1. FIRST POSSESSION: ACQUISITION OF PROPERTY BY DISCOVERY, CAPTURE, AND CREATION Qui prior est tempore potior est jure.

e. First come, first served

A. ACQUISITION BY DISCOVERY

Johnson v. M’Intosh M’Intosh got land from US. Johnson bought same land from Indians.
NATIVE AMERICANS European discovery of land in America gives absolute title. Indians merely have a right of occupancy.

FIRST IN TIME: Property can be acquired by discovery, however it is a twofold process. (1) Discovery (European?); (2) Settlement.

Incentives: Important to protect land that people discover, to promote the expansion of civilization (in the New World) however must settle, because otherwise one
person or nation could just go around and discover all kinds of land and then claim title to it, and basically have a monopoly on all the land.

B. ACQUISITION BY CAPTURE

Pierson v. Post Post was chasing fox, Pierson killed it and snatched it up.
TRAP Hunter must either trap or kill a ferae naturae to acquire title.

Ferae naturae wild animals and other fugitive resources—res nullius until someone catches it

INCENTIVES: (Dissent) Incentive to hunt, who would hunt if someone else could intervene at the last minute. The majority opinion here is contrary to the custom
that in hot pursuit, right to unimpeded first possession.

Ghen v. Rich Ghen killed whale, Ellis found it on shore, sold it to Rich (contrary to custom).
CUSTOM Title to whale acquired when apprehended according to custom.

Keeble v. Hickeringill Keeble lured ducks to his property with decoys, Hickeringill fired gun to scare them away.
DUCKS A person can’t maliciously keep another from catching wild animals on his property. NUISANCE

RATIO SOLI: Soil rule: landowner has constructive possession of anything on his land.
NUISANCE Can’t do something on your property for sole purpose of aggravating neighbor.
res nullius: Things that belong to no one until they are captured.
animus revertendi: Homing instinct, instinct to come back. When animals lose that instinct, they are res nullius, or ferae naturae. This rule is subject to the rare
animal exception. If you knew the animal belonged to someone because it clearly does not exist in the habitat (Lion in Louisiana).
Takings (eminent domain) Government can take your land to put to a public good. They must pay just compensation.

Other “Fugitive” Resources

Oil and gas. Oil usually runs beneath land owned by many different people, and “wanders” from place to place. When one takes oil from someone else’s property, or
something of that sort, courts liken the predicament to that of wild animals, because of the fugitive nature, thus whoever “captures” the oil owns it.

USQUE AD COELUM ET AD INFEROs Landowner owns his land “to heaven and to hell”
Unified field rule Each landowner can take oil proportionate to land they own (pro rata).

Water. Water was a migratory resource that fell under same ferae naturae rule in England. There’s an American rule of reasonable use, western rule of prior
appropriation.
1. FIRST POSSESSION
C. ACQUISITION BY CREATION
1. PROPERTY IN ONE’S IDEAS AND EXPRESSIONS: GENERAL PRINCIPLES OF INTELLECTUAL PROPERTY

Unfair Competition
Prohibited: Scare away customers (boat with cannon)
Appropriate news (INS) to sell in competition – appropriating product, not idea
Palm off your product as another’s
Appropriate another’s Name or image to sell commercially

INS v. AP INS copied news from AP and sold it on the west coast.
APPROPRIATE Can’t use news collected by others while it still has commercial value. Unlawful competition.

Permitted: Reverse Engineer a product

Imitate a product (Silk) unless copyrighted or patented
Sell as an imitation (Chanel)

Cheney Brothers v. Doris Silk Corp. Doris copied seasonal design from Cheney Brothers.
IMITATION Without copyright/patent protection, property interest limited to chattels which he creates (would be copyrightable
today).

Smith v. Chanel Perfume advertised being equivalent of Chanel No. 5

IMITATION Absent protection of a patent, a company may imitate plaintiff’s product so long as it doesn’t purport to be made by the plaintiff. No
consumer confusion, imitation promotes competition.
Use of Trade Secrets
Patents are granted for novel, useful and non-obvious processes or products. Patent holders have a monopoly for 20 years, after which time the process or product
enters public domain and can be exploited by anyone.

Diamond v. Chakrabarty Genetically engineered bacterium, organism is like no other natural organism, process is patentable.

Copyrights protect the expression of ideas (not the ideas themselves). The protection begins as soon as the work is in a tangible medium, and lasts for a long time
(70 years after death of creator or author). The subjects of copyrights must be original. Fair use is OK, for example reviews and education. The reason the silk
designs weren’t accepted as copyrights is that clothing was considered utility, not expression, in the 1920s.

Nichols v. Universal Pictures D produces play similar to P’s play about an Irish man trying to marry a Jewish girl, and the fathers argue. Not unique enough…
too broad a concept to be monopolized. No new ideas since fire.

Trademarks are words and symbols indicating source of a product or service. Owners of marks protected against use of similar marks when would result in
confusion. Trademarks are lost when abandoned, or when become generic, like aspirin or Kleenex.

Aiding and Abetting Infringement

MGM Studios v. Grokster One who distributes a device with the object of promoting its use to infringe copyright, is vicariously liable .

2. PROPERTY IN ONE’S PERSON “Every man has a property in his own person.” – John Locke

Moore v. Regents of the University of California Regents removed Moore’s spleen and used it for research, and established a cell line and obtained a patent for it.
BODY PARTS Human body parties are not property that can be converted or sold.

THE RIGHT TO INCLUDE, THE RIGHT TO EXCLUDE.

Jacque v. Steenberg Homes Jacque told Steenberg it couldn’t cross his property to install a mobile home in his neighbor’s lot.
TRESPASS Punitive damages may be imposed for intentional trespass.

State v. Shack Shack entered Tedesco’s land to give migrant farmer legal aid, refused to leave, trespass?
WELL BEING Property rights may not be used to endanger well-being of others. Property rights are redistributed from owners to inhabitant.

Trover Conversion Value of object

Trespass Assault, battery, trespass to chattels, trespass to land Damages (amount hurt)
Replevin Get object back Get object back (accession?)
Ejectment Kick person off land

Accession: Used so much that it is no longer yours. Steal canvas, paint on it. You get value of the canvas at the point it was taken, but not the canvas back, or the
value of the painting.
2. SUBSEQUENT POSSESSION: ACQUISITION OF PROPERTY BY FIND, ADVERSE POSSESSION, AND GIFT
Possession is eleven points in the law. – Colley Cibber (1697) Finders keepers, losers weepers. – Old Scottish Proverb
A. ACQUISITION BY FIND

Armory v. Delamirie A found jewel in chimney, took to D’s shop, D refused to return jewel.
FINDER V. POSSESSOR Title of finder is good as against whole world but true owner. (And prior possessors)

O F1 F2 F1 wins against F2 O T1 T2 T1 wins against T2 O T F F probably wins against T

Hannah v. Peel H found brooch at P’s house, P had never lived there, H gave to police. Owner of brooch never found, police gave to P who sold it.
FINDER V. LANDOWNER If owner has never occupied land, finder of chattel thereon has superior title against land owner.

McAvoy v. Medina Customer at barber left wallet on counter, McAvoy found it.
MISLAID Finder of mislaid property has no title. Goes to shop owner.

Lost Public place: Finder has title against all but true owner (even proprietor)
Private place: Proprietor sometimes wins. F works for P? Embedded in soil?
Misplaced Public place: Proprietor wins – in a better position to find true owner
Abandoned Finder wins and becomes true owner. Once abandoned, becomes a res nullius
Treasure trove Belongs to the king, or the state, or is considered lost property.
Shipwreck Belongs to owner of ship, salvor gets a salvor reward, unless owner abandons.

B. ACQUISITION BY ADVERSE POSSESSION

1. THE THEORY AND ELEMENTS OF ADVERSE POSSESSION

Why adverse possession?

(1) Quiet title. So everyone knows what they own, to provide a clear rule.
(2) Owner slept on his rights. Should be using your land, negligent not to do so.
(3) Reward the use of land. Land would go unused without adverse possession, not efficient.

Van Valkenburgh v. Lutz Lutzes occupied VV’s land by building shack on it, and making garden. Lutzes also used land to establish a right of way to get to their lot.
ADVERSE POSSESSION To acquire title by adverse possession, possession must be (1) actual; (2) under claim of title; (3) land be enclosed or sufficiently improved.

ADVERSE POSSESSION CRITERIA

(1) Possession must use the way an owner would use, not an easement holder
(2) Open and notorious
(3) Hostile
(a) State of mind doesn’t matter (Connecticut doctrine)
(b) Honest mistake
(c) Aggressive trespasser (Maine doctrine)
(4) Continuous

Manillo v. Gorski Pathway encroached neighbor’s land by 15 inches

NOTICE Possession need not be knowingly and hostile, but notorious enough to give true owner actual or constructive notice.

2. THE MECHANICS OF ADVERSE POSSESSION

Howard v. Kunto Three neighbors held deeds which described the adjacent lots.
TACKING Time can be “tacked” between successive owners in “privity” for purposes of adverse possession.

Disabilities Statute of limitations usually allows people with disabilities (minority, imprisonment) to not enter land until a period of time after their disability ends.
(1) Disability must have existed initially (at time adverse possessor entered)
(2) No tacking of disabilities (time start running at end of initial disability)

Adverse Possession Against the Government nullum tempus occurit regis

3. ADVERSE POSSESSION OF CHATTELS

O’Keefe v. Snyder Trying to get back stolen paintings from someone who rightfully bought them.
NOTICE Statute of limitations starts ticking as soon as injured parties know, or should have known the facts forming the cause of action. If owner of
stolen chattel makes diligent efforts to locate and recover the chattel, the statute of limitations is tolled.

C. ACQUISITION BY GIFT

1. Intent to give as a gift

2. Delivery Actual delivery: physically handing it over, putting it in someone’s room or house, or person is already in possession of the thing.
Constructive delivery: give the keys, or something that will allow to use.
Symbolic delivery: deliver a document. Could you have actually delivered it?
Already have it. If it’s already in your possession, don’t have to give it back.
3. Acceptance

Newman v. Bost Newman is live in servant, master intended to marry. He left keys of furniture in house to her, and pointed to it and said he was giving it all to her.
In one of the pieces of furniture was the insurance policy.
SYMBOLIC Symbolic delivery of a gift is not effective, and constructive delivery is allowed only when actual delivery is impractical. (dated)
Donatio causa mortis: A gift made during the life of the donor which is conditional upon, and takes effect upon, death.
Inter vivos gift: A gift while donor is alive and title passes immediately to the transferee.

Gruen v. Gruen Father gave son a painting (symbolically through a letter), but reserved a life estate.
RESERVING One may gift a future interest in a chattel, and reserve a life estate.
 4. FUTURE INTERESTS

NAME CREATING LANGUAGE NATURAL TERMINATION GRANTOR REVERSION

Fee Simple To A and his heirs None Possibility of reverter
Right or Re-entry
Fee Tail To A and the heirs of his body Death without issue (end of line) Reversion upon end
Life Estate To A for life Death Reversion upon end
Leasehold To A for (period) End of period Reversion upon end
To A until (specific)
Tenancy from … To A from (period) to (period). End of period after notice that tenancy will end Reversion upon end

Grantor reversion – all but fee-simple revert to grantor’s interest after a certain time

Possibility or reverter – even fee simple, may revert to grantor does something (mixed drinks, cats)

Right or re-entry – like possibility of reverter, but doesn’t revert until grantor re-enters

Remainder – property interest after naturally occurring termination. (To A for life, then to B and his heirs)

Vested remainder – know who gets remainder, no condition precedent (To A for life, then to B and heirs)

Vested remainder subject to open: “To A for life, then to children of A?” A could still have more kids.

Contingent remainder – don’t know who person is yet, or condition precedent. (To A then heirs; To A then B if …)

Condition precedent – condition must be met before person with remainder gets anything.

Executory interest or limitation – Cuts short fee simple before natural termination (springing or shifting)

Escheat – if there are no heirs, when someone dies the money goes to the state.

Rule against Perpetuities – Interests must vest w/in a life in being plus 21 yrs. If there’s any chance they won’t divest, destroyed. Includes gestation periods. Starts when
grantor can’t change mind. (To son’s first child to turn 21)

Fertile Octogenarian – Can’t assume that someone can’t have more kids, regardless of how old they are.

Unborn Widow – If left to A for life then his widow for life, then children, violates rule because widow could be unborn at time of the gift, thus the children might
not get the gift until more than 21 years after A dies.

Wait and see – some jurisdictions relaxed the rule to allow gifts if interest ends up vesting within time limit.

Cy pres – if interest fails, come closest possible to what testator intended without violating the rule.

Rule in Shelly’s Case – To A for life then to A’s heirs is to be read to mean To A for life then to A and his heirs, i.e. to A and his heirs. So a l.e. with remainder to heirs is to be
read as a l.e. with remainder in fee simple, or simply f.s.

Worthier Title (only for inter vivos gifts) – If granter gives remainder or executory interest to his own heirs, grantor has reversion, heirs have nothing. (O gives to A for life
then to O’s heirs  O has reversion, heirs have nothing)

Destructibility of Contingent Remainders – Contingent remainders cannot turn into executory interests. If you have a contingent remainder, you have to get the land without
divesting anybody, otherwise the remainder is destroyed and you don’t get anything. Contingent remainders are destroyed if don’t vest by time preceding freehold is naturally
terminated. Also, contingent remainder destroyed if it comes after a life estate and the life estate is no longer a life estate because it merged into another estate.
6. LANDLORD TENANT
I. The Leasehold Estates

1. The Term of Years A to B for (fixed number of calendar days) Can’t be left open, e.g. until war ends No notice needed, it’s over when it’s over.
2. The Periodic Tenancy To B from period to period. Termination requires notice, usually of period. If no notice, renews for another “period.”
Notice requirement never exceeds 6 months, regardless of length of period (so a year to year requires 6 months notice).
3. The Tenancy at Will No set period of time. Unilateral power to terminate a lease can be engrafted on a term of years or a periodic tenancy. L to T for 10 years
or until L terminates creates a “term of years determinable.” A tenancy at will also ends if one of the parties dies. Modern statutes require a 30 day notice to
terminate a tenancy at will.

Garner v. Gerrish Lease provided that tenant could stay as long as he desired if he keeps paying rent. Landlord died and executor tried to get lessee off land.
COMMON LAW AT WILL: As long as lessee can end the lease at will, lessor has the same right.
NEW INTENT RULE: If lessee has option of terminating at will, a determinable life tenancy is created (landlord can’t terminate at will just bc tenant can).

4. Tenancy at Suffrance (Holdovers) If a tenant extends his leasehold (holds over), there are two options:
trespass/eviction (plus damages) or consent (express or implied) to creation of new tenancy.

Crechale & Polles, Inc. v. Smith After 5 year lease, Smith tried to negotiate a month to month lease because his new building wasn’t completed yet. Crechale claims to
have not consented to month to month lease, and he treated Smith as a trespasser by telling him to vacate the premises, but he cashed the
first of Smith’s rent payments, and later tried to sue Smith for rent payments for the rest of the year, claiming he entered into a new lease.
TENANCY AT SUFFRANCE: Once landlord treats a holdover tenant as a trespasser, can’t change mind.
Restatement says a holdover results in a period to period tenancy, based on how the rent is commuted, subject to one year as a maximum.

II. The Lease

Whether or not a writing is a lease matters because leases give way to landlord tenant relationships which have certain rights, duties, liabilities and remedies that
do not attach to other relationships
Conveyance versus Contract. A lease is actually both. Landlord conveys property, tenant contracts to pay.
Statute of frauds: leases for over a year must be in writing.
Form leases and bargaining power. Tenants usually have less bargaining power bc terms are non-negotiable.

III. Selection of Tenants (Herein of Unlawful Discrimination)

Fair Housing Act: Prevents discrimination based on race, family status, color, religion, sex, national origin.
Can’t advertise a preference (include handicap). Can’t not rent to, can’t charge different or offer different services based on
Doesn’t protect homosexuals, sex offenders, unmarried couples.
Exemption for rooms in your residence, private clubs

Civil Rights Act All US citizens have same right enjoyed by white citizens to inherit, purchase, lease, sell, hold and convey real and personal property.
Exemptions under fair housing act may still be a violation of the civil rights act.

IV. Delivery of Possession

Hannan v. Dusch When Hannan’s lease began, Dusch didn’t evict the holdover tenant.
English rule: Implied covenant that land will be open to use when leased… Landlords job to make sure previous tenant is gone.
Which party can best bear the risk?
American Rule: A landlord has a duty to deliver the right to possession of premises to tenant, not actual possession. New tenant has to take action against former.

V. Subleases and Assignment

L Can sue either

T Still in privity of contract with landlord, landlord can get the tenant under contract, and A under property
A Assignee – gave away the rest of your lease. Assignee is in your shoes, he’ got privity of estate.
Assignee can still be sued by Tenant under privity of contract.

L Can sue tenant

T Privity of contract with tenant, privity of estate.
S Privity of contract with tenant. (no privity of estate, no privity of K with Landlord unless…)
If sub-lessee or assignee agrees to pay landlord directly, privity of K w/ landlord (3rd party beneficiary)

Ernst v. Conditt Roger operated go cart track on land, sold business to Conditt, Ernst wants to sue Rogers.
MAJORITY SUBLEASE: At common law, (and in most US jurisdictions) if a sub lease (less than entire interest) ended before the primary lease, even a day
before. An assignment of a lease went up until the end of the lease period, so the original lessee had no lease duties.
MODERN (intent) RULE: To determine if an assignment or a sub lease has occurred look to the intention of the parties. (less common in US)

Kendall v. Ernest Pestana, Inc. Bixler tried to assign lease to Kendall but Pestana required a rent increase.
CONSENT TO ASSIGNMENT: A lessor may not unreasonably withhold consent to assignment.

ARGUMENTS AGAINST ARBITRARY REFUSAL

(1) public policy favors free alienability (transferability)
(2) Lessor just as likely to find a quality tenant in assignee as lessee
(3) Lessor’s interests protected by fact that lessee remains contractually liable
(4) Growing trend is to view leases as contracts, thus implied duty of good faith.
ARGUMENTS IN FAVOR OF ARBITRARY REFUSAL
5. Lessor picked tenant, shouldn’t have to look elsewhere for rent. But denial of bad tenant isn’t arbitrary.
6. Lessee could have bargained for clause providing consent be withheld only if reasonable. Implied term?
7. Stare decisis supports the old rule. This court had never upheld the old rule
8. Lessor has a right to realize increased value of property. Lee at risk if prices fall, so if prices rise, entitled.
Some uphold arbitrary only for commercial, others only for residential leases. What is the difference?
6. LANDLORD TENANT
VI. The Tenant Who Defaults What may landlord do when tenant stops paying, or abandons premises?
1. The Tenant in Possession

Berg v. Wiley Wiley leased to Berg for 5 yrs reserving right to retake possession if breached. Berg remodeled to make restaurant, Wiley made an ultimatum
and used self-help to try to change lock when Berg was “away.” Berg says evicted, Wiley says she abandoned.
SELF HELP: A landlord can’t use self-help to regain possession of land unless abandoned.

Common law rule was that if he has a legal right to do so, landlord may use self-help to re-enter if peaceable. Here, re-entry was not peaceable, but the modern rule is
that landlord must resort to judicial process to enforce remedies against tenants wrongfully in possession.
Consider whether this should be more strict for residential or commercial leases. Also, is self-help unconstitutional for lack of due-process?

SUMMARY PROCEEDINGS Self help used to be common because ejectment was a long process… now summary proceedings speed the process up.

LANDLORD’S REMEDIES IN ADDITION TO EVICTION Back rent, damage, etc.

2. The Tenant Who Has Abandoned Possession

Sommer v. Kridel Kridell asked to be released from lease, Sommer refused, and told someone that came to look at the apartment that it wasn’t vacant.
MITIGATE: A landlord has a duty to mitigate damages through reasonable efforts to re-let an apartment wrongfully vacated by a tenant. This modern
trend is a departure from the majority rule that a landlord has no duty to mitigate.

The modern trend is that leases are treated more like contracts than property, and there is a duty to mitigate damages. If a landlord has many vacant spaces, he must
consider the apartment as part of the vacant stock. He doesn’t have a duty to first rent out the one that was abandoned, but he has the burden of proving that he made
reasonable efforts. Also consider the duty to act in good faith. What are the consequences? Landlords may feel more pressure to accept permission to be released
from the lease. But landlords have securities, like the deposit (controlled by statutory reform), rent acceleration (pay the balance due if you default), etc.

VII. Duties, Rights, and Remedies (Especially Regarding the Condition of Leased Premises)

Problem with leases is that the landlord has no incentive to deal with everyday repairs, and tenants don’t have an incentive to deal with maintenance, as the costs
in both situations are bore by the other party.

1. Landlord’s Duties; Tenant’s Rights and Remedies

a. Quiet Enjoyment and Constructive Eviction

Reste Realty Corp. v. Cooper Copper rented basement from Reste for business meetings but when it rained, water ran into basement and rendered it useful for Copper.
QUIET EJOYMENT: Tenant can vacate and terminate lease if quiet enjoyment interfered with by landlord.
CONSTRUCTIVE EVICTION If tenant leaves because landlord substantially breached his duties, and a reasonable person would have left.

There is an implied covenant in all leases that the premises will be OK for the rented purpose. This is the covenant of quiet enjoyment, which says that if a
landlord lets things get to the point where the premises are unsuitable, the tenant is constructively evicted and can leave and be released.

b. The Implied Warranty of Habitability

Hilder v. St. Peter Hilder rented horrible house (sewage, no key, etc.) from St. Peter. Sued for her money back.

At common law, tenancy was an absolute conveyance for a period, with no duties other than conveyance on the part of the landlord. Caveat lessee. However things
were different back then… Tenants were usually farmers, and could make their own repairs, and the tenants had better bargaining power. The exception to the caveat
lessee was the doctrine of constructive eviction, which required abandonment. Today, tenants expect heating, and repairs, as they have less mechanical skills, and
less bargaining power. The abandonment requirement is removed for implied warranty of habitability.

HABITABILITY In rental of any residential dwelling, there is an implied warranty that landlord will deliver and maintain safe premises which are clean and fit
for human habitation.

Under this rule, a landlord may not claim a tenant knew of and assumed the risks. A landlord may not disclaim the implied warranty. Housing codes provide a
good start point, as a violation of a housing code is a prima facie breach. Under this rule, a tenant must notify the landlord, and the landlord is allowed a reasonable
time to correct the defect. Damages are calculated by difference in value (what promised – current value) as well as damages for discomfort and annoyance, repairs
made, and punitive damages. A tenant may withhold future rent, to force the landlord to bring suit, as a remedy.

RETALIATORY EVICTION There are laws to protect tenants from retaliatory evictions, where landlords evict people who file complaints. Some states, however,
permit eviction (after period runs up or in at wills) for any reason.

LANDLORD’S TORT LIABILITY Modern trend is leaning towards a general standard of negligence care on landlords under all circumstances, while some
jurisdictions have even imposed strict liability. The majority of jurisdictions, however hold to conventional common law
exceptions (liability only where duty).

2. Tenant’s Duties; Landlord’s Rights and Remedies

Tenant has some duties, other than paying rent, e.g. the duty not to commit waste.
Duty not to commit waste breached if T makes changes to affect a vital and substantial portion of the premises, to change its characteristic appearance, the
purpose of the building, the uses contemplated, or affect the realty itself.

VIII. The Problem of Affordable Housing Some reforms, such as implied warranty of habitability were aimed to help the poor, but landlords can make their
property better, and in turn charge more for them.

Chicago Board of Realtors, Inc. v. City of Chicago Residential Landlord and Tenant Ordinance codified implied warranty of habitability, and also imposed more
duties on landlords, and rights to tenants. Some landowners challenged the act, which requires payment of interest on security deposits, which must be held in IL
banks. It also limits late fees to 10 bucks a month. While these regulations purport to aid the poor, they are more likely to aid the middle class, and the in state banks.
By imposing more duties on landlords, they will be more strict in who they allow rent from them, and they will likely charge more, thus this will hurt the poor, and
the responsible people who pay their rent on time, because they will be subsidizing the people who pay their rent late, via increased rent.
9. JUDICIAL LAND USE CONTROLS: THE LAW OF NUISANCE Sic utere tuo ut alienum non laedas

Trespass: Intentional entry of “object” Nuisance: Noise, smoke, smells, beam of light, vibration ?: Ugly, scary No: Light, air, view (unless intended to harm)

NUISANCE usually applies to things you can’t hold in hand (smoke, light), otherwise it’s trespass
Unreasonableness B<L (injunction or damages?)
Spite Is the intention to injure your neighbor? (spite fence)
Substantial harm in inappropriate place Is the gravity of the harm above the threshold? (substantial)
Is the activity suitable for the location? (appropriate for the neighborhood)
Priority doesn’t really matter

1- No nuisance, no damages 2 – Grant injunction, let the parties work it out 3 – Conditional injunction 4 – Injunction, plaintiff pays to relocate

Morgan v. High Penn Oil Co. Trailer park owner tried to enjoin oil refinery (which came in later) because it caused nauseating odors of gas for them and their renters.
NUISANCE Private nuisance occurs when there is a substantial interference with use and enjoyment of land, and that interference is either intentional
and unreasonable, or unintentional and the result of negligence, recklessness or abnormally dangerous activity.

LATERAL AND SUBJACENT SUPPORT Cause of action for removing structural support from beside ones home, or from underneath
Coase theorem – the best economic end will always be attained (assuming no transaction costs)

Estancias Dallas Corp. v. Schulz Estancias had a loud air condition that Schulzes wanted to enjoin them from using because was a nuisance to them in their house.
INJUNCTION Injunction will be denied for nuisance only if necessity of others compels injured party to seek damages in an action at law, not
because the party causing the nuisance has a right to work a hurt or injury to his or her neighbor.
(I.e. even though the hurt to the complaining parties is less than would be the injunction, it can still be granted)

Boomer v. Atlantic Cement Co. Atlantic runs cement plant near plaintiffs’ homes, high levels of dirt, smoke, vibration hurt property value of homes, and annoy
them.
Long standing rule is that where damages are substantial, nuisance should be enjoined, and parties left to bargain for the injunction.
CONDITIONAL Courts can grant injunctions conditioned on payment of permanent damages to
INJUNCTIONS complaining parties in order to compensate for impairment of property rights.

Spur Industries, Inc. v. Del E. Webb Development Co. Spur owned cattle feedlot outside of Phoenix, then Webb started a residential development which turned into a
decent sized city, and he sought to enjoin the feedlot.
INAPPROPRIATE A lawful activity can become a nuisance because others have entered the area, and can be enjoined, however if the party seeking the injunction
created the need for the injunction (by developing the land surrounding) he can be required to compensate for the costs of the injunction.
10. PRIVATE LAND USE CONTROLS: THE LAW OF SERVITUDES

Servitudes: Easements (+ profits à prendre) Right of way, Light, Air, View, Water, Fence Necessity, implication, estoppel, prescription, grant
Affirmative easement: owner must tolerate something I can do on his land
Negative easement: owner can’t do something on his own land
Covenants: Real covenant Equitable servitudes

All servitudes fall within 5 types:

1. A is given right to enter B’s land a.e.
2. A is given right to enter B’s land and remove something attached to land p.à.p.
3. A is given right to enforce restriction on use of B’s land n.e., r.c., e.s.
4. A is given right to require B to perform some act on B’s land r.c., e.s.
5. A is given right to require B to pay money for upkeep of specified faicilities r.c., e.s.
A. Easements
1. TERMINOLOGY
Appurtement Part of the land, i.e. the neighbor may have a right of way.
Servient tenement The estate that has to put up with the easement from the dominant tenement
Dominant tenement The estate that gets to do something on the servient tenement
Easement in gross One particular person, wherever he lives… may be assignable, or non-assignable.

2. CREATION OF EASEMENTS Easements fall within the statute of frauds. GRANT (EXPRESS), IMPLICATION, ESTOPPEL, PRESCRIPTION

An easement can be implied, but depends on circumstances of conveyance, including extent to which manner of prior use was known to the parties. Each party
assumed to know about reasonably necessary uses which may not be visible without inspection. An easement may be implied for grantor on basis of necessity alone.

EXPRESS EASEMENTS: Permission to use land can create an easement, but subject to statute of frauds (i.e. must be in writing).

Willard v. First Church McGuigan sold Petersen a lot with an easement that said the church across street could use it for parking, Petersen sold it to Willard
of Christ, Scientist without mentioning easement, now Willard doesn’t want them parking in his lot.
RESERVING A grantor can reserve an easement in property for a person other than the grantee.

There’s an old common law rule from feudal times that one cannot reserve an interest in property to a stranger to the title. Today, the main objective should be to
look to the intent of the grantor. This is still an issue of much controversy in most jurisdictions, however the court in CA says the old rule is no good.
Reservation: provision in deed creating a new servitude which did not exist before. (O to A reserving 20 ft. easement)
Exception: excludes from the grant some preexisting servitude on the land. (A to B except easement reserved by O)
License: permission given to occupant of land allowing licensee to do something that would otherwise be a trespass.
For example a plumber fixing a drain, a dinner guest, etc. The difference is a license is revocable, an easement is not. However one cannot revoke a license that
comes with an interest, that is to say if I have a profit à prendre in your land, like I can come in and get timber, you can’t take away my right to come onto your land,
because you would be revoking my right to take your timber. Also you can’t revoke a license if relied upon under theory of estoppel.

Promisorry estoppel Requires a promise

Estoppel in pais Reliance on statement of fact
Easement by estoppel Permission plus reliance

Holbrook v. Taylor
EASEMENT BY PRESCRIPTION:
PERMISSION
EASEMENT BY ESTOPPEL:
Holbrook tried to keep Taylor from using roadway on his property after Taylor refused to buy the land which he had been using for
years, under Holbrook’s permission and had improved.
An easement, such as a right of way, is created when the owner of a tenement to which the right is claimed to be appurtenant, or
those under whom he claims title, have openly, peaceably, continuously, and under a claim of right adverse to the owner of the soil,
and with his knowledge and acquiescence, used a way over the lands of another for a statutory period of time.
Easements by prescription can’t be created if owner against whom easement is being claimed gave permission, as such use wouldn’t
be “hostile;” merely a license is created.
A license can’t be revoked after licensee improved land in reliance on license.

Van Sandt v. Royster
EASEMENT BY IMPLICATION:
Bailey owned plot of land with three lots, and built a sewer running across all three lots, leading to her house. She sold the other
two lots, and the others connected their newly built houses to the sewer. Eventually the houses were all sold to new people, who
didn’t necessarily know about the sewer.
An easement can be implied from the circumstances around conveyance, including prior use and necessity.
(1) Prior use: common owner used part of the land for benefit of other part (quasi-easement).
(2) Apparent (open/notorious), continuous use of a portion of tract existing when tract is divided.
(3) Reasonable necessity that arose when land was severed.

An easement can be implied, but depends on circumstances of conveyance, including extent to which manner of prior use was known to the parties. Each party
assumed to know about reasonably necessary uses which may not be visible without inspection. An easement may be implied for grantor on basis of necessity alone.

Othen v. Rosier Hill owned large parcel of land in TX, which he severed into several lots, one of which was landlocked, and was sold to Othen,
who used roadway crossing Rosier's land to reach public road. Rosier built a levee, which made the roadway impassable at times
because of flooding. Othen sued Rosier to enjoin further interference with his right of way, which Othen contended was implied by
necessity.
An easement can be implied from necessity based on circumstances, or prescription if use was adverse.
EASEMENT BY NECESSITY: (1)Severance of parcel (2) Strict necessity: no other way off the land (3) Necessity at time of severance
Goes away when no longer needed Assume parties made a mistake in the deed

Matthews v. Bay Head Improvement Association Association, a quasi public entity, owns a lot of dry sand land, but only lets its members use its dry sand beaches.
Public trust doctrine: tidal waters are for public use enjoyment. Land of “wet sand” was extended to include the dry sand areas of municipally owned land, as there
is really no way to enjoy the beach without some periods of rest in between. Furthermore there must be a way to access the tidal area of the beach, so a right of way
must be permitted. Should this extend to private land? Private beach owners must allow for reasonable access to the beach.
BEACH ACCESS Public’s right to use tidal lands under public trust doctrine includes right to gain access through and to use privately-owned dry sand areas as
reasonably necessary. Why are judicial “takings” different form eminent domain? I.e. why can the courts essentially give the public rights to
some parts of land, without compensation?
10. SERVITUDES – A. EASEMENTS
3. ASSIGNABILITY OF EASEMENTS
Appurtenant easements pass automatically with land, however easements in gross may not be assignable.

ASSIGNMENT OF IN GROSS?

Miller v. Lutheran Conference & Camp Association Frank Miller and brother Rufus created company to create a dam for ice production. The company granted
Frank and his heirs the exclusive right to do boat and fish in the waters, then Frank assigned Rufus a quarter
of
the rights to fish, boat and bathe on the Lake. The brothers started a business to rent boats and houses on the lakes. When Rufus died, the executor’s of his estate
granted a year’s license to the Lutheran Conference. This allowed members to boat, bathe, fish, etc. on the lake. Frank claims all of the rights were easements in
gross and couldn’t be divided or conveyed. Association argues deed to Frank transferred bathing rights among the others, or alternatively, that Rufus gained the
bathing rights by prescription. Can one of two easement in gross holders grant license to another party independent of other?

ONE STOCK An easement in gross can only be used/transferred as “one stock,” i.e. any action the easement must be done with consent of all common
owners.

ASSIGNABILITY Easements in gross are assignable unless for recreational processes (commercial?) Did it matter who easement was going to when conveyed.

4. SCOPE OF EASEMENTS

EXTENDING TO ANOTHER LOT?

Brown v. Voss Browns bought B, with easement across A to get to road. Then they bought C, and planned to build a big house on boundary of B and C, but Voss
said that they couldn’t use right of way to get to C, as appurtenant easement only applied to B. Necessity didn’t exist at time of severance.
SURCHARGE Easement which is appurtenant to one parcel can’t be extended to benefit another parcel. If an easement benefits its owner in the use of a particular
parcel of land, any extension to another parcel is a misuse/surcharge.
One can surcharge an easement by extending it to another property, by using it too much, or by using it for a purpose other than which it was
granted.
At the time of easement creation, was it foreseeable that the burden might get that bad?

5. TERMINATION OF EASEMENTS

USE OTHER THAN ORIGINAL?

Preseault v. United States Railroad shut down and removed tracks in the 70s, in 1985, agreed to give easement to rails to trails for recreational use.

TERMINATION Easements are terminated by abandonment when nonuse is coupled with act manifesting intent to relinquish the easement or a purpose
inconsistent with future existence of an easement.
SCOPE: Scope of easement may be adjusted in face of changing times to serve original purpose, so long as change is consistent w terms of original
grant.

ABANDONMENT: Easements not abandoned by mere nonuse. To establish an abandonment, owner of dominant tenement must manifest a present intent to
relinquish, or a purpose inconsistent with its future existence. (built fence across right of way?)

6. NEGATIVE EASEMENTS

Negative easement is right of dominant owner to stop servient owner from doing something on servient land.
Recognized negative easements include prohibiting blocking of windows, interfering with air flowing to land, removing support of building, interfering with flow of
water in artificial stream.
Courts steer away from prescriptive negative easements, because anyone could just say “you’ve never done that before, so you can’t do it now.”

7. CONSERVATION AND OTHER NOVEL EASEMENTS

Owner of land can give public body or charitable organization conservation easement, preventing building. There are also “façade preservation easements” which
keep owners from altering historic facades, usually for a tax deduction. There are also easements prohibiting homes from being used as vacation homes.
10. SERVITUDES
B. Covenants Running with the Land Affirmative covenants – Owner must do something Negative covenants – Owner can’t do something

(1) Must touch and concern land

(2) Must be privity between parties (vertical or horizontal) Don’t need horizontal privity for benefit to run. Only need a loose vertical privity for benefit
Horizontal privity – privity of estate between original convenanting parties
Vertical privity – privity of estate between one of the covenant parties and a successor in interest.

A promise B If D buys land off B, burden does not come with land.
If C buys from A, C still gets benefit from B
Covenants not enforceable against assignees who have no notice
Covenants not transferred by adverse possession, creates a new title, no privity.
Restatement does not take this view.
Benefits run more easily than burdens
C successors D

1. HISTORICAL BACKGROUND
a. Real Covenants: Covenants Enforceable at Law Courts have been reluctant to enforce negative easements, so people started making contracts
with one another not to do things on their land, in return for compensation or a return promise. However the problem is that they wanted these
contractual obligations to run with the land, but the law of contracts didn’t permit assignment of contracts. That’s when privity of estate was
developed, making contracts enforceable by and against assignees. American courts, unlike in England, permitted privity of estate to run to
successor landowners. The system was called real covenant, a promise respecting use of land that runs with the land. Sometimes only the
benefit runs, but sometimes both the burden and benefit run, i.e. if A and B contract with one another and title transfers to C and D, may C sue D
for breach of K between A and B?

b. Equitable Servitudes: Covenants Enforceable in Equity England did not develop a great system dealing with negative servitudes prohibiting
objectionable use against successor owners, the chancellor came to the aid of the market in this case.

Tulk v. Moxhay Tulk conveyed Leicester Square to Elms in fee simple, but added that Elms had to keep up the square and the garden and permit the inhabitants of
the square to use the garden at a fee. The land was then conveyed to Moxhay, whose purchase deed contained no such covenant. Moxhay wanted to
change the land, Tulk still lived in the square and tried to stop him from doing so. Someone should not be able to sell a piece of land that they
purchased with a restriction, presumably at a reduced price, then resell it at a normal price without the restriction. Then the vendor would be getting
ripped off, and the vendee would be getting a windfall in his resale.

EQUITABLE SERVITUDES: (1) A covenant/promise can be enforceable in equity against a person who purchases land.
(2) with notice of the covenant,
(3) if covenant touches and concerns land,
(4) but the servitude may not be in gross (i.e. some property must benefit at burden of other)
2. CREATION OF COVENANTS

A real covenant must be created in writing and signed. Promise is enforceable against whoever signs. Real covenant can’t arise from estoppel, implication or
prescription. Equitable servitudes, however, may be implied in equity. Equitable servitudes arising from promises cannot be obtained by prescription.

NEUTRAL NEGATIVE RESTRICTIONS

Sanborn v. McClean McClean’s tried to build a gas station on their lot in a residential area. Bought lot off developer who didn’t put the same restrictions on
his land as he did for the other lots.
EQUITABLE SERVITUDES Equitable servitude can be implied on a lot, even if not in writing, if there’s a scheme for residential development, and purchaser has
notice
BY IMPLICATION: (actual/constructive/inquiry) of it. (gets rid of the promise requirement for equitable servitudes, by implying a promise)

ACTUAL NOTICE: Person actually knew of the covenant.

CONSTRUCTIVE NOTICE: Person could have gone and seen the covenant at city hall.
INQUIRY NOTICE: Could’ve seen that there was a covenant, since all other houses looked the same.

Reciprocal negative easement: Created when owner of two or more lots sells one with restrictions on it that benefit land retained by the owner. Creates a mutual
servitude, which, while in effect, the original owner can’t use retained land in any way forbidden to buyer.
Or, each property could be seen as servient and dominant, i.e. all benefit.
3. VALIDITY AND ENFORCEMENT OF COVENANTS

COVENANTS IN EQUITY (1) intent that the benefit and or burden run to successors
Three requirements: (2) notice on the part of the purchaser of the original promisor
(3) that covenant touch and concern land.
Vertical privity may be required for the benefit

Neponsit Property Owners’ Association, Inc. v. Emigrant Bank bought land deeded by Neponsit to the Deyers, and deed to Deyers said that they had to pay for
Emigrant Industrial Savings Bank upkeep of the communal areas, and that failure to do so would result in a lien.
TOUCH AND CONCERN Affirmative covenant to pay money for maintenance in connection with, but not on the land subject to the burden, does touch and
concern the land, and a homeowners’ association, as an agent of actual owners of the property, can enforce the covenant.
Rough test: does it increase your property value? Would the next guy want it? Cf. the French rule that one estate must be burdened to benefit another.
Restatement rejects touch and concern requirement. Burden in perpetuity?

Caullet v. Stanley Stilwell & Sons, Inc.
COVENANT IN GROSS
Developer sold Caullett land with a clause that said he had to use the developer as the contractor for home built thereon.
Real covenant imposing burden on land, benefits only person enforceable?
A covenant isn’t enforceable in equity or law if it creates a benefit in gross, because the benefit wouldn’t touch and concern the
property. A personal benefit does not touch and concern the land because it doesn’t directly influence the occupation, use or
enjoyment of the land. Public policy hinders alienability of property when act doesn’t enhance surrounding lands.
Restrictive covenant benefitting only a person doesn’t run with land at law or in equity when benefit doesn’t touch and concern the
land (i.e. no covenants in gross).
10. SERVITUDES – B. COVENANTS RUNNING WITH THE LAND
4. SCOPE OF COVENANTS

Hill v. Community of Damien of Molokai Aids group home appeals injunction based on breach of a covenant that only single family homes reside in a community.
Neighbors claim that burdensome because of all the increased traffic and roadside parking from the constant flow of nurses
and other employees.
AMBIGUITY: Ambiguous restrictive covenants should be construed to favor free enjoyment of property. Covenants with discriminatory impact violate the FHA.

Fair Housing Act FHA violations fall within three categories: discriminatory intent, disparate impact, and reasonable accommodation.
(1) Discriminatory Intent Even if neutral on face, discriminatory in enforcement?
(2) Disparate Impact Regardless of intent, if impact is discriminatory, violation.
(3) Reasonable Accommodations The act requires rules to be reasonably altered to accommodate people with disabilities.

What constitutes “single family?”

What about “handicap” or “physical or mental impairment?”
Current addicts  no … recovering addicts or participants in rehab  yes
What is “residential?” Piano lessons, selling antiques, small business in second bedroom, bed and breakfast, training dogs, daycare, selling things from
garage, home office?

Shelley v. Kraemer Black couple buys house where there’s a covenant not to sell to non-whites.
RACE Judicial enforcement of restrictive covenant based on race constitutes discriminatory state action, and thus is forbidden by equal protection
clause of the Fourteenth Amendment.

5. TERMINATION OF COVENANTS

Western Land Co. v. Truskolaski Homeowners trying to enjoin shopping center from building in their subdivision because they have a covenant saying that only
single family houses can be built there. The surrounding area has been getting more and more crowded, and the center argues that
the covenant no longer serves a purpose. Also, some people in the community were violating the covenant by building houses on
land that was smaller than the requirement.

REAL AND SUBSTANTIAL VALUE: Restrictive covenant establishing residential subdivision can’t be terminated as long as residential character of subdivision not
adversely affected by surrounding area, and if it is of real and substantial value to the landowners within the subdivision.

Rick v. West Rick subdivided 62 acres and declared a covenant with the courthouse restricting them to single family units. West bought a half-acre lot and
built a house there. About 10 years later the land was zoned residential. Rick tried to get it changed to industrial, and sell 45 of the acres to an
industrialist. West held out on the covenant even though neighbors consented. Years later, Rick tried to sell to a hospital, and West held out
again. Regardless of the benefits of a hospital, and the marginal disadvantage, West can hold out, because she relied on the covenants and has
a right to continue to rely on them.

ENFORCEMENT: Covenants will be enforced unless the attitude of complaining owner in standing on the covenant is unconscionable or oppressive.

A landowner in a subdivision under a restrictive covenant has the right to insist upon adherence to the covenant even when the other owners consent to its release.

Restatement (Third) of Property, Servitudes (2000)

(1) When change makes servitude impractical, court can modify or terminate but must compensate.
(2) If purpose can be accomplished, but servient estate no longer suitable for purposes, may modify to permit other uses to preserve the benefits of original
servitude.
(3) Don’t apply to conservation servitudes.

Reverse damages are rarely conceivable, where beneficiary pays damages to keep servitude. Many factors to consider: utility of servitude, public interest in growth,
etc.

Pocono Springs Civic MacKenzies owned some land, but when they learned it wasn’t suitable for sewage, nobody would buy it, and they tried everything to get
Association v. MacKenzie rid of it. They tried to give it away for free, they stopped paying taxes, and they even wrote a letter to all neighbors explaining intent to
abandon. But the neighborhood association still wanted their money.
ABANDONMENT A covenant running with land can’t be terminated by abandonment when owner still holds title in fee simple.

Restatement (Third) of Property, Servitudes (2000)

(1) Covenant to pay money or provide services terminates after reasonable time.
(2) …. Terminates or may be modified if becomes excessive in relation to cost of providing the services, or there is a decrease in value to burdened estate.
(3) Doesn’t apply to common interest communities or conservation servitudes.

Termination by Condemnation If government condemns easement, must pay compensation.

Even things like loss of income from country club.
V. LAND USE CONTROLS – 10. SERVITUDES – B. COVENANTS RUNNING WITH THE LAND
6. COMMON INTEREST COMMUNITIES

Nahrstedt v. Lakeside Nahrstedt moved into a condo within a complex with 530 units, with her three cats. The condo had a restriction that said no pets, in the master deed.
Village Condominium She says that she didn’t know about the limit when she bought the place, and that the restriction was unreasonable as applied to her noiseless cats
because they create no nuisance. When may a condominium owner prevent enforcement of a use restriction that the project’s developer has
included in the recorded declaration of CC&Rs (covenants, conditions and restrictions)? There is a presumption of validity in enforcement of
CC&Rs for a number of reasons.

POLICY To promote health, happiness, peace of mind of the majority of owners living in close quarters, everyone has to give up a little bit of the freedom to
do what they want within their place.
VALIDITY When restrictions limit use of property within a common interest development, they are presumptively valid, and enforceable unless unreasonable,
i.e. wholly arbitrary, violate a fundamental public policy (e.g. constitution), or impose a burden on use of land that far outweighs any benefit.

The deferential standard is favorable because (1) discourages lawsuits by owners seeking personal exemption from rules; (2) promotes stability and predictability: (i)
owners may rely with confidence on promises in agreements; (ii) owners need not pay increases in association fees to fund defense of legal challenges. Furthermore, a case
by case determination of what is reasonable is a burden on the judicial system. Terms of a covenant can be an important inducement to others, i.e. people may have chose
this particular condo because they hate animals, and to let her have her cats would open the flood gates. The owners in this complex have the power to repeal a restriction,
and the fact that the animal restriction hasn’t been repealed suggests that it is still important to the homeowners.

California Civil Code 1360.5 Responsibility for pets.

No document shall prohibit owners of interest within common interest from keeping at least one pet, subject to reasonable rules and regulations.

Reasonableness test
Business judgment test

NEW YORK’S COOPERATIVE APARTMENTS

New York is probably only US city with substantial cooperative apartments, where a corporation owns a building, and residents own all shares of stock in the corporation
and control it through an elected board of directors. Each resident has a long-term renewable lease of a unit. So residents are owners of the corporation and tenants to the
corporation. There is one mortgage, so if one person doesn’t pay, everyone risks foreclosure. Can discriminate against pretty much anyone as long as in compliance with
Civil Rights Act, FHA, etc.

Mulligan v. Panther Valley Property Owners Assn. Gated community with 2,000ish single family houses in NJ. Common interest community association tried to
keep Tier 3 sex offenders out. Elinor Mulligan challenged it as violating public policy, and court decided to apply
reasonableness test, rather than NY’s business judgment test, because changes were made by vote of members, not board of directors. Insufficient evidence to determine
unreasonable, burden on plaintiff. Unable to determine whether or not this would impose an undue burden on sex offenders, considering the quasi municipal nature of the
community. However sex offenders are not protected from discrimination by law. However it does not necessarily follow that large segments of the state may close their
doors to such people, confining them to certain areas, thus increasing the risks in that narrow area where they are permitted to live.
 11. LEGISLATIVE LAND USE CONTROLS: THE LAW OF ZONING

Village of Euclid v. Ambler Realty Co. Ambler’s land would be worth more if used for industrial purposes, not residential. He claims that a zoning ordinance violates his
rights without due process, and denies him of equal protection of law. But court finds that the ordinance protects the health and
welfare of the community.
POLICE Zoning ordinances that are not arbitrary or unreasonable are valid exercise of police
POWER power of state, thus they do not violate the constitutional protection of property rights absent actual injury.

a. The Structure of Authority Underlying Zoning

a. Enabling Legislation
The Standard State Zoning Enabling Act was enacted at one point in all 50 states, and has been modified to different extents in different states. Basically, States have
zoning power under their police power, but most states delegate zoning power to municipal governments, who make a zoning ordinance, through a zoning committee,
often called the board of zoning appeals.

b. The Comprehensive Plan

Under standard act, regulations must be in accordance w a comprehensive plan, i.e. a statement of objectives.

I. The Nonconforming Use

PA Northwestern Distributors v. Adult store in Moon Township, Zoning Board amends Ordinance to regulate adult enterprises, imposing extensive restrictions, basically
Zoning Hearing Board there’s no way this store could be in compliance with the ordinance unless they changed their business model, or moved.
AMORTIZATION If a zoning law or regulation deprives a property owner of lawful pre-existing nonconforming use of his or her property, it’s a taking and
the owner must be justly compensated.

(1) No amortization (PA Northwestern)

(2) Reasonable amortization (Sullivan)
(3) No protection of a non-conforming use (nobody really takes this view)

Should nonconforming uses be protected?

Changes. Right to maintain nonconforming use runs with the land even with change of ownership. What about if someone changed their nonconforming use to
another nonconforming use? Should they be precluded? Usually not unless they change to a use that impacts the area even more.
Destruction of a nonconforming use usually terminates it and so does abandonment. What about nonuse?
Amortization: the time in which a property owner has to relocate when the property's use constitutes a preexisting nonconforming use
Vested rights.
Estoppel. One place was required to remove 12 stories of a building because the permit was erroneous.

II. Achieving Flexibility in Zoning

There must be means of providing some flexibility in zoning. But consider that flexibility can lead to disfavor for illegitimate reasons.

a. Variances and Special Exceptions These are two flexibilities in the Standard State Zoning Enabling Act
Variance: Permit otherwise prohibited uses or deviations (board of adjustment or zoning appeals board) where strict adherence would cause undue hardship (the only
use for this land is the proposed use).
Special exceptions: Uses permitted by zoning law (zoning board) but which might impose external costs on neighbors. (not administrative deviations).

Commons v. Westwood Commons owned vacant lot, but it was basically too small to build on to
Zoning Board of Adjustment conform w frontage and size rules of zoning ordinance. Applied for a variance.

VARIANCE Board of adjustments may grant a variance if the strict application of ordinance would:
(1) Result in undue hardship on the developer:
a. Developer not responsible for the hardship
b. Developer did not help the hardship (tried to comply?)
(2) Negative Criteria:
a. Variance would not substantially detriment public good
b. Variance wouldn’t substantially impair the intent/purpose of zone plan /ordinance.

INUTILITY If the denial of variance would zone the property into inutility, an exercise of eminent domain can be necessary, and if that occurs, all taxpayers
share the burden.

In this situation, there is some evidence of undue hardship, and that the strict compliance with the ordinance would zone the property into inutility.
What about when the undue hardship is extreme, but would impinge the intent of the ordinance.

Cope v. Inhabitants of Apartment builders appealed zoning board’s decision to deny exception to construct apartment buildings in area zoned for suburban residential use.
the Town of Bruswick The ordinance lists criteria for an applicant to qualify for an exemption:
(1) Certain Requirements – must meet requirements of chapter 5-8.
(2) Not Adverse – Not adversely affect health, safety, general welfare of public
(3) Purpose Upheld – not defeat purpose of ordinance
(4) Value Maintained – Will not devalue the surrounding property.
Zoning board held that use would endanger public safety and seriously alter the characteristics of the neighborhood by increasing the amount of traffic. These criteria
are too vague, and thus leave too much legislative power to the quasi judiciary zoning board.

VAGUE Power to regulate private property cannot be delegated from legislature to a municipality or from a municipality to a local administrative body
without a detailed statement of policy to give a guide to determine owners’ rights and to prevent arbitrariness.
11. ZONING
b. Zoning Amendments and the Spot Zoning Problem

State v. City Neighbors say rezoning from R-1 (single family residential) to R-4 (high density residential) to
of Rochester permit a 6 story condominium apartment on their block was invalid for three reasons:

(1) City’s action in rezoning should be subject to close judicial scrutiny as administrative / quasi judicial act.
(2) If act was held to be a legislative act, it should be invalid because it is arbitrary and capricious without relation to police powers of promoting public health,
safety, morals and general welfare.
(3) The ordinance is invalid “spot zoning”

RATIONAL BASIS: Municipality’s amendment of a zoning ordinance is a legislative act, under municipality’s delegated police powers, and amendment
will be upheld unless unsupported by any rational basis related to promoting public health, safety, morals, or general welfare, or if
it amounts to a taking without just compensation.

Spot Zoning: An invalid zoning amendment, which (1) creates a use classification inconsistent with surrounding uses and creates an “island” of nonconforming use within a
larger zoned district, and (2) which dramatically reduces the value for uses specified in the zoning ordinance of either the rezoned plot or the abutting property.
SPOT ZONING Spot zoning is invalid where some or all of the following factors are present:
(1) small parcel of land is singled out for special and privileged treatment;
(2) the singling out is not in the public interest but only for the benefit of the land-owner;
(3) the action is not in accord with a comprehensive plan.

Legislative or judicial?
Zoning amendments are legislative and should be given judicial presumption of validity (City of Rochester)
Zoning amendments are quasi judicial and should be reviewed with suspicion. (Fasano)

Plebiscites: direct vote by citizen on some public question. Referendum: local body approves an ordinance then refers it to electorate. Initiative goes right from
qualifying petition initiated by citizens to the ballot.
The problem with rezoning and plebiscites is that they are either too small scale to be democtratc (low voter turnout) or too complex.

Contract and conditional rezoning. Must pass muster as reasonable and not made from undue influence.
Floating zones. Defines a zone but reserves decision about location for future.
Cluster zones and PUDs. Developer is permitted to construct dwellings not conforming to the restrictions of an ordinance, such as the frontage, setback or side to
side requirements, but with large common areas of open space, to give a common rural environment in an urban setting.

III. Expanding the Aims (and Exercising the Muscle) of Zoning

Thought the idea of zoning seemed innocent: to control nuisance, dangers of fire, prevent overcrowding, etc.; the impact has been one of social economic segregation.

a. Aesthetic Regulation (General welfare?)

State ex rel. Stoyanoff v. Berkeley

City of Ladue is an upper class expensive suburb of St. Louis. Houses are generally of Colonial style, but Soyanoff and others tried to get a building permit for an
ultra modern house. Unusual house complied with the zoning regulations. Permit not approved however by Architectural Board of Ladue. The Board had the power
from the zoning ordinance to ensure buildings conform to architectural standards, with the purpose of promoting general welfare of the community (by keeping
property values up).

AESTHETIC Architectural review board may deny a permit if would be unsuitable in appearance with reference to character of surrounding neighborhood
and adversely affect the general welfare and property values of the community.

Anderson v. City of Issaquah Anderson applied for certification to build commercial building. When reviewed, denied because the building didn’t conform with the
buildings of the street. Namely the Development Commis sion didn’t like the color, design of the facades, the full length windows. He met
with the commission on three occasions trying to make his building conform, but eventually they denied his application.
VAGUE Local building ordinances that impose aesthetic conditions must provide sufficiently clear guidance to all interested parties (due process).

Vague descriptions about how pretty things should be are subject and thus unconstitutionally void. Aesthetic guides should be able to be followed so as to avoid
multiple modifications until commissioners feel like they think the place looks nice.
Legislatively imposed “beauty” has been argued to discourage risk taking in the art of architecture. You end up with a bunch of mediocre old fashioned houses that
look the same, like they were made from an assembly line.
Compare to private restrictive covenants. In private restrictions, limitations can be much more vague, architects determining if something fits with the area must
prove only that they were acting in good faith.
First Amendment violation? No court has held that architectural expression is protected by the First Amendment but it is a common view that design regulation
should be subject to close scrutiny, as it is a regulation of expression.

City of Ladue v. Gilleo Margaret owned a sign in Ladue, kept putting up anti-war signs, and when people
took them down, she called the cops, who told her that the signs were illegal. She challenged the constitutionality as a restraint on her free
expression under the First Amendment.
The ordinance prohibited signs on residential properties, other than a few exemptions (churches, danger signs, for sale signs, etc.). The purpose was to avoid visual clutter,
and to protect the safety of drivers, pedestrians, etc. from the distractions of signs on the side of the road. Signs are indeed a form of expression protected by the First
Amendment, however they may obstruct views and distract views, thus they fall within the valid police powers. For example, we have freedom of speech,but can still
regulate loud music at 3 a.m.

SIGNS A city may not, under the First Amendment, adopt an ordinance that prohibits nearly all signs on residential property.

What about statues? Who determines what’s art and what’s just garbage?
What about obscene statues?
What about porn stores? Content regulation, or content neutral, i.e. regulating only the place, time, etc.
What about religious establishments? Free exercise, but is it really about that?
11. ZONING
b. Controls on Household Composition
Village of Belle Terre v. Boraas (1974)

Dickman leased his property to Truman, then Boraas came in on the lease, then Anne Parish moved in with three others. The six are students. Belle Terre is a village
in Long Island where homes are limited to one-family dwellings. One family is defined as a legal or biological family (blood, marriage, adoption) allowing for one
servant in the home, or for a unit with two non-married non-blood-related people (i.e. unmarried couple or one person and his or her roommate). The ordinance
specifies “living and cooking together.”

SINGLE FAMILY Legislature may define what counts as a family for zoning purposes if the definition is rationally related to legitimate objectives.

MARSHALL: Classification burdens fundamental rights of association and privacy of the First
and Fourteenth Amendments. Deference should be given to legislatures in zoning
(Ambler) however the court must protect fundamental rights. Ordinance singles out those who chose to live their lives in a manner
different from current residents. Concerns of population density and traffic are legitimate, however the ordinance does not impose
occupancy limitations on related people, only on unrelated people. Thus there could be a small house with a dozen in-laws and
cousins, etc. but there could not be a large house occupied by three close friends. Perhaps the problem is that the ordinance is not
restrictive enough.

In Moore v. City of East Cleveland the court limited the holding in Belle Terre to unrelated people, and found unconstitutional an ordinance that said only one set of
grandchildren could live in a home together. The East Cleveland ordinance wouldn’t even allow a brother and a sister to live together if they were both adults.
Courts are leaning towards a more open minded perception of what “family” means, and generally striking down ordinances that regulate technicalities that don’t really relate to
the valid concerns regarding traffic and density.

City of Edmunds v. Oxford House, Inc. (1995)

Oxford house is a group home for recovering alcoholics and drug addicts in Edmunds, where 10-12 people are intended to live. Edmunds has an ordinance that says
that any amount of related people can live together (subject to square footage requirements) but that no more than 5 unrelated persons can live together. The Free
Housing Act (FHA) prohibits discrimination based on disabilities, among others, and within discrimination is a failure to make accommodations in the rules.
Edmunds bases its case around an exemption in the code for ordinances capping the maximum number of occupants in a dwelling:

FHA §3607(b)(1) Nothing in this title limits the applicability of any reasonable local, State, or Federal restrictions regarding the maximum number of
occupants permitted to occupy a dwelling. Nor does any provision in this title regarding familial status apply with respect to housing for older persons.

However the court found that this ordinance was not related to the amount of people in a dwelling, as a dozen related people could live in a dwelling together, it was
intended to preserve the family character of the neighborhood, and thus it does not fall within the exemption.

SINGLE FAMILY Single-family zoning regulation is not automatically exempt from FHA scrutiny, even if
AND FHA it indirectly limits the maximum number of occupants in the house.

An ordinance that limits the maximum number of occupants in a dwelling, if reasonable, is exempt from the FHA, however such an ordinance
must be related to the number of people, not the familial composition of the dwelling.

c. Exclusionary Zoning

All zoning is exclusionary in the sense that someone is trying to exclude certain uses, sizes, etc. from an area, and put them in another area, but there is another type of
exclusionary zoning with the intention of keeping unwanted groups (e.g. the poor) out of a city all together.

Southern Burlington County NAACP v. Township of Mount Laurel (NJ 1975)

Mount Laurel enacted zoning ordinance that basically prevented low and middle income people from acquiring affordable housing in the township.

APPROPRIATE: A developing municipality must afford an opportunity for an appropriate variety of

VARIETY choice of housing for all categories of people who may wish to live there, including people of low and moderate income. Land use
ordinances must accommodate the general welfare, as defined by the proportion of people within the region.

Laurel grew fast when some industry came to the previously rural community. Zoning ordinances allowed for residential zones R-1, R1D, R-2 and R-3, all of which
permitted only single family dwellings, and basically made it impossible for low and middle income people to live there. The ordinance also limited the number of
school children that could live in certain dwellings. The city had a lot of things in the budget for people of high income, but did not have high taxes, so basically they
were trying to keep poor people and school children out, because those increase taxes, without contributing much.

Land use regulations are within the police power of a state, and keeping out poor and school children hinders the “general welfare” which zoning is supposed to
promote. Adequate housing for all categories of people is critical for general welfare. No municipality may exclude or limit categories of housing for financial
reasons or purposes such as relief from tax burdens.

Three approaches:

1. Some jurisdictions continue to honor the convention that zoning ordinances are presumed to be constitutional.
2. Others adopt middle ground, maintaining a presumption of validity but judging the rationality of the measure in question with reference to regional as opposed
to purely local interests.
3. Others are true to Mount Laurel.
V. LAND USE CONTROLS
12. EMINENT DOMAIN AND THE PROBLEM OF REGULATORY TAKINGS

Taking must be (1) For a public purpose (2) Just compensation

Sometimes the government isn’t happy with just private arrangements (servitudes) and nuisance law to control land, and thus leaves property in hands of its owners but regulates
its use, or just plain taking the property and reallocating it to governmentally preferred uses. Regulation is achieved by zoning, taking by eminent domain.

Under the 5th Amendment, no private property is to be taken for public use without just compensation.

A. The Power of Eminent Domain: Sources and Rationales

Origin of eminent domain can be traced back to ancient Rome. They gave just compensation then, but some governments throughout history did not. One rationale
is that all property belongs to the state and is granted to people, and can impliedly be taken back. Just compensation perhaps comes from the “natural law.”

Power to Take – Posner illustrates the rationale behind the power to take by explaining it in the context of railroad companies, and people with land who will hold
out, causing the railroad companies to pay more because it is too expensive for them to reroute, then in turn charging more for the service, which would lead to less
people using the service, and would lead to an inefficiency. If the government can take land for public uses, what about for commercial uses, wherever the value to a
commercial entity is great than the value to the landowner?

Duty to Compensate – Posner suggests duty to compensate comes from the fact that without it the government would have an incentive to substitute land for other
inputs that were cheaper to society as a whole but more expensive to government. Furthermore the government should not be able to destroy the fruits of anyone’s
labor. The result would be that few people would invest, for fear of losing everything. But having no fear of losing your property can lead to inefficiencies, like if
land owners in hurricane owners knew they’d get everything back, they’d have no incentive to be cautious. Perhaps the private insurance industry is the solution.
Fairness is another rationale given.

B. The Public-Use Puzzle (and a Note on Just Compensation)

Fifth Amendment’s mention of public use is read to mean property may be taken only for such uses. Government may not condemn for private purposes.

Kelo v. City of New London City of New London condemned private property to be used for commercial, residential and recreational purposes as part of an
economic revitalization project.

City of New London wanted to make a new commercial center along the river to accommodate economic development from a Pfizer plant. It wanted to put shopping
centers, research centers, a river walk, etc. But it had to buy up all kinds of land to accomplish this, and some people held out. City of New London used eminent
domain to get some of the land, and Kelo with others took it to court.

PUBLIC PURPOSE: Takings of private property for use by private citizens as part of an economic
(ENDS TEST) development plan constitute takings for a “public use” and are valid under the Fifth Amendment.

Government can’t take land from A purely to benefit B, but the court has done away with the old rule that takings for “public use” must be intended for “use by the
public.” So long as the taking is for a public purpose, it is constitutional, and economic development is a long accepted function of the government. Furthermore,
considerable deference is paid to legislative judgments. This taking will promote public welfare by resulting in jobs, tax revenue, economic development. Is
eminent domain really necessary to accomplish the government’s goal (means test)?
Just Compensation

Just compensation is measured by the market value, but that is different from subjective value to an individual.
There are many other considerations, such as relocation costs, sentimental attachments, special suitability of a particular property for an owner’s needs. Furthermore,
implied in the fact that an owner values his property more than market value is the fact that his land is not for sale. An owner also loses a sense of autonomy when he
is forced to sell.
12. EMINENT DOMAIN
C. Physical Occupations and Regulatory Taking

Condemnation is the 4 step process by which the government effects a taking.

1 – It must file a petition, and in some jurisdictions it must negotiate to buy
2 – Notify all parties with an interest
3 – Trial to establish the government’s authority
4 – Pay compensation

1. Two Categorical Rules

Loretto v. Teleprompter Manhattan CATV Corp.

Under New York law, a landlord must permit a cable company to install cable facilities on his property. Loretto bought a property, and Teleprompter connected a
line that provided cable to Loretto’s tenants, by dropping a line to the first floor down the front of his building. It also installed a lot of equipment on the roof. Case
law establishes that when physical intrusion reaches the extreme form of a permanent physical occupation, taking has occurred.

PERMANENT When the character of the governmental action is a permanent physical occupation of property, PRESENCEthe government actions effects regulatory
taking to the extent of the occupation, without regard
to whether the action achieves an important public benefit or has only minimal economic impact on the owner. Government action that works
permanent physical occupation is always a taking.

In the most extreme circumstances, if the government physically occupies property, it destroys the owner’s rights. First, the owner has no right to possess the
occupied space himself, and no power to exclude the occupier. Second, the occupation denies the owner power to control the use of his property. Third, though the
owner may retain the legal right to dispose the occupied space by transfer or sale, the permanent occupation by a stranger will empty the right of any value.

BLACKMUN Dissent: It’s a temporary occupancy, and there is a compelling interest, and the government does have the right to effect property rights,
under its police powers.

NY court upheld $1 as “just compensation”

Per se or categorical rules
Permanent physical occupation
The right to exclude
Rent controls are not takings

Hadacheck v. Sebastian Hadacheck manufactured brick on his property in LA, but LA enacted an
ordinance that prohibited brick manufacture within the limits of the city, that did not include his property at time he
bought it, nor did ordinance exist at that time.
He bought the land because it contained fine clay for brick, and the land is worth about $800,000 for purposes of selling bricks, but worth at most $60,000 for any
other purpose. He argues that the clay can’t be transported, from an economically feasible point of view, and that his operation causes no nuisance, no loud noises or
noxious odors, and that the ordinance was directed at him directly. In Reinman v. Little Rock, the court held that even when a business is not a nuisance per se, it is
still within the police power of the state to regulate it, however the regulation must not be arbitrary, and must be exerted without unjust discrimination. The only
difference between these two cases is that in Reinman, the business was a livery stable, which could have been put anywhere, but this clay business is fixed to the
land. However the court held that there is no prhobition of the removal of bricks or clay, so Hadacheck can just ship the clay elsewhere.

NUISANCE When a business is not a nuisance, a state may still regulate it as a valid exercise of its
REGULATIONS police powers, so long as it does not regulate it arbitrarily or discriminatorily.
Nuisance control regulations are never takings.

Basically, police power and eminent domain are two separate government powers. Eminent domain seeks to take over land for public good, while the police power can regulate
land to prevent “public bad.” However the main difference is that just compensation is required for eminent domain, but not for police power regulations of land. However
sometimes it is hard to distinguish between “preventing harms, or securing benefits. For example, is the prohibition of billboards on a highway a safety measure to prevent the
harms of distraction, or to benefit the highway by making it safer?

2. Rules Based on Measuring and Balancing

Pennsylvania Coal Co. v. Mahon Plaintiffs bought only surface rights, Pennsylvania Coal owned the subsurface rights to mine coal. A Pennsylvania law
was passed that forbids mining of coal in such a way as to take away the structure of a human habitation of another.

DIMINUTION Property may be regulated under the police powers of the state, but when the regulation goes to
IN VALUE: the extent that it diminishes the economic value of the property, it is a taking.

When governmental regulation of a use that is not a nuisance works too great a burden on property owners, it cannot go fort without
compensation.

Conceptual severance – also referred to as the “denominator problem” refers to takings like this, where parts of the land are conceptually severed, so that instead of
saying 50% of the land is diminished in value, you can say that 100% of the subsurface property interest is diminished, thus lowering the “denominator,” allowing the
threshold at which a regulation becomes a taking to be lowered.

Penn Central Transportation Company v. City of New York

Penn Central designed a plan to build a 50 story office building above Grand Central Station, but the station is protected under the Land Mark Law, so any change
must be reviewed by a board, and the board said no. Penn Central had an offer to pay at least $3 million a year for use of the potential space above the building.
Penn Central argues that the law constitutes a taking, and it deserves just compensation.

RULE A law which does not interfere with an owner’s primary expectation concerning the use of the property, and allows the owners to receive a
reasonable return on his investment, does not effect a taking which demands just compensation.
12. EMINENT DOMAIN
3. A Third Categorical Rule

What if regulation goes too far, i.e. wipes out all value, but controls a nuisance?
What if the owner has no investment-backed expectations?

Lucas v. South Carolina Lucas bought some property on a barrier island, then SC enacted a law that prohibited
Coastal Council construction of occupiable improvements in certain “baseline” where there had been erosion of the dunes , and Lucas’s property fell
within this baseline, so his property was pretty much useless.

TOTAL TAKINGS A land-use regulation that deprives an owner of all economically valuable use of property by prohibiting uses that are permitted
under property and nuisance law is a taking, and thus requires just compensation.

The “too far” standard articulated in Pennsylvania Coal is met when a regulation denies an owner all economically valuable use of the property. It is too hard to
determine whether a regulation is preventing harm, or achieving benefit.

Palozzolo v. Rhode Island Palozzolo owned land in Rhode Island that was classified as coastal wetlands, and there
was a statute enacted before he acquired the land that greatly limited development on the wetlands, so Palozollo couldn’t build on
his land.

POST-ENACTMENT: Acquisition of title after enactment of a regulation does not bar a challenge to that regulation under the Takings Clause.

In regulation cases, a landowner must wait for his case to become “ripe,” and this process can take years, and might not occur until after the land has passed. Thus
subsequent purchases must have a right to assert a claim.

Tahoe-Sierra Preservation Council v. Property owners in Lake Tahoe were prohibited from developing for 32
Tahoe Regional Planning Agency months while the Tahoe Regional Planning Agency decided what to do to preserve the beauty of the area.

TEMPORARY A regulation that prohibits economic use for an extended but finite period of time does not constitute a taking.

The rule in Lucas is that a regulation that renders a property essentially useless is a taking, however property rights are determined by spatial as well as temporal
rights, and a temporary restricton on a fee simple estate cannot render that estate valueless, thus the Penn Central test of when a regulation goes “too far,” essentially
an ad hoc approach, is appropriate for temporary restriction.