Fairness and efficiency are goals of court – they shape their decisions to be socially productive to these ends.......................................................................................................

2 Section I: Acquisition of Property (Chapter 1 & 2).............................................................2 ►tragedy of the commons – overconcumption; common property leads to pollution......3 ►tradegy of anti-commons – underconsumption................................................................3 III.Acquisition by Creation (p. 59)......................................................................................4 V. Land-Use Regulation: Zoning.......................................................................................29 ♥ Village of Euclid v. Ambler Realty (p. 960)..................................................................29


Fairness and efficiency are goals of court – they shape their decisions to be socially productive to these ends

Section I: Acquisition of Property (Chapter 1 & 2)
I. Acquisition of Property by Capture Types of property: • Real property- land • Personal property – property other than land ♥ Pierson v. Post (p. 19) Facts: Post was hunting a fox. Pierson, knowing this, killed the fox and carried it off. Holding: Property in wild animals is acquired by occupancy. Pursuit alone does not constitute occupancy or vest any right in the pursuer. The moral wounding of an animal or trapping or intercepting of animals so as to deprive them of liberty constitutes occupancy. Post loses because he only shows pursuit. Dissent: New rule should be adopted: property in wild animals may be acquired if the pursuer be in reach or have a reasonable prospect of taking the animal. Livingston also thought that arbitration would have solved (norm was that all hunters in the region regarded hot pursuit as giving rights to take an unimpeded first possession). • Rule of capture = rule of first in time (both fairness and eff support this) • Maximizes capture ♥ Ghen v. Rich (p. 26) Facts: Rich bought a whale at an auction from a man who found it washed up on a beach. The whale had actually been killed by Ghen’s ship and left with an identifying lance in the animal. Holding: When all this is practical is done to secure a wild animal, it becomes property of the securer. The custom of local trade can be enforced when it is embraced by the entire industry and has been concurred for along time by everyone. This trade usage was necessary for the survival of the whaling industry bc no one would engage in whaling if he/she could not be guaranteed the fruits of his/her labor. • Custom is blurry – be wary of judge that uses this ♥ Keeble v. Hickeringill (p. 31) Facts: Keeble claims that Hickeringill scared ducks away from his pond Holding: Damages may be recovered for intentionally frightening the game off of another’s land. No title to the game existed, but Keeble was using his land in a lawful manner. • Ratione soli – conventional view that an owner of the land has contructive possession of wild animals on the owner’s land (prior possessors of any animals ferae naturae on their land until the animals take off) • Interference with capture – 37 states have enacted legislation to outlaw hunter harassment • Theory of malicious interference with trade Depends on what kind of practices we (as a society) to encourage: If we think that the activity makes the world better: competition If we think that the activity makes the world worse: illegal


In keeble, there are ways that will get ducks on the table and there are ways like shooting guns that decrease ducks on the table. If the activity that is done maliciously enhances consumer welfare, then we will say competition. » Rule of capture and wild animals: A trespasser who captures an animal on the land of another may not have rights to it since the owner of the land may have constructive possession » Rule of capture and other resources – courts sometimes liken to wild animals; Belong to the owner of land so long as they remain on the land, when they leave his/her land, they are no longer under his/her control »ground water…two approaches • Some (western) states use the rule of prior appropriation (the first to put it to good use) • Some (eastern) states use various riparian rights 39 - Hammonds case found that if A takes oil from B (underneath prop) and reinjects it, A is not liable for any damage because A does not own it Makes perfect sense to let underground storage occur to encourage economically beneficial behavior - take advantage of this option Why the bottoming rule? 1. Helps privitize access - easier to coordinate 2. Lower transaction costs 3. Incentive to look for oil II.Demsetz’s Theory of Property Rights – util theory of prop • Property rights convey the right to benefit or harm oneself; prop rts internalize externalities when cost of internalization becomes less than the cost of internalization • Externalities – function of transaction costs + encourage the misuse of resources. Exist whenever a decision about how to use resources is made without taking into account all of the effects of that decision. • Three types of ownership: o Communal – hurts future generations (externality) - trees o Private – no incentive for this owner to consider others; maximizes eff o state ►tragedy of the commons – overconcumption; common property leads to pollution ►tradegy of anti-commons – underconsumption
Internalization of ext explained… 1. Reduces the number of people you have to negotiate with -- bounds the region of transactions -- reduces the cost 2. More transact - less external costs Requirement is agreement and cooperation -- begs the question because you need to have coop to get priv property Alternative: force Means to monitor Priv prop is expensive when you have to transact instead of just taking stuff


or under the statutes…a man’s property is limited to the chattels which embody his invention. (p. its competitor in business. Doris Silk Corp. 60) Facts: INS would take news from AP and sell it. but limited in order to promote competition. Inc.Acquisition by Creation (p. the finder wins Mislaid . attached or unattached. Associated Press (p. which right is independent and separate from ownership of the entity. They seek damages for the copying thereof.) IV.Acquisition by Find If an item is found on property by someone other than the owner and attached to the land. whether it is attached or unattached. 64) Facts: Cheney Brothers wanted to copyright one of their patterns. there is not remedy for the creator • The goal is to create limited monopoly – encourage productive incentives. 65) Holding: Smith was able to advertise product similar to Chanel at lower price because no Chanel patent. it can go either way (probably to the owner) If it is in a public place. vests in the person who created the entity a right to commercial exploitation of it. Holding: Court held that news is quasi-property. When another creates an imitated product. then it belongs to the owner If the item is unattached. was affirmed. the appellate court's order. (Cheney Bros.Common ownership has been shown to work well (see citations in pool) Economies of scale . (p. Because complainant's interest in the news it gathered was worthy of protection from interference by defendant. which enjoined defendant from taking or gainfully using any of complainant's news until its commercial value as news had passed away. 59) • any effort which creates an entity. ♥ International News Service v. • Rule: you own the fruits of your labor. territorily knit groups…. Case turns on considering the rights of the INS against AP. then it is not able to recover when the product is copied by others. Chanel. ♥Smith v. Others may imitate these at their pleasure. but were unable to. especially in west coast markets. the locus owner wins except for the true owner 4 . • GENERAL RULE: in the absence of some recognized right at common law. Holding: If a creator is unable to obtain a copyright or patent for a product.you put something down and forgot you put it there Lost. ♥ Cheney Brothers v.pool resources Private property also creates rich/poor…selfish interest Common works best with small. whether tangible or intangible.you didn’t mean to put it down If something is mislaid. Private prop solves resource conflicts… III.

acquires title superior to all but the rightful owner and may maintain an action against anyone but the rightful owner. 110) – Anderson assume two wrongful possessors 5 . Medina (p. Prior possessor prevails over the subsequent possessor in cases involving land and personal property. Holding: Misplaced goods are deemed to be in the bailment of the owner of the property on which they were left. A customer found it. Delamirie (p. although he doesn’t acquire absolute ownership. Delamirie. • Title or ownership is relative. ♥ McAvoy v.Court is expressing concern for the true owner . • Misplaced goods – items intentionally placed by the owner where they are found and then forgotten or left there • Rule seems to be here that the bailee ought to be the person located where the item was left so as to maximize the likelihood that the item will be “found” by its true owner • Common law Rules: o Finder of property acquires no rights in mislaid property o Finder is entitled to possession of lost property against everyone except the true owner o Finder is entitled to keep abandoned property Thoughts on Finders keepers… • One who has aquired possession of property has a right to retain that possession as against a mere wrongdoer who is a stranger to the property – any other rule would lead to an endless series of unlawful seizures and reprisals. Holding: The finder of an article is entitled to it against all but the rightful owner. The barber asserted ownership. Holding: The finder of lost property. (results in forced purchase). with real prop. Delamirie’s apprentice removed the stones and refused to return the jewel.to protect possession To society's benefit if true owner can get it --.most likely to return to true owner at the location it was left ♥Armory v. Delamirie was liable to Armory since it was his apprentice who took the stones. 111) Facts: Hannah found broach in Peel’s home. 108) Facts: Armory found a jewel and took it to the goldsmith. it is an action for damages = trespass • Replevin (personal) – w/ real prop it is action for possession = ejectment • Courts regularly prefer subsequent honest possessors over wrongful prior possessors ♥ Hannah v. (from Anderson. Hannah wanted to recover after police gave it to Peel. Peel (p. p. 118) Facts: Wallet was left in a barber shop. • Trover (personal prop) – common law action for money damages resulting from the defendant’s conversion to his own use of a chattel possessed or owned by someone else.

. driven by deepest instrincts of “man” If the time was short. minimizes likelihood that true owner will be found • See p. notorious. 119-125 V. open. to provide proof to meritorious titles. and maintains this state for statutory period. Holding: Title to a parcel may vest to an adverse possessor who occupies the parcel under claim of right. • Requirements for ap: actual. Lutz would travel across a triangular tract of land to reach his home. More certainty . protects the parcel by enclosure.e. In 1947. and to correct errors in conveyancing • Holmes: Something that you have used for certain time takes root in your being. courts sometime use it to prevent trespassers from gaining title • 6 . BUT this is DANGEROUS • State of mind is usually not relevant. juris.with short period Monitoring would have to be constant…cost If the time was long.grounded in statute of limitations • Ballentine: the purpose of ap is to quiet all titles which are openly and consistently asserted. decisions vary widely on adverse possession requirements • Seisin = possession of real property under claim of freehold estate • Powell: Adverse possession rests on social judgements. VV purchased the tract and demanded that Lutz vacate. especially given his successful claim for an easement by prescription. and for the statutory period.Acquisition by Adverse Possession • Statutory.. not to report it. improves or cultivates the parcel. then there becomes an incentive to “steal” stuff ---i.Where the prior possessor was wrongful and the subsequent one is honest. courts refer the latter – invoked to support honest claimants (Helmholtz) • IF finders are weepers. 129) Facts: Beginning in 1920. Lutz failed to show adverse possession though. such that neighbors and other observers would regard the occupant as a person exercising exclusive dominion. continuous. under a claim of right.. He built a shed and kept a garden on the tract. • Use of the property should resemble the way that an average true owner would use the property • General rule: The sort of entry and exclusive possession that will ripen into title by adverse possession is use of the property in the manner that an average true owner would use it under the circumstances. There would be lots of confusion Monitoring burden would be very low ♥ Van Valkenburgh v. adverse or hostile. Lutz (p. but sometimes rears its head… application varies.

Remanded on this issue. he appealed judgement giving title to Howard (who did have actual title. etc and the other neighbor changes his/her position based on reliance of the claim »Mannillo allows forced sale when innocent improver builds on land that is not rightfully his/hers. True owner has to have actually knowledge. although if minor. Kunto Facts: Kunto occupied land that was not the land that he possessed title to. relief can be denied Why treat intentional encroachers so harshly? • Market avoidance . Creates privity of estate between possessors. color of title o Claim – one way of expressing the requirement of hostility or claim of right on the part of an adverse possessor o Color – refers to a claim founded on a written instrument or judgement/decree that is for some reason defective or invalid (a few states require this for ap.small encroachments may not be open and apparent ♥ Howard v. 7 . • Tacking – when an adverse possessor adds her own period of possession to any period of adverse possession by predecessors in interest.• Claim v. even though under mistaken claim of title. transfers can be forced PROPERTY RULE: interest cannot be taken from the owner without consent. makes ap easier to win –create constructice possession) LIABILITY RULE: the interest can be taken without the owner’s consent but only upon the payment of judicially determined damages. (discards the knowing intentional hostility). All transfers are voluntary ♥ Mannillo v. No presumption of knowledge arises from a minor encroachment along a common boundary.value more than it is worth) • Don’t want people to avoid voluntary transactions (with forced transactions by the court) • In mannillo -. 147) Facts: Holding: Any entry and possession for the required period of time meets the requirements of ap. • Maine doctrine (doesn’t allow ap on mistake – rewards wrongdoer) has been rejected by most • Can resolve boundary disputes via o agreed boundaries – oral agreement on boundaries can be enforceable if accepted for a long time o acquiescence – long acquiescence (but shorter than the sol) can be evidence that establishes agreement between two parties on boundary o estoppel – when one neighbor makes a claim or improvement. but not possession) Holding” Sufficient privity of estate (via tacking) was established to result in ap as a matter of law. is sufficient to support claim of ap. Gorski (p.intentional encroacher is avoiding the market and hoping that the court will give it to him cheaper (consumer surplus -.

although disability has to exist when the cause of action accrued. facts which form the basis for a cause of action. should have discovered. Snyder (p. cant tack disabilities • No ap against the gov ♥ O’Keeffe v. 163) Facts: Snyder claimed that he acquired one of O’Keeffe’s paintings via ap Holding: Discovery rule says that a cause of action will not accrue until the injured party discovers.Disabilities:Most statutes grant more time if the owner is under a disability. or by exercise of reasonable diligence and intelligence. Snyder won because the court endorsed tacking • NY has rejected the discovery rule • 8 .

and life estate.Possessory Estates A. disabling – withholds from the grantee the power of transferring interest 2. promissory – the grantee promises not to transfer his/her interest (enforceable with K rememdies or injunction) 9 . perpetuate concentration of wealth 3. 218 on this) • Issue. discourage improvements on land 4. Fee simple • Can last forever. Today. then it reverts to the grantor and the grantors heirs by reversion • Fee tail currently only exists in NE (see p.descendants of someone --on the exam Heirs and issue are not the same Can have heirs without issue B.Section II: The System of Estates (Chapters 3-6) Freehold estates – includes fee simple. real property descends to his/her heirs. it is forfeited to another person 3. then collaterals • Collaterals – persons related by blood to the decedent who are neither descendents nor ancestors • If no next of kin. parents. defines the legal relations between persons with respect to a thing • Created by the words “and his heirs” (words of limitation) (to A = words of purchase) • If person dies intestate. It descends to A’s lineal descendants generation after generation ntil original tenant and all descendants are dead. not personal property • Estate = a bundle of rights. forfeiture restraint – if the grantee attempts to transfer his/her interest. only in land. then real property escheats to the state where the property is located • Fee tail – an estate in land created by a conveyance “to A and the heirs of his body”. prevent owner’s creditors from reaching the proprety ►Three types of restraints on alienation: 1. fee tail. spouses usually share some of the land. absolute ownership. If no issue. Life Estate • Every life estate is followed by a future interest (either reversion or remainder) • Pur autre vie – estate that is measured by someone else’s life • Two consequences of life estate: o Grantor of a life estate could control who takes the property at the life tenant’s death o Trust management developed (most life estates are held in trust) ►Four reasons restraints on alienation are bad: 1. make property unmarketable 2. significance is that freeholder has seisin (part possession w/part consequences) I.

Leasehold Estates ● no seisin (L keeps it). Application depends on nature of the property interests of competing parties. liable for negligence -life tenants can usually make alterations or demolish a structure (if conditions change) so long as the value of the remainder is not diminished. “during the continuance of”. 302) • Summary: no interest is good unless it must vest.Four differences between contingent and vested remainders: 1.»law of waste – tries to prevent uses of property that fail to maximize the property’s value. “that when the premises. “provided”. affirmative waste – arising from voluntary acts. the conduct in question. not later than 21 years after some life in being at the creation of the interest.vested remainders accelerate possession whenever the preceding estate ends 2.vested remainders are absolutely transferable. “until” o future interest is retained by the transferor: possibility of reverter ● fee simple subject to condition subsequent – doesn’t automatically terminate but may be cut short or divested at the transferor’s election when a stated condition happens o future interest in transferor= right of re-entry (power of termination) words: “but if”. permissive waste – arising from failure to act. and the remedy sought 1..contingent remainders were destroyed if they did not vest upon termination of the preceding estate. • Strikes down contingent interests that vest too remotely • Rule of logical proof – you must prove that a contingent interest is certain to vest or terminate no later than 21 years after the death of some person alive at the creation of the interest. If not. vested remainders are not *** RULE AGAINST PERPETUITIES (p. the penalty would be damages or injunction III. • Person whose life is used to measure is called validating or measuring life 10 . Long life expectancy of life tenant makes this even more likely. land may be forfeited to the holder of future interest whereas if a covenant is breached. “while used for”.Future estates (see summary) . “however”. “on the condition that if the premises…” a note: difference b/t convenant and condition – if condition is breached. classified as personal prop ● fee simple defeasible – limited that it will automatically end when a stated event happens o words used to indicate: “so long as”. at times (and in some states) contingent remainders are not 3.contingent remainders are subject to RAP.”. vested remainders were not destructible in this way 4. contingent interest is void. liability results from injurious acts with more than trivial fx 2. II. if at all.

limited wealth concentration in a few. see SIMES) ■ Simes makes arguments against keeping RAP (p. then to A’s first child to reach 21.◊ O transfers a sum in trust for A for life. 335) WAIT AND SEE DOCTINRE • Advocated by Leach at Harvard – says that we should wait and see whether a contingent interest actually vests within the perpetuities period • Less certainty then the rigid application of RAP. ■ class gifts must stand or fall as a unit. RAP has fallen into disfavor • Most states have adopted wait and see…two versions: o A contingent interest is valid if it actually vests within the common law perpetuities period o USRAP. balancing interests between generations (if this question.prop is not made unproductive any more in the US or Engliand (changes in capital invest. unless married (then default is tenancy by the entirety) 2. possession – right of possession of whole 11 . FOUR UNITIES ARE NECESSARY: 1. title. surviving tenant/s get it all and decedent’s interest is extinguished. When jt tenant dies. • DEFAULT by the courts. but if it ceases to use Blackacre for school purposes to A and her heirs” – A’s executory interest violates RAP – School Board would have fee simple absolute.have separate. otherwise violates RAP – a class gift is not vested in any member of the class until the interests of all members have vested ■ most trusts creating future interests include a perpetuities savings clause – terminates the trust and distributes the assets at the expiration of the meansuring life plus 21 ■ goal of RAP was to increase alienability. undivided shares and identical interests measured by duration 4. time – must be acquired or vested at the same time 2. Tenants in common. socially undesirable for some members of society to have assured incomes.provides a 90 year absolute wait and see period – donor can comply with either common law RAP OR with 90 year wait and see (26 states) IV. Joint tenants – have the right of survivorship and are regarded as a single owner. interest. nothing passes. undivided interest in property. Each tenant owns an undivided share of the whole. limit the power of the dead hand (prop would otherwise be unproductive and society gets less income). (A = measuring life.acquire title by the same instrument or joint adverse possession (no intestate or law way to create this) 3.Co-ownership Three types of concurrent ownership: 1. 331) . trust construction mean that it is alienable and/or made productive -trustees are bound to reasonable care ■ Interesting tax laws ---changing (p. will vest within 21 years of A’s death since any of A’s children will be 21) ◊ O conveys Blackacre “to the School Board.all must have equal. The interest is descendible and may be conveyed either via deed or will.

The attorney prepared a grant deed where Mrs. and Mrs. 350) Facts: Brothers Harms took title to estate as joint tenants.not just the cost/benefits. Brother gets the property CONCURRENT OWNERSHIP Remember: each tenant owns an equal interest in all of the fee and each has an equal right to possession of the whole. • Ineff property use? Maybe it is necessary to have rules that arent • • necessarily good for co-owners to weed them out Promote low transaction cost/efficient outcomes Should also consider the fairness -. Riddle purchased an estate as joint tenants. Harmon (p.■ advantages – avoid probate via rt of survivorship (no interest passes). (2) the mortgage did not survive as a lien on surviving joint tenant's property. but how they are distributed O to A + B for their joint lives as joint tenants o Not a joint tenancy o For joint lives means while both lives exist o A + B are tenants in common o O has a reversion in fee simple absolute O conveys an undivided half to A for A's life and an undivided half to B for B's life as joint tenants o No unity of interest o Tenants in common 12 . Neither husband nor wife has the ability to judicially partition property. Mrs. Sprague (p. Holding: The Supreme Court held that: (1) mortgage given by one joint tenant of his interest in the property did not sever joint tenancy. creditors cant seize 3. One brother. etc) • Uniform Simultaneous Death act – one half of the property is distributed as if A survived and one half as if B survived (if jt tenants dies together) • Murder also severs jt tenancy – killer loses rt of survivorship ♥ Harms v. John. Holding: One joint tenant may unilaterally sever the joint tenancy without the use of an intermediary device (disposed of the ridiculous requirement that you use a straw. 345) Facts: Mr. mortgaged his for Simmons. Riddle granted to herself an undivided one-half interest in the property. Divorce terminates the tenancy by the entirety bc it destroys the fifth unity. and (3) surviving tenant's right of survivorship became operative upon death of joint tenant who had given mortgage and. John died and left his estate to Simmons. as such. Riddle tried to terminate her joint tenancy months before her death to prevent her husband from acquiring it. Tenancy by the entirety – requires marriage (FIFTH UNITY). seised by the entirety ■ cant be unilaterally destroyed (riddle case) ♥ Riddle v. surviving tenant became sole owner of estate in its entirety.

■ Despite preference for partition in kind. D wants in-kind partition. Holding: General rule is that the act of one joint tenant without express or implied authority from or the consent of his cotenant cannot bind or prejudicially affect the rights of the latter BUT the lease in question was valid and could not be cancelled by the wife. Partitions by sale should only be order when: (1) physical attributes of the land make partition in-kind impractical or inequitable (2) interest of the wieners would be better promoted by sale Court reversed sale by trial court and ordered partition in kind. Mackereth (p. 369) Facts: P and D owned a building in Tusculoosa as tenants in common. and an attorney has a fiduciary duty to a client. ♥ Spiller v. Unless the one in actual possession denies the other right to enter or agrees to pay rent. where claim of ap by the co-tenant in exclus possession arises FYI: FIDUCIARY DUTY . a trustee has a fiduciary duty to the trust's beneficiaries. I do not have to account What if it is a minority jurisdiction? • Pay the tenant out of possession half the fair rental value • If the lease says that you are only renting your part. then you don’t have to share the rent with the other cotenant • No bedrock principle SHARING BENEFITS – have to have property rules for determining how benefits/burdens of ownership are distributed amongst owners. D wrote a letter demanding that P either vacate half the building or pay half of rental value. Vealencis (p. P is trying to cancel leases made by husband. 359) Facts: P and D own real property in CT. but there is no guarantee If I am an exclusive cotenant in possession. 13 . Sampson (p. • • When there is a motion for partition and one of the tenants has improved or leased part of the property. ■ Ouster must be established before rent is required. Duty is imposed in two situations: 1. For instance. D occupies dwelling and runs garbarage business. Holding: Each tenant in common has an equal right to occupy. the courts will try to give that individual that portion. Ouster can include: • beginning of the running of the statute of limitations for ap • liability of an occupying co-tenant for rent to other tenants ■ co-tenants are not fiduciaries with each other. a corporation's board member has a fiduciary duty to the shareholders. ♥ Swartzbaugh v. 373) Facts: P and D are husband and wife. sale is great majority of cases. where co-tenant buys in concurrently owned property at mortgage foreclosure or tax sale and claims against other co-tenants 2. Fid. P entered and began using as a warehouse. nothing can be claimed from such occupation.PARTITION – when a co-owner (or both) transforms a concurrent estate into estates held in severalty ♥ Delfino v. Holding:Court favors in-kind partition over sale. P wants to develop the property upon partition.An obligation to act in the best interest of another party.

Term of Years: fixed period of time or for a period computable by a formula that results in a fixed period. L to T as long as L wills • Not a tenancy at will • Doesn’t meet the definition • Many courts will still observe this L to L as long as T wills • Not a tenancy at will -. but not more than 6 mos. unless T has been in sole possession of the property • profits realized from using prop for bus purpose • necessary repairs – no aff rt to demand payment from other co-tenants unless prior agree (bc no • value realized by one or more of the certainty on what is actually necess/just as co-tenants occupying the property expenditure – protects co-tenants). No notice of termination is necess. she could pursue the remedies of an ousted cotenant a. Periodic Tenancy: some fixed duration that continues for succeeding periods unless L or T gives notice of termination.term of years 14 . may be basis as a residence for incr in partition • improvements – no rt to contrib. If lessee refused. she could recover from the lessee one half of the reasonable rental value of the leased land (recovery of mesne profits) 3.doesn’t meet the definition • Life estate terminable • Need livery of seisin O to T for 50 years . no credit for cost of improve in partition. from other co-tenants. Swartzbaugh: 1. but can recover added value if sold. LANDLORD-TENANT ESTATES Leasehold estate can be: 1. • Common law says 6 mos notice necessary for yr to yr.■ The remedies for Mrs. 2. Ends when one party terminates it. • Death – has no impact (does on tenancy at will) 3. Partition: she would have brought an action to partition. Accounting: she could sue her husband for acting of the rents he received ACCOUNTING – equitable proceeding Benefits Burdens rd • rents realized from leases to 3 • taxes. and other carrying parties – must account for these on charges – right to contribution from other actual receipts parties for their share. Ouster: she could have tried to enter into possession. generally improver bears the risk V. Autonomatically extended. for less than a year. mortgage payments. Death of one of the parties terminates. 2.term of years O to T for a week . notice must be equal to the period. Tenancy at Will – no fixed period that endures so long as both L and T desire.

When Donovan died.term of years O has a reversion in fee simple absolute O to T for I year. then to B . 451) Facts: Smith leased from Crechale. Smith (p. he in effect agrees to extension of the lease on a month to month basis. Tenancy at Sufferance (holdover) – when T remains in possession after termination of the tenancy. although Crechale told him he couldn’t and refused to accept check. Issue: whether a lease which grants the T the rt to terminate creates a determinable life tenancy of the T or establishes a tenancy at will. L can do two things: • Eviction (and damages) • Consent (express or implied) to the creation of new tenancy ♥ Crechale & Polles v. O to T as long as T wills Court says life estate terminable at the will of the tenant O in fee simple absolute Court turned a landlord-tenant estate into a freehold 4. O has nothing ♥ Garner v. Holding: Crechale was not entitled to a new term of the lease bc Crechale wrote to Smith denying their agreement and demanding he vacate the premises. Gerrish (p.term of years indeterminable O to T for 1 year . 447) Facts: Donovan leased house to Gerrish for as long as Gerrish wanted. Smith was a holdover. but fails to pursue ejectment.O to T for 50 years if O lives so long . ■ most juris think that holding over results in periodic tenancy 15 . The general rule the court held was that once L decides to treat as trespasser and refuses to extend lease on month-to-month basis. Eventually he did and said he considered Smith’s occupation of the premises to be a renewal of the 5 year lease. Holding: The lease expressly provides Gerrish with a life tenancy terminable at the will of the T. Garner.B has a vested remainder in fee simple absolute. and accepts checks. tried to have Gerrish evicted. exec of D’s estate.

and handicap have been added to protected classes • CR Act of 1866 was really beginning – right to rent. ♥ Kendall v. Privity of estate – terminated under assign between L and T. 482) Facts: After Ernst leased property to Rodgers. priv clubs. familial status. Kendall won – Ernest unreasonably withheld consent. Hannan’s remedy against former tenant (recovery of possession and damges). • Statute of Frauds – all leases of more than one year must be in writing. a leassor may not arbitrarily withhold consent to an assignment. most permit oral leases for a term less than a year I.Section III: LEASE • is both a conveyance and a contract. DUTY TO MITIGATE DAMAGES. Remains between T and L for sublease. rooms in small dwellings). original T has a reversion. single family houses sold/rented by owner. 16 . Selection of Tenants • FHA (1968) partially exempts some groups (religious. Landlord's duty to deliver legal right to possession 2. Holding: Absent contractual language. With a sublease. • Social policy aimed at increasing alienability of prop (leaseholds). sell. The agreement between Rodgers and Conditt was an assignment (no rt of reentry) • • • Privity of K – remains when assignment is made between original L and T. Ernest Pestana Inc. Landlord's duty to deliver actual possession ♥ Ernst v. etc • Under FHA. Conditt (p. only need to show disparate impact. sex. not disparate treatment • Occupancy restriction may be justifiable to maintain ec value of prop • Defendants who prevail in housing discrim are entitled to attorney’s fees ♥ Hannan v. Remains b/t T and L for sublease. 496) Facts:Pestana withheld (arbitrarily) permission for Kendall to sublet. who assigned his lease to Conditt. 478) Facts: Hannan claims that Dusch failed to deliver possession of leased prop. (p. • English rule was that there is a implied convenant for delivery – case law is still divided Two implied obligations 1. buy. Between T and T1. Holding:A L does not covenant against the wrongful acts of others and is not responsible for the tortuous acts of third parties unless contracted to do so. Ernst sought damages from Conditt for past due rent and removal of improvements Holding: Transfer of entirety of leasee’s term is an assignment. although leassor has a reversionary interest in the property and is entitled to minimize risk of irresponsibility. Transfer of less than full term is sublease. Dusch (p.

Majority rule: consent may be withheld only where the lesor has a commericially reasonable objection to the assignment. and sensibility are not reasonable Arguments for the majority rule: 1. Some states have invalidated as a self-help remedy bc violates DP clause. 509) 17 . leases as a K – implied convenant – duty to exercise discretionary power responsibly Factors for good faith and reasonableness: • financial resp of assignee • suitability of the use • legality of the use • need for alteration of the premises • nature of the occupancy -personal tast. DEFAULTING TENANTS ♥ Berg v. L is under no obligation to anyone by the T for rent Answer: duty to mitigate damages 2. Kridel (p. Wiley (p. approval clause is unambiguous reservation of absolute discretion in assignments – law shouldn’t re-write the K Answer: untenable 3. Holding: Berg did not abandon or surrender premises. doctrine of stare decisis Answer: not universal 4. ■Self Help • Every state provides some sort of summary proceedings – quick effeectice means to recover possession and rent • They are often difficult and time-consuming though ♥ Sommer v. Lockout was wrongful as a matter of law because Wiley did not use judicial remedies. L has a right to realize the increased value of his property Answer: no right to more than was bargained for ■ absolute prohibition of transfer could be upheld ■ termination and recapture – commercial lease – allows L to terminate with T if T1 will give L a better deal. ■ residential leases may be treated differently bc of the immed need for housing + bargaining power differences ■distraint or distress for rent – when an L can seize a defaulting T’s property foun don the premises and retain until rent is paid. Minority rule (Restate): a restraing on alienation is valid. although the L’s consent to an alienation by the T cannot be withheld unreasonably Arguments in against majority rule: 1. convenience. leases as conveyances 2. L can enter into new lease with T1. 498) Facts: Wiley locked Berg out of premises when Berg delayed making improvements to meet health code requirements. so the lock out was not justified.

If L accepts. 18 . 522) Facts: Cooper has been sued for back rent. Court held that abandoned premises must be treated as vacant stock and L must make same effort to lease as other stock. Cooper (p. esp at the end of the lease term bc the cost will soon shift to L Disputes may arise in two ways between L and T: 1. Act of omission can constitute a breach and result in CE. Factors to be considered: • Whether L has offered to show apt • Whether availability was advertised Sommer held the apt to purposefully increase damages. or having a liquidated damages clause Duties. Cooper was not liable. and Remedies Moral hazard – tendency of an insured to relax his/her efforts to prevent the occurrence of risk (bc his risk has been shifted to the insurance company) • L has incentive to neglect repairs once prop is leased bc cost of neglect is born by T • T may neglect maintenance.Facts: Kridel. bonuses in the execution of the lease. and it is breached substantially by L. ■ duty to mitigate is now the majority rule L’s remedies • L can sure for back rent and damages due to T’s breach • If T is in possession. T may be injured and claim damages against L in tort Covenant of Quiet Enjoyment ♥ Reste Realty Corp v. but claims constructive eviction bc of flooding of premises. • If breach is substantial. Holding: Covenant of quiet enjoyment is implied in a lease. T wants to vacate or stay and pay less/no rent 2. T may abandon. designating payment in advance. but not for past rent or other breaches of covenants. Here. there was a breach of the CQE. Rights. Kridel was not liable for these since he could have released immed. the L may also terminate lease and recover possession • Anticipatory breach (some juris allow by statute) • Security devices (in the selection of tenants) o Security deposits o Others – considerations. constructive eviction is remedy for T. Burden of proof falls on the L to show such an effort. vacated apt before the end of the lease term. Terminates the lease if the L accepts. then extinguishes lessee liability for future rent. Holding: L has an obligation to make a reasonable effort to mitigate damages when T defaults on a lease including making reasonable effort to release the apt. ■ other reasons for duty of mitigation: abandonment of property can lead to vandalism ■ surrender: connotes a T’s offer to end the tenancy. T. When such a convenant exists.

549) Facts: Challenge to the constitionality of the LT Ordinance Holding: Court held that the ordinance was ok. standard damages are avail as well as tort damages. Peter was given notice but did not do anything. Peter. Illegal lease doctrine (Brown . Middle class is helped. most juris would still require T to pay rent (see p. ag leases. recission. Lots of stuff went wrong in apt. • Most American economists think rent control is c/productive • Downs – two conditions necessary for rent control to work Demand for units has to increase sharply New construction has to be restricted 19 . City of Chicago (p. In an illegal lease. 548) Affordable Housing ♥ Chicago Board of Realtors v. long term) • Most have not extended to commericial leases • T remedies (grounded in K law) – damages. St. A rented dwelling which is not habitable amounds to breach of K. Peter (p. Hilder paid rent. but then brought suit to recover damages (rental $). 533) Facts:Hilder leased an apt from St. • Some juris have not recognized IWH • Doesn’t apply to all residential leases (single-family residences. T should be able to stay in possess and sure for damages. 544-45) – most juris do not imporse strict liability or general duty of care. it doesn’t apply if code violations develop AFTER the lease. T can withhold rent and stave off L’s action to evict Implied Warranty of Habitibility – objective is safe and healthy housing ♥ Hilder v. Posner’s argument is that these protections don’t increase welfare. Waste: T’s duty not to commit waste is breached if T makes such a change as to affect a vital and substantial portion of the premises. and reformation (although they vary from juris to juris) • Can be raised at summary eviction proceedings • Some states have repair and deduct statutes • Retaliatory eviction is prohibited by statute • Tort liability varies (p.• • • Evicition isn’t necessary to complete breach. they attempt to legislate class – only result in increased rent and less housing for the disadvantaged they purport to help. T under illegal lease is T at sufferance and L is entitled to reasonable rental value of premises. Minor violations don’t count. St. (can be either vol or permissive) • Modern view – implied duty to repair lies with L since L is in the best position to do so • If building is destroyed. Holding: Implied Warranty of Habitibility exists in residential leases. nor do violations in which the L didn’t have actual or constructive notice. Southall Realty) – when lease is made of premises violating the housing code.

• Radin argues that current tenants benefit the most from rent control 20 .

Reversion is thought of as the remnant of an estate that has not entirely passed away from the transferor. ◊ O conveys Blackacre to A for life. Reversion – the interest left when an owner conveys a lesser estate than his/her own and does not provide who takes the estate when the determinable estate ends. Doesn’t have to be certain. ◊ O conveys Whiteacre to library but if it ceaseas to use the land for library purposes. cannot follow a vested fee simple (see CH below) a.not subject to a condition precedent (other than the natural termination of the prior estate) ■ can be vest subject to open or vested subject to partial divestment if a class is not closed ◊ O conveys to A for life. b.given to an ascertained person 2. Created in a transferor or his/her heirs when a fee simple determinable is created. ◊ O conveys Whiteacre to A for life. Remainder – a future interest that is capable of becoming possessory at the termination of the prior estate. Right of Entry – when an owner transfers an estate subject to condition subsequent and retains the power to cut short or terminate the estate. presently existing interest that may become possessory in the future In the transferor: 1. but can be transferred back to the grantor 1. two conditions: 1. ■ in most states. two conditions (only one need be met): 1.the interest left when an owner conveys a determinable estate of the same quantum as his/her own. Possibility of Reverter. then to B and her heirs if B survives A. possibility of reverter and rt of entry are transferable inter vivos. where the transferor has decided at the outset who will take the property. ■ some states do maintain that the interests are not transferable except to the owner of the possessory fee (release) ■ some states say that reverter is transferable but entry is not In the transferee: ►cannot be retained by transferor.Contingent – where the transferor decides to let future events determine who will take the prop. then to B and her heirs. Transferable during life and descendible/devisable at death. O has right to reenter. given to unascertained person OR 21 . only possible. 3.Vested – courts favor. (NO possibility of reversion!!!) ◊ O conveys Blackacre to library so long as used for library purposes. 2.►gives legal rights to its owner.

a. (CH has EI) • No remainder after a fee simple (called exec interest) 22 . made contingent on some event occurring other than the natural termination of the preceding estates. (B has a vested remainder in fee simple absolute) 2. then to B and her heirs. indefeasibly vested. Executory Interest – a future interest in a transferee that can take effect only by divesting another interest. Shifting – divests or cuts short some interest in another transferee b.the remainder is certain of become possessory in the future and cannot be divested ◊ O conveys to A for life.2. c. then to A’s eldest son and his heirs. then to Children’s Hospital. ◊ O conveys to A for life. Springing – divest the transferor in the future ■ courts default to exec interest when they are forced to choose ◊ O conveys to library so long as the premises are used for library purposes.

imposed by inferring that parties intended the result. easement by estoppel – when L voluntarily imposes servitude on his/her property and the other person. continuous. Uninterrupted use needs to be the same period of time as required for adverse possession • generally same requirements as adverse possess. for a life. Two basic situations: 1. easement by prescription – acquisition of an easement via longcontinued enjoyment. under claim of right. Creation of an easement – can be for a duration of time. implied easement. when the claimed easement is necessary for the enjoyment of the claimant’s land: this is known as …see Othen 23 . easement by implication – created when purchaser could reasonably have expected that the benefit of the easement were included in the sale (where the other parcel had been used for the benefit of the other parcel prior to the sale) 2. if made with permission. believes that the servitude is permanent and in reliance on servitude does something (or refrains from doing something) that he/she would have not done otherwise 4. some exclus (others can use.Section IV: Land Use Regulation – Servitudes (Chapter 10) Easements and their creation Servitudes – two major types. 813) – owner of land is presumed to consent to use. or in fee simple • within Statute of Frauds: requires written instrument signed by the party to be bound • if dominant and servient tenement come into the same ownership. restricted to personal usage (and that of predecessors). easements example: A is given the right to enter upon B’s land A. two minor types: I. must show that use was not permissive. the easement is extinguished altogether! • may also be created by… 1. acting reasonably. although it was not explicitly expressed. apparent/continuous use of a portion of the tract existing when the tract was divided (easement implied from a prior existing use) 2. 815) – like lgt 3. but owner acquiesced • some courts use implied theory of dedication (p. To obtain an easement by prescription. not adverse. – open/notorious. adverse. but cant rely on their use to demonstrate easement) • lost grant theory (mostly dead) (p.

• • easement by necessity – where easement is indispensable to the enjoyment of the dominant estate endures as long as necessary B. First Church of Christ Scientist (p. easements can be… o appurtenant – for the benefit of adjoining lands.in escrow in fsa (2) Peterson sends in escrow easement to church ►Court says that need to balance equitable and policy considerations in looking at old common law. Want to avoid inequitable result bc reduced price is paid for title to encumbered property. Rejected feudal forms of conveyancing. see van sandt  example: obligation to fix a fence on land between two properties  when owner uses part of his/her land to benefit another  when owner conveys quasi-dominant tenement. • whether the claimant is the grantor or ee • terms of the conveyance • consideration given • necessity of easement to property • knowledge of the parties at the time of the conveyance ♥ Willard v. equitable servitudes – enforceable in equity III. Reservation is treated as a “regrant” ►How could McGuigan have avoided this problem? Second way: (1) McG to church (2) Church to Petersen with easement Third way: (1)McG to Petersen . jurisdictions vary on this issue covenants a. real covenants – enforceable at law b. regardless of owner (runs with the land) o in gross – for the benefit of a specific individual o affirmative – gives the dominant owner the right to enter or perform an act on the servient land o negative – forbidding one owner from doing something on his/her land that might harm a neighbor (prohibits action) o quasi-easement – legal fiction. profits example: A is given the right to enter upon B’s land and remove something attached to the land. 24 . Court’s objective is to give effect to the intent of the grantor. 785) Holding: An easement can be reserved in favor of a third party. II.. an implied easement can be determined to exist – courts consider factors such as .

824) 25 . Parties to a conveyance will be assumed to know and contemplate continuance of reasonably necessary uses which have altered the premises which are apparent upon reasonably prudent investigation. not a mere convenience • the necessity existed at the time of severance of the two estates In this case. Easements must be expressed as a written instrument. 790) • very common • revocable (easement is not) – two exceptions o license coupled with an interest o become irrevocable under rules of estoppel ♥Holbrook v. 794) Holding: “An oral license promptly acted upon in the manner the plaintiffs acted is just as valid. and irrevocable as a deeded right of way” ♥Henry v. Dalton (p. Taylor (p791) Holding: A right to use a roadway over the lands of another may be established by estoppel. He had a license. which could not become a right (easement). binding. Royster (p. 796) Holding: Implied easements will be determined based on the intentions of parties drawn from the circumstances under which the conveyance was made. court found that original owner did not reserve easement and roadway was a mere convenience. licenses – oral or written permission given by the occupant of land allowing the licensee to do some act that would otherwise be trespass (p. Lutheran CCA (p. Conflict over the degree of necessity necessary. 794) Holding: Court denied plaintiffs irrevocable license to use the driveway to their garage. easements appurtenant run with the land. Rosier (p. No easement by prescription bc Othen’s use was not under claim of right. license may be granted in the same way and become irrevocable ♥Shepard v. Purvine (p. • Some states have enacted statutes to prevent landlocked property. ♥Othen v. Some states allow condemnation and payment (p. 811) Gov doesn’t get easement by necessity due to eminent domain power Assignability of Easements (Scope) • Generally. 802) Holding: Implied easement of necessity must show: • previous unity of ownership of the lands in question • that the easement (in this case roadway) was a necessity. easements in gross may not be assignable (can be tho if parties intend) o Most recent cases permit assignability of easements in gross except recreational – based on the idea that they are personal and ct doesn’t want to extend beyond the original contemplation of the parties o Restatement says that eig can be divided unless contrary to the intent of the parties creating the easement or if the division increases burden on servient estate ♥Miller v.-within Statute of Frauds (see above) IV. ♥Van Sandt v.

ALTHOUGH the privity requirement does seem to persist in some states • eliminates distinction between hor/ver • draw aff/neg distinction – neg are treated like easements (all subsequent owners and possessor are burdened/benefited) 26 . • Demonstrates the judicial interp of the law of easements • Scope of a prescriptive easement is more narrow than one created by grant. and necessity • Location of the easement cannot be changed by servient owner without permission of dominant owner Convenants and Equitable Servitudes I.Holding: Estate of Rufus did not have right to grant license to CCA (see detailed holding on p. 862) »Restatement (Third) says that horizontal privity is not required for a covenant to run at law to successors. Vertical – privity of estate between one of the convenanting parties and a successor in interest. but not otherwise (p. signed by the covenantor • Satisfy Statute of Frauds – no creation via estoppel. implication. 861) a. extension to other parcels of land is a misuse unless the new use doesn’t overburden the easement. 833) Holding: If an easement appurtenant is granted to a particular parcel of land. horizontal – privity of estate between the original convenanting parties »courts didn’t hold that privity of estate is limited to L-T rels. This allows enforcement of a convenant against successors when the convenant is created w/ the transfer of some other interest in land. or prescription • American courts created a promise respecting the use of land that runs with the land. No greater use resulted from Brown’s acquisition. Plaintiffs had misuse the easement. Lake Naomi is an artifical lake • Aside: riparian owners: abutting owners of a natural lake would have reasonable use of the surface waters ♥ Brown v. required for a convenant to run at law b. implication. so the injunction was corrected denied. Voss (p.Frank and Rufus’s executor must use the lask as one person (either can veto). property right that is enforceable between subsequent purchasers • Bargaining between neighbors can minimize harmful impacts (external costs) • Can be affirmative (promise to do something) or negative (promise not to do something) • NOT enforceable against an assignee who has no notice • Remedy = damages • DOES NOT run with the land. 830) Ct used the “one stock” rule --. it runs with the estate in land – doesn’t run to an adverse possessor • K right is usually not sufficient • Prompted by refusal of courts to uphold negative easements Privity of estate (p.Real Convenants • Must be created by written instrument.

in equity. 870) Holding: McLean’s lots are subject to reciprocal negative easement since the other lots around his were divided and sold with such a restriction (residential uses only). • 27 . Instead.aff convenants run to persons who succeed the estates of the same duration. Holding: A restrictive covenant is enforceable so long as its provisions remain of substantial value (still a benefit to enforcement) • Some states have limited length of restrictive covenants via statute ♥ Rick v.just describes as covenants running with the land and allows the court to determine what remedy is appropriate ♥Sanborn v. Enforcement of a covenant pertaining to the benefit (or burden) of land will operate outside the restrictions of privity of contract. never retroactive) Some states take an even more restrictive view III. 916) Holding: Courts will not balance equities in respect to upholding restrictive covenants. 911) Facts: Western Land wanted to build a shopping center with a restrictive covenant near Truskolaski. courts will uphold restrictive convenants unless there is a substantial change of conditions in the neighborhood (ct enforced the covenant against hospital. 864) Holding: a person who acquires real property with notice of a restriction placed upon it will not be allowed. also run to adverse possessors II. West (p. 917. to violate its terms. Equitable principles will usually apply. Moxhay (p. McLean had constructive knowledge of the easement at the time of purchase – court says “inquiry” notice • Reciprocal negative easements must begin with common owners. Truskolaski (p. Termination of convenants ♥ Western Land Co.now permits courts to modify or terminate servitude if conditions do in fact change. in favor of west) • Restatement (Third) p. v. • Affirmative obligations have been enforced in the US as equitable servitudes • Equitable servitude – convenant respecting the use of land enforceable against successor owners or possessors in equity regardless of its enforcibility at law – parties have to intend for promise to run – subsequent owners are bound by an easement • Equitable servitude starts as a promise and turns into an interest in land over time (prop theory arising out of a K --. Equitable Servitudes • interest in land • may be implied in equity in some circumstances • cannot be obtained by prescription ♥ Tulk v. McLean (p.some K doctrines are applicable) • Remedy for breach is an injunction or enforcement of a lien »Restatement dropped the distinction between real covenant and equitable servitude. (no fastening with general plan.

and common areas are owned by unit landowners as tenants in common (tics) • All privity requirements are met (both horizontal and veritical) ♥Nahrstedt v. 947) • 28 .Courts can enforce a restrictive convenant via either injunction or breach (Mass says only damages) IV. Individual owners give up a lot of their choice when they enter the community. Lakeside Village Condominium (p. hallways. Courts make determinations about reasonableness not based on individual unit owner’s situations. Direct restraints are upheld if they are reasonable. exterior walls. Indirect restraints are only subject to rational justification test. land beneath. »reasonableness requires balancing the utility of the purpose served by the restraint against the harm likely to flow from its enforcement »Egan observes that gated communities create income segregation (p. incr predict and stability o Upholds social fabric o Prevents unpredict incr in assoc fees due to legal challenge • Violates public policy »Restatement differentiates between direct and indirect restraints on alienation. 925) • Increasing popular – usually an hoa which enforces servitudes and may adopt new regulatiosn • Each condo is owned separately in fee simple. but in reference to the common interest development as a whole. 927) Holding: Courts should leave enforcement of convenants and restrictions to hoa unless constitutional principles are at stake. Why? • Court enforcement burdens the land more than it benefits o Decreases lawsuits.Common Interest Communities (p.

Westwood Zoning Board of Adjustment (p. inhibit diversity ♥ Commons v. 985) Facts: Westwood refused variance bc the proposed house would hurt the ec/aesthetic qualities of the neighborhood and no undue hardship would be imposed. • Vested rights – pre-exisint operation is protected.local gov statements of objectives and standards – requirement is usually that zoning is part of a plan (not just random) ♥ PA Northwestern Distributors v. Ordinance was held to be unconstitutional. Holding: A zoning ordinance that stops a lawful preexisting use is confiscatory and violatice of the state constitution and is also a taking of proprety without just compensation. safety. Holding: A zoning ordinance (an exercise of police power) will only be declared unconstitutional where its provisions are • Arbitrary and unreasonable • Have no relation to health.V. morals. comprehensive plan . enabling legis – states have universally delegated zoning authority to local govs 2. • Most states just require a reasonable amount of time to conform. P was given 90 days to comply or shut down. the (prop) right may be terminated. maintain social segregation ■ zoning is now part of virtually all metro areas in the US. and the character of the surrounding neighborhoods. if nonconforming use is discontinued or terminated. 960) Facts: Euclid zoned Ambler’s property so as to reduce its potential value. SC did leave room to say that spec provisions could be held to be unreason Structure underlying zoning authority 1. the number of improvements. • Factors that are considered in whether amortization period is reason – nature of use. 974) Facts: 3 weeks after P opened adult bookstore. don’t consider it a taking. Ambler Realty (p. plans are generally not (depends) • Estoppel can be applied when developers reasonably rely on the issuance of a permit and make substantial inevestment Zoning can: create inequitable hardships. Holding: Court remanded but said that the board did not consider the efforts to abide by the zoning ordinance. Zoning Hearing Board (p. Land-Use Regulation: Zoning ♥ Village of Euclid v. etc… 29 . the public detriment. amount invested in it. or general welfare ■ this case made zoning ordinances valid as exercises of police power ■ zoning is often manipulated to protect vested interest in a commun. local gov adopted an ordinance restricting locations for such stores. promote ineff land use.

• VARIANCES RUN WITH THE LAND. Stoyanoff v. Invalid in these situations: o Small parcel given special treatment o Not in public interest. Board may not condition a variance upon the use of the prop by the original owners. but for the benefit of a specific landowner o Not in accord with comprehensive plan ■ Courts have rejected deferential standard (rat basis) and increased judicial review ■ conditional rezoning – the prop owner aggress unilaterally to use the land in the specified manner ■ K rezoning – a bilateral agreement between owner and the zoning authority ■ some states allow these (not all) ■ floating zone and cluster zoning increase flex. (see p. Granted in cases of unique ind hardship (strict application of ordinance would be unconstit) • Special exception – use permitted by the ordinance in a district which is not necessarily incompatible. 994) Facts: Cope sought a variance for apt building construction. • Variance – administratively authorized departure from zoning ordinance. Berkley Facts: Berkley wanted to build a house in LaDue against the approval of the architectural board bc it didn’t conform to the standards of the neighborhood • 30 . Holding: Local board cannot legis. City of Rochester Facts: P’s prop was rezoned.In variances. Holding: The zoning ordinance was a valid exercise of the municipality’s delegated legis power • Close judicial scrutiny – Rochester would have the burden of showing that it was a valid exercise of police power (presumption is that it is invalid) • Rational basis test – zoning upheld unless unsupported by any rational basis (presumption is that it is valid) • This court used the rational basis – said rezoning was ok • Spot-zoning – improper permission to use an island of land for a more intensive use than permitted on adjacent property. Inhabitants of the Town of Brunswick (p. • Existing violations cannot be basis for future. Brunswick rejected bc it was not for public welfare. spot-zoning.Ordinance was invalidated. (used with great discretion) Spot Zoning ♥ State v. PUDs – area/use variations Zoning problems ♥ State ex rel. They claim it was arbitrary and capricious. • Court considers if the hardship was self-imposed • Burden of proof greater for a use variance than an area variance o Use = unnecess hardship o Area = practical difficulties ♥ Cope v. 1009) also. boards may impose reasonable conditions that minimize adverse impact.

Holding: Court held that Anderson’s land use certification should be issued. Anderson met all those requirements that were written and enforceable. City of East Cleveland – 14th amend and DP govern marriage and family life (Moore was jailed for violating the local ordinance against having more than one set of grandchildren) Moore won. Control committee v. • Content controls are subject to close scrutiny (as opposed to other sign regulation) • Court has approved zoning measures that both concentrated and dispersed adult theaters ♥ Village of Belle Terre v. 31 .Holding: Zoning ordinances exist to stabilize property values. 1020) Facts: Anderson challenging the denial of app for land use cert. for adults recovering from alcoholism and drug additiction. City of Issaquah (p. • If it has been arch. Boraas (p. No substitutes for signs as a means of communication. Holding: The ordinance does not violate any fundamental Constitutional rights or inflict any procedural disparaities. 1032) Facts: Gilleo wanted to put up signs (political). Court said that BT wasn’t the same bc it involved unrelated persons (no protect?) • Court is moving away from rational basis test ♥ City of Edmunds v. ♥ Anderson v. Anderson probably would have lost. City kept trying to enjoin her from putting up signs Holding: Government can regulate physical characteristics of signs. 1044) Facts: Boraas and five other students at SUNY rented a home on Belle Terre. This ordinance was a composition rule. • Many think that arch expression should be subject to close scrutiny (1st amend) ♥ City of Ladue v. so not exempted. not composition. Rejection was not arbitrary or unreasonable. Gilleo (p. Oxford House (p. • Moore v. did not meet the local zoning ordinance. Holding: Exemptions from FHA are allowed for maximum occupancy. Court remanded for determination on discrimination. 1056) Facts: Oxford House. La due prohibits too much speech. Anderson claims that the building design requirements are unconstitutionally vague. They claim unconstit. They were told they were in violation of zoning. She was denied a variance. Dissent: Ordinance violates freedom of association and right to privacy. Anderson.

City of Detroit (p. The Hawaii statute served a public purpose and is constitutional. but more expensive to the gov ??? -fischel and Shapiro says that compensation can be ineff since it encourages landowners to overinvest in capital on their land without regard to its value for eff gov projects • Fifth amendment says: “nor shall private property be taken for public use without just compensation” ♥ Hawaii Housing Authority v. 1093) • Taking= taking property from owners to reallocate for governmentally preferred uses • Eminent domain = power of government to force transfers of property from owners to itself o Most common rationales:  Inherent attribute of sovereignty.Section VI: The Problem of Takings (Chap. Midkiff (p. Holding: Public use clause of the 5th amendment doent prevent the exercise of eminent domain power where such is reasonably related to a conceivable public purpose.Introduction (p. company is forced to pay. • this case seems to functionally mean that virtually all takings will meet the public use test • Just bc prop is transferred to private parties doesn’t make it not for public use • Two approaches to public use test: o Means o Ends . 12) I.some believe that eminent domain should only be used when purchase through the market is unduly burdensome ♥Poletown Neighborhood Council v. 1098) Facts: State of Hawaii wanted to redistribute land held in fee simple from a few families to the population in general. and convey it to GM. 1108) Facts: Detroit wanted to condemn residential neighborhood. people buy land in their way so that they can hold out for a ridiculous price. necess for existence of gov (most pop)  Possess is derived from gov to begin with  Natural consequence of royal prerogatives (wtf?)  Economic arg (Posner) – eminent domain prevents bilateral monopoly Example: railroad or pipeline company starts building. 32 . clear it. gov would have incentive to substitute land for other inputs that were cheaper to society as a whole. Massively increases transaction and land-acquisition costs for company (ineff) ►compensation for taking -posner says that without it.

Physical Occupations and Regulatory Takings ♥ Loretto v. an L. v. • Eminent domain and police power are separate doctrines o Eminent domain – land is taken bc it will be more use to the public o Police power – prop rts are impaired by state be free exercise is harmful to public interests Two per se rules: 1. brought suit against cable company for trespass and argued that NY statute requiring Ls to provide cable allowed for taking of her property without just compensation. Pennsylvania then enacted the Kohler Act that prohibited this mining. 1117) Facts: Loretto. Oakland Raiders (p. 2. Mahon (p. then a taking always follows. Loretto holds that if a government action is seen to work a permanent physical occupation (nuisance aside). • Majority used per se categorical rule: a permanent physical authorization by the gov is taking • Differentiated between permanent and temporary invasions ♥Hadacheck v. ♥ Pennsylvania Coal Co. That Hadacheck’s business was first in time doesn’t make the prohibition unlawful. Mahon claims that the exercise of PCC property right is now prohibited by law. Hadacheck claimed ordinance amounted to a taking. 1132) Facts: Hadacheck established a brick year or brink kiln within LA city limits which violated city ordinance prohibiting this. 33 .Holding: Court held that while condemnation for a private use is forbidden. • • • Just compensation is not always full compensation – market value is not the value that every owner of property attaches to his/her property – value that the marginal owner attaches Some owners are hurt when gov takes prop SC has rejected including personal value when calculating just compensation II. but reserved right to take all coal from underneath the house of Mahon. although the state does have the ability to regulate property rights. Sebastian (p. the City’s contemplated action would meet a public need and serves a public purpose. Holding: SC held that ordinance was not a taking. no matter how small. Holding: The taking of a team would violate the commerce clause and so the Raiders will remain in LA. Teleprompter Manhattan CATV (p. 1112) Facts: Oakland sought to keep the Oakland Raiders in Oakland via eminent domain. PCC conveyed land for residence to Mahon. 1140) Facts: In 1878. Holding: Any permanent occupation of an owner’s property authorized by the government amounts to a taking and requires just compensation under 5th amendment. ♥ City of Oakland v. Hadacheck holds that nuisance control regulations are never takings. Holding: Court found that the taking of PCC property right by the Kohler Act would be unconstitutional.

Holding:The court reversed the judgment of the state supreme court denying compensation to the landowner under the Takings Clause of the Fifth Amendment and remanded the case because the regulation's effect on the landowner's property value was relevant. City of NY (p. if regulation goes too far it will be recognized as a taking. The factors considered are the character of the proposed action and the nature and extend of the interference with the rights of the parcel as a whole. 1193) Facts: Landowner brought inverse condemnation action against the Rhode Island Coastal Resources Management Council (CRMC). Exactions ♥ Nollan v. They wanted to build.• • PCC employs a different rule: While property may be regulated to a certain extent. owner of GCT. wanted to build an office tower on top. PCTC. Bought two lots. 1199) Facts: Nollans owned beachfront proeprtty. Usually referred to as the diminution in value rule. California Coastal Commission (p. 1171) Facts: Lucas wanted to build on the beach. • Rejects the idea of conceptual severance • Transferable development rights do not amount to just compensation. (2) acquisition of title after the effective date of the regulations did not bar regulatory takings claims. Rhode Island (p. alleging that the CRMC's denial of his application to fill 18 acres of coastal wetlands and construct beach club constituted a taking for which he was entitled to compensation. • • New categorical rule: land use regulations that prohibit economic uses of property are takings unless the prohibited uses are common law nuisances. and (3) Lucas claim for deprivation of all economic use was precluded by undisputed value of portion of tract for construction of residence. SC law was changed to prevent him from building. ♥ Lucas v. South Carolina Coastal Council (p. held that: (1) claims were ripe for adjudication. They were denied permit bc it would impede public viewing of the beach. Holding: The United States Supreme Court. Some states have enacted takings assessment statutes and compensation statutes ♥Palazzolo v. Justice Kennedy. but there are many problems with calaculation this diminution in value o Relative to what? ♥Pennsylvania Central Transportation Co v. DEGREE IS KEY. 1151) Facts: GCT was designated a landmark. but its applications to do so were rejected because they would fundamentally change the appearance of the landmark (violate the regulations of landmark preservation) Holding: A city may place restrictions on the development of historic landmarks without effecting a taking requiring just compensation. CCC conditioned the permit on 34 .

the Nollans granting a public easement permitting lateral movement along their beach. Const. • Proportionatility important • Game-theory – two types – one time game (dev probably would be worse off) and repeat players (doesn’t matter for them) Remedy • Inverse condemnation – claiminant institutes suit claiming that gov has taken prop ♥ First English Evangelical Lutheran Church of Glendale v. amend. Regulatory Takings: Pros Cons • Inhibit common planning • Create more rational land-use controls • Chill exercises of police power • Balancing of interests • Regulators would be too cautious • Err on the constit side of police • Usurp legis power to make power regulation decisions about public expenditures MICHELMAN (p.compensation is to be paid whenever settlement costs are lower than both demoralization costs and efficiency gains – compensation is due whenever demoralization costs exceed settlement costs. Holding: The court reversed the judgment because respondent city failed to establish that in issuing a permit to petitioner. City of Tigard (p. was not a taking under U. • NEXUS requirement ♥ Dolan v. 1220) Facts: Church claimed that a flooding ordinance which rendered their campground Lutherglen useless amounted to a taking and entitled them to compensation. its property dedication requirement was roughly proportionate to its land use plan and the impact of petitioner's proposed development.S. 1207) Facts: Petitioner appealed decision by the Supreme Court of Oregon that held that respondent city's decision to grant a permit to petitioner. conditioned on petitioner dedicating her land to respondent. V because the dedication was reasonably related to the expansion of petitioner's business. Holding: State may not condition a property use on an act not addressing the problem caused by the permitted use. Condition was not correlated to the problem with the permit and is unconstit – fails to advance state interests and constitutes a taking. Holding: Supreme Court the church was entitled to compensation if it was a taking and remanded. County of LA (p. 35 . 1233) Compensation rule. Nollans claim deprivation of property rights without due process.