the power to regulate property use. There is no real doubt that localities have the power to pass these types of regulations. Ordinances restricting industrial use of property may be over-inclusive, going beyond dangerous and offensive uses and forbidding the innocent as well, but this is unavoidable. Such ordinances do not “pass…the bounds of reason and assume…the character of a merely arbitrary fiat.” Const’l on its face, but could be unconst’l as applied.

Euclidean Zoning
1. Consists of use and area zoning. Strictly segregating uses.
  1. Popularized because was first model tested at USSCT (in Euclid case)
  2. Became model with USSCT seal of approval because know it would withstand legal challenge
  3. IRONY:
    1. Encourages sprawling suburbs that create daily gridlock to and from central commercial districts
    2. Lengthens commutes, reducing family, community, volunteering time; sends tons of auto exhaust into air each day
    3. May weaken communities, as whole neighborhoods in endless blocks of SFRs seldom interact in common public spaces
    4. May facilitate isolation between different age and economic subgroups, fraying community bonds
  4. Use Zoning -- divides municipalities into districts and regulates the kinds of uses allowed within each district

Area Zoning -- regulates size of lots, heights of buildings, requirements to set back structures a certain distance from property borders, and other aspects of the physical configuration of the property

Zoning maps show where the zones are
Accomplished three things:
1. Ringing endorsement of the zoning enterprise, so long as zoning follows solid land use planning (i.e., a GP)
2. Suggested that validity of a zoning ordinance could be measured by extent it seeks to prevent CLN-like harms
3. Indicated that although upholding zoning as a general enterprise, would use flexible, case-by-case approach on particulars
But over that time, Nectow provided a counterbalance to Euclid in clarifying that:
1. Although municipalities may zone to prevent nuisance-like harms (Euclid), the zoning power remains limited by the rights of owners asked to bear too much private loss for too little public benefit (Nectow).

Moral:' whether a law is within the Police Power is less about the extent of harm to the '''''Π and more about whether the law bears a substantial relationship to protecting the public welfare.
1. But the extent of harm to the '''''Π matters as a factor in whether the law effects a taking.
Today: few “as applied” challenges to zoning ordinances anymore. Why?
1. Development of zoning doctrines:
  1. Prior nonconforming use
  2. Variance
  3. Vested rights
2. Creating needed flexibility where relaxing rules can prevent great hardship for 1 O w/o undermining utility of scheme to community
3. To remember for takings: “The common law of nuisance is built upon the maxim that one should not use her property to harm another’s use of theirs, and that principle provides guidance for determining the scope of the power to regulate property use.”

Nectow v. City of Cambridge: A zoning ordinance constitutes an unconstitutional restriction upon private property rights if the ordinance does not bear a substantial relation to public health, safety, morals or general welfare. A valid exercise of governmental authority must bear a substantial relation to public health, safety, morals or the general welfare. A decision of public officials should not be invalidated unless the decision is arbitrary or irrational, but the government does not possess unlimited authority to impinge upon private property rights.

Modern Zoning
1. Euclidean zoning focused on separating uses to manage land use conflicts
2. Modern zoning has broader goals and new techniques
  1. Development incentives, community aesthetics, big-box development, historic preservation, etc.

Criticism of traditional zoning: favors suburbanism (sprawling development, privatized approach to community)

New Urbanism Movement
1. Mixed Use and Planned Unit Development
2. Integrate single and multifamily residences w commercial and light industrial

Mixed age/socio-economic residents walk to work, shop, dine, etc
1. E.g. VA New Town Williamsburg, VA
2. E.g. Portland, OR: Old Urbanism, forced by urban growth boundaries

Concentrates mixed used centers within urban zones
'The Police Power'
1. The general power of states to regulate private conduct for the protection of the health, safety and well-being of the citizens.
2. Before zoning and constitution, foundational source of state authority to legislate to protect health, welfare, and safety of their citizens
  1. Public schools to criminal law
3. When drawn on to regulate land use, mostly wielded at the municipal level
4. All states have conferred authority to regulate land use
  1. Some require localities to use it (CA); some don't (TX)
  2. All major metropolitan areas do, except
5. Exercise of the police power cannot be burdened with the condition that the state must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community.
6. Exercise of police power is not a takings if it is beneficial to the public interest

Mugler v. Kansas (1887): A Kansas law prohibited the manufacture or sale of intoxicating liquor. It stated that all places in which intoxicating liquors were manufactured, sold, bartered, or given away or kept for sale, barter, or use were a nuisance and subject to abatement where a court judged them so. Prior to the law, Mugler built a brewery. Mugler was arrested for making and selling beer. The brewery-specific design of Mugler's facility allegedly made it difficult to employ in other trades, subsequently dropping the value of the building to only $2500. Held: According to Harlan, the Kansas prohibition does not infringe on Fourteenth Amendment rights. Though Mugler has an abstract right to make liquor for his own use, such a right could be conditioned on its effect on others. Here the state legislature may exercise its police powers. The Court reasoned that a prohibition on the use of property, by valid legislation, for purposes of protecting the health and safety of the community cannot be deemed a taking or an appropriation of property for public benefit. Since the legislation did not restrict the owners control, right to dispose, or ability to use for lawful purposes, no taking had occurred.PA Coal v. Mahon: Coal company purchased or retained right to the land under the home prior to Mahon owning the land. In 1921, the Commonwealth of PA enacted a statute (Kohler Act) preventing coal mining that could possibly affect the integrity (cuz subsidence) of any surface land. Mahon then sued PA Coal, arguing that the new state law barred PA Coal from mining under the property. Held: A state may pass laws in the valid exercise of its police powers that has incidental impact on property values, but when the law causes sufficient diminution in property value, the state must take the land by eminent domain and provide compensation. It is a question of degree. The statute does not seek to correct a public nuisance, because only one home is involved, and it does not intend to protect personal safety, since Mahon knew the risks involved in purchasing the land. Thus, the statute does not fall within the government’s police power. Instead, it should be considered a taking. The state exceeded its police powers and rendered coal mining commercially impracticable. The public assumes the costs of eminent domain.

'Zoning Protections for Pre-existing Rights''''
1. Prior Nonconforming Use
  1. What is it
    1. PNU: Zoning usually happens after many uses already in place; some will be inconsistent with the new restrictions
    2. What? Doctrine gives special permission to violate zoning law, so long as harm to public of doing so is not too great
    3. Why? To protect public without unduly burdening one O, in fairness to lawful investment before change in law
    4. Still: "Doubts are resolves against further change": reasonable repairs, but no change/intensification of use
  2. Who gets
    1. Not everyone gets it. Can't be harmful or dangerous to neighbors.
    2. If it’s not harmful, it should be allowed to continue after ordinance changed.

Curtailing incompatible uses
1. Amortization -- limiting use to a set time period
  1. Can be fixed by statute, or case-by-case
  2. If gives owners time to realize a reasonable ROT, it will balance owner's reliance on interest with public needs
    1. Public interest vs. private loss
  3. Can cause a monopoly if can stand forever where its only industry allowed in an area: amortization prevents this from occurring forever
  4. Nonconforming uses can, in some jurisdictions, continue even where property has been transferred from one owner to another
2. Limiting changes for nonconforming uses
  1. Strictly limiting owner to the use that existed at time zoning was imposed = can use indefinitely
    1. What if need to increase intensity with business growth?
    2. Can owner of a nonconforming parcel expand to use more of a given parcel?
    3. How do courts evaluate the extent to which a change to a conforming use is permissible
  2. Abandonment and destruction
    1. If a nonconforming use is abandoned or discontinued, the nonconforming status is lost, even if the owner later attempts to reestablish that use
    2. If a nonconforming use is not abandoned, but substantially damaged or destroyed, most zoning ordinances do not allow owners to rebuild.
  3. Police Power & Taking inquiries are closely intertwined in the land use context, but we take them one at a time:
    1. Police Power Inquiry: Is the state legitimately preventing public harm?
    2. is Inquiry: Is the state inflicting more private harm than is fair?

'Belleville v. Parillo’s:' An existing nonconforming use will be permitted to continue only if it is a continuance of substantially the same kind of use that the premises were devoted to at the time of the passage of the zoning ordinance. The operation of a discotheque is substantially different than the operation of a restaurant. In the present case, there were a number of significant changes to Parrillo’s after its switch to a discotheque, including a reduction in tables, a change in lighting, an addition of loud music, and dancing replacing eating as the primary activity. It is clear that Parrillo’s abandoned its operation as a restaurant and began operation as a discotheque. This is a substantial change which cannot be upheld as a preexisting nonconforming use.

Variance
1. Criteria for "Undue Hardship"
  1. (1) Strict application leaves lot with no economically viable use
  2. (2) Hardship is not self-imposed
  3. (3) Variance no contrary to the public interest
  4. (4) Some jurisdictions: hardship arises from unique physical characteristics that make lot different from surrounding lots
2. Alternative test: Practical difficulties (significant economic injury on owner who hoped to do something with the land to make it more valuable)

Strict standard but often ignored

Cochran v. Fairfax County: Zoning is a valid exercise of police power. It is impracticable to tailor such ordinances to meet the condition of each individual parcel within the district. However, if, with regard to certain conditions, the zoning ordinance applied as written renders the property useless, then the zoning ordinance may be unconstitutional as applied to an individual parcel, but not on its face. A variance will not be granted unless the ordinance produces an undue hardship by interfering with all reasonable beneficial uses of the property, taken as a whole.

Vested Rights
1. Standards for determining vested rights
  1. Stone -- owners have vested rights to existing zoning law if they have invested substantially in good faith reliance on that law
  2. Majority -- require an owner's substantial investment to be made based on a validly issued building permit or other approval
    1. How to measure substantiality:
      1. Ratio of expenses incurred to the total cost of the project, measuring those expenses that related exclusively to the proposed development
        Other factors (Yamhill County, p. 442)
      2. Minority -- upon filing of a valid and fully complete building permit application (no substantial expenditure needed)
      3. Thought to promote certainty
      4. Vesting if a developer obtains site-specific approval for development
        New Jersey
      5. Vested rights to use their land with zoning law in place at the time they apply for site specific approval
        Colorado, Massachusetts, Texas, Washington

Stone v. Wilton: In order to have vested rights in a zoning classification, the owner has to have made substantial efforts under the classification toward accomplishing the proposed project. A court makes this determination by analyzing the type of the project, its location, its cost, and most importantly, the amount the property owner accomplished under the classification up to the point of rezoning. In this case, the Stones’ efforts towards construction and completion of the project are only preliminary. The architect’s plans are in the preliminary stages, they have not entered into any construction contracts, no materials have been brought to the site, and no construction has started. As a result, the Stones’ expenditures prior to the rezoning were not so substantial as to create vested rights.

'Exclusionary Zoning''''
1. Zoning intended to minimize presence of poor people
2. Mount Laurel Inclusionary Zoning = minority rule
  1. NJ, CA, MA, RI, and FL require it
    1. Account for a fair share of regional need.
  2. When PP used municipally w/o effects elsewhere, ok
  3. If externalities, must consider the entire state public

NAACP v. Mt. Laurel: A town, through enactment of land use regulations, must provide the opportunity for low and moderate families to live in the town and may not constructively prevent them from doing so. If a town’s system of zoning regulations effectively prevents low and moderate income families from residing in the town, the regulations are unlawful. Like any police power, zoning regulations must promote the general welfare and it is clear that the provision of adequate housing for all citizens is consistent with that general welfare. As a result, towns may not use zoning regulations to prevent certain classes of individuals from acquiring housing in their towns. On the contrary, towns must enact land use regulations necessary to provide the opportunity for appropriate housing for all classes.

'Takings''''
1. Introduction to the Law of Takings
  1. Fifth Amendment Takings Clause
    1. "nor shall private property be taken for public use without just compensation."
  2. Incorporated against the states via the 14th amendment DP clause
  3. Eminent Domain
    1. the power government has to take private property for public use, without just compensation
  4. Inverse Condemnation -- sue in inverse condemnation if gov't takes land without compensation
  5. Why in the constitution?
    1. First, provides authority for government to do this
    2. Second, limits use of eminent domain
      1. Ensure government doesn't abuse power
    3. Taking of private property by government OK if:
      1. It’s for a legitimate public use and
      2. The owner gets just compensation
    4. Sovereign taking of private Property for public use so established that the framers anticipated it
      1. Takings Clause allows them as needed to cope with problems of holdout
    5. The tensions between public and private interests in land use reach their apex in Takings Law
      1. Physical taking: when state takes title to/possession of the land
      2. Regulatory taking: state limits potential uses of land
Issues of fairness, Administrability, efficiency, sustainability

Eminent Domain and the Problem of Public Use
1. USSCt. & most states allow seizure of land for economic development as “public use”
2. USSCt. has interpreted public use to include property acquisitions that are transferred to private owners but serve public purposes

Public use not met unless public benefits/characteristics of intended use substantially better than private nature of that use

cannot be taken unless nature of property justifies taking (e.g. blighted)
public purpose couldn't be achieved any other way other than transfer of private → private

'Kelo v. New London' (2005): City used eminent domain power to take private property, to give to Pfizer to make a research center, for economic redevelopment of a blighted town. Majority: Public use = Public Purpose = Economic Development which benefits the public. Kennedy concurrence: Rational-Basis review. O’Connor dissent: Any property may now be taken for the benefit of another private party. Beneficiaries are likely to be those citizens with disproportionate influence and power in the process, including large corporations and development firms. Thomas dissent: Majority ruling will disproportionately harm minorities, poor communities. Government can take property if it uses or gives the public a legal right to use the property.

Just compensation
1. Taking is ok so long as just compensation
2. Indemnity
  1. Fair market value -- if right price for owner, then owner would have already sold
  2. Other values -- neighbors, location, modifications
3. The Ad Hoc Test
  1. The economic impact of the regulation on owner ("undue hardship")
    1. Complete deprivation of any "economically viable use" is likely to be a taking unless the regulation denies property rights that never existed in the first place, such as the right to commit a nuisance
    2. No owner is guaranteed the most beneficial use of the property

Does regulation diminish the economic value of P too much?
1. How much value taken? How much left?
2. Reasonable ROI?

Impact justified because of "nuisance"? (@CGA)
1. Strong public interest in preventing a harm?
2. Preventing use O never had right to engage in?
Its interference with reasonable O's investment backed expectations ("vested rights")
1. A regulation is more likely to be held a taking if a citizen has already invested substantially in reasonable reliance on an existing statutory or regulatory scheme
2. Less likely if it prevents the owner from realizing an expected benefit in the future, imposing a mere opportunity cost (Penn Central)

"Vested rights" in the restricted use?
1. Does regulation interfere w/ existing use?
2. Interfere w/ primary expectation of use?
3. Interfere w/ opportunity for future use?

Was O's reliance on old law reasonable?
1. Investments made on notice of change?
2. Could or should O have foreseen change?
The character of the governmental action (complicated, common law nuisance)
1. The state is generally empowered to legislate to protect the public without compensating those whose property interests suffer a resultant economic impact
2. Issues though: too broad & govts can destroy property interests at will without just compensation; too narrow & courts interfere with govts ability to protect welfare of public

Qualitative nature of the regulation:
1. A legit restriction on harmful uses?
2. A physical invasion or occupation of P?

Benefits and burdens of the regulation:
1. Burden too individualized?
2. "reciprocity of advantage"?
Purpose of the regulation:
1. To prevent a harm?
2. To extract a benefit?

Penn Central: In determining whether a state regulation constitutes a taking under the Fifth and Fourteenth Amendments, courts should consider the economic impact of the regulation on the owner, the extent to which the regulation has interfered with the owner’s reasonable investment-backed expectations, and the character of the government action involved in the regulation.

Transfer of Development Rights Regimes
1. Increasingly common
2. Involve a kind of market created by a zoning code that allows owners of unused development rights to sell those rights to other owners
3. Hold total density of development constant, but shift where that density is placed in a given community, with benefit of creating a valuable asset where there would otherwise only be a restriction
4. Can be used to generate funds for public purposes
Takings Statutes
1. Fed Gov and many states have passed assessment laws that require govt entities to consider the impact of regulations on private property owners before promulgating them to avoid unconstitutional takings of property and to review if they are challenged as regulatory takings or if they are likely to reduce property values by a set amount
2. A few states -- allow injunctive relief or just compensation when regulation reduces the value or property, even if it doesn't constitute an unconstitutional taking of property
3. Some states -- require compensation if any owner's property values are reduced by a particular percentage unless the regulation fits into an established exemption
Justifying Regulatory Takings
1. Tradition
  1. Traditional doctrine may identify the type of activity that constitutes a nuisance, and the strands of rights that constitutes core property rights
  2. Must identify a particular time and jurisdiction to identify the property interests to which tradition will refer

Determining scope involves discretion and judgment

Property rights always subject to restrictions of equitable doctrines (laches, estoppel, sic utere)
Efficiency
1. Utilitarian argument
  1. Compensation should be required when it will help to promote efficient (welfare-maximizing) legislation
  2. Three kinds of costs that should be considered:
    1. Harms to uncompensated victims
    2. Settlement or administrative costs of arranging for compensation for those victims
    3. Demoralization costs that would accrue if the victims were not compensated and the people believed this was unfair
  3. Efficiency argument justifying requiring compensation rests on proposition that legislation is welfare maximizing if its benefits outweigh its costs
    1. Requiring compensation for those whose property interests are harmed by legislation tests the proposition that legislation benefits the public welfare by requiring those who benefit to compensate those who lose
    2. Requiring compensation will prevent legislators from passing an inefficient law

Efficiency argument justifying not compensating
1. Administrative costs of compensating everyone injured are enormous and may outweigh any benefit derived from the regulation
2. Requiring compensation may mean that efficient legislation which benefits the public by preventing activities whose social costs outweigh their benefits, will not be passed
3. Requiring compensation creates a "moral hazard" by removing incentives for economic actors to foresee both the effects of their conduct on others and the likelihood that their conduct will be regulated in the future

Distributive Justice''''
1. For Compensation
  1. Costs of public programs benefiting the community are borne by taxpayers as a group, rather than unfairly imposed on individual property owners
  2. When PO suffer unique burdens, there is no avg reciprocity of advantage, so they should be compensated
2. Against Compensation
  1. Regulations prevent owners from engaging in activities that harm the public welfare
  2. They have no right to be compensated when those regulations impinge on their property interests; they have not lost anything to which they were entitled in the first place
  3. Average Reciprocity of Advantage -- those harmed by the regulation are also benefited by it because it regulated not only their activities but their neighbors as well
3. Per Se Takings
  1. Rule 1: Permanent Physical Occupations
    1. When character of government action = perm physical occupation of real property, then a taking to extent of occupation without regard to:
      1. extent of economic impact and
      2. whether public gets benefits
        E.g. free installation of cable lines is a taking, but required to pay for mailboxes is not?
      3. Forced third party invasion
        E.g. what about Loretto makes it a permanent occupation?
        
        Cable boxes affixed to building
        
        Lasts as long as use = permanent
        
        Dissent: lasts only as long as used for rental housing?

Loretto: A permanent physical occupation authorized by government is a taking requiring the payment of just compensation without regard to the public interests that it may serve or the fact that it only has a minimal economic impact on the property owner.

Flexible Measuring and Conceptual Severance
1. If we can be so flexible in measuring permanency in Loretto then why not more flexible view in Pruneyard
2. Why not a taking because const'n mandates:

A permanent physical occupation of mall during hours when a protect must be allow under reasonable tp & m restrictions?

Pruneyard: In making a determination on whether a taking has occurred, courts look to the character of the governmental action and the economic impact of the restriction in terms of the investment-backed rate of return of the owner.

The conceptual severance problem ** an academic term, not in cases **
1. If flexibility for permanency, why not for other elements too?
2. A taking when regulation obliterates one but not all stick in bundle, a taking of that stick, even if others left?

How thinly can you slice sticks in the bundle?
1. i.e. can you spell a fully accomplished taking in any regulation that interferes w/some use of P, just by casting that use as a discrete P interest, severable from the whole?

PPO v. Economic Harm
1. Why isnt the degree of economic harm the more compelling criteria?
2. From O's perspective, whats worse: this, or zoning that eliminates 75% of P-value? (Euclid)

From LL's perspective, whats worse: this, or rent control more expensive force occupation (Yee)

Rule 2: Deprivation of All Economically Viable Use is a Taking
1. When 100% diminution of all economically viable use, a taking unless already illegal use before regulation
  1. Impact of Lucas rule is narrow because few regulations deprive all uses
  2. Mostly environmental law – coastal wetlands

Lucas v. South Carolina Coastal Council: A state regulation that completely deprives private property of all its economic value constitutes a taking under the Fifth and Fourteenth Amendments that requires the payment of just compensation to the property owner, unless the economic activity prevented by the regulation is not part of the owner’s initial title or property rights when acquiring the property.

Denominator Problem (Conceptual Severance?)
1. Horizontally, vertically, over time? What measurement?
2. Small owner losing all vs. Big owner losing some?
  1. 10% loss of whole, or 100% loss of 10% of whole.
3. Murr: Parcel as a whole à multifactor test.

If less than 100% diminution, then apply Ad Hoc Test

Ownership extends over time as well as space.

Tahoe-Sierra Preservation Council: A temporary moratorium on development imposed for the purpose of developing a comprehensive land-use plan does not constitute a per se taking of property for public use requiring the payment of just compensation under the Fifth Amendment.

Property owners can still contest regulatory takings, even if on notice of regulation when purchasing property.

Palazzolo: A property owner obtaining property after a regulation on the property is passed may still challenge that regulation as a taking requiring payment of just compensation under the Fifth and Fourteenth Amendments.

Judicial Takings
1. A ruling by a court that has the effect of a legislative taking
2. May or may not be a thing

Stop the Beach: To constitute a taking in violation of the Fifth Amendment, a property owner must show that he has a vested and future right superior to that of the State and in contravention to state law. The State of Florida owns in trust for the public the land permanently submerged beneath the water and the foreshore, the land between the low-tide line and the mean high-water line. Littoral owners have property rights to accretions that gradually build up over time at the water’s edge. However, when sand and sediment is placed to submerged land by the doctrine of avulsion, those property rights cease to exist. SBR contends such deposits of sand constitute a taking of private property because it cuts off their right to future accretions. First, the State as owner of the submerged land adjacent to the littoral property has the right to fill the land for the public’s use. Second, if an avulsion exposes land previously submerged it continues to belong to the State even if it prevents a littoral owner from having property rights to the water’s edge. Both concepts are supported by state law and case law. Here, the Florida Supreme Court correctly concluded the State’s use of the doctrine of avulsion to place sand and sediment along the submerged beach superseded the rights of littoral owners.

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Property
Authors	Joseph William Singer Bethany R Berger Nestor M Davidson Eduardo Moises Penalver
Text	Property Law: Rules, Policies, and Practices [Connected eBook with Study Center] (Aspen Casebook)
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