You are on page 1of 52

Downloaded From OutlineDepot.



I. Leasehold Estates
A. Tenancy for Years (Fixed Term)
1. For a fixed term which doesn’t have to measured in years
2. A term must be fixed period of time but it can be terminable earlier upon the
happening of some event
a) The calendar dates for the beginning and ending of the lease period is
b) One year from the date of signing of this lease, once the lease is signed
the beginning and ending dates are ascertainable, so NO notice is required
3. Ex- you decide to rent from Pat as long as your in law school and pay $500 a
month but then you find a better apt for $400 – your not required to give any
notice that your leaving BUT you still will have to pay rent for the time that your in
law school to Pat
B. Periodic Tenancy
1. This tenancy is for a fixed period of time until either the LL or tenant
gives notice of termination bc it doesn’t have a definite term of how long you
are staying
a) If you don’t give notice than you automatically start a new period and
you have to pay so it continues until termination
b) From month to month, absence contractual provisions to the contrary,
the terms and conditions carry over from period to period
2. Under CL, 6 months notice is required to terminate a yr to yr tenancy
a) For periodic tenancy for less than a yr, notice of termination must be
given equal to the length of period but not to exceed six months
b) If you have a monthly basis you give notice on June 1 then you have
until July 1
(1) The notice must terminate the tenancy on the final day of the
period and not in the middle of the tenancy
(2) Ex – If a month to month tenant who began on Jan.1 decided on
march 2- terminate, the earliest termination date is April 30
c) 5 yr period tenancy – there is a 6 month cap of notice
3. In most states, for a periodic tenancy you just need to give 30 days notice prior
to the termination of the lease for a month to month lease, yr to yr lease
4. A periodic tenancy is more loosely than terms of years, less details are in
a) Ex- you can live in your apt for how ever long for $500 a month and in 3
months if you want to move into a newer apt $400 – must give notice of
C. Tenancy at Will
Page 1 of 52
Downloaded From

1. There is no fixed period that endures so long as the LL and tenant

desires, both are equally capable of terminating the lease at any time
2. The tenancy will end when one party terminates it
a) Ex – house sitting – you create a tenancy at will while the owner is away
and your watching the house
3. If the lease provides that it can be terminated by one party, it is necessarily at
will of the other IF a tenancy at will has been created
4. At CL, you don’t have to give notice
5. Modernly, there are statutes that require period of notice (typically 30 days
a) Garner v. Gerrish - a lease that creates a determinable estate in the
tenant is terminable at the tenants will or on the tenant’s death
(1) The lease grants a personal right to the lessee to terminate at a
date of his choice (life tenancy terminable at the will of the tenant) or
the lease will terminate at the latest at the death of the lessee  It is
rare to find a true tenancy at will bc it conflicts with a life estate
D. Tenancy at Sufferance
1. A tenant who was rightfully in possession but wrongfully remains in possession
after (hold-over) the tenancy expires becomes a tenant of sufferance
a) A holdover tenant says beyond the end of the lease period. The period
lasts until the LL either
(1) Evicts the holdover tenant (after which time the tenant
becomes a trespasser) – plus damages OR
(2) To hold the tenant over for another term (which would be
held to the same terms as to the original lease) – consent (express or
implied) to the creation of a new tenancy
2. Crechale & Polles Inc v. Smith – Absent evidence to show a contrary intent on
the part of the LL, a LL who accepts rent from his hold over tenant, will be held to
have consented to a renewal or extension of the lease (for a maximum of 1 yr
3. In most jurisdictions a holdover tenant arises in a periodic tenancy, which are
subject to the same terms as in the original lease (unless the parties agree
a) The rent will be computed based on the original lease
b) The length will be the same of the original term or period but not longer
than one year
(1) Many states adopted legislation to deal with holdover tenants
II. The Lease
A. A lease gives rise to the LL tenant relationship which carries certain incidents – the
right to possess land
1. An agmt in writing

Page 2 of 52
Downloaded From

a) A lease of one year or more must meet the S o F

2. A lease transfers a possessory interest in land so it’s a conveyance that creates
property rights and contains a number of promises (or covenants)
3. LLs use standardized documents offered to all tenants on a take it of leave it
basis with no negotiation
III. Selection of Tenants (unlawful discrimination)
A. The most significant constraints on LLs when selecting tenants are imposed by the
federal Fair Housing Act
Fair Housing Act - FHA Civil Rights Act
Bars discrimination on 7 things Bars discrimination on 7
 Race things
 Religion Racial
 National origin Ethical
 Disability (physical or mental handicaps – AIDS For all property both
is a handicap) residential and commercial
 Familial Status (18 and younger – exception
citizenship housing)
 Sex (male or female – does not include gays)
Mostly for residential housing
 Have to prove:
 Members of the protected class
 Type of property
 Exemptions
 Proving discrimination BOP – prima facie case
§3601. Declaration of policy
It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the
United States.

§3603. Effective Dates of Certain Prohibitions

(a) Application to certain described dwellings
Subject to the provisions of subsection (b) of this section and section 3607 of this title, the prohibitions against
discrimination in the sale or rental of housing set forth in section 3604 of this title shall apply:

(b) Exemptions
Nothing in section 3604 of this title (other than subsection (c) shall apply to -
(1) any single-family house sold or rented by an owner: Provided, That such private individual owner does not own
more than three such single-family houses at any one time: Provided further, That in the case of the sale of any
such single-family house by a private individual owner not residing in such house at the time of such sale or who
was not the most recent resident of such house prior to such sale, the exemption granted by this subsection shall
apply only with respect to one such sale within any twenty-four month period: Provided further, That such bona
fide private individual owner does not own any interest in, nor is there owned or reserved on his behalf, under any
express or voluntary agreement, title to or any right to all or a portion of the proceeds from the sale or rental of,
more than three such single-family houses at any one time: Provided further, That after December 31, 1969, the sale
or rental of any such single-family house shall be excepted from the application of this subchapter only if such
house is sold or rented (A) without the use in any manner of the sales or rental facilities or the sales or rental
services of any real estate broker, agent, or salesman, or of such facilities or services of any person in the business of
selling or renting dwellings, or of any employee or agent of any such broker, agent, salesman, or person and (B)
without the publication, posting or mailing, after notice, of any advertisement or written notice in violation of
section 3604(c) of this title; but nothing in this proviso shall prohibit the use of attorneys, escrow agents,
abstractors, title companies, and other such professional assistance as necessary to perfect or transfer the title, or

Page 3 of 52
Downloaded From

(2) rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more
than four families living independently of each other, if the owner actually maintains and occupies one of such
living quarters as his residence.

§3604 – Discrimination in the Sale or Rental of Housing and Other Prohibited Practices

As made applicable by section 3603 of this title and except as exempted by sections 3603(b) and 3607 of this title, it
shall be unlawful --
(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or
otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status (bc
you have children), or national origin.
(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the
provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or
national origin.
(c) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement,
with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on
race, color, religion, sex,
handicap, familial status, or national origin, or an intention to make any such preference, limitation, or
(d) To represent to any person because of race, color, religion, sex, handicap, familial status, or national origin that
any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.
(e) For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding
the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex,
handicap, familial status,
or national origin.
(f)(1) To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or
renter because of a handicap of - A LL has to make reasonable accommodations to the handicap
(A) that buyer or renter
(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available;
(C) any person associated with that buyer or renter.

(2) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in
the provision of services or facilities in connection with such dwelling, because of a handicap of -
(A) that person; or
(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available;
(C) any person associated with that person.
(3) For purposes of this subsection, discrimination includes –
(A) a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing
premises occupied or to be occupied by such person if such modifications may be necessary to afford such
person full enjoyment of the premises
except that, in the case of a rental, the LL may where it is reasonable to do so condition permission for a
modification on the renter agreeing to restore the interior of the premises to the condition that existed
before the modification, reasonable wear and tear excepted.
(B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such
accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling; or
(C) in connection with the design and construction of covered multifamily dwellings for first occupancy
after the date that is 30 months after September 13, 1988, a failure to design and construct those dwellings
in such a manner that -

(i) the public use and common use portions of such dwellings are readily accessible to and usable by
handicapped persons;
(ii) all the doors designed to allow passage into and within all premises within such dwellings are
sufficiently wide to allow passage by handicapped persons in wheelchairs; and
(iii) all premises within such dwellings contain the following features of adaptive design:

(I) an accessible route into and through the dwelling;

(II) light switches, electrical outlets, thermostats, and other environmental controls in

Page 4 of 52
Downloaded From

accessible locations;
(III) reinforcements in bathroom walls to allow later installation of grab bars; and
(IV) usable kitchens and bathrooms such that an individual in a wheelchair can maneuver
about the space.
1. Discrimination based on handicap. ‘Handicap’ as defined by 3602(h) of the
Fair Housing Act, which states that the term means, ‘ physical or mental
impairment which substantially limits one or more of [the handicapped person’s]
major life activities, a record of having such an impairment, or being regarded as
having such an impairment, but such term does not include current, illegal use of
or addition to a controlled substance
a) Can discriminate against handicap but must make reasonable
IV. Delivery of Possession
A. The LL must give the tenant at the beginning of the lease term the right of
1. If the LL does not have a right of possession or if she fails to transfer it to the
tenant, the LL is in default
2. Hannan v. Dusch – uses the American rule (minority) which says when the
new tenant fails to obtain possession of the premises only bc the former tenant
wrongfully holds over, his remedy is against the wrongdoer not the LL
3. English Rule (majority)
a) Where the tenant’s entry into possession is delayed beyond the date on
which the term was to begin he is not obligated to pay rent for the portion of
the term which he kept out of the possession and may collect appropriate
b) This imposes a duty of the LL, the duty of giving the tenant both the
legal right of possession and actual possession. If the prior tenant is
holding over, it is the duty of the LL to get him out
(1) You have to give physical possession
4. American Rule (minority)
a) The LL need deliver only the legal right of possession. Holdover tenants
become the new tenant’s problem and has to sue to get them out at his own
b) The tenant has sufficient legal and equitable remedies and a greater
incentive to use them than the LL would have
V. Subleases and Assignments
A. Sublease – the tenant who subleases is a LL to his subleassee
1. There is no privity of estate btw the original LL and the subleassee, and neither
one can sue the other
2. At CL if the subleasing tenant conveyed anything less than the whole leasehold
(meaning they retained a reversion) it was a sublease
a) Modernly look to the intent of the parties
Page 5 of 52
Downloaded From

(1) If the transferring parties charges more rent that eh has paid, the
courts view as a sublease
(2) If the lessee transfer his entire interest but the instrument of
transfer provides that if the transferee breaches his obligation of the
lease = sublease (minority)
B. Assignment – leases may be assigned by either the lessee or lessor absent some
contractual provision to the contrary
1. The new tenant is in privity of the estate with the LL and unless otherwise
provided, their obligations are the same as in the original lease
2. At CL if the subleasing tenant conveyed the whole leasehold (not one thing less)
it was an assignment
a) Modernly look to the intent of the parties
(1) If the transferee tenant pays a lump sum, the courts view this as a
(2) If a lessee transfer all of his interest n some physical part of the
premises = partial assignment (majority)
3. Ernst v. Conditt – Π owned the land, leased to Rogers and Rogers assigned to
∆, there was a fixed lease for a period, where the lessee could pay rent or give the
lessor 15% gross profits
a) The court said no privity of estate btw the LL and the new tenant but
there is privity of estate with tenant 1 and tenant 2. When you are in privity
of estate you are liable for those covenants attached to the land
(1) Since it was an assignment btw Rogers and ∆, ∆ was primarily
responsible to Π
(2) Bc it is an assignment the LL (owner of the property) could go
after Rogers or ∆
4. Kendell v. Ernst - A commercially reasonable basis is a business reason rather
than a personal or discriminatory reason, and rather than an excuse of extort to
more rent.
a) The majority rule allows a lessor to arbitrarily refuse to consent to a
proposed assignment although in many cases the lessor is found by its
conduct to have waived the right to refuse.
b) The minority rule modified the rule by permitting a lessor to withhold
consent only when it has a commercially reasonable objection the
(1) Lease is a contract and includes a duty to act in good faith and to
deal fairly. Generally a contract that gives one party discretionary
power that affects the other party also imposes a duty to exercise that
power in good faith
lease doesn’t say you need consent than you don’t need consent.

Page 6 of 52
Downloaded From

(1) A restriction on transfer of tenant’s interest in a lease may

absolutely prohibit transfer
(2) A LL has a duty to mitigate damages
C. The Tenant Who Defaults
1. Berg v. Wiley - ∆ leased a restaurant to Π who violated of the lease remodeled
the restaurant without ∆s consent and also was cited for health code violations. ∆
gave Π two weeks notice to make changes and on the last day of the two weeks, ∆
changed the locks and Π was locked out.
a) It is discourage for LLs to take the law into their own hands, especially
when the self help may result in breaches of the peace. Today, summary
proceedings are available that can get the LL possession. This is a safe,
quick, and easy way to retake leased premises.
b) Under old CL you had a legal right if the tenant breaches the lease to
terminate the lease but it is for the court to determine the legal right.
(1) Under CL, a LL could seize a defaulting tenants property found on
the premises and retain it until pymt was overdue rent, all without
prior to a hearing.
c) This case involved a commercial lease but the courts reasoning would
appear to apply to all lease, residential and commercial alike
(a) Residential leases however a locking some out would be
totally not peaceful bc they probably have no where else to go.
2. Evictions – a tenant may be evicted if he breaches lease covenants or holds over
beyond the lease term. There are two types of eviction, self-help and by judicial
a) Judicial Process (summary eviction proceeding) - Under the summary
proceedings, a LL cannot do anything more than obtain possession of the
b) Self-Help – At CL, a LL could use self-help to evict a tenant. Modern
trend however has been to hold a LL liable for damages if she uses self-help.
(1) Many jurisdictions today prohibit ‘retaliatory eviction’ eviction
motivated by a LLs desire to retaliate against a tenant who has
withheld rent pymts bc of the condition of the lease premises
D. The Tenant who has Abandoned Possession
1. If the tenant abandons the premises during the lease term:
a) The LL may leave the premises vacant and sue the tenant for rent, or
b) May retake the premises and try to lease again.
2. Sommer v. Kridel & Riverview Realty Co. v. Perosio - Majority Rule - A lease
conveys to a tenant an interest in the property which forecloses any control by the
LL, this it would require the LL to concern himself with the tenant’s abandonment.
a) The LL has to mitigate his damages to a residential lease. The court
holds that under residential lease they should be governed by modern

Page 7 of 52
Downloaded From

trends of fairness and equity that a LL has a duty to mitigate damages where
he seeks recover rents due from a defaulting tenant.
(1) If the LL has a duty to make reasonable efforts and shall carry the
burden of proving that he used reasonable diligence in attempting to
re-let the premises.
E. Justifications against mitigation
1. When the LL mitigate damages by re-letting abandoned premises, there may be
an unwilling acceptance of the surrender offered by the defaulting tenant
a) Ordinarily the tenant bears the cost of any reasonable expenses incurred
by a LL in attempting to re-let the premises
2. Surrender – terminates a lease, provided of course that the LL accepts the
tenant’s offer
a) If the surrender is effected it extinguishes the lessee’s liability for future
rent but not for accrued rent or for past breaches of other covenants
3. The CL rule still follows in some jurisdictions that the LL may not need to
mitigate. However the LL may have an option of:
a) terminating the lease
b) obtaining another tenant while holding the original tenant liable for any
deficiency that may occur
c) permitting the premises to remain vacant while collecting the agreed
upon rent from the original tenant
(1) However, some jurisdictions apply it only to commercial leases
and not residential leases
4. Abandonment – when tenant occurs he vacates the leased property without
justification and without any present intention of returning and he defaults in the
pymt of rent
5. LL remedies –
a) Rent and damages – the tenant has failed to pay rent when due or has
breached some other lease obligation.
(1) The LL has the right to sue for back rent and for damages
occasioned by the tenant breach of lease.
(2) OR if the tenant is in possession the LL may terminate the lease
and recover possession.
b) Doctrine of Anticipatory Breach – if a LL terminates bc of a breach
of lease, he may recover in addition to back and other damages, the present
value of the amt by which the unpaid rent for a balance of the term exceeds
the amt of such rental loss that the lessee proves could be reasonably
avoided provided the lease either expresses such a remedy or the LL has re-
let to mitigation
(1) Mitigation is built in to this

Page 8 of 52
Downloaded From

c) At CL the failure by the tenant to pay rent did not of itself permit the LL
to terminate the lease, the LLs remedy rather was to sue for the rent due
(1) Modernly – contract law is to the contrary and the law of the LL
tenant is coming to be so as well
(2) In response to the CL rule, LLs began putting forfeiture clauses in
the lease.
(a) If the clause was phrased to end the lease automatically in
the event of the tenant’s breach, the LL could resort to the sort
of summary proceedings.
(b) If the clause merely gave the LL an election in the event of
the breach the LL could only accomplished through the
cumbersome ejectment remedy
(i) Today most jurisdictions have done away with CL
d) Security devices – most LLs want more and they have over the yrs
developed a number of techniques to protect themselves in the event of a
tenant’s default (i.e. security deposits)
VI. Quiet Enjoyment & Constructive Eviction
A. At CL, the LL was under no duty to furnish habitable premises, absent contractual
provisions to the contrary. However if there were defects or dangerous conditions
known to the LL and not easily discoverable, the LL had a duty to disclose the defect.
1. Quiet Enjoyment – This means that the LL cannot interfere with the tenant’s
use of and enjoyment of the premises.
a) This covenant is implied in every lease.
b) Even at CL, where the GR was caveat lessee, breach of this covenant
absolved the tenant from his responsibility to pay rent.
(1) This covenant can be breached by either actual eviction or
constructive eviction
c) Actual eviction – if the LL evicts the tenant from the entire leasehold,
the tenant may treat the lease as breached and terminate it. He no longer
has to pay rent.
(1) If the tenant is evicted from only a portion of the leasehold, he
may stay on the premises and refuse to pay rent until the LL restores
the entire premise to the tenant
d) Constructive eviction – if bc of the LLs fault the tenant’s quiet enjoyment
of the premises is substantially interfered with the tenant may treat the
lease as terminated and vacate the premises. He is no longer liable for the
rent. – COMMERCIAL--
(1) The theory behind this is that the LL has so interfered with the
tenant right of possession that she might as well have evicted the
tenant. The necessary elements are:

Page 9 of 52
Downloaded From

(a) Substantial interference – the tenants use and

enjoyment of the premises must be substantially interfered
with. (unless the tenant knew before signing the lease, the
court may waive this)
(b) Notice - the tenant must give notice to the LL of the
defect and give the LL a reasonable time to cure the problem
(c) Tenant must vacate – the tenant cannot stay on and
refuse to pay rent. He must vacate within a reasonable time.
(d) Fault – the interference to the tenant’s enjoyment and use
of the premises must be the fault of the LL. She must act, or
fail to act, to the tenants damage
2. Reste Realty Corp. v. Cooper – Π rented a basement and it kept flooding, the
old mgr told her that he would remedy the problem and he died and the problem
never was fixed
a) Constructive Eviction: If LL or of anyone who acts under their authority
or of someone having superior title to that of the LL, renders the premises
substantially unsuitable for the purpose for which they are leased OR
which seriously interferes with the beneficial enjoyment of the premises
is a breach of the covenant of quiet enjoyment and constitutes a
constructive eviction of the tenant
3. The LL is in substantial breach of the express covenant of quiet enjoyment
resulting in constructive eviction of a tenant or as a material failure of
a) A tenant right to claim a constructive eviction will be lost if he does not
vacate the premises within a reasonable time after the right comes into
(1) Breach of covenant of quiet enjoyment = constructive eviction.
B. The Illegal Lease
1. Brown v. Southall Realty Co. – the LL rented an inhabitable place and that
violates the code then you broke the law and therefore the lease is illegal
a) For the tenant to be able to defend against the LL’s action for rent, the
illegal condition must have existed at the time the lease was signed. The
tenant is still liable for the reasonable rental value of the premises
VII. The Implied Warranty of Habitability
A. Implied Warranty of Habitability – most courts will not imply in every
noncommercial (residential) lease, a covenant that the premises be delivered to the
tenant in fit and habitable shape.
1. At CL, the LL had no duty to keep the premises in repair once the tenant moved
in. This covenant was independent and thus even if the LL failed to keep the
premises in repair, the tenant still had to pay rent but could sue for breach of
contract or specific performance
a) Commercial leases – some courts have extended this implied covenant
to commercial leases
Page 10 of 52
Downloaded From

b) Standard applied – courts and statutes differ on exactly what standard

to use in assessing habitability. Some use the housing code standards other
follow a fit for human habitation standard.
c) Waiver – this implied covenant according to the cases decided so far
cannot be waived by the tenant. Any waiver of it is held to violate public
2. Hilder v. St. Peter – the tenant had numerous problems and she told the LL
and they were never fixed
a) Doctrine of Caveat Lessee – the relationship btw LL and tenant and that
the tenant took possession of the premises irrespective of their state of
b) Exception caveat lessee= doctrine of constructive eviction - (this is for
commercial real estate)–LL wrongfully interfered with the tenant’s
enjoyment of the premises or failed to render a duty to tenant required
under the terms of the lease, the tenant could abandon the premises and
cease paying rent
c) Implied warrant of habitability - that the rental of any residential
dwelling unit an implied warranty exists in the lease, that the LL will deliver
and maintain, throughout the period of tenancy, premises that a safe, clean
and fit for human habitation.
(1) It is for a specific period or at will
(2) Covers all latent and patent defects in the essential facilities of the
d) Measure of damages –difference btw the value of the dwelling as
warranted and the value of the dwelling as it exists in its defective condition
(fair rental value of the dwelling as warranted)
(1) The damages should be allowed the tenant discomfort and
annoyance arising from the LL breach of the implied warranty of
(2) Punitive Damages – typically not awarded for breach of contract
– cases in which the breach is such willful and wanton or fraudulent
nature as to make the appropriate the award exemplary damages.
e) Tenant remedies when there is a problem
(1) withhold rent until the problem is fixed
(2) continue paying rent, fixing the problem and charge the LL for it
(3) Stay and pay the rent and sue the LL for damages
f) Bottom line – is that you can not pay the rent until the LL fixes the
problems if you don’t want to leave the premises
B. Retaliatory Eviction - Illegal in most jurisdictions, if in the past 6 months the
tenant complained to the LL and the LL doesn’t fix but evicts the tenant it is illegal
C. Tenant’s Duties, LL’s Right and Remedies

Page 11 of 52
Downloaded From

1. Duty to Repair – at CL a tenant has the duty to keep the premises in as good
a condition as when he leases it.
2. Duty Not to Commit Waste – a tenant is liable for waste, waste is one of the
two types, ameliorating or damaging
a) Ameliorating waste – if the tenant improves the premises he commit
ameliorating waste. At CL he was liable for this. Modernly they do not
hold tenants liable for this as long as the value of the premises is not
b) Damaging waste – if a tenant substantially damages the premises, he
is liable. The injury must be one that extends beyond the end of the lease
term. In certain conditions a LL may get an injunction to stop the damage.
A tenant is not liable for ordinary wear and tear.
3. Duty to Pay rent – traditionally the tenant had had the obligation to pay the
rent called for in the lease whether or not the LL performed her part of the lease.
If the value of the rent is not specified or lease is illegal the tenant must pay a
reasonable rental value.
a) Today most jurisdictions excuse further performance from both parties
in cases of accidental destruction
D. The Problem of Affordable Housing
1. Govt Intervention
a) Selection of Tenants – traditionally, a LL could lease or not lease to
whomever she pleased for whatever reason she chose based on race.
Discrimination based on sex, race, and the like were possible in every case.
(1) Civil Rights Act of 1866 – This act prohibited racial and only
racial, discrimination in the leasing and selling of real and personal
property. An aggrieved party could sue the LL or seller for an
injunction or damages
(2) Fair Housing Act of 1968 – This congressional Act prohibits
discrimination in selling or renting based on race, color, religion, or
national origin. The Act was amended to prohibit discrimination
based on sex in 1974.
(a) Exceptions – In the case of single family dwellings a
seller or lessor can discriminate if she owns fewer than four
such dwellings does not advertise in a manner that indicates
her intent to discriminate
(b) Remedies – only the US Attorney General, HUD, or the
aggrieved party may sue the discriminating LL or seller
(c) Prima facie case and burden of proof – once the
aggrieved party makes out a prima facie case, the burden of
proof shifts to the LL to the seller
b) Rent Control – The shortage of affordable housing in many areas has
let to an escalation in rent. Bc of the serious impact on the public generally
many jurisdictions adopted rent control regulations. The courts have

Page 12 of 52
Downloaded From

generally upheld these regulations, so long as the interests of the LLs are
fairly considered.
2. Chicago Board of Realtors v. City of Chicago - Posner says its not
constitutional but the majority opinion says that its make sense that the ordinance
is ok for the safety and health and welfare of the citizens.
a) This was the concurring opinion – stating that if we have to make the
LLs apply to these heighten standards a lot of people are going to be shit out
of luck bc the poor ppl aren’t going to be able to afford the rent. There wont
be as many apts for rent bc the LLs don’t want to complying with the
(1) Forbidding LL to charge interest at market rates on large rent
pymts does not meet the purpose or improve the quality of the
housing stock. Its effect will be reduced LLs resources and the
resources they devote to improving housing.
(2) Their apparent rationale is to transfer wealth from LLs and out of
state backs to tenants and local banks making this an unedifying
example of class legislation and economic protectionism rolled into
E. The Debate over LL Tenant Reforms
1. Govt Subsidized Housing
a) Legislation – the federal govt became involved in housing in the 1930s.
The US Housing Act lets the local public housing authority (PHA) sell tax-
exempt govt bonds to raise revenue. The revenue is sued to construct local
low income housing
b) Regulations – of course numerous regulations need to be complied
with in bldg public housing. Bldg sites must be approved by the local govt
in accordance with federal guidelines. Regulations require that bldg sites be
located outside areas of high minority concentration. PHAs are more eager
to locate the housing in racially segregated areas. The aid of federal courts
has been invoked to force local compliance with the regulations
c) Local approval – A state constitutional requirement that a low rent
housing project can be developed only after approval by a majority of the
local residents has been upheld. The court held that the constitutional
requirement was neutral on its face and not in fact aimed at racial
minorities, Economic, but not racial, discrimination is permissible
d) Admission to public housing – the PHA is free to decide its own
admission requirements with the exception that preference is to be given
veterans and persons displaced by urban renewal. Some courts have held
that a person is entitled to an informal hearing on his eligibility
e) Rent increases in public housing – It has been held that a tenants
right to low rent housing is a property right that is subject to due process.
With this as a rationale, courts have held that tenants are entitled to
exercise certain rights prior to rent increases

Page 13 of 52
Downloaded From

f) Eviction – tenants may be evicted for destroying property or for being

loud and unruly, etc. They may not be evicted for belonging to a tenants
organization or for exercising their constitutional rights
VIII. Easements
A. Definition - An easement are interests one person has in another person’s property.
An irrevocable right to use another person’s land for a specific purpose
1. Ex) is a right of way across the land of another. An easement may endure for
years, for life, or in fee. It is more than a mere covenant or promise; it is a non
possessory interest in the land.
a) Typically conveyed by deed and it is a grant of interest to a person or
property to use the land
B. Easement appurtenant – benefits the owner or possessor of a particular parcel of
land. It passes with the property it benefits. The burdened land is called the servient
1. Affects at least two parcels of land. The property burdened by the easement is
called the servient estate. The land benefited by the easement is the dominant
a) Requires both the dominant estate and servient estate. The easement
attaches to and benefits from the dominant estate and are usually
(1) In case of ambiguity the courts favor easements appurtenant.
Negative easements are always appurtenant to the dominant estate
2. Ex) J deeds to his neighbor, D, the right to park in his parking lot. D sells her
house to R. If the original deed provided that any new owner of the house
succeeded to the right to park in J parking lot = easement appurtenant.
C. Easement in gross (personal easement)– one benefiting a person whether or not
the person owns any specific property (or any property at all)
1. Unless assigned ends at the grantee’s death. The servient land is burdened but
there is no benefited land.
a) Ex) J deeds to his neighbor, D, the right to park in his parking lot. D
sells her house to R. Under the original terms of the grant D can continue
to park in J parking lot after she sells her home to R
D. License – landowner permits another person to use property, the permission
revocable at the landowner will
1. Doesn’t have to meet S o F, revocable, not transferable
E. Various Types of Easements – there are two types of easements. The land subject
to an easement is called servient land
1. Affirmative easement – this is what most people think of as an easement. It
is the right to go onto the land of another and use it (e.g. right of way)
a) The right to go onto the servient estate for a specific purpose

Page 14 of 52
Downloaded From

2. Negative easement – this is the right to make the owner of the servient land
not do something that he would otherwise be entitled to do, such as build a
swimming pool within 20 feet of the neighbor’s yard. These easements are
disfavored by the court and instead the courts will construe them to be covenants
or servitudes
a) Gives the holder the right to prevent the possessor of the servient estate
from doing some act on the servient estate
b) Courts recognize some types of negative easements:
(1) Right of airflow
(2) Right to light
(3) Right to channeled water flow
(4) Right to lateral support
(5) Solar easements conversation of easements

IX. Creation of Easements – can be created by written instrument (reservation or

grant) or by implication through either prior use, necessity or prescription

Ask if it is an easement? Was it in writing? If the writing is express grant or reservation?

A. Reservation of an easement – satisfies S o F
1. Created by deed that would have a clause reserving the easement. The theory
was that a reservation was a grant of the property to a purchaser and re-grant of
the easement back to the original grantor.
2. Willard v. First Church of Christ, Scientist – ∆ sold a lot adjoining the church
to Petersen, Peterson sold to Π, there was an easement reversed for the benefit of
the church.
a) An easement was created by a reservation to benefit the church that the
estate is called the dominant that is benefited and the servient is the estate
that which is burdened by it.
(1) The language of the easement seems to convey an easement of
appurtenant. When Peterson sold it to Willard, Willard didn’t know
about the easement and bought the lot anyways.
b) We must balance the injustice which would result from refusing to give
effect to the grantors intent (leaving the easement) against the injustice
which might result by failing to give effect to reliance on the old rule and the
policy against disturbing settled titles.
(1) Derived from Old CL - A reservation allows a grantor’s whole
interest in the property to pass to the grantee but re-vests a newly
created interest in the grantors
B. Easement by grant generally easements are created by grant, that is party A
grants party B an easement across A’s land. Satisfies S o F
1. Express grants of easements are usually created by deed. The grantor sells only
part of her property and grants the purchaser an easement over the seller retained

Page 15 of 52
Downloaded From

C. Licenses – Irrevocable License

1. The failure to create an easement bc the parties did not execute a writing
generally results in the grantee receiving a license. Similar elements to easements:
a) The owner of the servient estate consents to the dominant holder use of
the servient estate
b) The servient estate owner knows or should know the dominant estate
owner will materially change the position believing the permissive use will
not be revoked
c) Dominant estate reasonably believing the permission will continue
substantially changes his position by investing in improvements on the
servient estate
2. License may become irrevocable in certain circumstances, similar to an
easement but with permission to go on the land, distinguishable from an easement
bc a license is revocable. One form of irrevocable license is a license coupled
with an interest.
a) Except - When it reached a level that the grantor is estopped to denied –
complied with a interest – Irrevocable license
(1) Irrevocable license – one party has so substantially changed his
position in reasonable reliance on his neighbor’s consent that it
borders on the unconscionable not to enforce the agmt
(a) Exercise privilege to someone
(b) That person makes improvements on the land
(c) Substantial expenditures in good faith of the license
3. Holbrook v. Taylor - ∆ purchased the land over which Π claims an easement.
The mining road was used by both ∆ and the tenants. The rental house burned
down. Later Π purchased a three acre parcel adjoining ∆s land. Subsequently, Π
brought suit to establish a right to use a roadway, claiming that its right to use the
road had been established by either prescription or estoppel.
a) To establish an easement by prescription, one must show that he has
openly, peaceably, continuously and under a claim of adverse
right to the owner of the soil and with the knowledge and acquiescence use
a way over the land.
(1) ∆ had a license and then it turned into an easement by estoppel.
Bc ∆ relied on the licenses so it was one of the exceptions to a license.
The court established this easement.
D. Easement by estoppel
1. An easement by estoppel will result every time a person uses another land and
a court finds that person will be inconvenienced if he is stopped
2. The servient estate holder cannot deny the existence of the easement however
courts disfavor easements by estoppel

Page 16 of 52
Downloaded From

a) The claimant must act in justifiable reliance on the statement. But most
courts will not find an easement by estoppel if the claimant should have
verified the fact represented before relying on it
b) The relationship btw the parties are critical factors in determining
whether an easement by estoppel exists
(1) Courts will evaluate the facts and ifind an easement by estoppel
where they feel the claimant acted in good faith on servient estate
owners words or actions
E. Creation by Implication – an easement may be implied when necessary to
carry out the intent of the parties or when required by public policy
1. Easement by (strict) Necessity- if at the time a grantor divides a tract of
land and conveys part of it to another (say to B) the only means of ingress and
egress is over the remaining land. This form of easement terminates when the
necessity terminates
a) Known as the easement implied by necessity for egress and ingress,
strictly necessary for the enjoyment of a parcel of land, involve access to and
from landlocked property
b) Othen v. Rosier – Π owed 93 acres of land after a number of
conveyances from Hill. ∆ owed 116.3 acres from Hill and Π had to use ∆
land to get to the road which after a bit ∆ constructed a levee which caused
Π walk a muddy mess
(1) Before an easement of (strict) necessity can be implied it must be
shown that
(a) Common owner severed the property there was a unity of
ownership of the alleged dominant and servient estates
(b) The necessity, not mere convenience, for egress and
ingress existed at the time of the severance
(c) The easement is strictly necessary for egress from and
ingress to the landlocked parcel
(i) Egress – the act of going out
(ii) Ingress – the act of entering
(2) An easement by necessity endures so long as it is necessary – if
the dominant owner secures another way out from the landlocked
parcel, the easement by necessity ceases
(a) Strict necessity is an absolute necessity
(3) The court found that since Hill conveyed his entire acre there is
no easement exist to the land
2. Easement By Prior Use (quasi easement) –a single tract of land is
divided into two (or more) parcels there is an existing quasi-easement reasonably
necessary for the enjoyment of the property that the court believes was intended by
the parties to continue.

Page 17 of 52
Downloaded From

a) Van Sandt v. Royster – sewer pipes ran under property and there was
no reservation of an easement for the sewer lines that ran through Π
property (there was a number of conveyances that finally came to Π and ∆
land). The sewage of ∆ floods Π basement
(1) An easement results from an inference as to the intention of the
parties at the time of the conveyance or at least have been within the
possibility of their knowledge of at the time – elements of easement
by prior use
(a) Unity of ownership is severed - Common owner
(b) The use was in place before the parcel is severed – prior
(i) What a reasonable person would expect the use to
continue no matter who owned the property
(c) The use must have been visible or apparent at the time of
the severance and
(i) Uses or conditions discoverable by a reasonable
(ii) Driveways are obvious, sewers and underground
utilities are considered apparent
(d) The easement is necessary for the enjoyment of the
dominant estate
(i) Reasonable necessity for fair enjoyment (some
courts how only for implied grants)
(ii) The restatement evaluates the totality of the facts to
determine whether the parties would have intended the
easement if they had thought of it at the time of
3. Prescription - just as by AP one may obtain title to property so by
prescription one may obtain an easement. Similarly, if the would be prescription
user has the permission of the owner, he cannot obtain a prescriptive easement,
elements are:
a) Actual use
(1) Physical presence on the servient estate – to prohibit negative
b) Open and notorious use
(1) Open and visible so that the landowner will or should notice the
c) Hostile use (adverse use) (claim of right)
(1) Claimant uses another property without permission
d) Continuous and uninterrupted use

Page 18 of 52
Downloaded From

(1) Only that the claimant use is consistent with that of a reasonable
easement holders use
e) Exclusive use (in minority of states)
(1) The claimant use is distinguishable from the use made by the
general public and that the landowner is not using the property in a
way that would prevent the claimant from enjoying the easement
f) Statutory period
4. Matthews v. Bay Head Improvement Association – Π used ∆ land (beach front
property) to get to the beach on the dry sand.
(1) The dry sand is reasonably necessary for the enjoyment of the
ocean and warrants the public to use the land subject to the
accommodation of the interest of the private owners
(2) There is no need to apply the notion of easement by prescription
bc the beachfront is quasi public nature and is apparent and
therefore it must be open to the public
F. Assignability of Easements
1. Assignable means the easement can be sold, gifted, devised, inherited or
otherwise conveyed. Assignable depends on several factors – major factor whether
easement appurtenant or gross
a) Easements appurtenant run with the land – so whoever possesses the
dominant estate has the right to continue the easement over the servient
(1) The servient estate remains burdened with the easement no
matter who owns the servient estate
b) Easements in gross benefit a person whether or not he owns a particular
parcel of land (no dominant estate)
(1) Commercial easements in gross (those making money or profits)
are assignable bc if they weren’t assignable than the purchasing
company would not be able to use any of the things on the servient
(2) Non-commercial, most courts, prohibits the assignment of
noncommercial to be assignable unless the parties intended it to be
G. Divisibility and Apportionment – the easement holder attempts to share the
easement with others or to assign, divide or apportion
1. Easement Appurtenant – by selling parcels of the dominant state, transfers the
easement with each parcel.
a) Each resulting parcel becomes a dominant estate and the owner enjoys
the easement over the servient estate so long as the dominant estates don’t
overburden the servient estate
2. Easement in Gross – since not assignable there never divisible or
apportionable – the following applies only to commercial easements in gross
Page 19 of 52
Downloaded From

a) Exclusive easements in gross – those where the easement holder has

the sole power to authorize others to use the easement (even the servient
estate owner cannot allow others to use the easement
(1) That if a person has an exclusive easement in gross that person
may permit many others to use the easement as long as the total
burden on the servient estate does not amt to a misuse of the
b) Non-exclusive easement in gross – the easement holder cannot
prevent the servient estate owner from granting the right to use an
easement to other persons (the servient estate owner retains the power to
decide how many persons can use the easement)
(1) Persons granted non-exclusive easements in gross cannot
subdivide or apportion any rights to the easement
3. Miller v. Lutheran Conference & Camp Association – Π obtained rights and
assigned ¼ interest to Rufus. Rufus executors granted the license to use their
easements which wasn’t in the original conveyance
a) Where it is the intent of the parties to allow assignment of the interest if
will be assignable, especially when it is designed for commercial
b) An easement in gross may be divisible but it must be exercised jointly. If
such joint exercise were not required it would result in a surcharge on the
easement. So if it doesn’t change the burden that its divisible.
(1) One Stock rule – when two or more persons inherit or share the
exclusive right to use an easement, multiple owners must act with
one voice
X. Scope of Easements
A. Delineates the extent of use an easement holder may make of the servient estate.
An easement holder’s use cannot exceed the scope of the easement
1. The scope of the easement depends on what type of easement is involved. The
intent of the parties is to be understood to determine the scope of the easement
a) When the scope is ambiguous there is a problem or when the easement
is burdening the land more than benefiting it
B. Location – easements must be located on an identifiable part of the servient
estate. Once the location is established the easement owner much remain within the
located easement
1. Express grant or reservation should state the precise location of the easement
2. Easements implied by prior use and by prescription are usually apparent from
the current use
3. Easements implied by necessity must be physically located after the easement
is recognize

Page 20 of 52
Downloaded From

a) If the location cannot be ascertained from the deed or other document

than the servient estate can situate the easement but if they don’t then the
dominant estate can locate the easement
b) Easement location cannot be changed or moved unless both parties
agree. Restatement permits the servient owner to move the easement at the
servient owner’s own expense as long as moving the easement does not
inconvenience the holder use of the easement.
(1) Misuse – an easement holder unilateral change in location of the
4. Brown v. Voss - B, the dominant estate was located btw parcels A and C. A was
the servient estate bc the owner of parcel B had a private road easement across A.
Brown bought parcels B and C. ∆ bought parcel A. Π intended to remove the
house on B and replace it with a house that would extend B to C. ∆ wanted to
prevent Π from using the easement
a) The easement was created by grant. So the easement cannot be
extended by the owner of a dominant estate thus by using the
easement for access to land to which the easement is not
appurtenant, Brown misused the easement
b) Even though Π misused the easement it does not necessarily entitled ∆
to injunctive relief bc the trial court has the discretion to determine based
on the facts, circumstances, and equities to the case
C. Intensity of Use – the GR that a easement holder can use the easement as long as
the use does not overburden the servient estate has both flexibility and uncertainty
1. The original parties unexpressed but presumed intent in determining what
qualifies as authorized uses of an easement
a) Courts presume the parties intended the scope of the easement would
evolve to accommodate reasonably foreseeable changes in the surrounding
area and in society
2. The easement holder use is not unbounded but the is limited to using the
easement only for the authorized purpose of the easement
D. No benefit to Non-Dominant Property Allowed
1. The easement appurtenant may benefit only the dominant estate. The
easement cannot benefit adjoining property, even if the owner of the dominant
estate also owns the adjoining property
E. Improvements, Maintenance, and Repair
1. As easement holder has the right to make improvements to her easement as
long as the improvements promote the use of the easement without the scope and
does not unreasonably burden the easement or the servient estate owner’s use or
enjoyment of her property
2. An easement holder is responsible for maintaining the easement and any
improvements it place on the easements
XI. Termination of Easements

Page 21 of 52
Downloaded From

A. Termination
1. By terms of the Grant – the deed or will granting or reserving the easement
may set an expiration date, terms of yrs or a condition
2. Purpose for easement ends – an easement terminates when the purpose for the
easement ends
a) It applies to all types but most often applies to terminate easements
implied by necessity
3. Merger – once a person gains concurrent ownership of both the dominant
estate and servient estate, the estate merges and the easement disappears
a) The old easement does not re-appear
4. Forfeiture for Misuse – a court may declare an easement forfeited for misuse.
The more common action is an injunction halting the misuse
a) If the court cannot be used without benefiting property adjoining the
dominant estate, a court will enjoin all use of the easement until the
easement holder can stop the misuse
5. Release – the easement holder by deed can transfer part or all of the easement
to the servient estate owner. The transfer is called a release, which must be in
6. Abandonment – two elements, intent to abandon and subsequent non use –
mere non use, no matter how long the duration of the non use DOES NOT =
a) Intent to abandon – must be evidence by some identifiable and
unambiguous act inconsistent with the continued ownership of the
(1) Non use for a long enough time does give credence that some oral
pronouncement or act taken long ago constituted the requisite
unambiguous act denoting the intent to abandon – that isn’t the best
evidence though
(2) The best evidence is a deed or written document which moves
abandonment very close to release
b) Presault v. US – the railroad service stopped in 1970 and removed the
tracks going through Π parcel but never applied for abandonment. Ten
years later the state agreed to maintain the former tack strip as a public
(1) In order to establish abandonment there must be in addition to
non user, acts by the owner of the dominant tenement which
manifest either a present intent to relinquish the easement of a
purpose inconsistent with it’s a future existence
7. Estoppel – the servient estate owner can extinguish an easement by estoppel –
the same standards applied as the creation

Page 22 of 52
Downloaded From

8. Prescription – a servient estate owner can terminate an easement by

prescription. The servient estate owner must use the easement in a manner
adverse to the easement holder’s right (this isn’t easy to do)
9. Recording Acts – a subsequent BFP who takes without actual, constructive, or
inquiry notice of the easement is not bound by the easement
a) A creditor that records a mortgage before an express easement is
recorded is protected by the recording act and may sell the property in a
foreclosure and the purchaser at that sale is not bound by the easement
b) If the easement is recorded before the mortgage the easement holder has
priority and the purchaser at the foreclosure sale takes the property subject
to the easement
10. Eminent Domain – federal, state and local govts can force landowners to sell
property to the govt as long as the govt pays for the property
XII. Real Covenants - meaning promise
A. Definition - Real covenants and equitable servitudes are agmts, promises, or deed
provision that relate to real property and bound or benefit a subsequent owners of the
respective properties solely bc they own the property
1. Real Covenants (covenants that run with the land) – made some contracts or
promises affecting property bind and benefit subsequent owners of the affected
a) Privity of contract – landowner contract btw and among themselves as
to the use and the nonuse of the properties, the courts will enforce the
contracts as btw the original parties to the K – relationship existing btw
both parties of the K
b) Privity of estate – the mutual, immediate, and simultaneous interest in
the premises
c) If you bring it in as an affirmative easement (meaning it will be a
negative easement) bring it in under a RC or ES
2. Both RC and ES benefit and obligate subsequent landowners and run with the
a) The property whose owner benefits is called the benefited estate or
b) The property whose owner is bound by a covenant to act or not act is
called the burdened estate
(1) A covenant often will both benefit and burden the land
c) Dominant estate (grantor -benefit) and servient estate (grantee -
burden) – same terminology
3. Types of burden binding on landowner of RC
a) Affirmative – require the owner of the burdened estate to perform
some act or to pay money
(1) Ex) to perform some act or pay money

Page 23 of 52
Downloaded From

b) Negative (restrictive covenants) – restrict or prohibit the uses that can

be made of the burdened property
(1) Ex) restricting property to single family residences
(2) Hill v. Community of Damien of Molokai - ∆ was providing home
to ppl with AIDS, Π noticed that there was a lot of traffic going into
the home and sued to enforce the covenant that was restricting that
the houses shall only be used for single family homes
(3) In enforcing a restrictive covenant we look to four general rules of
(a) if the language is unclear or ambiguous, the covenant is
resolved in favor of free enjoyment
(b) restrictions on use or enjoyment will not be read into the
covenant by implication
(c) the covenant must be interpreted reasonably
(d) words must be given their ordinary and intended meaning
(4) If you are a member of a protected class under the FHA, the
burden shifts to the person who is Π to prove the discriminatory
intent (AIDS is a handicap and you cannot discriminate)
(5) The Π has to prove either
(a) Discriminatory intent – that the handicap residents were
the basis of the
(b) Disparate Impact - enfor
(c) Reasonable accommodation
(6) Shelley v. Kraemer – Π (black person) purchased a residential
property that had an restrictive covenant that preventing blacks to
buy this property
(a) Property rights clearly are those civil rights protected from
discriminatory state action by the 14th amendment
4. Both RC and ES are binding on subsequent BFP must comply with the state’s
recording statute, elements
a) Satisfy the S o F
b) Intent to bind successors
c) Touch and concern
(1) The two elements intent and touch and concern are the same for
RC and ES
d) Privity of Estate (run with the land)
(1) Horizontal privity
(2) Vertical privity
e) Legal remedy - Money

Page 24 of 52
Downloaded From

B. Intent to bind successors (same for RC and ES)

1. The original parties must intend the covenant benefit and/or burden
subsequent purchasers rather the covenant merely being a personal agmt btw the
a) The intent that the covenant will run with the land must be ascertainable
from the deed setting out the covenant
b) The running of the benefit must be analysis separately from the running
of the burden bc one may run while the other does not
C. Touch and Concern (same for RC and ES) the burdened property
1. Many covenants do physically touch and concern land however it is a policy
component – two tests
a) Old English view – negative restrictions were held to touch and concern
of the land where the affirmative restriction would not
b) Today (apply both tests) – affirmative obligations are to touch and
concern the land
(1) Impact test – the promise exercises direct influences on the
occupation, use or enjoyment of the premises (some impact on the
(2) Bigalow test – it focuses on the market value and effect the
promise had on the land
(a) Look to the benefit or the burden increases/decrease the
market value of the land
2. Ask whether a reasonable person upon calm reflection and hindsight would
have intended the covenant to run with the land
a) It focuses on the reasonableness of having the covenant bind successors.
It often indicates when the covenant is under review and connected to the
use of the land that the original parties must have wanted it to run
3. A good way to master this element is to see how the court applied it to concrete
a) Ex) covenant restricting the land to residential uses touches and
concerns the burdened estate
b) Ex) covenants requiring the burdened property owner to pay money to
the homeowner’s association have be held as touching and concerning the
c) Courts conclude a covenant for the pymt of money does not touch and
concern the burdened property
4. The covenant must touch and concern the benefited property for the benefit to
run with the land, no matter whether the burden is personal to the promisor or is
RC or ES running with burdened property
a) Remember a covenant of the benefit side and burden side should be
analyzed separately

Page 25 of 52
Downloaded From

b) In gross benefit (personal to grantor) – it doesn’t matter if the burden

touches or concerns the land – not enforceable of running with the land
(1) Burden doesn’t run with the land
(2) Benefit does run with the land
5. Neponsit Property v. Emigrant Industrial Savings - The test of whether the
covenant runs with the land is whether it imposes a burden upon an interest in
land that also increases the value of a different interest in the same or related
interest. Bc the pymt of the maintenance fee is essential to enjoyment of the
property, the covenant touches the land and is binding on subsequent purchasers.
a) Generally those that touch and concern the land affect the value. It
touch and concerns the land if it talks about how, why it will be built then it
can touch and concern (not if who builds)
6. Caullett v. Stanley Stilwell & Sons – Negotiations btw the Π and ∆ and it was
determined that the covenant ran with the land.
a) The court said that it doesn’t touch and concern the land bc its purely
personal btw the seller and buyer and if it take that personal aspect out then
it doesn’t really touch and concern the land
D. Privity of Estate
1. Benefited party must prove there was privity of estate before a RC will bind the
subsequent owners of the burdened property, two privities must exist before a
court will find privity of estate
a) Original promisee – is an original party to the agmt creating the
covenant. The original promisee always benefits from the covenant, either
bc the benefit is personal to the promisee or bc its appurtenant to the
promisee’s property
b) Original promisor – is an original party to the agmt creating the
covenant. The original promisor is always bound by the covenant either bc
the burden is personal to the promisor or the burden is appurtenant to the
original promisor land.
c) Subsequent owner – those persons who were not original parties to the
K but who now own property that may be benefited or burden by a covenant
entered by a previous owner – only will be bound if the benefit or burden
run with the land

Horizontal privity

A = Original A X X = original promisor

B & C = subsequent L Y & Z = subsequent
Owners Page 26 of 52
Privity owners

Downloaded From

2. Horizontal privity – refers to the necessary relationship btw the original parties
to the agmt for the covenant to run with the land
a) Horizontal privity is not necessary for the covenant to be enforced btw
the original parties
b) Majority of states say horizontal privity will be found only if the
covenant created when on original party transfers an interest in land to
another original party
(1) Some states have drop the horizontal privity requirement
3. Vertical privity – refers to that relationship btw an original party to the K and
those subsequent purchasers tracing their interests in the benefited or burdened
property back to the original party
a) All the vertical privity elements requires is that the subsequent property
owner to benefit or to be bound, must succeed to an original party’s entire
estate in the property, either directly from an original party or through
persons who can trace their interest back to an original party to the
(1) For the burden to run to a successor or remote party, the party
must have succeeded to the original promisor’s entire estate or
ownership interest
(2) For a benefit to run that a remote or subsequent purchaser have a
possessory interest in the property
b) Ex) The grantor conveys to the grantee (horizontal privity) – under
common ownership. Then grantor conveys to subsequent owner, B, and
then the grantor and B have vertical privity. If B purchases without notice B
is a bona fide purchaser.
c) For the burden to run, all courts require vertical privity and some courts
also require horizontal privity
(1) Most courts say notice isn’t required for the benefit
XIII. Equitable Servitudes (servitude meaning burden) ES is nothing more than a NEGATIVE
A. Definition - An equitable servitude is defined as a covenant enforceable at equity
against the assignees of the burdened land. It does not matter whether the covenant
runs with the land.
1. Equitable Servitudes – courts of equity expanded the subsequent purchasers
who would be bound and burdened under the theory
2. Both RC and ES are binding on subsequent BFP must comply with the state’s
recording statute, elements
a) Must satisfy S o F

Page 27 of 52
Downloaded From

(1) Exception = Implied reciprocal ES

(a) Implied reciprocal from a general plan, grantee must be
put on notice, restriction on the land (subdivided by the
grantor), and must be written by the seller
(b) If you divide your land and the subsequent person gets the
other piece of land if there is a restrictive covenant on the first
piece of land we are assuming the restrictive covenant is also
on the new piece of land
b) Intent to bind successors
c) Touch and concern
(1) The two elements intent and touch and concern are the same for
RC and ES
d) Notice - when they buy the burdened property
e) Equitable Remedy – Injunction, SP
B. Notice- when they buy the burdened property
1. It is easier to satisfy since all it requires is that the successor owner of the
burdened property have actual, constructive or inquiry notice of the
2. The notice requirement only applies to the burdens not to the benefits
a) Benefited owners do not have to take with notice of the servitude
3. The rationale behind ES is that a subsequent landowner should be bound by a
covenant (at least for injunctive relief) if the original parties intended the burden
to run, the covenant touches and concerns the land, and the person to be bound
knows about the covenant prior to purchasing
C. The running of benefits to prior buyers
1. Bc of the nature of ES it is possible for the benefit to be enforceable by prior
buyers. In the case of implied ES, the prior buyer can only enforce the bldg
scheme that was in effect at the time he made his own purchase. There are two
distinct theories used to justify this power of enforcement
a) That the prior purchaser receives an implied reciprocal servitude in the
remaining land owned by the common grantor, so the subsequent
purchasers take notice
b) That the prior purchaser may enforce the restrictions as a third party
D. Common Scheme and Subdivision
1. Subdivision usually results from a common owner subdividing a large parcel of
land, often in accordance with local subdivisions ordinance and selling lots to
individual builders.
a) The developer may incorporate covenant into the deeds to promote
residential use, maintain value, preserve aesthetics, promote safety and for
other purposes the subdivider believes purchaser will desire.
Page 28 of 52
Downloaded From

(1) Courts resorted to rules for a common scheme or general plan of

development to impose burdens and granting standing to enforce the
2. The common scheme or general plan of development overcomes most legal
niceties in theses situations to give all subdivision owners standing to enforce the
benefit of the covenant
a) Once the court finds a common scheme, the court will conclude that the
common owner, developer, intended to impose the covenants
3. The entire lot becomes benefited and burdened as soon as the common owner
sells the first lot as part of the common scheme
a) The implied burden and benefit are often labeled implied reciprocal
negative easements or restrictions
b) The rationale is that by creating a substantially uniform set of covenants
that permit similar uses and impose similar restrictions on every lot owner,
all of them are benefited and burdened the equal measure
E. Reciprocal negative or restrictive ES –
1. GR – if a landowner/grantor divides his property and puts a restriction on one
part of the property, typically that restriction will be reciprocal to the other
restrictions that are retained AFTER the restriction was put on the land
a) Ex) the grantor divides his land into twelve parts and the first tow are
conveyed without restriction, the third part gets a restriction put on it. All
the lots after the third part gets that same restrictions (its called scheme or
b) Sanborn v. McLean - ∆ owned a lot that had an negative easement on it
that said you can only build residential houses, ∆ wanted to build a gas
(1) If the owner of two or more lots (common ownership), situated in
such a way as to bear relation to one another (touch and concern),
places restrictions on use of one lot for the benefit of the lot retained,
a reciprocal negative easement arises on the lot retained and runs
with the land to purchasers with notice.
(2) The ∆ was put on inquiry notice bc all the lots were uniform,
although there was no restriction in the chain of title
2. If there is a reciprocal scheme in the neighborhood, a court may enforce it. It
has to be reciprocal (other property in the neighborhood must have a similar
restriction) it must be either negative or restrictive and it must be part of the
developers scheme of development.
a) Not all courts recognize these types of servitudes in residential
F. Common Scheme and Notice for Recording Acts and ES
1. Most courts will impose a burden on all land in the common scheme once they
find a common scheme exists.

Page 29 of 52
Downloaded From

a) The recording acts require a BFP for value have notice of the burden
before a court will subject the subsequent purchaser to the burden.
2. Most subdivision ordinances require that the subdivider file documents
including a map or plat. Most courts hold that recorded subdivision plat
constitutes the notice necessary to satisfy the notice requirement for the ES
3. Common Scheme and the S o F - ES are interest in land and must be created in
writing to satisfy the S o F
G. What constitutes a Common Scheme
1. Common Covenants – the common scheme will be found if a suitable
percentage of lots in the subdivision are subject to common covenant
2. When a Common Scheme Begins – a common owner may own a tract and sell
lots from it before the common plan is developed. Since these lots were sold before
the common scheme of development began, they are not part of the common
3. Geographic Boundaries of Common Scheme – the common owner may own
just one tract but intend to develop only part of the tract under the common
a) A common scheme on part of the tract will not be burden the land and
not made a part of the common scheme
XIV. Termination of Covenants and ES
A. Termination
1. By the terms of the covenant – many covenants by their terms continue for a
specific number of yrs or until the occurrence of some event
2. Merger – since RC or ES envisions rights and obligations btw landowners, once
a common owner acquires the benefited property and the burdened property, the
covenant or servitude terminates through a merger
3. Release – owners of the benefited property can grant a written release to the
owner of the burdened state and should be recorded in the deed records
a) Rick v. West – Rick (different than Π) acreage was restricted to single
family dwellings, Rick sold a lot to ∆ and 45 acres to an industrialist
pending it was re-zoned but ∆ would not release the covenant, so Rick
conveyed the remaining acres to Π. Π contracted to sell 15 acres to a
hospital but ∆ would not release the covenant
(1) ∆ relied on the covenant that there was going to be residential
housing and the restrictive covenant is valid and binding as the day it
was made
(2) you cannot balance Ricks economic value v. West’s intrinsic value
4. Recession – landowners can execute a document rescinding the covenant so
that the covenant no longer binds any property
a) The recession is effective only if all persons with standing to enforce the
covenant join in executing the document

Page 30 of 52
Downloaded From

5. Unclean Hands – courts will not allow a landowner to violate a covenant and at
the same time to enjoin another landowner from violating the same covenant
a) Π cannot enforce the covenant if he has unclean hands
6. Acquiescence – results when a Π property owner passively endures multiple
violations of the covenant by many lots in the community
a) It envisions such a pattern of violation has occurred that enforcing the
covenant in this one instance would serve no purpose
7. Abandonment – occurs when such a high number of landowners in an area
violate the common covenant that btw their unclean hands and acquiescence the
covenant becomes unenforceable by any benefited landowners
8. Laches – occurs when a person having a right to enforce a covenant waits so
long to bring suit to enjoin a violation that the breaching ∆ is unduly harmed by
the delay itself
a) The delay must be unreasonably long delay under the circumstances
b) Laches does not actually terminate a covenant but it merely prohibits the
enforcement against the ∆ for a specific breach
9. Changed Conditions – covenants can be terminated if the conditions in the
neighborhood have so changed that the covenant no longer serves its intended
a) Western Land Co. Truskolaski – Western subdivided a tract of land that
was primarily for residential purposes, the lots had restrictive covenants
that limited to land to single family dwellings. In time the area developed
and shops were built. ∆ complained there were significant changes
(1) As long as the original purpose of the covenants can still be
accomplished the substantial benefit will inure to the restricted area
by their enforcement, the covenants will stand even though the
subject property has a greater value if used for other purposes.
(2) Where zoning and restrictive covenants conflict, the more
restrictive prevails
10. Relative hardship – balance the benefits to the neighboring property from
maintaining the covenant against the harm to the burdened property if the
restriction remains.
a) If the harm is disproportionately great compared to the benefit to the
neighboring properties, a court in equity might choose not to enforce the
b) Nashrstedt v. Lakeside Village Condo – Π sued to be entitled to keep
her three cats in her condo notwithstanding the restrictions imposed by
covenants, conditions and restrictions
(1) Restrictions that are not arbitrary against public policy or that
impose a burden on use that greatly outweighs any benefit will not be
enforced. Enforcement of a restriction does not depend on an
individual owner’s conduct but on the reasonableness.

Page 31 of 52
Downloaded From

11. Recording Acts – A subsequent BFP who takes without actual, constructive, or
inquiry notice is not bound by the covenant
12. Eminent Domain (condemnation) – federal, state, and local govt can force
landowners to sell their property to the govt as long as the govt pays for the
XV. Nuisance
A. Nuisances are interference with a person right to quiet enjoyment of her land. The
interference must be an invasion of the land. There are two types of nuisances,
private and public.
1. Nuisance law meaning that one should use one’s own property in such a way as
not to injure the property of another.
a) The interference can be intangible invasion such as smells, light, sounds,
b) Nuisances at Law – A nuisance at law (nuisance per se) is one not
permitted in the neighborhood in question.
c) Nuisances in fact – a nuisance in fact (nuisance per accidents) are one
that due to the location or circumstances is a nuisance.
2. Unintentional Act – an unintentional act may be a nuisance. When an
unintentional act is involved the court must take into acct not only the gravity of
the harm (as in intentional act cases) but also the conduct of the ∆.
3. Intentional invasion is unreasonable for purpose of nuisance law if
a) As before the gravity of the harm caused outweighs the utility of the
actors conduct
b) The harm caused by the conduct is serious and the financial burden of
compensating this and similar harm to others would not make the
continuation of the conduct not feasible
4. Compared to Trespass – an invasion of a Πs land may be either a trespass or a
nuisance. The chief distinction is that a nuisance involves interference with the
quiet enjoyment of the land and trespass involves interference with the right to
possess the land
B. Elements
1. Intentional and Unintentional Interference
a) Unintentional – usually resulting from negligent, reckless, or
abnormally dangerous activities
b) Intentional - The ∆ knows or should know that the interference with the
use of enjoyment of land but feels that society should tolerate or encourage
that activity
(1) It does not mean the ∆ intends to interfere with the Π use and
2. Substantial Interference

Page 32 of 52
Downloaded From

a) Standard - It only means that persons of normal sensitivities would

consider the interference to be substantial
(1) It does not necessarily mean egregious
b) Look to the impact on the person, economic or health consequences
(1) As a matter of public policy you have to deal with some types of
3. Unreasonable Interference
a) ∆s acts or condition on ∆s property will be a private nuisance if either
(restatement view):
(1) The gravity of the harm to Πs use and enjoyment outweighs the
social utility of ∆s conduct or the condition on ∆s property
(2) The harm to Π is sufficiently grave and greater than the Π should
be required to bear without compensation
(3) The harm to Π is sufficiently grave and the financial burden of ∆s
compensating for the harm and for similar harm to others would not
make the continuation of the ∆s activities infeasible
(4) The harm to Π is sufficiently grave and the ∆ could avoid the
interference in whole or in part without undue hardship, or
(5) The harm to Π is sufficiently grave, Πs use is well suited to the
character of the locality and ∆s conduct or property condition is
unsuited to the locality
b) Two tests:
(1) Level of threshold – the level of interference and ask if the it has
passed some threshold to society being intolerable
(2) RII
(a) Factors relevant to gravity of harm
(i) Extent and character of the harm
(ii) Social value of use affected
(iii) The suitable of the locality in question
(iv) Burden on the Π avoided the harm
(b) Factors relevant to the utility of the conduct
(i) The social value of the primary purpose of the
(ii) Suitable of the locality
(iii) The impartibility of the ∆ preventing harm
4. Intangible invasion – smells, lights, sounds, vibrations, pollution
C. Private Nuisances
1. Protects rights in the use and enjoyment of land, only owners of interest in land
can bring suit
Page 33 of 52
Downloaded From

2. Act or condition on the ∆s land that substantially and unreasonably interferes

with the Π use and enjoyment of the Πs land. There are three elements to private
a) There must be a substantial interference with the Πs use and enjoyment
of her land caused by the ∆;
b) The ∆ must act intentionally (meaning intending to cause the action that
produces the offense, or unintentionally and negligently (including
wantonly, recklessly, etc) and
c) The Π must be entitled to the use and enjoyment of the land (i.e. she
must be in possession but need not be the owner)
3. Weighing the harm – it is evident that the extent of the harm must be
evaluated. This includes looking at the extent and character of the harm, the
burden it will cause the ∆ to correct the harm, the social value of the land
invaded and the suitability of the invaded land to the locality
a) Unreasonableness - An interference with use and enjoyment of land in
order to give rise to liability must be substantial, it must also be either
intentional and unreasonable OR the unintentional result of negligent,
reckless or abnormally dangerous activity
b) The test of unreasonableness - The court will look to the gravity of the
harm outweighs the utility of the actors conduct
(1) Unreasonable with regard to intentional tort – to concern the
level of interference that results from the conduct whether the
interference crosses some threshold that marks the point of liability
4. Morgan v. High Penn Oil – the oil refinery which is approximately 1000 feet
from the dwellings of Πs, substantially impairs the use and enjoyment of the Π
a) An invasion of another’s interest in the use and enjoyment of land is
intentional when the person whose conduct is in question as a basis for
liability acts for the purpose of causing it or knows that it is resulting from
his conduct or knows that it is substantially certain to result from his
D. Public Nuisances
1. This is a nuisance that adversely affects the public as a whole. A public
nuisance may be a crime and penal sanctions may be available to curb it.
Conversely if the use is permitted by statute or ordinance, it is not a public
nuisance. Private individuals can bring public nuisance suits only in limited
circumstances. The private Π must show that the nuisance is especially injurious
to her and that the harm she suffers is different from the harm to the public
a) A public nuisance is one affecting the rights enjoyed by citizens as a part
of the public. A public nuisance must affect a considerable number of people
or an entire community or neighborhood.
(1) A business may be declared a public nuisance there must be a
populous area which the people are injured.
Page 34 of 52
Downloaded From

b) Public nuisances protect public rights, any member of the affected public
can sue but usually only if the person bringing suit can show special injury
2. Spur v. Del Webb – Spur owned a feedlot for awhile prior to the development
of the housing subdivision which Π began constructing. Π began to complain
about the smells from the feedlots
a) Coming to the nuisance – when a residential landowner came into the
neighborhood reserving for industrial or agricultural endeavors, they may
not have relief
(1) The coming to the nuisance does not necessity completely bar the
Π from damages or injunctive relief but it’s a relevant factor
b) The operation is both a public and private nuisance. Π is going to have
move but not bc of any wrongdoing on his part but bc it’s a proper and
legitimate regard by the courts for the rights of the public (even though
when Π developed the feedlot there was no indicate of residential bldgs)
(1) Webb is going to pay Π money for the reasonable amt of the cost
of moving or shutting down his business
(a) This is odd that the person who caused the nuisance is
being awarded money
E. Lateral and Subjacent Support
1. Lateral support refers to that provided to one piece of land by the parcels of the
land surrounding it
a) Lateral support can be waived and it can be expressly expanded
2. CL imposes a duty on neighboring land to provide the support that the subject
parcel would need and receive under natural conditions, ordinarily there is no
right to support of structures on the land
3. Generally there is no liability absent negligence if subsidence of improved or
unimproved land is shown to have been caused by withdrawal of fluids
4. Subjacent support refers to support from underneath as opposed to the sides
a) Arises when one person owns surface rights and another person owns
some kind of subsurface rights such as a mineral interest
F. Remedies - There are basically two types of remedies.
1. Four Rules – A conventional view of the nuisance claims could be resolved in
one of four ways
a) Abate the activity in question by granting the Π injunctive relief
(Morgan and Estancias)
(1) Balancing the equities, and change your process a little – now
there is a nuisance – there is more likely to be injunction if the
harm is greater than the utility
b) Let the activity continue if the ∆ pays damages (Boomer)
(1) There is a nuisance is more substantial but we really need the
activity but they are going to compensate you for the damages.
Page 35 of 52
Downloaded From

c) Let the activity continues by denying all relief

(1) There is no nuisance and the damage is minimal – this is the
threshold test
d) Decision that is the converse of the second alternative, abate the activity
if the Π pays damages (Spur case, above)
2. Injunction - forbidding the activity that causes the nuisance. A court may
refuse to grant an injunction and instead award damages
a) Injunction – if the harm to the Π outweighs the social utility of ∆s
conduct, where the ∆ can avoid harm without undue hardship or where the
Πs conduct is suited to the locale and the ∆s activity is not -- Injunction is
the preferred method bc it gets rid of the problem
(1) Strict rule of necessity (stern rule) - ∆ can escape an injunction
only if the social utility of the ∆s primary activity benefits the public
at large rather than merely benefiting the ∆ personally
b) Estancias Dallas Corp. v. Schultz –Π brought suit to permanently
enjoin ∆ from operating the air conditioning equipment
(1) There is not evidence to indicate the necessity of others compels
the Π to seek relief by way of an action at law for damages rather
than by a suit in equity
(a) ∆ could construct separate A/C units but that will be very
costly and it is cheaper to pay damages than to abate the
present system
(i) Doctrine of comparative hardship – to avoid greater
harm (social cost)
(2) Balancing the equities
(a) Strong likelihood on the success of the merits
(b) The harm to the Π if the injunction is denied
(c) The harm to the ∆ if the injunction is granted
(d) The advancement of public interest
3. Damages
a) If the offending conduct is of good social value and may suitably be
conducted at the particular location and it is impractical to prevent the
invasion, the court may award the Π damages instead of abating the
(1) Typically for past problems
(2) Monetary damages seem appropriate where the ∆ provides
significant social utility and it cannot prevent the nuisance
(3) When there is a minor inconvenience the remedy is damages
b) Permanent damages

Page 36 of 52
Downloaded From

(1) Taken the value of the harm suffered by the Π in past and the
present and going into the future
(2) One pymt
c) Temporary damages
(1) Lesser, basically the damages occurred from the time the
nuisance began to present (so its past to present)
d) Boomer v. Atlantic Cement Co - ∆ operates a cement plant and the
neighboring land owners allege injury, suing for injunction and damages
(1) The court will grant the injunction unless ∆ pays Π permanent
damages. The theory of damages is the servitude on the land of Πs
imposed by ∆s nuisance. So Π is getting and injunction bc ∆ is not
going to pay permanent damages
(a) Permanent damages are damages for the problem in the
XVI. Zoning
A. Zoning Power - only the state has the power to zone (police power)
1. Goals of Zoning – Zoning has as it goal the orderly development of the
community. It promotes economic growth, community health, welfare and safety
2. One of the fundamental characteristics of zoning is that it segregates uses of
land into geographic regions. For health and safety reasons, zoning can regulate
the density of the human population.
3. Zoning restrictions must be for a legitimate govt objective. The EPC requires
that all landowners who are similarly situated be treated equally, unless there is a
legitimate reason for not doing so.
a) Zoning ordinances are constitutional unless you can prove that its
(1) arbitrary and capricious
(2) lacks substantial relationship to the police power
(a) Apply rational basis test
(3) Court will declare the law unconstitutional
b) Eminent domain, if zoning regulations amt to taking, just compensation
must be given by the state
c) Taking – the local govt property exercises it police power when it phases
out uses that are inconsistent with newly enacted zoning changes.
(1) A use that, due to zoning change, is no longer permitted is a
nonconforming use. Most courts say that the landowner must be
given a reasonable time to cease his nonconforming use.
B. Standards of Review (different burdens of proof)
1. Rezoning legislative actions
a) Rational Basis – when a city amends the ordinance

Page 37 of 52
Downloaded From

(1) Burden on the Π

(a) The Π has to prove that there is no legitimate state interest
(b) The means are not rational related to the state interest
(2) Easy burden and the city wins most of the time
2. Special Exceptions and Variances
a) Quasi Judicial Standard – less strict than SS
(1) Burden is on the state
(a) Has to be written with substantial evidence
b) Quasi- judicial – the board has standards and apply the standards and
make a decision. If someone wants to appeal that board decisions then they
appeal to the state court
(1) It is an administrative and less deferential
(2) The legislative can do anything they want as long as they haven’t
acted arbitrary and capricious -- more deferential
(a) Approach review of suspicious zoning amendments by
treating them as quasi-judicial rather than legislative and
subjecting them to decidedly undeferential
3. Fundamental Rights (mainly 1st amendment rights)
a) Strict Scrutiny
(1) Burden is on the state – not acting arbitrary and capricious
(a) State must prove that there is a compelling state interest
(b) And the means are narrowly tailored
C. Enabling Legislation
1. This power has been delegated to cities and counties by statutes called
‘enabling statutes’. Hence all local zoning activity must abide by the enabling
a) Legislatives enact the zoning ordinances bc cities get the power from the
state constitutions
(1) State legislatures  delegate the zoning authority (the power to
restrict)  municipalities
(2) However there are certain standards that the legislatures have to
abide by them
b) Zoning Commission – comprises of ppl from the town and proposes to
the city council
(1) City Council – ordinance is enacted by them
(a) If they want to amend a ordinance the city council has to
amend or adopt the ordinance

Page 38 of 52
Downloaded From

(2) Zoning Board is a board that oversee ordinances and gives advice
to the legislatures about enacting zoning ordinances
(3) Zoning Board of Appeals/Adjustment is the board to appeal
whether an application is denied bc of a zoning problem
c) Comprehensive Plan – the enabling acts inevitably require zoning
authority to determine a plan which the legislatures must conform too
(1) Statement of govt objectives which establish the goals that the
regulations were set out to achieve
2. The city council may want to re-think zoning and then can re-zone, however
most states enabling acts (this is the power that is given from state to the local city
council) – want to have public hearing to discuss the zoning ordinance
a) Elected body has the police power to promote the health, safety and
welfare so they make the zoning ordinances
b) The board that grants special exception and they are appointed but they
can’t discuss what is going to promote the public welfare just granting or
denying the special exceptions
D. Cumulative Euclid Zoning
1. Village of Euclid v. Ambler Realty Co. - A zoning ordinance, to build
residential property, is going to make Amber’s property less valuable so Amber
decided to repeal the ordinance.
a) Property is a fundamental right and for a state to make an ordinance
that would take property away from others would violate their fundamental
right unless the state has a legitimate and important interest
(1) Properly more like intermediate scrutiny – the legitimate and
important interest in protecting the public welfare. A legislature
cannot act arbitrary and capricious
(2) You can say an ordinance is unconstitutional bc
(a) Either it was facially unconstitutional or
(b) You can say what it is doing makes it unconstitutional
b) Bottom line – zoning is not unconstitutional bc it is within the police
power of the state and is rational
2. Higher zones are allowed in all lower zones but no use can be located in a
higher zone than the zone in which it was first listed
3. Zones are ranked by hierarchy
a) The districts limited to residential uses are know as higher zones
(single family houses)
(1) Less harmful to others
b) The districts allowing multifamily dwellings are lower zones
(1) More harmful to others
(2) Commercial and industrial zones are lower

Page 39 of 52
Downloaded From

E. Non Cumulative Zoning

1. Permits each use in their respective district - typically in industrial areas
a) Exclusive zoning recognizes that a single family residence or an apt may
be just as incompatible with the activities in a warehouse, industrial, or
commercial district as a manufacturing plant would be in a residential area.
2. Look at the most restrictive
a) The restrictive covenant is a K so irrespective what the zoning says you
can build single family home or duplexes but the restrictive covenant says
you can only build single family homes
(1) You can build a single family home not a duplex bc you look at the
most restrictive
(2) The restrictive covenant DOES NOT TRUMP the zoning
ordinance rather it is the one who is the most restrictive
b) If you have a zoning ordinance and a restrictive covenant that is both
equally restrictive (saying only build something) then you go to the most
restrictive which would probably be zoning bc that is what the state is
saying you cant do – MOST RESTRICTIVE
F. Non Conforming Use – existing use that is lawful under an ordinance but bc of a
change in the ordinance the use is declared unlawful
1. At the time the ordinance takes effect, so the mere ownership of the land is
a) NCU runs with the land so the mere change of the owner does not
change the NCU
(1) Abandonment – the NCU ends, so the owner or subsequent
owner cannot use the NCU
b) Can give rise to a taking when the govt interferes with the owners use
when the use is lawful (not a nuisance or abandonment) and the state will
have to compensate the owner
2. PA Northwestern Distributors, Inc. v. Zoning Hearing Board – appellant had
an adult book store and the town modified the zoning ordinance to regulate adult
commercial enterprises. The town gave the appellant 90 days from the date of the
ordinance to be in compliance with the ordinance.
a) Appellant filed an appeal to the board and the board upheld the
provision, so he filed suit
(1) Amortization – gives the non conforming users some reasonable
amt of time to conform to the ordinance – this is a valid police power
b) The minority view is the amortization and discontinuance of a pre-
existing non conforming use is in valid and it cannot be zoned out
c) The majority view is that a reasonable amortization provision is valid
if it reflects consideration of certain factors – the burden of proof is on Π

Page 40 of 52
Downloaded From

(1) Provisions for amortization of non conforming uses are

constitutional exercises of the police power so long as they are
reasonable, to determine this look:
(a) determined on its own facts
(b) reasonable when observing its impact upon property under
(c) The beneficial effects upon the community that would
result from the discontinuance of the use can be seen to more
than offset the losses to the affect landowner
(d) The length of the amortization period
(e) The nature of the present use
(f) The foreseeable future development of the land
3. Think about the Spur case – when the feedlot became a non conforming use
when the area around it expanded
a) Since it was a nuisance there is never eminent domain bc you have no
right of a livelihood to that nuisance
b) So keep in mind that a nuisance may be NCU but it isn’t like NCU bc
there is no taking
G. Vested Right
1. You are there and your in business and what you are doing established to be a
a) The zoning ordinance cannot be changed
2. If a zone that was before it was zoned as anything and later zone to residential
zone only, you have a vested right to continue to zone your food store bc your being
a) Amortization can take away a vested right
b) A vested right cannot be taken away unless
(1) Nuisance
(2) Abandonment
(3) Extinguished by eminent domain
XVII. Variances, Special Exceptions
A. Variances – when a city permits an individual to do something that would otherwise
be prohibited to so something by the ordinance
1. Two Types
a) Use variances – asking for permission that a use was prohibited
(1) Ex) building a gas station in a residential area
b) Area variances – asking for permission in dealing with set backs with
floor space, height

Page 41 of 52
Downloaded From

2. Zoning does not take into acct the particularities of every lot in the zone. They
are empowered to grant variances for conditions that are unique to a particular lot
or two. If the condition is not unique, a change in zoning should be sought.
a) Run with the land
b) Can be granted to permit a landowner to build or use the land that
otherwise is not permitted by the zoning ordinance
3. Has undue hardship (unnecessary hardship) – hardship that results in all or
almost all no use in which it was originally zoned
a) If granted the variance goes against the plan then the variance cannot be
granted rather you have to pay the Π for the land and results in a taking
(1) These are difficult to get
b) Amending the ordinance is done through the legislatures
4. Commons v. Westwood Zoning Board of Adjustment - Commons try to sell
their vacant lot to Weingarten. Weingarten was going to proposing to build a
house. The original zoning ordinance did not prohibit a minimum footage and
then the ordinance was amended to include a minimum amt on the footage of the
property. So the Commons applied for a variance to show that the ordinance does
apply to them so they can build the house
a) This is an area zone for the frontage of the house.
(1) A use is the characteristic of the use of the area (bakery, farm)
(2) An area deals the size, how big/small, the frontage. An area zone
is less important than a use zone.
b) You have to prove to the Board to be able to get a variance:
(1) As a result of the ordinance it created an undue hardship to me
(a) Undue hardship – no effective use can be made of the
property in the event of the variance denied
(b) The negative criteria – that it doesn’t go against the grain
of the zoning ordinance
(i) Judicial process – fact finder
c) Not allowing someone to do anything with the property creates an undue
hardship. The Π does have an undue hardship but he can’t prove the
negative criteria then you can’t get the variance.
(1) Variances are granted by the board who interprets the ordinance
not the legislatures.
B. Special Exceptions – legislatures states in advance that certain uses will be allowed
that are strict and specific materials have been met
1. Elements (if you meet them the special exception wont be granted) – Look to
the ordinance for the elements:
a) Certain requirements are met
b) Use is not adverse

Page 42 of 52
Downloaded From

c) Not going to affect the public interest

d) Purpose is upheld
e) Doesn’t defeat the comprehensive plan
f) Value of the neighboring properties is manitain
2. Special exceptions – a special exception is not the same thing as a variance.
Where a particular use is compatible in theory with the surrounding zoning if
certain conditions are met, a special exception can be issued to the landowner.
Criteria must be established for granting special exceptions
a) Already pre-approved, permits only a condition bc of the size or harmful
effects, or heath and safety concerns to be permitted only on certain
3. Administrative - One guideline that cannot be an open ended discretion on the
exception – it cant be left to the zoning board to determine legislative conditions
a) Legislative process -
4. Cope v. Inhabitants of the Town of Brunswick - You had something in the
zoning ordnances but the board can grant exceptions. The board said they will
give you an exception to build apts if you meet certain criteria: 1) use not adverse,
2) purpose upheld, 3) value maintain
a) The legislature said you may build an apartment if the board approves it,
so the legislatives delegated the power to the board which was too much
power to the board which should be for the legislatures.
b) The exception was not granted
XVIII. Challenges to Zoning Ordinances - Spot Zoning, Aesthetic
Regulation, Controls on Household Composition, Exclusionary Zoning
A. Spot Zoning – amendment that benefits a landowner and is not in accordance with
the comprehensive plan
1. Elements:
a) A small parcel is single out for special and privilege treatment
b) The singling out isn’t in the public interest but only for the landowner
c) Inconsistent with the comprehensive plan
2. State v. City of Rochester - 1.18 was owned Gooding Trust and it was zoned
residential, the city council re-zoned that property to allow for condos. There was
a hearing about the re-zoning and the commission did not recommend re-zoning
and have the city application denied. However the city council didn’t take that
advice and re-zoned anyway.
a) The planning commission they take the advice from the local citizens
concerns and express them at the hearing to determine if something should
be re-zoned.
(1) The legislatures appointed the zoning commission board but the
legislatures don’t have to listen to the advice.
Page 43 of 52
Downloaded From

b) The idea of zoning just has to be rational basis however, if the zoning is
discriminatory then its intermediate scrutiny.
c) When a municipality adopts or amends a zoning ordinance it acts in a
legislative capacity under its delegated police powers. As a legislative act, a
zoning or rezoning classification must be upheld unless opponents prove
that the classification is unsupported by any rational basis or that the
classification amts to a taking without compensation.
(1) A special use provision permits property within the discretion of
the govt body to be used in a manner expressly authorized by the
(2) When a legislative does act there is a presumption of the validity.
Basically since their elected they know what they are doing, despite
wheat city planner’s recommend.
d) Spot Zoning – favorable treatment to an individual or unfavorable
treatment to individuals
(1) The zoning changes, typically limited to small plots of land, which
establish use classification inconsistent with surrounding uses and
create an island of non conforming use within a larger zoned district
(a) The burden of demonstrating that a particular zoning
amendment is spot zoning rests with the litigant attacking the
(b) There isn’t going to be a presumption of validity when we
deal with spot zoning rather there is a presumption of
arbitrary and capricious when dealing with spot zoning
e) The court is saying that if the commissions (and the locals) are
complaining about this ordinance then maybe there should be a tougher
scrutiny than rational basis.
B. Aesthetic Regulation
1. State ex rel. Stoyanoff v. Berkeley – zoning ordinance is authorized, someone
wanted to build a house that was different than what is in the comprehensive plan
a) Aesthetics have a great deal of influence on property rights and therefore
the legislative can regulate this area but there are standards. There is a
delegation of powers btw the legislatives and the board to regulate these
standards. This is a valid police power.
(1) When the statutes are very subjective then you could also argue
it’s unconstitutionally vague.
(2) When the legislatives zone based on aesthetics is more subjective.
If we are going to grant a board to grant or deny something, in some
sort we are going to create a legislative body that will create
b) The court said that the house is a property right and therefore it should
be in congruence with the surrounding houses. The welfare of the
community involves the property value and therefore the general welfare is

Page 44 of 52
Downloaded From

a broad power. So we don’t want to depreciate the value of the houses and
then be upset and then the people would be worst off.
2. City of Ladue v. Gilleo –When regulating the signage there is a 1st amendment
issue. You can’t have a city legislate free speech. When there is a fundamental
liberty interest (speech rights) there needs to be a higher standard for review. The
state needs to have a compelling state interest and the ordinance must be narrowly
a) The problem with aesthetic regulation is when it interferes with a
fundamental right
b) The court said this was content neutral based and therefore you’re
regulating too much speech. If it is content based and non commercial
speech is gets a lot of scrutiny.
c) Signs w/speech
(1) Commercial vs. non commercial
(a) Non commercial – a little more scrutiny than commercial
(2) If its off cite v. on cite
(a) Is it on cite (at the speaker place vs. on a neutral place)–
more scrutiny
(3) Content based v. content neutral
(a) Content based – more scrutiny
(b) Content neutral – time, place, and manner
(i) Content neutral – is not prohibiting from what the
signs are saying but where the sign should be placed
(4) Residential v. commercial
(a) Residential – more scrutiny other than putting a limitation
on the size or something
(i) Highest scrutiny is residential, non commercial, on
C. Controls of Household Composition
1. Many efforts have been made to restrict land use based on the composition of
the household. Usually this is intended to prevent boarding house, fraternity
houses, or overcrowded conditions. Such zoning ordinances do present significant
constitutional issues, however.
a) As the time progress there was more zoning on commercial areas vs.
residential zones
b) Highest zoning use is single family residential but what is excluded is
who can live in the house
c) Rational Basis
2. Village of Belle Terre v. Boraas - Dickmans are owners of house in the village
and they leased to Truman and ∆ became a co-lessee. Six students lived in a house

Page 45 of 52
Downloaded From

whom are unrelated. The ordinance restricted land use to one family dwelling
excluding lodging houses, boarding homes, frat houses, or multiple dwelling
house. The word family was used in the ordinance means.
a) The students are arguing the ordinance violates freedom of association
and right to privacy
b) Thus the ordinance is a reasonable, not arbitrary and capricious exercise
of discretion by ∆ -- so Sp. Court held the ordinance is constitutional and
the students lost
(1) Teshura doesn’t agree and believes there should be more scrutiny
than rational basis and feels the family doesn’t have a rational basis
bc if they are concerned with the number of cars on the street or the
noise, etc. then the regulation should be on limited those things
c) The majority found a legitimate state interest in controlling noise,
traffic, and parking and welfare of the people. The means chose, the
definition of family was rationally related to the promotion of the legitimate
state interest. The majority is saying that no where in the constitution does
it prohibit six people living together and there needs to be a line draw
(1) This is an issue for state courts
(a) Family values is find as long as we don’t go over a
fundamental right
(b) The court finally says that it must be rational related but
it’s a heighten scrutiny
(c) These kind of statutes are dwindling bc the statute needs to
be more rationally related and basically if your impinging on
family values the courts are saying you better have a good
3. Moore v. City of East Cleveland – Grand parents don’t pay property taxes so
the concern is that since the grandparents are paying and the children are going to
school without paying. East Cleveland zoning ordinance prohibited the
cohabitation of non family members, which included cousins and other members
of the traditional family
a) The court used something other than rational basis review and the state
did not justify the fundamental liberty interests
4. City of Edmonds v. Oxford House - There was a statute defines a family as
prohibited five or fewer unrelated persons living together – family. The Oxford
house is for alcoholic recovering and about 8-12 people living together. The FHA
says that alcoholics are handicapped. The statute has a rational basis but not it
impinged on the handicapped bc of the FHA.
a) The city said that the FHA there is an exemption
b) FHA – applies to selling homes, leasing homes, renting homes – sellers
and landowners, also a limitation on city councils
(1) selling your own house – exempted from FHA

Page 46 of 52
Downloaded From

(2) any advertisement that violate a protected class – violates FHA

(a) Regardless of the exemption – it does not apply to
(3) FHA applies to municipalities – no state/municipality can violate
a protected class
c) Maximum occupancy restrictions cap the number of individuals
permitted per dwelling in relation to the available floor space. These
restrictions are to maintain health and safety by preventing overcrowding.
FHA says a statute dealing with a number of people living in a place is
exempted under FHA.
(1) However, there is an ambiguity with the numbers and exemption
under FHA. So the majority says you have to look at the purpose
of the statute, which is giving a number regulation, to determine if
it’s exempted under the FHA.
(a) This statute is saying that no more than 5 unrelated people
can live together is NOT an occupancy statute.
(b) Ex) If the statute says no more than __ people but for the
purpose of the house, the FHA is going to construe the
purpose to fall within the exemption. So the FHA
completely exempts occupancy statutes.
(2) While maximum occupancy rules fall within the FHA exemption,
rules designed to preserve the family character of a neighborhood,
fastening on the composition of households rather than the total
number of occupants living quarters can contain, do not fall within
the exemption
d) Ask yourself
(1) Is this a maximum occupancy restriction fall within the
(2) After satisfying the first threshold then will the FHA make a
reasonable accommodation to allow this person to fall within the
statute (like a variance)
D. Exclusionary Zoning - If the particular zoning ordinance bore no reasonable
relationship and had an exclusionary purpose, it was struck down
1. By regulating various zoning requirements (density, minimum floor space,
types of housing) a community can separate the rich, the poor, and the middle
class. The old line of cases required that the zoning requirement or regulation or
regulation bear a rational relationship to a permissible govt purpose. One of these
purposes was to prevent overcrowding
a) Modern Trend - held that any zoning ordinance with an exclusionary
impact must be scrutinized in the light of the needs of the region. The
impact of this is that developing communities must have their share of low
and moderate income housing.

Page 47 of 52
Downloaded From

(1) Today look to FHA – if you can prove a prima facie case then it
will survive
b) The provision having the purpose or effect of excluding groups from the
(1) Designed to exclude certain groups out of a community
(2) If excluding a suspect class – unconstitutional
(3) If excluding a socio economic class (prima facie) – constitutional
(a) Poor people isn’t a fundamental right
2. Southern Burlington County v. Township of Mount Laurel
a) Considering the basic importance of the opportunity for appropriate
housing for all classes, no municipality may exclude or limit categories of
housing solely for fiscal reasons. Every developing municipality must by its
land use regulations make realistically possible an appropriate variety and
choice of housing.
(1) The court recognized the clear intent to maintain to property,
taxes low. Mt. Laurel cannot have an all rich suburbs. The city (Mt.
Laurel) has to make it realistically possible to have several people
move into the houses. Every municipality has to have some
commercial, some low income housing, etc.
b) When the land use regulation has a substantial external impact, the
welfare of the state citizens beyond the borders of the municipality cannot
be disregarded.
(1) When it shown that a developing municipality has not made
realistically possible a variety and choice of housing, a facial showing
of violation of substantive due process or EP has been made out and
the burden shifts to the municipality to establish a valid basis for its
XIX. Eminent Domain
A. Definition – Eminent Domain is the power of the govt to take privately owned land
for public use. Under the 5th amendment of the US constitution, “just compensation”
must be made for the taking
1. No person shall…nor be deprived of life, liberty or property, without due
process of law… - taking land without just compensation
B. Govt Taking – if the govt uses its eminent domain powers and takes land, it must
pay for the land. Whether particular govt action constitutes a taking is frequently
litigated issue, a taking may be explicit or implicit. If the govt takes the power outright
it follows a condemnation proceeding.
1. In some areas, the govt must first attempt to purchase from the landowners,
but in most jurisdictions, the govt petitions the court to condemn the land.
2. Each person having an interest in the subject property is notified and a trial is
held. The govt must prove its authority to condemn as well as the value to be paid

Page 48 of 52
Downloaded From

for compensation. Implicit takings are more troublesome, bc the parties may not
even agree whether there has been a taking
3. Condemnation – eminent domain
a) The govt forces someone to do something to give the property to the govt
(1) Eminent domain is before the taking
b) Inverse condemnation – landowner challenging a regulatory state action
(1) Whether the govt has crossed that boundary
(2) There is a regulatory state action
C. Public Use
1. Condemnation of private property for a private use or purpose is forbidden, the
power of eminent domain only extends to condemnation for a public use or
a) Normally this means that govt cannot take private property only to turn
around and give or sell it to another private party. However the meaning of
the term “public use” depends on what the legislature declares to be the
public interest.
2. Kelo v. City of New London – Pizer invested into a $3 million research bldg, it
was zoned differently the landowner refused to give this property but the courts
allowed it
a) The govt cannot take property from an owner solely to transfer to
another private party even if it pays just compensation
b) The govt may transfer property from one party to another if use by the
public is underlining purpose
(1) Public purpose – related to economic development that would
benefit the public
3. Just Compensation
a) Duty to compensation, required for stability, allows for a limitation on
the govt power, fair market value
(1) Based on the property highest and best used
(2) If only a portion is taken, fair market will be on that portion
(3) If only an interest is taken (an easement), just compensation
must be paid which is the decrease in the property value
XX. Regulatory Takings
A. When the regulation by the state has crossed the line it will not be a valid police
power it will be considered a taking
1. Regulations are not in itself a taking, but they can raise to the level of taking
B. Three Categorical Rules
1. Permanent Physical Occupation

Page 49 of 52
Downloaded From

a) Any permanent physical (ex – telephone poles, wires) occupation on an

owner property that is the result of govt action is a taking per se and
requires just compensation
(1) Temporary invasion the per se rule wont apply
b) Size of the occupation is going to be used to determine how much you
will be compensation but not whether there has be a taking at all
c) 3rd party of the govt acting that qualifies as a permanent physical
occupation taking per se
d) Loretto v. Teleprompter Manhattan
2. Nuisance Abatement
a) A regulation that deprive an owner of property for the purpose of
prohibiting a nuisance is an exercises a police power and it doesn’t require
just compensation
(1) Rational basis test
b) Why doesn’t the govt have to pay – bc the govt is curbing the public bad
– regulatory taking and acting under valid police power
(1) if curbing a public good – that its eminent domain
c) CL backgrounds determines what is considered a nuisance– relates to
the govt function of the protecting the health, welfare and safety of the
d) Hadacheck v. Sebastian
3. Complete Wipeout
a) Categorical taking occurs when a govt regulations prohibit all
economical beneficial or productive use of private land
(1) GR – it has to be 100% taking per se
(a) Diminution in value is not enough to taking (go to Multi
Factor Balancing Test)
(b) Exception – if it’s a nuisance the govt can stopped it and it
doesn’t have to reach to the level of a taking
b) Lucas v. South Carolina Coastal Council – Coastal zone requirement
Act that required a permit to build land on the property. Lucas buys these
lots and then a new act, Beachfront Mgmt Act prohibits Lucas from building
on those two lots
(1) The property was determined to be valueless
c) Palazzolo v. Rhode Island
(1) A purchaser or a successive title holder like petitioner is deemed
to have to notice of an earlier-enacted restriction and is barred from
claiming that it effects a taking. Not a categorical taking bc there was
some value even though the value decreased
C. Measuring and Balancing

Page 50 of 52
Downloaded From

1. If there is not a taking per se, a regulation can still be determined to rise to the
level of a taking
2. PA Coal v. Mahon - The statute says that you cant mine if the mining is going
to affect the structure and support of the house. The ∆ only bought the surface
rights not the coal (mining) rights. In PA this is the house has three areas to
purpose, 1) surface rights, 2) sub surface rights, and 3) the support. The coal
company owned the support but the statute says that the support is giving to the ∆
(home owner). The coal company had a reasonable investment expectation
a) Govt hardly could go on if to some extent values incident to property
could not be diminished without paying for every such change in the general
law. The GR is while property may be regulated to a certain extent, if
regulation goes too far it will be recognized a taking
(1) it is an ad hoc situation not set standard
(2) regulations can benefit ppl positively and negatively
b) A strong public desire to improve the public condition is not enough to
warrant achieving the desire by a shorter cut than the constitutional way of
paying for the change. Regulation that prohibit public harm will not be
c) Ex) This is distinguishable from our case - A house which requires the
owner to pay for $10,000 worth of coal to protect the coal miners from
dying, this is not a taking bc it’s a benefit for the public wealth - reciprocity
of benefits
3. Penn Central Transportation Company
a) Whether or not it will amt of taking (or has it gone too far) – still and ad
hoc situation (Teshura)
(1) measure the diminution of value (denominator test)
(2) and balance that against the character of govt
(3) consider reasonable investment back expectations
(4) look to see if a reciprocity of benefits
b) Several factors to determine if the regulation has gone too far
(1) Economic impact of the regulation on the claimant – refers to the
diminution of value (what is the effect of the market value)
(a) If it crosses that line (taking more) argued what has been
(2) Extend to which the regulation has interfered with distinct
investment backed expectations (DIBE)
(a) The landowner must show that he had expectations, he put
money into those expectations and went into the deal with the
intent to develop the land
(i) It is not enough that you would have made money
rather you must prove it in the affirmative

Page 51 of 52
Downloaded From

(3) Character of the govt action

(a) What is the govt interference
c) A taking can be more readily be found when the interference with
property can be characterized as a physical invasion by govt. A diminution
in property value would not establish a taking if the restriction had been
imposed as a result of historic legislation
(1) No lost of an investment back expectation bc they bought the
station to have a train station not to have office bldgs and therefore
they didn’t lose anything.
d) Landmark laws are not like discriminatory and even though the
landmark laws have more impact on some landowners it does not mean that
law is a taking. This court says we are going to look at the person who is
going benefit the most from this and since the public will benefit more PC
cannot have the office bldgs
XXI. Exactions
Exactions – conditions that imposed by the govt in the course of some kind permit process
- condition language
- the condition can be considered a taking if the govt doesn’t meant the conditions
- quasi judicial doing something – govt has the burden
o through a written finding of fact

Not a taking if the two elements (both must be met)

1) essentially nexus – looking for a substantial relationship btw the condition imposed
and the purpose underlying the process (the regulatory scheme)
a. legitimate state interest
2) rough proportionality – the court determine whether the rough proportionality btw the
condition exacted and the projected impact of the proposed development
a. when looking for exaction the burden is on the landowner bc the exaction was
designed for a public good, weigh this with the impact
i. ask does the landowners plan cause substantial harm
ii. if the burden is out of proportion than there is rough proportionality and
there will be a taking

If you don’t satisfy these it will = a taking

- purpose of this test is to determine if the exaction is okay or if it is out of regulation

Page 52 of 52