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PROPERTY OUTLINE

SPRING 2005 PROFESSOR MUNZER

Concept of Property
BUNDLE OF RIGHTS
-- Right to use (liberty right), exclude others (immunity right), and to dispose of (by gift, sale, inheritance, or will).
DEFINING PROPERTY
-- economic interests are only property if they have the law behind them
-- examples: dam owner has no property right in the level of the river (Willow River Power), news agency has a quasiproperty interest in the news until its commercial value has passed (International News), ballpark creates the game, so
they have property interest in the news it creates (Pittsburgh Athletic), novelty value of creation has value as property
(Zacchini)
-- it is in the public interest for competitors to imitate creations and sell similar goods for lower prices
-- examples: silk patterns (Cheney Bros.), publics desire for perfume (Smith v. Chanel)
-- patients retain no property right in body parts/organs
-- examples: no ownership interest in cells after removal, dont want to discourage research (Moore), right to be notified
does not outweigh public benefit of corneal transplants (Georgia Alliance), in best interests of mentally incompetent
man to donate his kidney to his brother (Strunk v. Strunk), no intrusion when police investigated balloons in excrement
(Venner)
-- can patent genetically modified living matter
-- living matter that has been touched by the hand of man (by invention or discovery) is patentable (Chakrobarti)
INITIAL ACQUISITIONS
-- ownership based on improvements on the land
-- Indians couldnt convey title because their way of life was nomadic, conquest gives a title which the courts of the
conqueror cannot deny (Johnson v. MIntosh), Indians had right to occupancy only, could be extinguished by
Congress without compensation (Tee-Hit-Ton Indians)
-- cant force an escheat when property interests are real
-- paternalistic legislation to ensure an economic return on land struck down because it took out an important stick of
the bundle of property rights: power to transfer (Hodel v. Irving)
-- when the sovereign power changes, the individual land rights are retained
-- Spanish land-grants ratified when became US territory (Percheman)
COMMONS AND ANTI-COMMONS
-- property rights develop to internalize externalities when the gains of internalization become larger than the cost of
internalization (Demzetzs Theory)
-- example: cost-effective to establish boundaries when too many people are overusing the lands resources, like
marking off hunting grounds to stop overhunting (Leacock and Speck)
-- in commons (open access), incentives are such that people will tend to overuse and underproduce, to ruinous consequences
(pollution, overfishing) (Hardin)
-- in anti-commons (full exclusion), multiple owners hold rights of exclusion in a scant resource, block useful transactions
(Heller)

Adverse Possession
ADVERSE POSSESSION
-- 1) sleeping theory, 2) earning theory, 3) quiet title, 4) bar stale claims
-- underlying: to have land gravitate towards economic productive use
REQUIRED ELEMENTS
-- 1) Actual, 2) Exclusive, 3) Continuous for the statutory period, 4) Open and notorious, 5) Hostile, 6) (Taxes)
ACTUAL
-- physically present, using property in the same way a reasonable owner would
-- fact-based inquiry, depends on the nature, character, condition, and location of the land
-- examples: residence, cultivation, improvement, grazing, pasturing, hunting, fishing, timber harvesting, mining, or
other economically-productive activities

-- color of title and actual/constructive possession


-- if no color of title, AP only has claim to the part of the land actually occupied or controlled
-- if color of title and AP has actual possession of some significant portion of the property, then has constructive
possession over the entire property described in the instrument
-- if color of title on parcel A and B, actual possession of part of parcel A, has constructive possession of all of parcel A,
but nothing over parcel B
EXCLUSIVE
-- must not be shared with the true owner or general public
-- exclusivity is interrupted when the owner retakes possession of the property
CONTINUOUS
-- possession must be continuous for the statutory period, using the land as a reasonable owner would
-- seasonal occupancy can be continuous if thats how the average owner would use the property (Howard v. Kunto)
-- continuity is interrupted when the owner retakes possession of the property
-- tacking is permitted if there is privity of estate between each link of APs
-- tacking not permitted between successive trespassers
OPEN AND NOTORIOUS
-- so visible and obvious that a reasonable owner who inspects the land would receive notice
-- notice based on the community standards
-- examples: residing on the land, building fences or other improvements, cultivating crops, livestock, timber, clearing
brush, fishing, hunting, no trespassing signs
-- in a boundary dispute, a small encroachment that would require surveying is not notice (Mannillo v. Gorski)
HOSTILE
-- treating land as your own against the world (objective test favored)
-- objective test: AP uses the land as a reasonable owner would without the owners permission
-- disseisinal intent: AP knows the land is not his, but subjectively intends to take title from the owner
-- mistaken intent: AP innocently but wrongly believes that the land is rightfully his
-- boundary disputes (objective test favored)
-- CT Doctrine (objective standard): as long as AP uses land past the true boundary as a reasonable owner would
without the owners permission
-- ME Doctrine (subjective standard): AP intends to claim title all the way up to the fence/road/hedge even if its not the
true boundary
TAXES
-- some states require that AP pays taxes on the property to claim title
DISABILITIES
-- S/L period tolled when the owner is unable to protect his interests due to a disability
-- disability must exist at the time of APs entry
-- examples: infancy, mental incapacity, imprisonment
-- cant tack disabilities
ADVERSE POSSESSION OF CHATTELS
-- AP of chattels must be actual, exclusive, continuous, hostile, (problem with open and notorious because chattels are mobile
and not out in the open like land)
-- Discovery Rule: S/L doesnt toll until the owner discovers or should have discovered the AP has the item (when APs
use of item becomes obvious)
-- S/L tolled as long as owner is exercising due diligence to recover item (OKeeffe v. Snyder)
-- NY Rule: S/L doesnt toll until the owner demands the item from the AP and the AP refuses
-- a person with voidable title (transfer by deception, fraud, check that was later dishonored, but NOT theft)
-- has the power to transfer a good title to a good faith purchaser for value (but not by gift) (UCC 2-403)
-- any entrusting (delivery and acquiescence of possession) of goods to a merchant/dealer
-- gives him the power to transfer all rights of the entruster to a buyer in normal course of business (UCC 2-403)

Present Estates
FREEHOLD ESTATES
-- 1) Fee simple, 2) Fee tail, 3) Life estate
FEE SIMPLE ABSOLUTE
-- to A and his heirs or to A
-- longest duration (potentially infinite), largest bundle of permissible property rights (use, exclude, transfer)
FEE TAIL
-- to A and the heirs of his body
-- passes down through the lineal descendants, prevents collateral heirs from having interest in the property

-- A can only transfer a life estate, heirs have a remainder in fee tail
-- largely abolished by statute, interpreted as fee simple absolute
LIFE ESTATE
-- to A for life (measured by As life) or to A for the life of B (life estate pur autre vie, measured by Bs life)
-- A can only transfer a life estate, O retains a reversion or 3p has a vested or contingent remainder
-- intent to create a life estate has to be clear, otherwise will be interpreted as a FSA (White v. Brown)
-- owner of life estate cant commit waste, needs cooperation of remaindermen to sell
-- courts will force a sale when its necessary for the best interest of all the parties (Baker v. Weedon)
DEFEASIBLE ESTATES
-- defeasible fees terminate upon a future occurrence
-- 1) Fee simple determinable, 2) Fee simple subject to condition subsequent, 3) Fee simple subject to executory limitation
FEE SIMPLE DETERMINABLE
-- to A so long as the land is used as a park
-- created by language of time or duration (so long as, while, during (plus only in Mahrenholz)
-- causes automatic forfeiture when the stated event occurs, property returns to grantor (possibility of reverter)
-- AP S/L runs as soon as the stated event occurs
FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT
to A but if the land is not used as a park, then . .
-- created by language of an event or condition (on condition that, but if, provided however)
-- grantor has a right to retake property when the stated event occurs (right of entry)
-- favored over fee simple determinable (because a law abhors a forfeiture)
-- AP S/L does not run until owner attempts to retake property
RESTRAINTS
-- restraints on alienation are disfavored:
-- forfeiture restraints are VOID
-- disabling restraints are VOID
-- partial restraints are ok (limiting number of transferees or preventing transfer for a specified duration, as long as its
reasonable given its purpose, nature, and duration
-- present owner of a defeasible fee cant commit waste:
-- cant act in a manner that unreasonably injures the land and reduces the value of the future interest (either by
affirmative waste or permissive waste)

Future Interests
FUTURE INTERESTS
-- Grantors Future Interests:
1) Reversion, 2) Possibility of reverter, 3) Right of entry
-- Transferees Future Interests:
1) Vested remainder, 2) Vested remainder subject to partial divestment, 3) Vested remainder subject to complete
divestment, 4) Contingent remainder
REVERSION
-- to A for life, then to B for life, then to C if C passes the bar (O retains a reversion in FSA)
-- whenever O conveys an estate smaller than the one he holds
-- freely alienable, so if O conveys his interest to X, X has a reversion
-- can be subject to executory divestment (to A for life, and 10 minutes after As death, to B and his heirs)
POSSIBILITY OF REVERTER
-- to A so long as the land is used as a park
-- Os interest when A has a fee simple determinable
-- automatically returns to O when the stated event occurs
-- AP S/L starts running as soon as stated event occurs
RIGHT OF ENTRY
-- to A but if the land is not used as a park, then O may re-enter and retake the premises
-- Os interest when A has a fee simple subject to condition subsequent
-- once the stated event occurs, owner has to affirmatively act in order to retake possession
VESTED REMAINDER (also called indefeasibly vested remainder)
-- to A for life, then to B
-- created in a living, ascertainable person

-- not subject to a condition precedent, ready to become a present estate once the preceding estate terminates
-- comes after life estates or fee tails
VESTED REMAINDER SUBJECT TO PARTIAL DIVESTMENT (also called vested remainder subject to open)
-- to B for life, then to the children of C and their heirs when D is Cs only living child
-- created in a living, ascertainable person, but the amount of his estate is subject to diminution if other people come into
the class
VESTED REMAINDER SUBJECT TO COMPLETE DIVESTMENT
-- to A for life, then to C and his heirs, but if C ever smokes pot, then to D
-- created in a living, ascertainable person, but hes subject to a condition subsequent which can extinguish his
remainder
-- not subject to a condition precedent, so its ready to become a present possessory estate once the preceding estate
terminates, unless the stated event occurs
-- if the stated event occurs, then the remainder is automatically terminated or divested
CONTINGENT REMAINDER
-- to A for life, and then to L and his heirs if L reaches the age of 21
-- characterized by a lack of ascertainability
-- subject to a condition precedent, or an unascertainable person
-- not ready to become a present possessory estate at any time need to know who the heirs are going to be, or a stated
event needs to occur first
-- does not divest previous estates, waits for preceding estate to terminate
-- RaP applies
EXECUTORY INTEREST
-- to B and his heirs, but if C returns from France, then to C and her heirs
-- future estate created in a third party that divests another estate/interest in order to become possessory
-- does not wait for preceding estate to terminate
-- shifting executory interest: divests another transferee
-- springing executory interest: divests the transferor, following a gap in time during which no other transferee has the
right of possession
RULE AGAINST PERPETUITIES
-- violates RaP: to A for life, then to the grandchildren of A when A has no children
-- ok by RaP: to A for life, then to such grandchildren of A as are in being within 21 years after As death
-- no interest is good unless it either vests or fails within 21 years of a validating life
TRUSTS
-- trustee has legal title (manages the property in best interests of beneficiaries), beneficiaries have equitable title (passive, no
right to control property, just receive income/payments from trustee)
-- support trust: trustee required to provide for beneficiary as much as he uses (ordinarily for children who have reached
the age of majority but dont have full financial maturity yet)
-- spendthrift trust: trustee charged with making sure beneficiary doesnt spend too much money by paying out small
amounts at a time
-- creditors cant go after money in spendthrift trust, only the amount in the beneficiarys hand
-- cant have a self-settled spendthrift trust

Concurrent Interests
CONCURRENT INTERESTS
-- 1) Tenancy in common, 2) Joint tenancy, 3) Tenancy by entirety
TENANCY IN COMMON
-- to A and B (tenancy in common is presumed unless clear language shows intent to create something else)
-- each cotenant entitled to simultaneous possession and enjoyment of the whole parcel
-- cotenant can transfer his interest without the other cotenants permission, can devise his interest, descends by intestate
succession when cotenant dies (no right of survivorship)
JOINT TENANCY
-- to A and B as joint tenants (but not necessarily to A and B jointly)
-- 4 unities: 1) time, 2) title, 3) interest, 4) possession
-- each joint tenant has a right of survivorship, so joint tenants interest ends upon death
-- dont need a straw transaction to sever anymore (Riddle v. Harmon), but when joint tenancy is severed, then it
becomes a tenancy in common (because unities of time and title arent there)
TENANCY BY ENTIRETY
-- to A and B as tenants by the entirety

-- 5 unities: 1) time, 2) title, 3) interest, 4) possession, 5) marriage


-- only in 20 non-community property states, and even in those can still have a joint tenancy between husband and wife
-- each tenant has a right of survivorship, can only extinguish/sever by consent
-- when severed by divorce, becomes a tenancy in common
OUSTER
-- in tenancy in common, joint tenancy, or tenancy by entirety, each cotenant has an undivided one-half interest in the whole
property at all times
-- ouster is when one cotenant refuses to share possession of the land (either by asserting a claim for ownership or
preventing the other cotenant from moving in (not by just demanding rent (Spiller v. Mackareth))
-- when there has been an ouster, the possessory cotenant has to pay rent to the non-possessory cotenant
PARTITION
-- tenant in common or joint tenant can sue for judicial partition of property
-- court will look for what is financially in best interest of parties (Delfino v. Vealencis), but that can be trumped by competing
interests (like, people keeping their homes)
-- partition in kind (preferred technique): physical division of the property into separate parcels
-- partition by sale (only when physical division is impossible, impracticable, or inequitable) property sold/auctioned off
and proceeds divided between cotenants
MORTGAGE EXECUTED BY A JOINT TENANT
-- title theory: mortgage severs joint tenancy, becomes a tenancy in common
-- mortgagee takes legal title of the property, mortgagor can pay to get the title back
-- lien theory: joint tenancy is preserved
-- mortgagee does not have legal title, only a lien, mortgagor retains legal title (mortgagee takes title if mortgagor
defaults on debt)
-- if debt is not paid off when debtor joint tenant dies:
-- some courts say B takes As interest subject to the mortgage
-- some courts say B takes the entire interest free of the mortgage, because As interest in the property was
extinguished when he died (Harms v. Sprague)
LEASE EXECUTED BY A JOINT TENANT
-- joint tenant can execute leases without the consent of the other tenant (Swartzbaugh v. Sampson)
-- used to be that lease severed a joint tenancy (because unity of interest no longer there once one person had a reversion and the
other had a FSA), but now there is no severance because the title never changes
-- if leasor joint tenant dies:
-- some courts say surviving tenant subject to the leasehold on a one-half interest
-- some courts say that the right of survivorship extinguishes the leasehold when the leasor tenant dies
MARITAL INTERESTS
-- creditors cant reach the property held in tenancy by the entirety (Married Womens Property Acts (MWPA), Sawada v. Endo)
-- government can take property held in tenancy by the entirety if it was used in the sale of illegal drugs
-- innocent owner defense: property cant be forfeited if spouse didnt know about the illegal activity, so innocent
spouse will be in tenancy by the entirety with the government (1500 Lincoln Ave.)
-- examples: threats dont constitute duress for the sake of the innocent owner defense (60 Acres of Land), no
innocent owner defense when innocent spouse entrusted jointly-owned car to spouse who misused it (Bennis)
DISSOLUTION OF MARITAL PROPERTY
-- most jurisdictions dont recognize degrees/licenses as property to be distributed upon divorce
-- CO Rule: degree is not property because it doesnt have a bundle of rights attached to it (In re Marriage of Graham)
-- NJ Rule: can get compensation for monetary contribution towards spouses degree/license
-- NY Rule (by statute): professional license a valuable property right, cant be taken away without DP
-- 8 community property states: husband and wife are a partnership, should share accordingly
-- earnings earned during marriage, property purchased with those earnings equally owned by spouses
-- property acquired before marriage is separate
-- property acquired during marriage through gift, devise, bequest, or descent is separate
-- common law states have elective share statutes when one spouse dies:
-- surviving spouse can elect to either abide by the terms of the decedent spouses will, or take a share (one-half or onethird) of all property the decedent owned at death
-- move CP CL, then spouse dies:
-- surviving spouse gets half the property acquired while in CP state, plus the elective share in decedent spouses half
-- move CL CP, then spouse dies:
-- surviving spouse only gets half of what was earned in CP state, and the decedent could devise all of the property
earned in CL state

-- some CP states (CA) treat property acquired in CL state as quasi-community property


SAME-SEX COUPLES
-- VT supreme court said that had to give same benefits to same-sex couples under VT EPC
-- Defense of Marriage Act: no state required to give effect to same-sex marriage from another state

Landlord/Tenant
LEASEHOLD ESTATES
-- 1) Term of years, 2) Periodic tenancy, 3) Tenancy at will
-- O retains a reversion
-- term of years expires when the agreed-upon period ends, periodic tenancy expires by notice, tenancy at will is
terminated by either landlord or tenant at will, by statute with 30 days notice
DISCRIMINATION Fair Housing Act
-- cant 1) refuse to rent or sell, 2) make notices/advertisements showing a preference/discrimination, or 3) tell someone the unit
isnt available 4) based on race, color, religion, sex, familial status, or national origin
-- examples: refusing to rent to someone with children violates FHA unless there is a legitimate business reason (Soules
v. HUD), longstanding pattern of publishing ads with white customers and minority service personnel violates FHA
(Ragin v. NY Times), cant discriminate against minorities to stop white flight (Starrett City Associates), females
only may violate FHA, but privacy interests trump FHA
-- cant 1) refuse to rent or cell, 2) refuse to permit reasonable modifications, or 3) refuse to make reasonable accommodations,
4) to any buyer or renter because of a handicap
-- exempt: 1) single family home sold or rented by owner, 2) owner-occupied building with 4 or fewer units
-- no protection for discrimination based on marital status or sexual orientation
LANDLORDS OBLIGATIONS AND REMEDIES
-- holdover tenants: landlord can 1) sue for damages, 2) start eviction proceedings, 3) extend lease
-- used to be treated in almost penal fashion (could hold tenant to another term if they stayed a little too long, could
charge double rent) now the maximum is usually a year by legislation, typically only an extra month
-- landlord has duty to mitigate damages (find a new tenant) and the old tenant is only liable for the time before the new
tenant is found
-- delivery of possession:
-- American rule: landlord only obligated to deliver the legal right to possession, unless he expressly promised
otherwise (Hannan v. Dusch)
-- English rule (majority): landlord has to place tenant in actual possession, not just legal possession
-- if tenant abandons the premises: landlord can 1) treat the lease as terminated, or 2) consider it still good and sue for rent
payments as they come due
-- landlord has obligation to make reasonable efforts to mitigate damages (Summer v. Kridel)
-- under common law, landlord can use self-help when 1) the landlord is legally entitled to possession and 2) landlords
reentry is peaceable
-- some courts say that judicial proceedings are the landlords only remedy (Berg v. Wiley)
TENANTS RIGHTS AND REMEDIES
-- covenant of quiet enjoyment is always implied in the lease (but can be waived if youre aware of problem ahead of time)
-- if there is a permanent, continuous condition causing (intermittent or continuous) interference with the tenants quiet
enjoyment of the premises, then its a constructive eviction (Reste Realty v. Cooper)
-- tenant can sue for damages and/or abandon the premises
-- implied warranty of habitability in every residential lease (cant waive it) (Hilder v. St. Peter)
-- premises that are safe, clean, and fit for human habitation
-- facilities that are vital to the use of the premises for residential purposes
-- tenant doesnt have to vacate, can withhold rent and/or collect damages (punitives available if intentional (slum lord))
-- retaliatory evictions for reporting code violations prohibited (Edwards v. Habib)
-- rebuttable presumption of retaliatory intent for somewhere between 90-180 days (after that, can still present evidence
of retaliatory intent)
-- tort liability: negligence usually the standard, though sometimes strict liability (Becker v. IRM Corp.)
AFFORDABLE HOUSING, LANDLORD-TENANT REFORM
-- problem with habitability reform: raises the price of housing, may put last-resort housing beyond the reach of those with very
low incomes (catch-22: uninhabitable housing or no housing at all?)
-- problem with rent ceilings: decreases the supply of housing, and when landlords have their choice of tenants, they rent to
middle-income tenants instead of low-income tenants (Posner in Chicago Board of Realtors v. City of Chicago)

Nuisance
NUISANCE
-- interference with the use and enjoyment of the land that is 1) substantial, 2a) intentional and unreasonable, or 2b) unintentional
result of negligent, reckless, or abnormally dangerous activity
-- threshold test: unreasonable when it is an amount that would render a person of ordinary sensitiveness uncomfortable
and sick (Morgan v. High Penn Oil)
-- abnormally sensitive uses are not protected (Ampitheaters v. Portland Meadows)
-- Restatement: unreasonable when the gravity of the harm outweighs the utility of the conduct
-- gravity of the harm: extent and character of the harm, the social value of the use or enjoyment that is
invaded, the suitability of the use invaded to the locality, the burden on the person harmed of avoiding the harm
-- utility of the conduct: social value of the purpose of the conduct, suitability of the conduct to the character of
the locality, impracticability of preventing or avoiding the invasion
-- remedies for nuisance: 1) injunction, 2) temporary damages, 3) permanent damages, 4) indemnification
-- balancing the equities: court will balance the relative economic impact of the injunction on the parties
-- can impose permanent damages to avoid the problem of parties being locked in a bilateral monopoly (Posner: where
transaction costs are inflated because both parties holding out) when bargaining over whether the injunction will be
enforced (Boomer)
-- can fashion a unique remedy: impose an injunction for the public interest, but other party has to indemnify those who
are forced to leave as a result (Spur Industries v. Del E. Webb)
-- economic analysis: want to maximize the social value of production by putting land to its most valuable use while
internalizing costs

Servitudes
EASEMENTS
-- easement in gross: no dominant tenement, easement holder benefits in a personal sense, not as attached to land
-- easement appurtenant: where there is a dominant tenement (land benefited) and a servient tenement (land burdened), easement
holder benefits as the owner of the dominant land
-- 1) easement by grant, 2) easement by reservation, 3) easement by estoppel, 4) easement implied from a prior existing
use, 5) easement implied by necessity, 6) easement by prescription
EASEMENT BY GRANT
-- grantor conveys easement to another person
EASEMENT BY RESERVATION
-- used to be that an easement could only be reserved for the grantor (and then a straw transaction to get it to a third person), but
now you courts will allow a reservation in favor of a third person (Willard)
EASEMENT BY ESTOPPEL
-- requirements: 1) an existing license (permission to use property for something (typically access)), 2) the licensee expends
substantial money or labor in good faith reliance, 3) licensor knew or reasonably should have expected that reliance would occur
(Holbrook v. Taylor)
EASEMENT IMPLIED FROM A PRIOR EXISTING USE
-- requirements: 1) severance of title (owner divides up parcels of land, transfers one or more to someone, retains at least one for
himself, 2) an existing, apparent, and continuous use of a quasi-easement at the time of the conveyance, and 3) reasonable
necessity
-- apparent doesnt have to be visible, can just have constructive notice (Van Sandt v. Royster)
-- reasonable necessity: necessary for the comfortable use of the property, would be a disproportionate effort and
expense if it wasnt used (Van Sandt v. Royster)
EASEMENT IMPLIED BY NECESSITY
-- requirements: 1) severance of title, 2) strict necessity (traditional, majority rule) or reasonable necessity (Restatement, minority
rule) at the time of the severance
-- strict necessity (majority): only if there is absolutely no legal means of reaching the land otherwise (landlocked,
easements for utilities not strictly necessary)
-- reasonable necessity (Restatement): only if couldnt make normal use of the land otherwise (easements for utilities
are reasonably necessary)
-- if necessity arises after the severance, no easement by necessity (Othen v. Rosier)
-- easement only exists as long as the necessity exists
EASEMENT BY PRESCRIPTION
-- requirements (like AP, but an easement instead of possessing land): 1) open and notorious, 2) hostile, 3) continuous for the
statutory period, 5) sometimes also exclusive

PUBLIC TRUST DOCTRINE


-- public has a right to access the land covered by tidal waters belonging to the sovereign (Avon)
-- public has a right to gain access through and to use the dry sand area owned by a municipality or a quasi-public body
(Matthews v. Bay Head)
ASSIGNABILITY OF EASEMENTS
-- appurtenant easements: benefits and burdens run with the land, pass automatically to assignees, as long as parties intended it
and the burdened party has notice of the easement
-- easements in gross: commercial easements are assignable (Miller v. Lutheran), non-commercial easements depend on what
the parties reasonably expected/intended (Restatement)
-- consider the scope of the easement in what parties expected/intended (Presault v. US)
-- one-stock rule: easement holders must utilize the easement in gross in common with consent of other holders, to
prevent overuse of the land (Miller v. Lutheran)
TERMINATION OF EASEMENTS
-- abandonment: not mere nonuse, easement holder has to affirmatively intend to relinquish his rights (Presault v. US)
-- can terminate by prescription
NEGATIVE EASEMENTS
-- English law recognizes 4 categories: can prevent another landowner from 1) blocking your windows, 2) blocking air that flows
to your property, 3) blocking water that flows to your property, 4) removing support from your buildings
-- US recognizes these 4 plus: 5) blocking your scenic view, 6) blocking your solar access, 7) conservation easement
REAL COVENANTS
-- promise concerning the use of land that 1) benefits and burdens the original parties and their successors and 2) is enforceable
in an action for damages
-- requirements: 1) parties intend to be bound, 2) covenant touches and concerns the land, 3) vertical privity, 4) horizontal privity
-- horizontal privity: some relationship between the original promisor and promisee (in England, landlord/tenant, in US
can also be grantor/grantee, some fee transaction, parties have an easement for another purpose (Mass. doctrine))
-- vertical privity: original promisor transferred his entire estate to successor
EQUITABLE SERVITUDES
-- promise concerning the use of land that 1) benefits and burdens the original parties and their successors and 2) is enforceable
in equity
-- requirements: 1) parties intend to be bound, 2) covenant touches and concerns the land, 3) vertical privity, 4) successor has
notice of promise (serves as a substitute for horizontal privity)
-- touch/concern: 1) covenant physically affects your use of your lot, 2) covenant increases the value of your property
-- examples: promise to pay money to benefit a commons area (Neponsit), but not a covenant to let the grantor
build the buildings on the premises, because the benefit was personal (in gross) (Stanley Stillwell), benefit in
gross when he owns a small parcel in the development would be ok
-- notice can be implied through inquiry notice (implied covenant to use land for residential purposes when
neighborhood had uniform residential appearance (Sanborn v. McLean))
SERVITUDES (RESTATEMENT)
-- promise concerning the use of land that 1) benefits and burdens the original parties and their successors, and 2) is enforceable
at either law or equity
-- requirements: 1) parties intend to be bound, 2) complies with Statute of Frauds, 3) servitude is not illegal, unconstitutional, or
violative of public policy
DISCRIMINATORY COVENANTS
-- covenant against group homes has a disparate impact against disabled individuals, so it violates the Fair Housing Act (Damien
of Molokai)
-- racially-discriminatory covenants are unconstitutional because judicial enforcement would constitute state action (Shelley v.
Kraemer)
TERMINATION OF COVENANTS
-- if there has been substantial changes in the area such that the servitude no longer has a practical purpose to it, then there may
be enough to extinguish the covenant
-- examples: even if highest use of the land is something else, its not enough to extinguish the covenant as long as its
still suitable for its original purpose (Trukolaski), when the restriction affords a real benefit to the person seeking
enforcement, can keep the restrictions (Rick v. West)
-- Restatement: when changed circumstances make it practically impossible to accomplish the original purpose, a court can
modify the servitude, or if modification is not practicable or would not be effective, court can terminate the servitude
-- covenant to pay money may be modified or terminated if the obligation becomes excessive (but doesnt apply to
common-interest communities, so still have to pay association fees even though lot is useless (Mackenzie))

COMMON INTEREST COMMUNITIES


-- strong presumption that restrictions are valid if the purchaser agreed to the restrictions at the time of coming into the
homeowners association (Nahrstedt)
-- if a rule is adopted after purchase, its enforceable if it is reasonable and the owner had notice

Zoning
CONSTITUTIONALITY OF ZONING
-- zoning is constitutional per se:
-- as long as its not arbitrary and unreasonable with no substantial relation to public health, safety, morals, or general
welfare (Village of Euclid)
-- zoning can be unconstitutional as applied:
-- example: zoned for residential, but no practical way to use land for residential use (Nectow)
NONCONFORMING USE
-- when zoning changes, usually there is an amortization period to give non-conforming uses time to comply or move
-- some jurisdictions say that amortization is unconstitutional per se unless the nonconforming use of a nuisance,
abandoned, destroyed, or purchased through eminent domain
-- most jurisdictions say that amortization is constitutional if the length of time is reasonable (balancing public gain with
private loss)
-- examples: 5 years reasonable in IA and CA, concurring judge in PA Northwestern said that 90 days was
unreasonably short
-- not a Taking because if theres a sufficient amount of time, they can get a return on investment from the
temporary monopoly and find alternative income
AESTHETIC REGULATION
-- architectural regulation is allowed because aesthetically unpleasing homes could lower property values in the neighborhood
(Stoyanoff), but have to give clear guidance if imposing aesthetic standards (Anderson)
FIRST AMENDMENT RIGHTS
-- cant restrict too little speech based on content, cant restrict too much speech, preventing meaningful communication (City of
Ladue v. Gilleo)
-- commercial: have to allow for-sale signs because no satisfactory alternatives for conveying the important information
(Linmark)
-- protest: sign on your lawn reaches your neighbors and is associated with your identity, so no satisfactory alternatives
(City of Ladue)
-- have to allow political signs if allow for-sale signs (cant restrict based on content) (City of Ladue)
-- but can prohibit rags hanging on clotheslines because there are other satisfactory ways to protest (Stover)
-- art: courts tend to allow anything that smacks of art
-- adult entertainment: Court allowed ordinance that dispersed adult theaters and ordinance that concentrated adult theaters, but
invalidated an ordinance banning live entertainment because they failed to justify the substantial restriction
CONTROLLING HOUSEHOLDS
-- zoning ordinance is mere social and economic regulation, so a prohibition based on non-family status gets rational basis
review and survives because its a valid goal to promote family values, wasnt based on animosity against unmarried couples if it
allows 2 non-family members to live together (Village of Belle Terre)
-- Marshalls dissent in Belle Terre: ordinance based on non-family status should get strict scrutiny because it
unreasonably burdens the right to privacy and the right to association, the choice of household companions is deeply
personal
-- examples: ordinance invalid if it regulates within families, cant interfere with the sanctity of the family (Moore v.
City of East Cleveland), but valid if it prohibits different sex cohabitants because theres a legitimate interest in
preserving the biological family (Ladue v. Horn, rapidly fading view)
-- under Fair Housing Act, can limit number of individuals in a single-family dwelling to prevent overcrowding, but cant limit
based on relatedness (City of Edmonds v. Oxford House)
-- exempt under FHA: sale by owner of single-dwelling home, even if discriminatory (Babin)
EXCLUSIONARY ZONING
-- exclusionary zoning excludes low-income and minority groups
-- NJ supreme court in Mount Laurel I: there is a presumptive obligation for townships to bear their reasonable fair
share of housing needs for low-income persons
-- Mount Laurel II: all municipalities in growth areas have to take affirmative measures (incentives, subsidies,
mandatory set-asides) to encourage construction of low- and moderate-income housing, if municipality not
fulfilling obligation, developers can go forth with the project without a permit (builders remedy)
-- Tiebout Hypothesis: exclusionary zoning might be efficient because people who are similarly situated have similar needs, so if
they all live together its cheaper to provide those services

-- but this necessarily harms low-income people, wealth and services distributed away form them and negative
externalities concentrated in their communities

Takings
Takings Clause of the 5th Amendment: Nor shall private property be taken for public use without just compensation
-- policy: to bar the government from forcing some people alone to bear public burdens which should be borne by the public as a
whole if everyone benefits, shouldnt everyone bear the burden?
PROPERTY
-- financial interests are only property if they have the law behind them (Willow River)
PUBLIC USE
-- a legitimate public purpose
-- examples: legitimate public purpose in attacking evils of concentrated property ownership, could transfer property
from one private owner to another private owner (Midkiff), incidental benefits to the economy dont justify the exercise
of eminent domain for a private business (Hathcock, overruling Poletown), activities which promote recreation are
public use (City of Oakland)
-- MIs 3 justifications for public use: 1) public necessity, 2) property remains under public control, 3) condemnation itself is a
public use
TAKEN
-- physical invasion is always a Taking
-- permanent physical occupation always a Taking, no matter how inconsequential or trivial the invasion (Loretto)
-- exception: if government destroys property that is under imminent peril of being captured by the enemy (Caltex)
-- regulating a nuisance is never a Taking (noxious use doctrine)
-- even if community comes to the nuisance and the activity is very profitable, it is not a Taking to regulate the nuisance,
and the government doesnt have to compensate (Hadacheck)
-- diminution in value is a Taking if the diminution is too great
-- diminution test applies if theres no physical invasion and no nuisance
-- if you lose all economically beneficial or productive use of the land, its a Taking (Lucas)

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