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SURVEY OF REAL PROPERTY LAW*
I. Adverse Possession ......... 147 XV. Landlord and Tenant ...... 175
II. Air Space ................. 147 XVI. Mines and Minerals ........ 184
III. Airports .................. 148 XVII. Mortgages and Liens ....... 185
IV. Brokers ................... 148 XVIII. Oil and Gas ............... 198
V. Condominiums and Coopera- XIX. Open Space and Conserva-
tives ................... 150 tion ................... 198
VI. Conveyancing and Titles ... 152
VII. Covenants ................ 157
VIII. Easements ................ 157 XXI. Public Housing and Urban
IX. Ecology and Environmental Renewal ............... 206
Control ................ 159 XXIL Public Lands .............. 208
X. Eminent Domain .......... 169 XXIII. Survey of the Law ......... 209
XI. Estates in Land ........... 173 XXIV. Taxation ................ 210
XII. Fixtures - U.C.C .......... 174 XXV. Torts and Nuisance ........ 215
XIII. Future Interests ........... 174 XXVI. Usury .................... 217
XIV. Housing Code ............. 174 XXVII. Vendor and Purchaser ..... 219
This report covers the 29 phases of real property law outlined above to
the extent that material on the subjects was available to the committee.
Subsection A of each category is devoted to Current Literature, Section B
to Significant Decisionst and Subsection C to Legislation.
The material in this report clearly indicates that the field of landlord
and tenant continues to generate attacks on basic propositions that have
controlled for centuries the landlord-tenant relationship. One in particular
is the ancient right of the landlord, embodied in statutes, to destrain prop-
erty of the tenant on the leased premises and retain it or sell it under a
so-called distress sale without a hearing or notice of any kind to the tenant.
The Georgia Supreme Court, in Blocker v. Blackburn, abolished that state's
destraint statute as in violation of the due process clause of the Fourteenth
Amendment because the statute authorized the officer to seize the tenant's
property without notice. The court found that this procedure was analogous
to the seizure of a debtor's wages without notice, a method of collection
held unconstitutional by the United States Supreme Court.
The cases continue to evidence a growing awareness that forceable
entry and detainer statutes of and by themselves are grossly unfair to tenants
because they deprive the tenant of a right to interpose as a defense the
breach by the landlord of a covenant regarding the physical condition of the
premises. The 4-3 decision of the Illinois Supreme Court in Jack Springs,
Inc. v. Little, held, among other things, that in a statutory action by the
landlord seeking possession for nonpayment of rent, the tenant could inter-
pose as an affirmative defense the alleged breach by the landlord of an
implied covenant of habitability as well as an express covenant to repair.
This case is also noteworthy in that it held (1) that the section of the Illinois
forceable entry-detainer statute which required the tenant to furnish a bond
as a prerequisite to an appeal was unconstitutional, and (2) that an implied
*Report of Committee on Real Property Law, Literature and Research.
tIn some instances the significance is spelled out in italicized comments following the
digest of the decision.
Spring 1973] SURVEY OF REAL PROPERTY LAW 145
warranty against inhabitability is to be included in oral and written leases

of multiple unit dwellings.
The Supreme Court of the United States, in Lindsey v. Normet, took a
different slant on this issue. It held that the Oregon statute does not violate
the Equal Protection Clause just because it precludes a tenant from raising
an affirmative defense that the landlord breached a duty to maintain the
premises. Justice White, for the majority, stated: "The constitution has not
federalized the substantive law of landlord-tenant relations and we see
nothing to forbid Oregon from treating the undertakings of the tenant and
those of the landlord as independent rather than dependent covenants."
There could be no denial of equal protection, the Court declared, because
the statute applies to "all tenants, rich and poor, commercial and non-com-
mercial." The Court's philosophy is eloquently expressed in this observation:
"... The Constitution does not provide judicial remedies for every social
and economic ill." To be noted is that the Court did find that the statute's
provision requiring the tenant to post a bond for twice the amount of the
rent due in order to appeal violated the tenant's right of equal protection
since it "singled out the tenant as a special class, separate and apart from
all other litigants."
In 1970 the case of Kline v. 1500 Mass. Ave. Apt. Corp., 439 F.2d 477
(D.C. 1970) startled landlords of multiple housing units with its decision
that a landlord had a duty to protect tenants from foreseeable criminal acts
committed in an apartment building by a third party. That court ruled that
the landlord owed a duty to a female tenant who had been attacked in the
common hallway of her apartment house. Continuing this evolution of the
landlord-tenant law is the Michigan case of Johnston v. Harris.This ruling
was predicated on the principle that, since the apartment house was located
in a high-crime area, the failure to provide proper lighting and locks to
outside doors created a condition conducive to criminal assaults on tenants.
The result of this decision is, of course, to impose upon the landlord the
duty normally considered that of a government - a duty to make the streets
and homes of all areas reasonably safe.
Litigation involving the problem faced by shopping center owners
when members of the public claim the First Amendment right to use shop-
ping centers for purposes of picketing and distributing handbills and other
similar activities continues to come before the courts. Amalgamated Food
Employees v. Logan Valley Plaza, 391 U.S. 308 (1968), held that members
of a union had the right to picket a lessee of a shopping center even though
the picketing activities involved their presence on the private property of
the owner of the shopping center. The recent United States Supreme Court
decision of Lloyd Corp. v. Tanner, noted herein under Miscellaneous,
qualified its holding in the Logan Valley case by stating that it was not to
be construed to rule that privately owned streets and sidewalks of a business
district or a shopping center are the equivalent for First Amendment pur-
poses of municipally owned streets and sidewalks. To the claim that the
property of a large shopping center is open to the public and serves the same
purposes as a business district of a municipality the Court stated: "Nor does
property lose its private character merely because the public is generally
REAL PROPERTY, PROBATE AND TRUST JOURNAL [Vol. 8:144
invited to use it for designated purposes ... We do say that the Fifth and
Fourteenth Amendment rights of private property owners, as well as the
First Amendment rights of all citizens, must be respected and protected.
The framers of the Constitution certainly did not think these fundamental
rights of a free society are incompatible with each other. There may be
situations where accommodations between them, and the drawing of lines
to nssure due protection of both, are not easy, but on the facts presented in
thi'; case, the answer is clear."
The 1972 report of this committee pointed out the frequent challenges
made on the established mortgage lending practice of including in mortgage
instruments an acceleration or "due-on-sale" clause which gives a lender the
right to declare the balance due and payable and to institute foreclosure
proceedings on the accelerated debt if the mortgagor sells the property. The
cases there commented upon upheld the validity of such clauses. However, in
Baltimore Life Insurance Co. v. Harn, noted herein under Mortgages and
Liens, the court held that a clause which automatically accelerates the debt
upon a sale of the secured property is not valid. The acceleration must be
based on reasonable grounds that show that the mortgagee's security will be
jeopardized by the sale. To uphold the validity of such a clause, per se,
would result in a restraint on alienation. This case was followed by the
Arkansas case of Tucker v. Pulaski Federal Savings & Loan Association.
This court followed the reasoning of the Arizona court in the Baltimore
Life Insurance Company case noted above and ruled that such clauses were
not valid unless the acceleration is predicated on "grounds that are reason-
able on their face."
Another important case in this area is the California case of LaSala v.
American Savings and Loan Association, which involved a mortgage deed
that contained clauses covering acceleration on encumbrance as well as
acceleration on sale. Ths court ruled that there was a valid legal distinction
between these two clauses. The acceleration upon encumbrance clause per-
mitting acceleration and foreclosure, for no other reason than that the
mortgagor placed a second mortgage on the property and with no reasonable
affect on the mortgage security, would amount to an unlawful restraint on
alienation and thus be void. But this court reasoned that enforcement of
an acceleration-on-sale clause, with similar results to the mortgagor, is not
unreasonable if for no other reason than that a change in the identity of the
obligor increases the risk that the security will be allowed to run down or
even be destroyed.
Of interest to conveyancers is the rapidity with which the California
legislature moved into this area by enacting Ch. 698, Laws 1972, providing
that a mortgage or deed of trust of a single family owner-occupied dwelling
may not be declared in default nor the debt accelerated solely by reason of
the mortgagor's further encumbering the property with a junior mortgage or
junior deed of trust. Waiver of this provision is void as contrary to public
policy. The Act specifically provides that it shall not be deemed to limit or
restrict the scope of the LaSala case.
The Arkansas court in the Tucker case discussed above followed other
jurisdictions in holding that the mortgagee was under no duty to account to
Spring 1973] ADVERSE POSSESSION - AIR SPACE
the mortgagor for earnings and profits realized from the funds escrowed for
payment of taxes and insurance. The court followed the decision in Sears
v. First Federal Savings and Loan Association, 275 N.E.2d 300 (Ill. 1971,
cert. denied, S. Ct. Jan. 1972). This Illinois case is the first known decision
above the trial court level to rule squarely on this issue.
Of importance to those interested in ecology and environmental control
is the Supreme Court 4-3 decision in Sierra Club v. Morton, discussed herein
under Ecology and Environmental Control. The Court refused to abolish
the rule that requires that a party seeking injunctive relief against action of
a federal agency must allege in his complaint that he personally would be
injured or adversely affected by the proposed action.
I. ADVERSE POSSESSION
A. Current Literature
Williams, Title by Adverse Possession in Indiana, 6 VAL. U. L. REv. 26
(1971). The author analyzes the policy reasons for the existence of such a
principle as adverse possession. He believes that as long as there is no
scheme of registration of title to land in Indiana, the principle or institu-
tion of adverse possession will remain an asset.
B. Significant Decisions
Trustees of Brodfording Church v. Western Maryland Ry., 277 A.2d
276 (Md. 1971).
This was an ejection action to determine title to land which had been
conveyed to the railway but from which the track had been subsequently
removed. The lower court granted the motion for summary judgment
against the claimant church on the basis that it had not established title by
adverse possession.
HELD: Remanded for trial. The purchasers of the land could not tack
whatever rights their vendor might have had to the right of way by adverse
possession to their own possession in the absence of color of title, which they
did not have since the vendor's deed to them excluded the right of way.
However, if the facts were to disclose that the vendor acquired title to the
right of way by adverse possession he did not lose it by the conveyance to the
purchasers or by removing himself from the property and he could have
alienated the title which he acquired by his will to the devisee church.
II. AIR SPACE

People ex rel. Hoogasian v. Sears Roebuck & Co., 52 Ill.2d 301, 287 N.E.
2d 677 (1972).
Suit to enjoin defendant from completing construction of a 110 story
building in the City of Chicago, charging that when completed the building
would constitute a nuisance and that distortion of television reception
would depress property values in the areas involved. The trial court granted
a motion to dismiss the complaint.
HELD: Affirmed. The disruption of television signals coming from a
totally independent source over which defendant had no control could not
be the basis for enjoining the legal use and enjoyment of its property.
This appears to be a case of first impression in holding that a structure
which interferes with television reception of neighboring properties does
not constitute a nuisance, but it is consistent with earlier cases in regard to
interference with radio signals and light and air.
Wiloughby Hills v. Corrigan, 20 Ohio St.2d 39, 278 N.E.2d 658 (1972).
Municipality claimed that Airport Zoning Board located in adjoining
county violated "Home Rule" provisions of Ohio Constitution. Property
owners in the area also claimed unconstitutional taking of property by
regulations.
HELD: Reasonable regulations adopted represent constitutional enact-
ment of the exercise of the police power of Ohio and do not violate the
"Home Rule" provisions of the Ohio Constitution. The exercise of the
police power is not an unconstitutional taking of private property for a
public use without compensation.
III. AIRPORTS
Fadem and Berger, A Noisy Airport is a Damned Nuisance," 3 Sw. U. L.
Rxv. 39 (1971). Discusses the legal techniques for combating airport noise,
relying primarily upon California's statutory and case authorities.
C. Legislation
Missouri
H.B. 1341: Creates the Missouri-St. Louis Metropolitan Airport Au-
thority, which has, among other enumerated powers, the authority to create
an airport zoning committee with power to adopt appropriate zoning
regulations.
IV. BROKERS
Herzfeld, Quo Vadis, Broker? What's Your Role?, 2 REAL ESTATE REV.
No. 2, at 24 (1972). In light of growing government scrutiny of real estate
activities, the time has come for a better understanding of how the real
estate broker functions and how he is paid for his efforts.
Rogers, Compensation of the Georgia Real Estate Broker, 6 GA. L. REV.
375 (1972). Real estate brokers serve an important function in the commer-
cial world by bringing buyers and sellers together. The broker's compensa-
tion for this service is usually predetermined by an agreement known as a
"listing" between the broker and his client. In this article, the author exam-
ines various types of these listings in light of the practical significance under
the Georgia law. The author points out that the majority of problems have
arisen because either the parties never have an understanding as to the terms
of the employment at all, or their understanding was not clearly expressed.
Spring 1973] BROKERS
Adams & Leonard, Realtors v. Wheeler, 493 P.2d 436 (Okla. 1972).
Plaintiff entered into a contract denominated as a "Property Manage-
ment Agreement" with defendant who owned a parcel of real estate. The
agreement contained this proviso: "The agent shall have the sole exclusive
right to sell and offer for sale, the property covered herein, if the property
is sold or offered for sale during the terms of this agreement." Defendant sold
the property himself while the agreement was in force and effect. The trial
court found in favor of defendant on the grounds that (1) the agreement
between plaintiff and defendant did not constitute a listing of the real
estate for sale, but was merely a contract that an exclusive real estate listing
would be made at some future date, upon the happening of some future
contingency; and (2) since plaintiff did not allege the performance of any
services upon which a quantum meruit recovery could be had, plaintiff
sustained no recoverable damages by reason of the alleged breach of the
contract.
HELD: There is no reason why a valid and enforceable "exclusive
right to sell" contract could not be incorporated in a property management
agreement, if the "exclusive right to sell" contractual provision is complete
concerning their rights and obligations if the property is offered for sale or
sold. However, if the "exclusive right to sell" provisions are incomplete and
unenforceable, an action for damages will not lie for breach of the unen-
forceable contract.
CongregationBeth Sholom v. David Gottlieb Co., 471 S.W.2d 673 (Mo.
App. 1971). Congregation Beth Sholom listed property with Green Realty
Co. which showed the property to the pastor of Christ Temple Church for
a price of $750,000. This was in 1964. In 1967 a member of the Beth Sholom
who was also a broker tried to get the same pastor to buy the property for
$350,000 but he still felt that the price was too high and that his organiza-
tion could not finance such a deal. Then in 1968, another member of the
church who was also a broker and heard about the property approached
Beth Sholom's director of real estate and was able to get a new price of
$250,000. When he approached the pastor he showed interest in the prop-
erty and after negotiations a price of $175,000 was finally agreed upon.
Subsequently all parties appeared in court claiming the commission.
HELD: Since there never was an exclusive contract to sell, the sole
question at issue was who among the various brokers was the procuring
case. The court ruled for Gibson the last broker, because the purchaser had
shown a complete lack of interest in the property at the prices of $750,000
and $350,000. It was only when the price of $250,000 was secured by Gibson,
the third broker, that the buyer was at all interested and began negotia-
tions. These facts laid the foundation for application of the rule "where
the broker creates in the minds of the parties a willingness to do business
with each other, the broker is said to have procured the result as though he
actually participated in each incident of the transaction."
Stone v. Reinhard, 183 S.E.2d 601 (Ga. App. 1971).
The owner of land granted a broker an exclusive right of sale for a
period of 15 years, which agreement set the price at $2,000 per acre or
"upon any other terms acceptable to the owner," with a commission of

10 per cent on the sales price. It appeared that the broker never produced
any buyer who was ready, willing and able to buy the property at $2,000 an
acre. Within the 15-year period the owner sold the property himself at
a price less than $2,000 per acre. Upon a suit by the broker for commission
the lower court granted summary judgment in favor of the owner, ruling
that as a matter of law the broker was not entitled to a commission because
he failed to produce any willing and able buyer.
HELD: Even though the broker may never have produced a buyer at
the $2,000 price per acre, he nevertheless might be entitled to a commission
under his exclusive right of sale if he did furnish to the owner names of
prospects who were interested in buying at a lower figure - presumably even
though no sale was made to any of them. Since there was no evidence as to
whether or not the broker actually did refer prospects to the owner, the
case was referred for a new trial.
The court also ruled that the 15-year exclusive sales agreement was not
an unreasonable restraint on alienation. The length of time was immaterial,
the court said, since the owner always had the privilege of selling the real
estate himself or through another broker, provided only that he paid the
double commission.
The first ruling of this court seems contrary to the general rule. An
exclusive right of sale, as contrasted with an exclusive right of agency, is
generally held to mean that the broker is entitled to a commission if the
property is sold during the exclusive period by either the owner or another
broker. In this case the appellate court seems to be saying that whenever the
exclusive right of sale is predicated on a specific price for the land, the
broker would not be entitled to a commission if the owner sold at a lower
price to a purchaser who was not procured by the broker. If this be so then
it certainly is contrary to the general rule.
C. Legislation
Kentucky
KRS 324: Amended to add additional qualifications to attain a broker's
license.
New York
Ch. 454: Amends Title C of the Administrative Code of the City of New
York which makes "block busting" an unlawful real estate practice.
V. CONDOMINIUMS AND COOPERATIVES
Clurman, Are Condominium Units, Securities?, 2 REAL ESTATE REv.,
No. 1, at 18 (1972). An analysis of the factors involved in determining
whether condominium offerings should be subject to federal and state
securities regulation.
Johnson, Condominium Titles, 51 TITLE NEWS, No. 10, at 8 (1972). A
discussion of the Idaho condominium law.
Spring 1973] CONDOMINIUMS AND COOPERATIVES
Knight, Incorporation of Condominium Common Areas? An Alterna-

tive, 50 N. C. L. REV. 1 (1971). The author suggests the leasing of common
areas to a corporation as having the beneficial effects of limiting the liability
of unit owners and allowing capital improvements to be made without plac-
ing a financial burden on the owners.
Nachman, Residential Condominium: Representing the Purchaser,51
MICH. B. J. 371 (1972). The purpose of this article is to note the basic pro-
visions of the Michigan Horizontal Real Property Act, the condominium
rules promulgated by the Securities Bureau, the various documents utilized
to create and sell condominiums, and the factors bearing upon adequate
representation of the purchaser.
Otsuji, Solving the "People Problems" in Condominiums, 2 REAL
ESTATE REV., No. 4, at 20 (1972). Overbuilding in Honolulu is focusing
attention on the need for more than a brick and mortar approach in
successful condominium development.
Pfeiler, Condominium Financing: Some Legal Basics, 38 LEGAL BULL.
249 (1972). The purpose of this article is to summarize some of the basics of
condominium ownership for lending institutions' lawyers and to outline the
principal steps involved in creating a condominium and the principal
elements which make the project function. The author believes that a gen-
eral understanding of these matters is necessary before the lender can
understand and evaluate the nature of its security. Next the article has a
brief discussion of the two basic types of condominium financing-the con-
struction financing of new condominium projects and financing to imple-
ment the conversion of existing apartment-type rental projects to condom-
inium units. Legal authority of savings associations to provide such financ-
ing is discussed. The article concludes by suggesting some modifications of
standard mortgage instruments which should be considered by institutions
which wish to engage in condominium lending.
Preszler, Profit-Sharing in the Resort Condominium, 2 REAL ESTATE
REV., No. 2, at 31 (1972). Dividing up the rental from a resort condominium
cannot be done while sitting around the pool.
Roth, The Residential Cooperative: A Practical Guide for the Lawyer
and Developer, 39 D.C. B.J. 81 (1972). This article is an easily understood
outline and an excellent introduction to the basic legal issues in the estab-
lishment of a cooperative, as opposed to a condominium dwelling. The
article describes cooperatives, the pros and cons of cooperatives, and various
legal and practical issues involved in their establishment.
Gable v. Silver, 258 So.2d 11 (Fla. Ct. App., 1972).
Action by purchaser of a condominium unit against the sellers for
damages and costs of repairs of a defective air-conditioning system in the
condominium.
HELD: Implied warranties of fitness and merchantability extend to the
purchasers of new condominium homes from builders-sellers.
Case extends implied warranties to the sale of real property in Florida.
152 REAL PROPERTY, PROBATE AND TRUST JOURNAL [Vol. 8:144
C. Legislation
Illinois
S.B. 644, 645 and 646: Provide for creation of lien on condominium
unit where owner fails to pay pro rata share of common expenses.
H.B. 3779: Requires a disclosure by developer to furnish initial pur-
chasers with certain information including a copy of the declaration, bylaws,
operating budget, including estimated monthly charges for maintenance,
management and recreational facilities and floor plan of apartment.
Massachusetts
Ch. 183A: Adds §20 which enables cities and towns to buy or sell con-
dominiums and to acquire land for the construction of the same.
Michigan
P.A. 120: Summary proceedings to recover possession of real estate;
enlarged definition of premises to include condominium property, coopera-
tive apartments, air rights and mobile trailer homes.
VI. CONVEYANCING AND TITLES
Baker, Recent Developments in the Law of Land in England, 13
W. & M. L. REv. 304 (1972). In this article, the author reports on the devel-
opments in the law governing restrictive covenants, town and country
planning, betterment, compulsory acquisition, such as eminent domain,
protection of tenants and matrimonial home.
Hirdak, Registration of Land Titles Act: The Ohio Torrens Law, 20
CLEVE. ST. L. REv. 617 (1971). General discussion of Ohio Torrens Law.
Laymond, The Residence Requirement - Indirect Restraint on Alien-
ation?, 17 S. D. L. REv. 327 (1972). The author discusses Cast v. National
Bank of Commerce Trust & Savings Ass'n, 196 Neb. 385, 183 N.W.2d 485
(1971), with a view to determining the validity of name changes and resi-
dence requirements as employed in grants and devises. Emphasis is placed
upon the criteria by which courts characterize such provisions as arbitrary,
capricious and violative of public policy.
Payne, The Alabama Law Institute's Land Title Act Project, 24 ALA.
L. REV. 175 and 647 (1972). Discussion of a draft act to provide for a self-
indexing system of land records, and probable effect of court's passage upon
title searches, conveyancing, and title insurance practices in Alabama.
Peters, Toward a Compatible Land Identifier, 51 Trr NEws, No. 8
at 4 (1972). A discussion of the CLIPPP Conference - the name standing
for Compatible Land Identifiers - The Problems, Prospects and Payoffs.
Redniss, Parsons and Bromfield, A Very Thin Line, 51 TITLE NEWS,
No. 12, at 12 (1972). A discussion of the problems involved in attempting
to survey or fix the boundary of property when one of the calls is "along a
stream" and when the middle of a stream channel is defined as being "one-
half the distance between the banks of this stream on nontidal river under
average conditions."
Spring 1973] CONVEYANCING AND TITLES
Symposium: Earthquake, 47 L. A. B. BULL. 137-168 (1972). Taylor,

Robinson & McKnight, Earthquake and Title Boundaries, at 137; Watson,
Impairment of Purchase-Money Security by Disasterand the Anti-Deficiency
Legislation, at 146; Adair and Iungerich, Insuring the Earthquake Hazard,
at 155.
DiCristofarov. Beaudry, 293 A.2d 301 (R.I. 1972).
A testatrix left all her property to two sons, one of whom was the
executor of her estate. The record before the court failed to disclose a
determination whether the devises were specific or general. Under a statute
authorizing a sale for a prompt and efficient settlement, but which required
written consent of specific devisees, the devisee who was executor conveyed
to the other devisee.
HELD: Despite this joinder of the two devisees the statute requiring
consent in writing was not complied with and a new trial would be needed
to determine whether the devises were specific or general.
Decision indicates a strict interpretation under circumstances where
many title attorneys might have felt the devisees estopped to complain.
Hanson v. Zoller, 187 N.W.2d 47 (N.D. 1971).

In a case involving interpretation of the North Dakota recording
statutes regarding priorities between a mortgagee and subsequent purchasers
or encumbrancers the following principles were laid down: (I) It is the duty
of the mortgagee to protect his interest against subsequent purchasers or
encumbrancers by making certain that said instrument was properly
recorded - this means that the mortgagee must, in effect, supervise the
actions of the recorder's office; (2) the recordation did not constitute sub-
stantial compliance to the recording statutes where such an instrument was
not properly indexed in the tract index; (3) subsequent purchasers and
encumbrancers could be charged only with notice of instruments that were
correctly indexed in the tract index; (4) instruments deposited with the
register of deeds for recording is only temporary constructive notice from
the time of such deposit until recording has been completed, and after
recording the actual record constitutes constructive notice; (5) since the
tract index maintained by the register of deeds is the only practical index
by which instruments on record can be located, an instrument recorded but
not indexed under the correct tract description in the index does not
constitute substantial compliance with the recording statutes; (6) a pur-
chaser or encumbrancer has the right to presume the register of deeds has
correctly performed his duties, and has indexed the instrument correctly
in the tract index.
Kaylor v. Wilson, 260 Md. 707, 273 A.2d 185 (1972).

This was an action to set aside the title the defendant acquired as a
result of a 1938 tax sale. Interposed as a defense was article 81, section 99a
of the Code which provides that no court of equity or law shall on and after
June 1, 1966 entertain any proceedings to set aside or modify any title to
any interest obtained in a tax sale made prior to January 1, 1944. The lower
court held that, in spite of the broad language of this statute, an attack
based either on fraud or lack of jurisdiction was still permissible. On the
basis of the plaintiff's claim that the court lacked jurisdiction to sell because
the taxes had been paid the court found in favor of the plaintiff.
HELD: Reversed. The plaintiff did not meet the burden of proof
necessary to show that the tax sale was void for lack of jurisdiction, since
he did not prove that the taxes were paid. The appellate court left in doubt
the issue whether this statute was an absolute bar to any subsequent title
proceedings when it ruled that whenever the legislature has given an order
of ratification of the degree of permanence expressed in section 99A, the
strictest proof is necessary in order to impeach it.
Marshall v. Hollywood Inc., 224 So.2d 743, afJ'd, 236 So.2d 114 (Fla.
1970).
A stranger to the corporation executed a deed in 1924 as president of
the corporation whereby the property was purported to be conveyed to him-
self and others. This action involves a suit by the estate of a deceased
stockholder of the corporation to establish an interest in this property.
HELD: The claim was barred by the expiration of time under the
Marketable Record Title Act although the corporation's deed initiating the
chain of title under which the record owners hold was a forged or wild deed.
A subsequent deed served as a root of title since it purported to transfer the
title.
Southern Title Guaranty Co. v. Pendergast,478 S.W.2d 806 (Tex. Civ.
App. 1972).
A 22-acre tract of land was purchased in 1964 for $10,233 and the
purchasers secured a title insurance policy insuring them against the "actual
monetary loss" which they would suffer should their title to the land prove
defective. Subsequently, when the insureds contracted to sell this land for
$25,000, the sale fell through because of a title defect. The issue presented
to the court was the method of determining what the insureds were entitled
to be paid under the policy.
HELD: The "actual monetary loss" suffered by the insureds was the
amount by which the purchase price they paid in 1964, i.e., $10,233, exceed-
ed the 1964 market value of the 90 per cent interest which they had obtained
(the defect in title being that a third party owned a 10 per cent interest).
If the 90 per cent interest were worth the $10,233 which they paid for it
then they would have suffered no monetary loss and the title company
would owe them nothing. However, if the 90 per cent interest were worth
less than what they paid for it then they would be entitled to receive the
difference between these two factors. As regards the insureds' claim that
they had lost $14,767, the difference between what they had paid for
the land ($10,233) and the $25,000 they could have resold it for had there
been no title defect, the court held that a title insurance policy will permit
an insured to recover loss of profit from a resale only when the title com-
Spring 1973] CONVEYANCING AND TITLES
pany clearly understands that it is protecting the insureds against that par-
ticular loss and thus fixes its premium accordingly. There is nothing in
this case to show that the parties had contemplated that protection when
the insureds purchased their property.
Union Camp Corp. v. Youmans, 227 Ga. 686, 182 S.E.2d 468 (1971).
A mother, as guardian for her six-year old daughter, petitioned the
superior court for permission to grant a 66-year lease and an option to
purchase the land to a paper company. The petition showed that losses
were being incurred in managing the estate, that a deteriorating timber
crop was located thereon, it was difficult to find tenant farmers to grow
crops and difficult to manage the farm so as to meet the cost of maintenance.
It was proposed to invest and reinvest the proceeds of the lease and sale for
the benefit of the ward. The court found the application in the best interests
of the minor ward and entered a judgment authorizing said lease and option
to purchase with the paper company. Upon reaching her majority the ward
brought a complaint in equity against the guardian and lessee paper com-
pany to set aside the judgment of the court on the principal claim that the
order of the court was void and contrary to public policy and because no
right existed for the court to authorize an option to purchase in connection
with the lease.
HELD: There is no law to the effect that an owner of land or a court
having jurisdiction of a minor's property may not authorize a lease or an
option to purchase his land or land of a ward of the court upon legal
application to the court. The option to purchase was a condition of the
lease, without which the lease could not have been negotiated, in which
event the ward would in all probability have lost her land and the very
material benefits she could have received if the lease and option to purchase
had become a reality. The Georgia Code provides that courts shall have
concurrent jurisdiction in law and in equity in cases involving the property
of wards and sales of their property. Since the court had this equity juris-
diction its action is not limited by any narrow powers, but it is empowered
to stretch forth its arm in whatever direction its aid and protection may be
needed.
C. Legislation
Alabama
Act 170: Abolishes retroactively the need for reciting consideration in
conveyances.
Act 171: Forbids the recordation of any instrument except a will which
transfers an interest in land with reference to an unrecorded plat, unless
such plat is attached.
Act 172: Prohibits the recordation of deeds unless the marital status of
grantors is stated.
Kansas
Ch. 161: Amends 1971 Supp. 38-101. Period of minority for male and
female extends to age 18 only.
Ch. 213: Repeals 1971 Supp. 58-2270 which sets out wording that
would constitute a conveyance to two or more persons as joint tenants.
Kentucky
KRS 271A: Validates conveyances of real property to or by a corpora-
tion when the corporation does not have the capacity or power to do such
act, and provides a method for the setting aside of such conveyances.
Maine
Ch. 598: Grants adult rights to persons 18 years of age, the former
requirement being 20 years of age.
Massachusetts
Ch. 155 and 156B: Grant good title to a good faith purchaser of corpo
rate real estate, if the deed is signed by the corporate president or vice
president and the treasurer or an authorized assistant treasurer (all parties
may be the same person), despite any corporate provision to the contrary.
New Jersey
Ch. 81: Grants all persons 18 years of age or older basic rights formerly
applicable to persons 21 years of age, but does not change age under
Uniform Gifts to Minors Act.
Ohio
Am. S.B. 75: Enacts 1715.411 to provide when officers of a charitable or
religious association have sold or mortgaged real estate without obtaining
court authority and the deed or mortgage has been of record five years
without legal action to set aside the same, such transaction is validated.
Oklahoma
Ch. 221: Reduces age of majority for males to 18 years.
Pennsylvania
Acts 140-141 and 151: Reduces age of persons who may legally make
wills, contracts and conveyances from 21 to 18.
Virginia
Code 1-13.42: Reduces age of majority to 18 years for purposes of all
laws, unless an exception is specifically provided.
Washington
Ch. 108, 3: Provides that either spouse, acting alone, may manage and
control community property with the like power of disposition as the acting
spouse has over his or her separate property, except that neither spouse
shall sell, convey or encumber the property without the other spouse joining
in the execution of the instrument. Also neither spouse shall purchase or
contract to purchase community property without the other joining.
Spring 1973] COVENANTS - EASEMENTS
VII. COVENANTS
Burgess v. Putnam, 464 S.W.2d 698 (Tex. Civ. App. 1971).
A developer subdivided his land and told every purchaser of his plan
to develop the property for one-family homes. Each purchaser at that time
paid increased prices and received deeds which imposed restrictions includ-
ing the prohibition against the erection of mobile or trailer homes. After
selling the original group of lots the seller was unable to sell any lots for
several years. Finally the developer began to permit buyers of unsold lots
to use the sites for trailer homes. None of these deeds given to such buyers
contained any restrictive covenants and there were no restrictions on record
in the county clerk's office affecting the entire development. Suit was brought
by some of the original homeowners to restrain the developer from selling
lots without imposing the restrictive covenant.
HELD: The representation made by the developer to the original
buyers of the first group of lots sold that the entire subdivision would be
developed for one-family homes and the consequent payment by these buyers
of an increased price for their land brought into existence an equitable
right on their part to compel the developer similarly to restrict the use of
any remaining lots in the development. This conclusion followed even
though each contract of sale had contained a clause to the effect that all
representations, covenants and agreements between the parties are expressed
in the written agreement and no other shall be recognized between them
unless reduced in writing and attached hereto and approved by the sellers.
The court said in spite of this contract or agreement oral testimony was
admissible to establish the claims of the homeowners. The legal effect of the
representations made by the developer to the original purchasers is the same
as if there were direct fraud. The same public policy that in general
sanctions the avoidance of a promise obtained by deceit strikes down all
attempts to circumvent that policy by means of contractual devices.
Western Land Co. v. Truskolaski, 492 P.2d 624 (Nev. 1972).
Homeowner in a subdivision sought to enjoin construction of a shop-
ping center therein as a violation of covenants restricting the subdivision to
single-family dwellings. The arguments against were a change in the neigh-
borhood and a willingness of the local planning agency to rezone to permit
commercial use.
HELD: Granting of injunction affirmed. A zoning ordinance cannot
override privately placed restrictions.
Initial case in this jurisdiction.
VIII. EASEMENTS
Berger, Nice Guys Finish Last - At Least They Lose Their Property:
Gion v. City of Santa Cruz, 8 CALIF. W. L. REv. 75 (1972). This article dis-
cusses the Gion case, 2 Cal.3d 29, 84 Cal. Rptr. 162, 465 P.2d 50 (1970),
which the author concludes to be a policymaking decision by the court
intended to open up public access to and use of private beaches but which
he finds has had an opposite effect causing landowners to protect their
property by increasingly closing off access and use. The case held that where
the public for five years has used a private beach or private access to a
beach under the belief it had a right to do so, the use is presumed to be
adverse to the owner and that the public acquired at least an easement for
recreational purposes. The author argues that the decision is contrary to
existing case law and statutes and a taking of private property without just
compensation.
Shavelson, Gion.v. City of Santa Cruz - Where Do We Go From Here?,
47 CALIF. S. B. J. 415 (1972). The decision in the Gion case has evoked a
flurry of articles in California periodicals, whose titles and content reflect
everything from sober analysis to righteous indignation. The author feels
that it is necessary to avoid fields already plowed, and, therefore, limits this
article to the following: (1) what the legislature has already done as a result
of the Gion decision; (2) what further legislative steps are under considera-
tion and (3) absent legislative abrogation, how will the Gion doctrine be
applied in future cases.
Edwards v. Fugere, 130 Vt. 157, 287 A.2d 583 (1972).
The owner of certain adjoining lands conveyed away that part of them
which abutted on a lake. He reserved a right of way across them from the
lake to his other lands. He later conveyed the other lands, together with a
right of way to the lake and also with a right to maintain a boat dock and
landing. It was contended by the grantee that the general terms of the
reservation permitted an unlimited reasonable use, and that under the cir-
cumstances a boat dock and landing were reasonable.
HELD: Full reasonable use of the right of way did not embrace the
maintenance of a boat dock and landing, which materially increased the
burden on the servient estate.
McAndrews v. Spencer, 447 Pa. 268 (1972).
Two adjoining property owners who obtained their properties from a
common grantor by deeds referring to a 40-foot private road as a boundary
between their properties got into a dispute as to their respective rights to
the road. One of the owners, A, used a portion of the area as a driveway and
voluntarily beautified the remainder of the area. The other owner, B, began
to develop his lands commercially and to use the unopened road, destroying
the shrubs and landscaping. A then purchased the acreage originally desig-
nated as the proposed 40-foot road and obstructed the road by placing a
wire cable across its width and length and posting a sign marked "private
property" thereon. B filed a complaint in equity seeking a decree granting
B the right to an easement over the area.
HELD: An easement in favor of B was created by implication when the
description in B's deed referred to a driveway as a boundary which driveway
was neither a highway nor dedicated to public use.
Spring 1973] ECOLOGY AND ENVIRONMENTAL CONTROL
IX. ECOLOGY AND ENVIRONMENTAL CONTROL

Ackerman and Sayer, The Uncertain Search for Environmental Policy:
Scientific Fact Finding and Rational Decision Making A long the Delaware
River, 120 U. PA. L. REV. 419 (1972). The purpose of the article is to discuss
the pollution control program adopted for the Delaware River by the Dela-
ware River Basin Commission. The author assumes the perspective of a
hypothetical social engineer charged with the task of designing a set of
institutions that promises to handle "best" the complex problems of environ-
mental regulations posed by a major interstate river. The article then
proceeds to pose and answer the question as to the lessons that can be
learned from the Delaware experience.
Bleicher, An Overview of International Environmental Regulation,
2 ECOLOGY L. Q. 1 (1972). The author suggests that governments consolidate
the areas of environmental regulation into a single general framework.
Davis, Taming the Technological Tiger - The Regulation of the En-
vironmental Effects of Nuclear Power Plants - A Survey of Some Contro-
versial Issues, 1 FORDHAM URBAN L. J. 19 (1972). The author believes that
our society has come to take plentiful and reliable power for granted. Cities
are complex eco-systems, increasingly dependent upon electric energy for
propulsion, communications, indoor climate control and other vital serv-
ices. This article focuses on many of the environmental effects which accom-
pany power plant operation. He points out that the reader should be aware
throughout that a decrease in the amount or reliability of power supply to
our homes and industries, resulting from concern for these environmental
factors, might produce other environmental consequences equally severe.
Fisher and Gaston, Pollution Control Practice in South Carolina - An
Overview, 23 S. C. L. REV. 723 (1971). A discussion of nonstatutory rights
and remedies, South Carolina Pollution Control Act, and attacks on the
constitutionality of pollution control statutes and procedures.
Hassett, Air Pollution:Possible InternationalLegal and Organizational
Responses, 5 N.Y.U. J. INT'L L. & POLrncs 1 (1972). Prof. Hassett makes
suggestions for international cooperation on the problem of air pollution.
Hildreth, Federal Control of Water Pollution: The Refuse Act Permit
Program, 27 Bus. LAw. 567 (1972). A detailed discussion of the Nixon
Administration's Permit Program under Sec. 13 of the Rivers and Harbors
Act of 1899, commonly known as the Refuse Act.
Hines and Schantz, Improving Water Quality Regulation in Iowa, 57
IOWA L. REv. 231 (1971). A lengthy review of water pollution control meas-
ures in Iowa, water quality standards, the permit system as a technique in
pollution abatement, surveillance and enforcement of control measures with
concluding remarks on agricultural pollution.
Hirsch, On Buying Clean Water - Reflections on the Georgia Water
Pollution Controls, 23 MERCER L. REv. 603 (1972). This article examines
Georgia's approach to water pollution control established by the Georgia
Water Quality Control Act of 1971 and the regulations promulgated by the
Georgia Water Quality Control Board in the light of other available

approaches.
Hoffman, Environmental Politics - the Deciding Factor,46 FLA. B. J.
577 (1972). The author believes that, despite the unpopular term "en-
vironment," there does not yet exist a body of law which can be termed
"environmental law." Environmental politics, yes. Natural resources law,
yes. But not environmental law. The question he poses is this: "Laws exist
to protect the environment. Will environmental politics allow their full use?"
Kaufman, Power for the People - and By the People: Utilities, the
Environment and the Public Interest, 46 N.Y.U. L. REV. 867 (1971). Judge
Kaufman calls for the establishment of a federal agency responsible for
planning and control in the growth and dispersal of electric generating
capacity over a realistically extensive span of space and time.
Krause, Ecology Compliance - The Lawyer's Role, 44 N.Y.S. B. J. 5
(1972). The public has demonstrated its awareness of the modern dangers of
our environment. This article is a timely discussion of the lawyer's role in
protecting the quality of our environment.
Kross, Preparationof an Environmental Impact Statement, 44 U. COLO.
L. REv. 81 (1972). As a result of the great public concern for the environ-
ment and a relatively slow legislative and administrative action to enact and
enforce pollution control laws, the public has turned to the National
Environmental Policy Act of 1969 (NEPA) "102" Environmental Statements
as a means of forcing federal agency decisions to reflect environmental con-
cern. The purpose of this article is to use a specific example of a "major
federal action significantly affecting the environment" in order to demon-
strate the process which goes into the preparation of an environmental
impact statement. The article concludes with an analysis of this process
including a critical discussion of some of the problems which the author
feels exists in this new legislation. The example used in this article is that
of a coal fired electrical generating station primarily because of the author's
experience in the preparation of impact statements for such facilities.
Lamm and Davison, The Legal Control of Population Growth and
Distribution in a Quality Environment: The Land Use Alternatives, 49
DENVER L. J. 1 (1972). The author believes that there has been a startling
reversal of the long-standing assumption that there is an inherent goodness
in growth - the so-called "growth-is-good" ethic. Some states have passed
resolutions calling for population stabilization. Legislation has been passed
in some states which would discourage growth in certain locations. States
which have long had legislation and promotional agencies encouraging
industrial and population growth are changing these policies. The author
believes that the policy should be adopted seeking a "different spatial dis-
tribution of the population by means of a decisive public policy." To
effectuate spatial distribution implies the limitation of growth in certain
areas, the inducement of growth in others. The author indicates that there
is a myriad of available land use controls and alternatives more closely to
approach these goals. Among these controls are those that are available at
the local, intra-state regional, state and federal levels of government. The
article is a survey of these land use controls and suggests at what govern-
mental level they may best be exercised. The article focuses on the range of
methods that might be adopted to control growth, encourage population
dispersal and preserve open space.
Lander, Symposium on Connecticut Conservation and Environmental
Quality Law, 46 CONN. B. J. 376 (1972). A symposium of articles including
Lowenthal, Prometheus, Meet the Power Facility Evaluation Council, John-
son, The Environmental Protection Act of 1971 and Trubek, Will the
Connecticut Administrative Procedure Act Frustrate Environmental Pro-
tection?
Large, Is Anybody Listening? The Problem of Access in Environmental
Litigation, 1972 Wis. L. REV. 62. A pessimistic discussion of hurdles
environmentalists face in opposing projects they deem injurious to the
environment.
Laughran, The Law and the Corporate Polluter: Flexibility and
Adoption in the Developing Law of the Environment, 23 MERCER L. REV.
571 (1972). The first section of this article deals with the nature of environ-
mental problems - particularly "pollution" - in the economic, cultural
and political contexts, and the author suggests how it is that the legal
system comes to be concerned with these problems. The second section of
the article focuses specifically on the problem of the corporate polluter and
some of the ways in which the legal system has approached and attempted to
deal with that problem. While the article focuses on the corporate polluter,
nevertheless, the author claims that it is in no way intended to imply that
corporations are solely responsible for environmental degradation, or to
single them out as "villains." He does suggest, however, that stationary
source pollution is a major problem, primarily attributable to corpora-
tions. The third and final section considers two "new," and as yet untested,
legal theories which might be brought to bear on the corporate pollution
problem.
Lefkowitz, Jamaica Bay: An Urban Marshland in Transition, 1 FORD-
HAM URBAN L. J. 1 (1972). The waters of Jamaica Bay are polluted and its
future is clouded. Yet it stands as a breeding ground for water fowl, fish
and shellfish, a way-station for migratory birds, a microcosm of urban
environmental problems. It is surrounded by the runways of Kennedy Air-
port and the apartment house complexes of Rockaway. Yet it survives as a
unique vestige of unspoiled coastal wetland in the midst of urban sprawl,
brings into sharp focus a wide range of urban problems and a wide variety
of proposed solutions. This article examines these environmental problems
as they affect the lives of the hundreds of thousands of people who live
adjacent to the bay, and the extraordinary opportunities for recreation and
enjoyment for which the bay, freed of sewage, air pollution and aircraft
noise, could be employed.
Lessinger, The Citizen and Environmental Protection in Florida, 46
FLA. B. J. 583 (1972). Florida has joined a handful of states in permitting
the average citizen the means of bringing suit on environmental actions
without the necessity of establishing standing to bring the action. This
article is a discussion of this law from the standpoint of the lawyer handling
such a case.
Martin, Private Environmental Litigation, 36 Ky. B. J. 24 (1972). A

discussion of the various ingredients available in the law for the use of the
private lawsuit as an effective, supplemental tool against pollution. This
includes the law of nuisance, trespass, negligence and strict liability.
McCoy, Oil Spill and Pollution Control: The Conflict Between State
Maritime Law, 40 GEo. WASH. L. REv. 97 (1971). Professor McCoy generally
applauds Florida's Oil Spill Prevention and Pollution Control Act, urges its
adoption by other coastal states or by Congress, and concludes that if the
federal courts hold parts of Florida's law unconstitutional as falling within
an area reserved for federal control, Congress should fill the resulting gap
by exercising federal control along the lines of the state act.
Puro, Water Pollution Legislation and the Rivers and Harbors Act of
1899: the Environmental Point of View, 16 ST. Louis U. L. J. 63 (1971). Dis-
cusses the effect of the Federal Water Pollution Control Act of 1956.
Rosenthal, The Federal Power to Protect the Environment: Available
Devices to Compel or Induce Desired Conduct, 45 S. CAL. L. REv. 397 (1972).
The author examines various ways in which the federal government can
compel or induce compliance with environmental standards as, for instance,
through the federal power over interstate and foreign commerce, the power
to tax and spend, and the treaty power. In addition to discussing the limita-
tions on the foregoing, several methods of direct regulation are examined,
such as criminal prosecution, civil penalties, injunctions, actions for dam-
ages, licensing, and seizure and forfeiture.
Sandler, The Refuse Act of 1899, Key to Clean Water, 58 A.B.A.J. 463
(1972). The Refuse Act of 1899, although approaching its diamond anniver-
sary, is alive and well and providing the best legal framework for cleaning
up the nation's navigable streams and their tributaries. Its absolute standard
of the pollution, which is ameliorated through practical application, is to
be preferred over attempts to provide elaborate statutory standards.
Schoenbaum, The Efficacy of Federal and State Control of Water
Pollution in Intrastate Streams, 14 Amiz L. REv. 1 (1972). The purpose of
the article is to analyze the major state and federal water pollution control
laws applicable to intrastate streams including the Federal Water Pollution
Control Act, the North Carolina Water and Resources Act of 1967 and the
Refuse Act of 1899. Alternate approaches to water pollution control are then
discussed and evaluated and a regional program is recommended.
Schroeder, Preservation and Control of Open Space in Metropolitan
Areas, 5 IND. LEGAL F. 345 (1972). The author believes that open space can
serve a variety of purposes. It can contribute to the reduction of urban
sprawl and blight, encourage more economic and habitable urban develop-
ment, assist in preserving areas and properties of historic or architectural
value, and conserve necessary recreational and scenic areas. Open space can
also be utilized, he believes, to protect the public water supply and preserve
the ground water table, conserve natural water resources, moderate floods,
and limit the level of air pollution. This article investigates the various
devices available both to preserve open spaces in metropolitan areas and to
prevent the loss of existing open space.
Smith, Apostrophy to a Troubled Ocean, 5 IND. LEGAL F. 267 (1972).
The purpose of this article is to consider what the author terms "in broad
brush" the various aspects of the so-called "marine revolution." A basic
understanding of the development of the principles of law emerging here
and similarly determining the limits of containment - together with an
appreciation of the concomitant advances in technology - will go toward
providing structural insight into the "revolution" and hopefully defuse its
negative force as well.
Stone, Should Trees Having Standing? - Toward Legal Rights for
Natural Objects, 45 S.CAL. L. REV. 450 (1972). The author argues that the
environment should be 'personified' by conferring upon it certain legal
rights to be exercisable through a guardian in its own right, and not merely
as an incidental beneficiary of policies that benefit man primarily.
Tarlock, Tippy and Francis, Environmental Regulation of Power Plant
Siting: Existing and Proposed Institutions, 45 S. CAL. L. REv. 502 (1972).
Pointing out that the nation's electrical energy requirements are expected
to increase by 250 per cent over present levels by 1990, the authors analyze
the legal methods for compelling regulatory agencies to consider and assess
the environmental impact of this future power source development.
Teclaff, International Law and the Protection of the Oceans from
Pollution, 40 FORDHAM L. REv. 529 (1972). Because marine pollution has
only recently been recognized for what it is - a problem of global dimension
and extreme complexity - international law has not yet evolved specific
rules for dealing with it. While international law does not ignore marine
pollution, this fact means that prohibition of pollution must be sought in
the general rules pertaining to the use of the sea. While these rules are
necessarily vague and can be made workable only by interpreting them as
almost totally permitting or totally forbidding pollution, the author's
position is that once it is accepted that the duty not to pollute the high
seas exist in international law, transgression of this duty must invoke the
responsibility of states and private enterprise.
Teclaff and Teclaff, Saving the Land-Water Edge from Recreation, for
Recreation, 14 ARIz. L. REv. 39 (1972). The authors examine the problems
that arise in protecting the delicate and unique environmental relationship
that exists in narrow areas where the land meets the water. Proposals for
allocating use of different edge zones for different purposes compatible with
the ecology and conducive to recreational uses are offered.
Verleger, The Ninth Amendment and the "Decent Environment" - A
Right or a Choice, 47 L. A. B. BULL. 101 (1972). The author describes some
of the practical limitations on accomplishing the objective of a "decent
environment" including the difficult choice between priorities and the possi-
bility of adverse consequences from even the most prudent choice.
A Symposium, Administrative Law and the Environment: National
Fuels Policy, 47 IND. L. J. (1972). Hickel, Preface, at 603; Fuchs, Intro-
duction: Administrative Agencies and the Energy Problem, at 606; Caldwell,
A National Policy for Energy, at 624; Ruckelsshaus, The Citizen and the
Environmental Regulatory Process, at 636; Tarlock, Balancing Environ-
mental Considerationsand Energy Demands: A Comment on Calvert Cliffs'
CoordinatingCommittee, Inc. v. AEC, at 645.
Symposium, California's Coastline, 47 CALIF. B. J. 402-439 (1972).

Kreuger, Coastal Zone Management: The California Experience, at 402;
McKnight, Title to Lands in the Coastal Zone; Their Complexities and
Impact on Real Estate Transactions, at 408; Shavelson, Gion v. City of
Santa Cruz: Where Do We Go From Here, at 414; Taylor, Patented Tide-
lands: A Naked Fee?, at 420; Jackson & Baum, Regional Planning: The
Coastal Zone Initiative Analyzed in the Light of the BCDC Experience, at
426.
Symposium, Community Economic Development, Part 11, 36 LAW AND
CONTEMP. PROB. 145 (1971). (A continuation of the Symposium in Part I.)
This covers such subjects as managerial assistance, marketing techniques for
community-based enterprise and the effect of the private foundation pro-
visions of the Tax Reform Act of 1969.
Recent Developments in EnvironmentalLaw, 13 B. C. IND. Fz COM. L. R.
625 (1972). This special issue examines, particularly at the federal level,
the more significant current legislative and administrative developments in
environmental law, and assesses their implications in light of recent court
decisions. It includes articles which demonstrate that an environmental
policy which encourages necessary change in existing law, or in its applica-
tion, must be given vitality if we are to preserve the environment.
Toward a State Remedy for Oil Spill Damages: An Insurance Ap-
proach, 47 N.Y.U. L. REV. 60 (1972). Notwithstanding the "salutary effects"
an insurance based system might have, the note suggests that "the problem
eludes the power of the states" and that "full resolution will await federal
action."
Crane v. Brintnall, 29 Ohio Misc. 75, 278 N.E.2d 703 (1972).
Landowners sued county commissioners for damages to their property
for failure and neglect in maintaining and operating a sewage treatment
plant which permitted sewage to be discharged into a natural watercourse
flowing onto landowners' premises, thereby depriving them of the use and
enjoyment of their property, which included a private lake. Landowners
claimed such encroachment was a taking of private property for a public
use, entitling them to compensation.
HELD: The discharge of effluent by a sewage treatment plant into a
natural watercourse that drains into a private lake is a taking of private
property for public use without compensation to the extent that such dis-
charge deprives the owners of that absolute right of use and disposition of
their property.
Court found that, based upon the doctrine of appropriation by en-
croachment, the county government, as the administrativearm of the state,
is not immune from liability for damages caused by its pollution of streams
and rivers to the detriment of the subservient landowners.
Friends of Mammoth v. Board of Supervisors, 8 Cal. 3d 1 (1972).
Construction of a high-rise apartment building was begun in the Sierra
Nevada Mountains in an area where only single-family cabins had pre-
viously been constructed. No impact studies had been made prior to its
approval by the various bodies. In an action to halt construction of the
building because no such impact had been made,
HELD: California's environmental protection laws required that the
state, county and city agencies had to report on the environmental impact
of any construction project that might have significant impact on the sur-
rounding area and release the report to the public before the agency could
approve of the same. Any private citizen can sue and stop any "significant"
construction that does not have an impact study.
Previously the California environmental protection requirements have
required impact studies prior to the approval of such public works as high-
ways. This decision is the first time that these environmental protection
requirements have been applied to private construction. Presumably, it
applies to all major construction in this state which is deemed to have a
"significant" impact on the surrounding area.
Harbor Farms, Inc. v. Nassau County Planning Comm., 40 App. Div.
2d 517, 334 N.Y.S.2d 412 (1972).
A developer purchased a tract of marshland on the south shore of Long
Island which was the last single undeveloped tract in that area. The general
area had seen thousands of homes built over the last decade. When the
developer submitted his subdivision plan to the county authorities, it was
rejected for the reason that the county had previously decided to stop any
kind of development whatsoever, not only because of the danger of
polluting a nearby channel, but also because the county desired to maintain
what was left undeveloped in a wilderness setting.
HELD: The refusal of the commission to approve of the subdivision
amounted to an unconstitutional confiscation of the developer's property
under the guise of ecological regulation. The court, therefore, ordered
approval of the subdivision plan, subject, however, to any reasonable restric-
tions the commission might seek to impose in order to protect the environ-
ment.
Illinois v. City of Milwaukee, 406 U.S. 91 (1972).
Illinois sought to have the Supreme Court prohibit the dumping of
raw sewage into Lake Michigan by four Wisconsin cities and two sewerage
commissions, contending that they were instrumentalities of Wisconsin and,
therefore, this was a suit against Wisconsin that could not be brought in
any other forum.
HELD: The Supreme Court's policy is that its original jurisdiction
should be invoked sparingly. Wisconsin could be joined as a defendant, but
it was not mandatory that it be so joined. Since political subdivisions are
citizens of their respective states for purposes of diversity of citizenship, a
political subdivision in one state can bring a diversity action against a
political subdivision of another state. Since the Wisconsin cities and agen-
cies named in the suit could be sued by Illinois in a federal district court,
original jurisdiction was not mandatory.
Lake Corners Ass'n v. McMullen, 406 U.S. 498 (1972).
The Michigan Watercraft Pollution Control Act of 1970 prohibits the
discharge of human waste in the waters of the state and requires the installa-
tion in ships sailing on those waters of either marine toilets that will retain
all sewage for disposal and approved on-shore treatment facilities or an
incinerating device that will reduce to ash all sewage produced on water-
craft. The Lake Carriers Association, whose members operate cargo vessels
on the Great Lakes, challenged the Michigan law on the ground that it
placed an undue burden on interstate and foreign commerce, interfered with
uniform maritime law and denied them due process and equal protection
and was unconstitutionally vague. In addition, they contended that the
statute conflicts with or is pre-empted by the Federal Water Pollution Act as
amended by the Water Quality Improvement Act of 1970. A three-judge
federal district court refused to enjoin enforcement of the Michigan Pollu-
tion Control Act on the grounds that there was no justiciable controversy
and that the plaintiffs were seeking an advisory opinion.
HELD: There was a justiciable controversy - the carriers were under
an obligation to install sewage storage devices promptly. The Court said
"in this circumstance compliance is coerced by the threat of enforcement,
and the controversy is both immediate and real." The Court agreed, how-
ever, that the district court properly abstained from deciding the merits but
not for the reason given by that court. The paradigm case for abstention
arises when the challenged state statute is susceptible to a "construction by
the state courts that would avoid or modify the (federal) constitutional
question" and "that is precisely the circumstance here."
New Jersey Sports and Exposition Auth. v. McCrane, 292 A.2d 545
(N.J.1972).
Action for a judicial declaration of the constitutionality of the New
Jersey Sports and Exposition Authority Law. This act was adopted to bring
about the construction, operation and maintenance of a sports complex on
a site of 750 acres. The act further granted permission to the authority to
acquire for the state some tide flowed meadowland for purposes connected
with the construction. It was alleged that this was a violation of the public
trust doctrine imposing certain limitations on the alienation of such land.
Another question was whether the statute requires a consultation with the
Meadowlands Commission and the Department of Environmental Pro-
tection and with respect to the ecological factors constituting the environ-
ment of the Hackensack Meadowlands to the end that the delicate environ-
mental balance of Hackensack Meadowlands may be maintained and
preserved.
HELD: The act is constitutional. However, an obligation has been
imposed upon the Authority to present its proposal for site location to the
Meadowlands Commission under the Department of Environmental Pro-
tection to determine the delicate environmental balance. Such presentation
should be made after public notice of the time and place, and a full record
made.
This case requires a public hearing on ecological factors on land
devoted to a public purpose giving all public bodies and persons an oppor-
tunity to present their views.
Sierra Club v. Morton, 405 U.S. 727 (1972).

The issue was the standing of the Sierra Club to sue to prevent the
Forest Service from issuing a permit for the development of Mineral King
Valley in California as a ski resort. There was no allegation by the Sierra
Club that it or its members "would be affected in any of their activities or
pastimes by the Disney Development." The district court granted an injunc.
tion which was reversed by the Ninth Circuit Court of Appeals.
HELD: Complaint dismissed without prejudice to the Sierra Club
seeking to amend by motion under Rule 15. Since the pleadings do not
claim that the Sierra Club itself or its members would be injured or affected
by the proposed development, it had no standing to file this suit to halt this
project. While a "non-economic injury" - "injury in fact" - may be suffi-
cient to lay the basis for standing, nevertheless, it is essential that the party
seeking relief must himself be among the injured. The requirement that a
party seeking review must allege facts showing that he is himself adversely
affected "serves as at least a rough attempt to put the decision as to whether
review will be sought in the hands of those who have a direct stake in the
outcome."
C. Legislation
Indiana
P.L. 100: Creates a state environmental management board to formu-
late policies and implement programs for comprehensive environmental
development and control.
Kentucky
Ch. 224: Ratifies the Interstate Environmental Compact.
Maine
Ch. 570: Establishes specific ambient air quality standards within an
air quality region.
Massachusetts
G.L. 214.510A: Provides that any ten persons may sue in equity for a
restraining order against any "person" who has damaged the environment
by violating a state statute. The definition of persons who may be so
restrained or who may sue has been expanded to include state administra-
tive agencies, corporations, trusts, cities, or "any other legal entity."
Missouri
S. B. 382: Prohibits the erection or maintenance of outdoor adver-
tising within 660 feet of the nearest edge of the right-of-way and visible
from the main traveled way of any interstate highway except directional
and official signs pertaining to natural wonders, scenic and historical attrac-
tions authorized by law. State Highway Commission has power under
eminent domain to remove existing outdoor advertising not permitted
under this Act.
S.B. 387: Prohibits the dumping or depositing of solid wastes onto the
ground or into the waters of Missouri; regulates the construction of solid
waste processing facilities by requiring a permit from the State Division of
Health.
S.B. 424: Sets up a Clean Water Commission composed of six members
representing the general interest of the public, having an interest in and
knowledge of conservation and the effects of water contaminants, to develop
comprehensive programs for the prevention, control and abatement of new
or existing water pollution.
S.B. 457: Provides penalty up to $500 for depositing any dead animal
or other filth into any well, spring, brook, river or stream.
H.B. 1184: Provides for a seven-man Air Conservation Commission,
with members representing agricultural, industrial and labor interests,
respectively, to regulate the use of equipment known to be a source of air
contamination with power to enforce such regulations.
New Jersey
Ch. 44: Amends basic water pollution law and requires an administra-
tive hearing after order to cease pollution.
Ch. 49: Provides for state aid and technical assistance to local environ-
mental agencies.
Pennsylvania
Act 20: Authorizes the Department of Environmental Resources to
make administrative agreements for cooperation and coordination of efforts
to control air pollution with state and local authorities of other states.
Act 21: Amends the Fish Law of 1949 by eliminating clause that
allowed the commission or court to find that every reasonable and practi-
cable means has been used to abate and prevent the pollution of waters by
the escape of deleterious substances.
Act 39: Establishes the procedure for environmental improvement
compacts of all municipalities, including home rule municipalities.
Act 171: Amends the Industrial Development Authority Law to include
financing for commercial development, pollution control facilities and
certain facilities for tourism and recreational facilities.
Act 193: Amends the Land and Water Conservation and Reclamation
Act by decreasing the amount of money available for air pollution from
burning coal refuse banks and increasing the funds available for the preven-
tion of surface subsidence above abandoned mine operations.
Virginia
Code 15.1-486: Expands what the governing body of any county or
municipality may by ordinance regulate, restrict or permit so as to include
sedimentation and soil erosion from nonagricultural lands.
Code 56-46.1: Provides that the State Corporation Commission shall
consider environmental factors, including impact on scenic assets, in approv-
ing the construction of electric utility facilities as well as the construction
of electric transmission lines of 200 kilovolts or more.
Spring 1973] ECOLOGY AND ENVIRONMENTAL CONTROL - EMINENT DOMAIN 169
Code 58-16.3: Provides that the governing body of any county, city or
town may by ordinance exempt or partially exempt from local taxation
certified pollution control equipment and facilities.
X. EMINENT DOMAIN
Barry, Market Value Enhancement By Public Projects,47 L.A.B. BULL.
49 (1971). The article discusses increased land values in condemnation as a
result of needed utilities, freeways, freeway access or public recreational
facilities being added to an improvement project.
Calvania, Eminent Domain and the Environment, 56 CORNELL L. REV.
651 (1971). In instances where environmental needs are a determinative
factor in condemnation proceedings, the burden of proof should rest with
the condemnor to justify to the courts the acquisition of land by eminent
domain.
Foerster, A Look at Condemnation Attorneys' Fees, 46 FLA. B. J. 130
(1972). A continuing issue in Florida involves payment by the condemning
authority of the reasonable fees incurred by the owner when his property
is acquired. This article discusses this problem and divides the discussion
into two questions. The first question involves whether or not the term "full
compensation" includes such fees and the second question is the method by
which such fees are determined.
Gore, Valuation of Property in Condemnation Proceedings,60 ILL. B. J.
870 (1972). The measure of compensation under Illinois law is the "fair
cash market value" of the land, at the time of the petition for condemna-
tion, at its highest and best use. Buildings are not separately valued. Dam-
ages to the remainder in partial takings depend on an obvious physical
relationship between the two. The impact of the Internal Revenue Code
on gains is also discussed.
Happy, Damnum Absque Injuria - When Private Poperty May Be
Damaged Without Compensation in Missouri, 30 Mo. L. REV. 453 (1971). A
discussion of compensation for taking land by eminent domain.
Landau, Urban Concentration and Land Exactions for Recreational
Use: Some ConstitutionalProblems in Mandatory Dedication Ordinances in
Iowa, 22 DRAKE L. REV. 71 (1972). Discusses the law's response to increas-
ingly perceived social needs and desire for recreational land use, first from
constitutional approach (re police power, taxing power, etc.), from stand-
point of due process requirement (as to condemnation, acquisition, etc.), and
from equal protection rights (of developers, owners, residents). Impact of
the Model Land Development Code and other ordinances representative of
midwestern state and local control measures is also examined.
Mencher, Condemnation Enters the Twentieth Century - An Alert to
the D. C. Bar, 38 D.C. B. J. 48 (1971). This article is intended to alert D.C.
attorneys to the "Uniform Relocation Assistance and Real Property Acquisi-
tions Act of 1970" which gives a more "just compensation" for condemna-
tion than mere "fair market value" standards.
Sax, Takings, Private Property and Public Rights, 81 YALE L. J. 149
(1971). A discussion of the conflict between the rights of private ownership

and the collective rights of the public to restrict land use with the conclu-
sion that commonly held notions as to the definition of what rights the
private owner has must give way to a determination of the maximum total
net benefit in the resolution of conflicting uses.
Stoebuck, A General Theory of Eminent Domain, 47 WASH. L. REv.
553 (1972). In an examination of the concept of eminent domain, the author
concludes that the answer to three separate questions provides a framework
of analysis that can be used in solving taking problems: (1) Is there involved
a property interest that could pass between private owners? (2) Has that
interest been taken? (3) Can the governmental entity invoke the power in
this instance?
Klopping v. City of Whittier, 8 Cal. 3d 39 (1972).
HELD: The city was liable for damages resulting from an announce-
ment of an intent to condemn the plaintiff's property if the city acted
improperly either by unreasonably delaying the condemnation action or by
other unreasonable conduct prior to condemnation.
Marposon v. State, 287 N.E.2d 857 (Ind. 1972).
State condemned portion of landowner's land for highway purposes.
Landowner attempted to introduce testimony that he had not received any
offers to purchase the residue of his estate subsequent to having learned of
the effect of the condemnation, thus trying to prove that the land had no
market value.
HELD: Absence of offers evidences nothing.
Case of first impression limiting type of evidence permissible in eminent
domain cases.
Russell v. Town of Canton, 282 N.E.2d 420 (Mass. 1972).
Town meeting warrant article stated, "To see if the town will vote to
authorize the Board of Selectmen to... take by eminent domain 20 acres,
more or less." The town meeting voted that the article be adopted and
appropriated a sum for acquiring by eminent domain approximately 18
acres. The selectmen voted to take only 15.25 acres of the tract which
actually measured 16.75 acres and did not take the balance because it was
unsuitable to the municipal purposes which prompted the taking.
HELD: The board's taking was authorized by the vote and was valid.
There was no requirement to take the entire parcel owned by the landowner.
Short v. Commonwealth, 5 Commonwealth Court 91 (Pa. 1972).
The Department of Highways condemned a strip of owners' lots vary-
ing from 15 feet to 25 feet in width in order to widen the paved cartway of
a state highway on which the lots abutted. No substantial change of grade
was made. The highway plans approved by the governor did not show any
lines marked on them as required for slopes. The owners contended that in
addition to being compensated for the land taken they should have been
compensated for such additional land as might in the future be necessary
Spring 1973] EMINENT DOMAIN
for support and protection if the Commonwealth later further widened the
highway and failed to provide support and protection for their property by
constructing a wall.
HELD: The property owners were not entitled to damages for some
possible future injury to or interference with their property.
Sets forth criteriafor awardingdamages in eminent domain proceedings.
State ex rel. Brower v. Columbus, 24 Ohio St. 2d 7, 271 N.E.2d 860
(1971).
Action in mandamus to compel the City of Columbus to institute
appropriate proceedings to determine compensation due for property rights
allegedly taken as a result of frequent and low-level flights of aircraft in
connection with the operation of the Columbus International Airport. The
city denied liability on the theory that it only has a maintenance authority
in connection with the airport operation and has no right to control flight
operations since the control of flight operations is in the United States
through the Federal Aviation Administration.
HELD: For plaintiff on the basis of Griggs v. Allegheney, 369 U.S. 84
(1962). It was argued that even though there was a "taking" someone other
than the municipality was the taker - either the airlines or the CAA acting
as an authorized representative of the United States. Since the municipality
was the promoter, owner and lessor of the airport, it was in these circum-
stances the one who took the air easement in the constitutional sense. The
federal government takes nothing; it is the local authority which decides to
build an airport vel non and where it is to be located. Writ of mandamus
granted.
State v. Lanigan, 280 N.E.2d 809 (Ind. 1972).
State paid landowner for right to build a limited access fence for the
construction of Highway 1-65. Highway 52 intersected Highway 1-65 at a
point on landowner's land. A no access fence was also constructed on High-
way 52 depriving landowner of direct access from his property to Highway
52. Landowner filed inverse condemnation action. He asked that no
evidence be submitted to the jury which would show any benefits that land-
owner received enhancing the value of his property as a result of the con-
struction of Highway 1-65.
HELD: Taking of landowner's access to Highway 52 is a separate
taking from that granted in the right-of-way for Highway 1-65. Fact that
land may be enhanced by another taking is irrelevant to any other taking.
Verzani v. Department of Roads, 188 Neb. 162, 195 N.W.2d 762 (1972).
Proceeding to assess damages for the taking of a portion of a tract of
land, with consequential damage to the remainder of the tract.
HELD: The tract to be considered in the assessment of consequential
damages to the remainder must be land held in the same ownership con-
tiguous to the land taken and devoted to the same use. No damages can be
assessed for improper design or construction unless the same are specially
pleaded.
Summarizes rules relating to damage under eminent domain proceed-
ings of Nebraska and raises the question as to the propriety of recovery of

damages for improper design or construction in the pending eminent
domain,proceedings, rather than in a separate action, contrary to previous
holdings.
United States v. Certain Land, 314 F.Supp. 1372 (D. Mass. 1970).
The United States instituted condemnation by publication and com-
plied with all the required statutory rules laid down for ascertaining and
giving notice to all persons in whom the right of compensation by reason of
taking had vested. Issues presented were (1) whether the person who had
possessory title to the land, although not a perfect title, had a sufficient
estate to entitle her to the entire undisputed amount of $38,000 and (2)
whether that same person was entitled to a decree that she was a true and
lawful owner of the land against all persons.
HELD: Even though the person having the possessory title did not
have a perfect title, nevertheless, she had a sufficient estate and interest in
the land to entitle her to the entire award where no other claimant was
before the court seeking the award. However, as regards the issue of title,
the court had no authority to issue a decree that that person was the true
and lawful owner of said land and that no other persons held title thereto.
C. Legislation
Iowa
H.F. 677: Provides that cities, towns, counties and sanitary districts
may acquire, own and improve land for sanitary disposal projects, and they
may issue revenue bonds to pay the costs.
Kentucky
KRS 416.470: Amended to provide that upon order dismissing petition-
er's claim of right to condemn or upon abandonment of such proceeding,
the petitioner shall pay all costs including reasonable attorney fees actually
incurred by the owner.
New Jersey
Ch. 47: Enacts Uniform Transportation, Replacement of Housing and
Relocation Act providing for equitable treatment of persons displaced by
acquisition of real property by Department of Transportation.
Pennsylvania
Act 169: Adds and changes definitions in the Eminent Domain Code
and provides for payment of special damages to displaced persons.
Act 170: Provides that persons who move as result of federally assisted
programs for which federal law provides relocation payments shall be en-
titled to state aid even though they do not qualify under the Eminent
Domain Code.
Tennessee
Ch. 608: Adopts the Uniform Relocation Assistance Act.
Ch. 711: Amends ch. 8 of 13 TENN. CODE ANN. to prohibit a housing
Spring 1973] EMINENT DOMAIN - ESTATES IN LAND
authority from condemning land in urban renewal areas for the purpose
of resale, where the owner desires to develop the same and sign a contract
with such housing authority to abide by the urban renewal plan, in any
development thereof.
Virginia
Code 25-235 through 25-254: Enacts the Uniform Relocation Assistance
and Real Property Acquisition Policies Act of 1972. This Act sets forth
procedures for assisting those persons who must relocate due to the acquisi-
tion of their property by a state agency for use in projects or programs in
which federal or state funds are used.
XI. ESTATES IN LAND

Greenwood, Syndication of Undeveloped Real Estate and Securities
Law Implications, 9 HOUSTON L. REV. 513 (1971). This article describes the
motivation behind the mechanics of real estate syndication, analyzes their
securities law implications and suggests steps which can be taken by land
syndicates to avoid the descending acts of securities regulations.
Nachbaur, Empty Houses: Abandoned Residential Buildings in the
Inner City, 17 HOWARD L. J. 3 (1971). This article examines the factors that
are causing owners to abandon buildings and suggests several methods of
attacking and reversing the trend.
Waggoner, Reformulating the Structure of Estates: A Proposalfor Leg-
islative Action, 85 HARV. L. REV. 729 (1972). Professor Waggoner points out
various major inadequacies of the present structure of estates and traces
them to the distinctions between conditions precedent and conditions sub-
sequent, and between reversionary and nonreversionary interests. Eschewing
such distinctions as artificial, he presents a reformulated structure of posses-
sory and future interests and urges its enactment into law.
Coolidge v. Coolidge, 130 Vt. 132, 287 A.2d 567 (1972).
HELD: Property held in joint tenancy is subject to being partitioned,
notwithstanding that when the parties took title they recognized and in-
tended that the survivor of them should ultimately be the owner of the
entire parcel.
In a dictum the court said that partition of land held in co-tenancy
may be barred if at the time of the conveyance the parties agreed expressly
or impliedly that the property should not be partitioned.
Knight v. Knight, 458 S.W.2d 803 (Tenn. App. 1970).
H obtained divorce from WI, married W2. H and W2 acquired title to
real property as tenants by entirety. H died. W1 set the divorce aside in
court for fraud. She claimed the title was tenancy in common and that she
was entitled to H's interest.
HELD: The title was tenancy in common, but there was an intention in
the deed to create a right of survivorship. Hence H's interest goes to W2.
Kufel v. Chopeinsky, 29 Ohio Misc. 61, 278 N.E.2d 60 (1972).

Testatrix authorized executrix to sell real property. Sixteen months
after appointment of executrix, one of the devisees brought an action to
partition the real property. One day after filing of partition suit, executrix
entered into an agreement to sell the real property to one of the other heirs.
The deed from executrix was filed one year and four months after such
agreement of sale. Executrix maintained that the power of sale given in the
will should prevail over partition suit.
HELD: An action for partition commenced more than one year after
the appointment of executrix prevails over a sale by executrix under the
power in the will.
XII. FRxTuRms - U.C.C.
Kripke, Mr. Levenberg's Criticism of the Final Report of the Article IX
Review Committee: A Reply, 56 MINN. L. REv. 805 (1972). Professor Kripke
answers the Levenberg Criticism (56 MINN. L. REv. 117 (1971)) and con-
cludes that Mr. Levenberg's article "if it is successful at all in confusing the
reader as to the merits of the committee's report, has done a great disservice
to the law."
Varsek, Assignments of Beneficial Interests in Land Trusts as Collateral,
60 ILL. B. J. 268 (1972). Failure to perfect this type of lien under the U.C.C.
may result in loss of priority. Furthermore, the Illinois court has character-
ized some assignments as "mortgages" within the Mortgage Foreclosure Act's
protection of the debtor's equity of redemption. This suggests that where
the Act applies, a mortgage by the trustee and a note by the beneficial
holder is a preferable course to an assignment with its U.C.C. difficulties.
XIII. FuTuRE INTERESTS

Fratcher, A Modest Proposal for Trimming the Claws of Legal Future
Interests, 1972 DUKE L. J. 517. Thesis of article is that legal future inter-
ests in land as presently permitted and enforced in U. S. prevent the use of
land in the manner most suited to current economic and social needs, to the
detriment of the owners of present and future interests in the land of the
community. Examples of problems created by possibility of reverter, right
of re-entry, the contingent remainder and the executory interest are cited
along with a modest proposal for ameliorating the situation.
C. Legislation
New York
Ch. 586: Adds 9-1.3(3)(e) to Estates, Powers and Trusts Law, to prevent
the rule against perpetuities from invalidating a disposition because of the
possibility of a subsequently adopted child.
XIV. HOUSING CODE
C. Legislation
Spring 1973] HOUSING CODE - LANDLORD AND TENANT
California
Ch. 4000: Amend Government Code 1054 to treat notices and orders
relating to building and housing code violations as public records.
Pennsylvania
Act 69: Establishes uniform standards for design and construction of
mobile homes and the installation of plumbing, heating and electrical
systems in mobile homes.
Act 70: Regulates the sale of fabricated residential housing for assem-
bly and installation on building site.
XV. LANDLORD AND TENANT

Berman, The Duty of Repair and Restoration of Leased Premises in
Illinois, 53 CHI. B. REc. 373 (1972). Discusses the trend in Illinois which has
culminated in the holding in Jack Springs, Inc. v. Little, 50 Ill. 2d 351, that
there is an implied warranty of habitability, at least with respect to multiple
dwelling units.
Brandy, Protection of Tenants: The Extent of the Landlord's Duty,
1971 L. & Soc. ORDER 612 (1971). After examining the present law respecting
the liability of the landlord to his tenants for injuries caused by others in
public areas, the author analyzes the considerations relevant to determining
whether that law should assume a different posture.
Halper, Sign It or Find Another Apartment: A View of Standard Form
Leases, 2 REAL ESTATE Rv. No. 2, at 2 (1972). The standards of standard
apartment leases too often are irrelevant, immaterial and outdated.
Heckt, Variable Rental Provisions in Long Term Leases, 72 COLUM. L.
REv. 625 (1972). A detailed examination of the parties to long term leases
and their goals, the methods of setting rental and various types of provisions
- step-up, linkage, percentage and revaluation.
Jacobson, Lessor's Bankruptcy: The Draftsmen's Response to the Ten-
ant's Plight, 1 REAL ESTATE L. J. 152 (1972). The author points out that nearly
every well drafted lease has, or should have, a clause which contemplates the
potential bankruptcy of the lessee. Suggested language for such a clause can
be found in any form book. Few, if any, leases, however, and likewise few,
if any, form books, consider the consequences of the lessor's bankruptcy.
The cases dealing with the problem are likewise sparse. This is an analysis
of the problems involved in the lessor's bankruptcy that takes into considera-
tion the various tenant's remedies, as well as the problems involved in
negotiating the lease from the tenant's standpoint.
Judge, PracticeUnder the New Lessor's Remedies Act, 47 L. A. B. BULL.
340 (1972). New legislation substantially affecting remedies available to a
landlord after default by a tenant has now become effective. The new law
is outlined and explained by comparing it to remedies formerly available
to a California landlord.
Lucasok, There is a Way to Stabilize Residential Rents, 2 REAL ESTATE
REV. No. 1, at 96 (1972). N. Y. City's rent stabilization plan is an encourag-

ing example of the industry's self-regulation.
Weil, Land Leasebacks Move Up Fast as Financing Technique, 1 REAL
ESTATE REV. No. 4, at 65 (1972). Segmental financing - something called the
pineapple technique - is illustrated by the subordinated land leaseback
which gives greater leverage to developers and secures returns to investors.
Williams, Before the Shopping Center Opens: A Survival Manual for
Developer and Tenant, 2 REAL ESTATE REV. No. 2, at 15 (1972). The no-
man's land explored between signing the shopping center retail lease and
opening the center for business.
Baker v. Snyder, 494 P.2d 1238 (Okla. 1972).
During the course of administration of the estate of a deceased person,
one of three lessees of a movie theatre building, the lessor filed a creditor's
claim for all of the unoccupied and unearned rent provided in his lease
and the lessor further objected to distribution of the assets of the decedent
to the deceased lessee's heirs. Question presented was whether a lessor of a
long term lease of business property is entitled upon the death of co-lessees
to have property of the deceased held up and not distributed to his heirs so
that property will be available to satisfy any breach of the lease agreement
which might result in loss to the lessor. Surviving co-lessees of decedent had
continued paying rental called for in the agreement and the lease was in no
way in default upon either the death of the deceased co-lessee or at any time
subsequent thereto.
HELD: Claim not due, or any contingent or disputed claim against
the estate as mentioned in 58 O.S. 1971 §596, does not include not due,
unearned and unoccupied rent provided for in a lease agreement.
Case of first impression.
Blocker v. Blackburn, 185 S.E.2d 56 (Ga. 1971).

Under the Georgia statute, a landlord would require a marshal to seize
and sell enough of the tenant's furniture, machinery, etc. to realize the rent
which the landlord swore was due. The statutory procedure provided that
the marshal then seize the property without notice and without giving the
tenant an opportunity to prevent any defenses he might have. The sale of
the tenant's property would then take place unless the tenant swore he did
not owe the rent. In order to recover his property pending any subsequent
hearing in court on the defense of not owing the rent the tenant would have
to post two separate bonds. In this case the tenant was indigent and was
unable to pay for the required two bonds. The issue was raised as to the
unconstitutionality of the statute, since it deprived the tenant of the use of
essential property without notice and without an opportunity to defend.
HELD: This right of distress is analogous to a seizure by a creditor
of a debtor's wages without notice and an opportunity to defend, a method of
collection which the United States Supreme Court has held unconstitutional.
In both situations the alleged debtors are denied the use of their property
Spring 1973] LANDLORD AND TENANT
without prior warning or a hearing. Such a result is a denial of due process

and the Georgia statute is unconstitutional.
Cardona v. Eden Realty Co., Inc., 288 A.2d 34 (N.J. 1972).
This is a suit by a tenant in the house owned by the defendant who was
injured from a fall caused by a loose metal nosing on the stair. The suit
alleges negligence and the maintenance of a nuisance. The rental agreement
required the tenant to furnish his own painting, stove, heat, etc. and also
contained an exculpatory clause that in consideration of the reduced rental
provided for the tenant covenanted not to sue the landlord and that the
landlord would not be liable to the tenant for any damage, etc. The lease
further contained a recital that the landlord had no public liability insur-
ance, but that if the tenant desired to eliminate the exculpatory clause
written notice thereof would be given, in which case the rent would be
increased $2.00 per month.
HELD: Under certain circumstances a noncommercial transaction
might properly include an agreement to rent property as is and a reduced
rental, but in a multiple-tenant tenement house lease such provisions are
oppressively for the benefit of the landlord and against public policy.
Case represents a continuing effort on the part of the courts to redress
the inequality between the landlord and the tenant in residential leases in
New Jersey.
Church v. Allen Meadows Apartments, 69 Misc.2d 254, 329 N.Y.S.2d
148 (Sup. Ct. 1972).
An apartment unit was rented for one year under a lease which had no
provision for renewal or extension. One of the facts found, however, was
that the parties expected the lease to be renewed from year to year indefin-
itely and it was renewed for a second year. The tenants were active in a
tenants' association which had sought correction of alleged housing and
code violations by the landlord. Toward the end of the second year the
landlord notified the tenants that their lease would not be renewed a third
time and that eviction proceedings would be brought against them if they
did not vacate. The tenants alleged that the landlord was retaliating against
them because of their activity.
HELD: The landlord's decision not to renew the lease was motivated
solely by the activities of these tenants in the association seeking to improve
conditions on the property. Any proceeding which looks to evict these
tenants which is so motivated is unconstitutional in that it seeks to have
the state penalize a person for exercising his constitutional right of free
speech. Therefore, the tenants have a defense to any eviction action.
Court did not rule that the landlord had to renew the lease but simply
that he could not evict a tenant under these circumstances after the lease
had been terminated by lapse of time if the tenant wished to remain.
FarrellLines Inc. v. City of New York, 30 N.Y.2d 76, 300 N.Y.S.2d 358
(1972).
The City of New York leased a pier to Farrell Lines Inc. and in the
lease covenanted to rebuild the pier before the term began. In return
Farrell covenanted to keep the premises in good repair during the term
and, when the term was up, to surrender them "well and sufficiently re-
paired, painted and in good order and condition." The city made extensive
repairs on the pier over a period of two years - enough so that Farrell was
able to take possession when its term began. After that the city refused to do
any more work and as a result much of the pier had not been repaired.
Farrell thereupon refused to keep the pier repaired and in good order until
such time as the city finished the job of rebuilding the pier. This situation
continued until the end of the term. As a result, when Farrell surrendered
the premises he did so without painting them or making any of the repairs
called for in its covenant. The city thereupon sued Farrell for damages.
HELD: Farrell's covenant to repair arising during the term was depen-
dent on performance by the city of its covenant to rebuild. Since the city
had not fully performed its covenant to rebuild, there was no corresponding
obligation on Farrell to make repairs and keep in good condition. While
the rule is that covenants in a lease are usually independent, the rule does
not apply to a tenant's covenant to make repairs when the landlord has
covenanted to first restore the damaged premises. The scope and nature of
the tenant's covenant in this case is that he is to repair defects which arise
after the restoration by the city is complete. Since the city never did com-
pletely restore the pier, there never was any duty on Farrell to make repairs.
57 E. 54th Realty Corp. v. Gay Nineties Realty Corp., 335 N.Y.S.2d 872
(Sup. Ct. 1972). A 15-year lease provided that the landlord could termin-
ate, on three days' notice by mail which would be deemed to be given when
mailed, on the tenant's non-payment of rent. During the initial six-year
period of this lease the tenant was frequently late in payment of rent
without any protest from the landlord. After the landlord gave the required
notice terminating the lease because of a nonpayment of rent the tenant
refused to quit possession and the landlord brought this hold-over petition.
HELD: The landlord had not acted in good faith. Good faith dealing
between landlords and tenants is essential and even though the tenant is
deemed to have been in default, the tenant should be relieved of default
if the landlord was not harmed or prejudiced thereby. The law abhors
forfeiture of leases. The provision for termination was so lacking in equity
in due process as to be ineffective as a predicate for termination. A modem-
day lease is to be considered as much a service contract as a rental contract
of space for a stated period. As a service contract, the lease requires mutual
obligations between the parties and should be construed as other contracts.
Since all the landlord lost by the delay in payment of rent by the tenant was
the amount of interest it would have realized on the rent payment, termin-
ation of a 15-year lease with nine more years to go before its expiration day
verges on the unconscionable.
Gray Drug Stores v. Foto FairInternation,Inc., 32 Ohio App. 2d (1972).

In a lease dated August 10, 1961 to plaintiff, the developer of a shop-
ping center agreed to "Construct paved parking areas where shown in
Exhibit A" .... and to grant unto tenant ...... Said parking areas ....
shall not be fenced or obstructed . . . . and shall be kept open for use
without expense of any nature to the tenant .... " On November 4, 1969,
the shopping center developer and owner entered a lease with defendant
for the construction of a "kiosk" for the sale and processing of photographic
film. The kiosk was placed on an area designated and used for parking.
Plaintiff claims that such construction violates its rights as set forth in its
1961 lease.
HELD: Lessor-developer was enjoined from obstructing the parking
area in violation of the terms of the original lease.
Court adopts a "strict construction" view; the construction of the kiosk
could have been considered de minimis.
Hunter v. Cook, 274 N.E.2d 550 (Ind.1971).
Landlord rented house to tenant. Tenant advised landlord that a
faucet handle in the bath tub was defective. Landlord did not agree to
fix the faucet handle or to maintain the premises or to make any repairs.
Tenant struck his hand on the faucet handle which shattered and severely
cut his and. Tenant sued for damage based upon negligence of the land-
lord for not repairing the defective handle.
HELD: Tenant cannot recover for personal injuries from an injury or
damage to property caused by the defective condition of the leased premises
unless the landlord either agreed to make repairs or was negligent in making
repairs.
Indiana maintains traditionalattitude in regard to landlord's responsi-
bility for negligence.
Inganamort v. Borough of Fort Lee, 120 N.J. Super. 286, 293 A.2d
720 (1972).
Suit to test the constitutionality of a municipal ordinance establishing
rent leveling system to curtail the practice of rent gouging.
HELD: None of the ordinances is invalid. There is no presently com-
prehensive state plan for rent leveling in New Jersey and there is no clear
intent upon the state's part to preempt the field and preclude local activity;
said ordinances do not contravene the supremacy clause of Article VI of the
United States Constitution; and local governments, in the face of the
crisis in housing, have broad powers in the interest of protecting the public
health, safety and general welfare to control and regulate the rental of
available houses in those respects that are local in nature and which do not
infringe on state or federal authority.
This case of first impression, a trial court determination, has been the
basis of a number of local rent leveling ordinances.
Jack Springs, Inc. v. Little, 50 Ill. 2d 351; 280 N.E.2d 208 (1972).
In an action seeking to recover possession of demised premises for
nonpayment of rent, the tenants defended on the grounds that (1) the state's
forceable entry and detainer statute was unconstitutional because it requires
the furnishing of a bond as a prerequisite to appeal by tenants, and (2)
landlord breached both an express and implied covenant to repair. The
trial court awarded the landlord possession on the grounds that the coven-
ants to repair on the part of the landlord, whether express or implied, were
not a defense to nonpayment of rent.
HELD: Reversed. (1) The section of the forceable entry and detainer
statute requiring the tenant to furnish an appeal bond was unconstitutional
because the legislature, having created the right of appeal, may not so
condition the exercise of that right as to discriminate against tenants who
are unable to furnish any appeal bond. (2) An implied covenant of inhabita-
bility is to be inferred in both oral and written contracts of leasing in
multi-unit dwellings. The implied contract is performed by a substantial
compliance with pertinent provisions of a municipality's building code.
(3) Affirmative defenses alleging breach of the implied covenant as well as
an express covenant of a landlord relating to repair are defenses to the
issue whether or not the tenant is indebted to the landlord for rent and
thus a defense to summary eviction.
Johnston v. Harris, 198 N.W.2d 409 (Mich. 1972).
An aged tenant in a Detroit apartment house was returning home after
dark. As he reached for the doorknob of the front door to his apartment
building, the door was suddenly jerked open and he was struck and robbed
by an intruder who had been lurking in the poorly lighted and unlocked
vestibule. The apartment house was located in a high-crime area. Action
was taken against the landlord for negligence.
HELD: In a high-crime area, the failure to provide lighting and locks
creates a condition conducive to criminal assault on tenants; such assaults
are foreseeable by the landlord; and as a result he is under the duty
to guard his tenants against them or suffer the risk of paying damages
when they are assaulted for lack of protection. A landlord of an apartment
building in a high-crime area is guilty of negligence when he fails to
provide adequate lighting and front door locks. One injured by another's
negligence can recover if the negligence is the proximate cause of the injury.
It need not be the immediate cause. The absence of lighting and locks was
the proximate cause of the assault in question because the landlord should
have realized that it involved an unreasonable risk to his tenants from the
criminals which he knew or should have known were present in the neigh-
borhood.
Kopke v. AAA Warehouse Corp., 494 P.2d 1307 (Colo. App. 1972).
Snow had fallen on Friday and Saturday and, because of icy conditions,
plaintiff, 70 years old, did not come to his office until the next Tuesday.
During that period of time, alternate thawing and freezing occurred. Plain-
tiff had rented an office and parking space from defendant landlord. The
landlord had made no effort to clear the lot of the earlier snow or resulting
ice. Plaintiff slipped and fell on ice in the parking lot and sued to recover
damages for personal injury. Defendant was granted a directed verdict at
the conclusion of plaintiff's case.
HELD: In the absence of statute or agreement, the landlord is under
a duty to tenants to exercise reasonable care to keep common passageways
approaches and parking faciilties within his control in reasonably safe
condition.
Case of first impression. Court adopts Connecticut rule rather than

Massachusetts rule.
Lindsey v. Normet, 405 U.S. 56 (1972).
In November 1969, the city declared the single-family dwelling occupied
by plaintiffs as tenants on a month-to-month basis as unfit for habitation
because of substandard conditions of the premises. The tenant refused to
pay the December rent until improvements were made and the landlord's
attorney threatened eviction unless rent was paid. In January the defendant
sought a declaratory judgment in the federal district court declaring the
Oregon forceable entry and detainer statute as unconstitutional on its face.
After a three-judge court dismissed the claim, appeal was made to the
Supreme Court.
HELD: The provisions of the statute providing for a trial within six
days after service of complaint unless the tenant files security for the rent
was not a denial of due process since "tenants would appear to have as much
access to relevant facts as their landlord and they can be expected to know
the terms of their lease, whether they have paid their rent, whether they are
in possession of the premises, and whether they have received a proper
notice to quit, if one is necessary. Particularly where, as here, rent has
admittedly been deliberately withheld and demand for payment made,
claims of prejudice from an early trial date are unpersuasive." Neither were
the tenants denied due process because the law precluded them from raising
as a defense the landlord's breach of a duty to maintain the premises. The
tenants' claim was based on an assumption "that they are denied due process
of law unless Oregon recognizes the failure of the landlord to maintain
the premises as an operative defense to the possessory action and as an
adequate excuse for nonpayment of rent. The Constitution has not feder-
alized the substantive law of landlord-tenant relations, and there is nothing
to forbid Oregon from treating undertakings of the tenant and those of the
landlord as independent rather than dependent covenants. The Constitu-
tion does not provide judicial remedies for every social and economic ill.
However, the statute's requirement of a bond twice the amount of rent
expected to accrue during the appeal is a denial of equal protection since
in ordinary litigation an appellant is required to file a bond only to cover
"all damages, costs and disbursements which may be awarded against him
on appeal."
Malcolm v. Little, 295 A.2d 711 (Del. 1972).
Tenant was delinquent four weeks in rent. While no one was in the
apartment, landlord entered and changed the locks and thereafter refused
to allow tenant access to the apartment.
HELD: (1) The common law rule, that the landlord might expel hold-
ing over tenant without process, was the early rule in Delaware, but the
forceable entry and detainer statutes have modified the common law, and the
landlord in order to dispossess a tenant must proceed by the judicial means
afforded by the statutes. Failure to proceed by such means results in the
landlord being liable to the tenant in damages.
(2) The Delaware forceable entry and detainer statutes entitle the
tenant only to possession and make no provision for damages. Tenant has
a right not to have peaceable possession interfered with except by lawful
process and violation of such right gives rise to a common law cause of
action in tort.
This decision holds that a landlord has no right to regain possession by
self-help from a holding over tenant delinquent in rent even though posses-
sion may be gained peacefully; he must resort to available procedures under
statutes. Also, a tenant who is wrongfully ousted by a landlord has an action
in tort for injury to the right of peaceable possession and damages are not
restricted to restoration of possession.
Markese v. Cooper, 70 Misc.2d 478, 333 N.Y.S.2d 63 (Co. Ct. 1972).
The landlord of a residential unit ignored the repeated complaints
from a tenant about vermin, lack of heat due to a faulty furnace, peeling
lead paint in the apartment, leaking from pipes, rotted windows and
dilapidated front steps. Subsequently the building bureau cited the landlord
for code violations. When the tenant's lease expired the tenant refused
to leave her apartment claiming that she could not be evicted in this
particular instance because the landlord was evicting her in order to get
revenge. This claim was found as a fact by the court.
HELD: A landlord should not be permitted to frighten tenants into
silence and thereby circumvent the law designed to insure decent housing
by the threat of evicting any tenant who reported housing violations. To
prevent this circumvention, the defense of retaliatory eviction must be
available in any proceeding to oust a tenant even though the lease has
expired and his legal right to possession has ended. However, in that situa-
tion the tenant may remain only until the landlord has complied with the
housing law's requirements as to conditions of the premises. Once such
compliance is had, then the landlord may bring a second proceeding to evict
the hold-over tenant and even though the landlord may still be motivated
by a desire for vengeance or revenge this second eviction proceeding may
proceed to a judgment. However, in such a situation the court in the evic-
tion proceedings should give the tenant a long period of time in which to
find other suitable housing and should consider the awarding of actual and
punitive damages to the tenant because of this unlawful motive.
Matteucci's Super Save Drug v. Hustav Corp., 491 P.2d 706 (Mont.
1971).
A lease of premises in a shopping center to a druggist provided that no
other premises within the center would be rented to another druggist. At
that time the premises next to the drug store were leased to a grocery.
Subsquently the grocery needed more room than was available within the
shopping center. Thereupon the lessor offered, and the grocer accepted,
larger premises adjacent to but outside the shopping center. As a part of
this expanded business in its new location, the grocery sold drugs.
HELD: The restrictive covenant restricts the lessor only within the
geographic area defined in the covenant. While the second location was
leased to the grocery with the right to sell drugs, the lessor had no evil
intent toward the druggist within the shopping center. The lessor was
motivated by a desire to accommodate the grocery rather than the wish to

injure the druggist. Therefore, there was no reason to expand the scope of
the covenant so as to give the druggist protection in an area outside of the
specifically restricted shopping center area.
Meyer v. Carmichael,29 Ohio App.2d 183, 279 N.E.2d 622 (1972).
Lessor leased premises to lessee with rental payment payable in
advance in monthly installments due on the first of each month. Lease
provided that if rent should remain unpaid for ten days after it is due, then
without demand the lessor would have the right to re-enter and lease
would cease. Lessor deposited check of lessee on the 8th of the month, and
it was returned by the bank on the 13th marked "Insufficient Funds." On the
17th of the month lessor sought to evict lessee. Lessor rejected lessee's
attempt to tender cash in redemption of dishonored check. Lessee claimed
it was an innocent mistake in overdrawing his account.
HELD: Lease was breached. A mistaken belief check will be honored
when presented will not excuse a failure to pay rent as agreed upon in a
lease.
Polk v. Gibson Prod. Co., 257 So.2d 225 (Miss. 1972).
A lease was made with a tenant who operated a department store which
called for $18,000 a year base rental plus 1 2% of all gross sales over $1.2
million made in, upon, or from the premises. Later the lessee asked the
landlord to enlarge the floorspace so that it could compete with new dis-
count stores then in the area. Upon the landlord's refusal, the tenant gave
notice of its intention to move and sublease to a fabric store. Thereafter
the base rental continued to be paid by the lessee but the additional rent
which in past years had been as much as $10,000 per year, was not for the
simple reason that the fabric store did not have an annual sale in excess of
the $1.2 million. The landlord then sought damages to the extent of the
bonus rentals.
HELD: This lease constituted a valid contract and required no con-
struction. The lease is specific in that there is no provision that specified
that the tenant was required to continue to occupy the premises for the
entire term of the lease. Therefore, so long as the landlord was receiving the
base rent, he had no quarrel.
Weaver v. American Oil Co., 276 N.E.2d 144 (Ind. 1971).
Oil company leased a filling station to Weaver. Every year Weaver
signed a lease furnished and prepared by the oil company. Weaver did not
read the leases. The clauses in the leases were never explained to Weaver.
Oil company did not advise Weaver that he should consult legal counsel
before signing the leases. The leases contained hold harmless and indemni-
fication clauses which provided in substance that if any negligence occurred
on the leased premises, whether caused by the oil company or by anyone
else and any loss or damage resulted therefrom, the oil company would not
be responsible. Weaver would have to pay any loss or damage that resulted
by reason of such negligence. Weaver and assistant were burned and injured
by employee of oil company. Oil company instituted action to determine
that Weaver was responsible under said clauses of the lease.
HELD: Weaver is released from any responsibility under the clauses.

Hold harmless and indemnification clauses are basically unconscionable.
They were included in the lease only because of the substantial amount of
bargaining power that the oil company had over Weaver. When a person
with stronger bargaining power uses that power to its advantage, unknown
to the other party, and thus causes a great hardship and risk on the other
party, then such unconscionable provisions, or the contract as a whole if it
is unconscionable, cannot be enforced by the stronger party. Unconscionable
provisions can be included in any lease or contract. However, before they
can be enforced by the party with the stronger bargaining power, that party
has the burden of showing that said provisions were explained to and under-
stood by the other party, and that there was a voluntary meeting of the
minds of the parties to the agreement.
Case establishes new philosophy in contracts, leases and mortgages,
where discrepancy in bargaining power exists.
Zale Corp. v. Decorama Inc., 470 S.W.2d 406 (Tex. 1971).
In 1965 property was leased in writing to a corporation for a term of
five years. A week later the lessor was given a written option to purchase
to be exercised six months prior to the expiration of the lease term. Neither
the lease nor the option was recorded. The lease and option were subsequent-
ly assigned and the property was transferred. The assignee of the option
gave notice of its exercise to the purchaser. Upon refusal by the purchaser to
recognize the option, the assignee of the lease sued for specific performance.
HELD: Even though the purchaser has no actual knowledge of the
option agreement, nevertheless, the rule applies under which possession of
the property by a tenant at the time premises are conveyed puts the vendee
on notice of the terms under which the tenant is holding, and this notwith-
standing such are not of record.
C. Legislation
New York
Ch. 638: Adds new Multiple Dwelling Law 50-c which permits tenants
of multiple dwellings containing eight or more apartments to maintain, at
the tenants' expense, lobby attendants for building security at times when
the owner does not provide such a service.
Ch. 870: Adds several provisions to the Private Housing Finance Law
which permits municipalities to contract with limited profit/dividend hous-
ing companies to provide subsidies to enable low income elderly persons to
continue occupancy at rentals not exceeding a fair proportion of their
income.
XVI. MINES AND MINERALS
Hodson, Salt Water is a Mineral, 50 TEX. L. REv 448 (1972). Ownership
of a natural resource of increasing importance in oil-producing states.
Mayfield, Bonus, Delay Rental, and Minimum Royalty - Treatment
and Distinctionsfor Tax Purposes, 7 LAND & WATER L. REV. 343 (1972). An
Spring 1973] MINES AND MINERALS - MORTGAGES AND LIENS 185
attempt to resolve the confusion in the income tax treatment of bonus,

delay rental and minimum royalty in leases of mineral interests.
Verret, Sale or Lease, 33 LA. L. REV. 417 (1972). Capital gain or ordinary
income subject to depletion in mineral transactions.
Kerr-McGee Corp. v. Bokum Corp., 453 F.2d 1067 (10th Cir. 1972).
A mineral lease gave the lessee the right to "own and dispose of all
uranium-bearing ores or uranium-bearing materials and bi-products." When
the lease was first made the lessee processed the ore and sold yellow cake.
Beginning in 1968, however, a market for raw ore developed when utility
companies began to use nuclear energy. Royalties on the sale of raw ore
exceeded those on the sale of yellow cake produced from the same ore. The
lessor demanded that the raw ore be sold without processing it into yellow
cake. This demand was rejected and resulted in this lawsuit.
HELD: While normally there is an implied covenant by the lessee of a
mineral lease to market the ore which he mines at the highest price obtain-
able so that the lessor will realize the maximum royalties, no such covenant
can be implied in the instant case because the lease expressly gave the lessee
the right to "own and dispose of all uranium-bearing ores or uranium-
bearing materials and bi-products."
C. Legislation
New York
Ch. 180: Adds Town Law 130 (15-a) and (23) permitting any town in
the state to adopt ordinance (i) to fill excavated lands which are deemed
hazardous to the public safety, after due notice and hearing, with the cost
to be assessed against the property, and (ii) to regulate the operation of sand
and gravel pits, stone quarries, stripping of top soil and other excavations.
Pennsylvania
Act 17: Amends the Public School Code by requiring that any school
district, planning to construct a school building in an area certified to be
subject to mine subsidence, obtain an evaluation of the substrata from the
Department of Environmental Resources.
Act 147: Extends the Bituminous Coal Open Pit Mining Conservation
Act to surface mining of anthracite coal and all other materials.
Tennessee
Ch. 547: Repeals 58-1522 through 58-1539. Sets up new and compre-
hensive regulations of surface mining and reclamation of lands affected by
such operations.
XVII. MORTGAGES AND LIENS

Bentley and Macbeth, Mortgage Lenders and the Housing Supply, 57
CORNELL L. REV. 149 (1972). A comparison of the investment style of home
mortgage lenders in New Haven, Conn. and Los Angeles, Cal. with some
suggested remedies for the ills of the mortgage and housing markets.
Bonanno, Due on Sale and Prepayment Clauses in Real Estate Financ-
ing in California in Times of FluctuatingInterest Rates - Legal Issues and
Alternatives, 6 U. SAN FEANcisCO L. REv. 267 (1972). The author examines
the due-on-sale and prepayment clauses as found in California law and
practice. He then turns to several alternatives like the variable interest
rate, the short-term loan with option to renew and a fixed interest long-
term loan. He concludes that there is no one alternative that is completely
satisfactory to both lender and debtor.
Burstein, There's Truth-in-Lending,But Is There Right in Rescission?,
2 REAL ESTATE REv. No. 2, at 83. A definitive analysis of the most contro-
versial part of the federal Truth-in-Lending Act, the right to rescind certain
real estate transactions.
Clonte, Avoidance of Civil Penalties Imposed by Truth-in-Lending, 89
BANKING L. J. 848 (1972). The author is disturbed that lower court decisions
dealing with civil liabilities under the Truth-in-Lending Act frequently
discuss the failures of creditors to meet the requirements of Regulation Z,
with alleged civil liability resulting therefrom. The author claims that such
improper considerations on the part of the court have to be the result of
insufficient preparation and analysis by attorneys representing the creditors
in question. Attorneys defending such actions should narrow their attention
to the provisions found in section 130 of the federal Truth-in-Lending Act.
Regulation Z has little to do with civil liability under the Act.
Garwood, Truth-in-Lending - A Current Analysis of Developments,
37 LEGAL BULL. 187 (1972). Cases involving truth-in-lending are before the
Supreme Court. A legal service published its 800th letter from the Federal
Reserve Board staff explaining Regulation Z which implements the Act,
and many other judicial proceedings in the lower courts, all of which
activity suggests that truth-in-lending is not yet ready to fade into the
recesses of routine, and that the process of matching the federal disclosure
requirement to the complex and changing pattern of consumer credit has
not yet been completed. With this in mind the author believes it is an
opportune time to examine the developments in the Federal Reserve Board's
Regulation Z, as well as some of the truth-in-lending litigation.
Gunning, The Wrap-Around Mortgage . . . Friend or U.F.O.?, 2 REAL
ESTATE Rv. No. 2, at 35 (1972). The wrap-around mortgage, secondary
financing at its most sophisticated, combines financial allure and legal snares.
Harth, Piggy-Back Mortgage Financing, 38 LEGAL BULL. 1 (1972). A
piggy-back loan is a joint loan made by two lenders using a single mort-
gage and, generally, two notes. The two separate notes are given to different
lenders though both notes are secured by the same mortgage lien and
pursuant to an agreement between the two lenders the senior lender is
given first priority. Piggy-back, along with such terms as participation,
secondary mortgage market, piece-of-the-action, sales-and-lease-back and
wraparound, signals the gradual emergence of a sophisticated era in
secured lending techniques, a development which has been under way for
several years now. The author believes that piggy-back lending may prove
Spring 1973] MORTGAGES AND LIENS
to be of more current practical value than some of the others mentioned

because no special enabling legislation seems to be needed before the
technique can be utilized fully.
Healy, A Legal View: Wraparound Mortgages, 51 TrrLE NEws No. 8,
at 6 (1972). The wraparound mortgage, which has been in use in Canada
for many years, has recently evoked interest in the United States. Because
of the lack of any reported cases on the subject, the author analyzes some
of the lines of legal precedent which should by analogy be applicable to
this type of mortgage. He outlined procedures which he believes the title
industry might judge necessary in order to permit the issuance of title
insurance in form satisfactory to a lender participating in a wraparound
transaction.
Holtz & Griem, Mortgage Foreclosures,51 MIcH. B. J. 164 (1972). This
article presents a summary of the new procedures under Michigan Public
Act 104 (1971) which provides for a shorter publication period for statutory
notice of foreclosure, and a reduction of the redemption period where
property has been abandoned.
Miller and Kafes, How to Value Real Estate Subject to an Equity
Participation,2 REAL ESTATE REV. No. 1, at 89 (1972). A demonstration of
what actually happens to the yield from improved real estate when the
mortgagee obtains a participation in income.
Moss, The Stop Notice Remedy in California - Updated, 47 L. A. B.
BULL. 299 (1972). The author notes that while there have been no radical
changes in stop notice laws in recent years, they have been recodified and
certain procedural issues resolved.
Plumb, The Relative Priority of Federal and Business Claims: Yester-
day, Today and Tomorrow, 27 BUSINESS LAw. 1195 (1972). A discussion of
the Bankruptcy Act as it would be affected by proposed amendments. In so
doing there is an up-to-date analysis of the Federal Tax Lien Act of 1966.
Stevenson, Should Mortgage Loans be Socially Significant?, 1 REAL
ESTATE REv. No. 4, at 72 (1972). Large mortgage lenders are in a unique
position to emphasize social considerations in the construction and develop-
ment of real estate.
Von Furstenberg, The Economics of Variable Interest Rate Mortgages,
51 TITLE NEws, No. 8 at 8 (1972). The author believes that the great
degree of instability in the number of housing starts in the past seven years
is due entirely to the inadequacy of the supply of money. Since about 95%
of all new homes are acquired with the benefit of long-term financing,
variations in the flow of mortgage credit drastically affect the future level
of housing starts and the price and liquidity of real estate. The author
believes that in order to reduce the subjugation of the housing sector to
every twist and turn in monetary policy and inflationary psychology, the
general availability of mortgages with variable interest rates is recom-
mended.
Avco Delta FinancialCorp. v. Town of Whitefield, 295 A.2d 921 (Me.
1972).
Plaintiff was assignee of a second mortgage interest by assignment duly

recorded in the Registry of Deeds. No indication of town in which property
covered by assignment was located was made in "location" column of
index. More than two years after recording of assignment, defendant town
filed tax lien mortgage in Registry of Deeds against property for nonpay-
ment of taxes. Unaware of the assignment, defendant gave notice of tax
liens to the original second mortgagee, but did not give notice of tax liens
to plaintiff, as required by statute to be done for each "record holder of a
mortgage" on the property involved. Statute provides right to redeem, for
mortgagee not receiving such notice, within three months after receiving
"actual knowledge" of tax lien. After foreclosure period for tax lien mort-
gages but within three months, plaintiff tendered full payment of taxes
under statute. Defendant refused acceptance. Plaintiff sought injunction
against sale of property. Superior court refused to grant injunction.
HELD: Appeal sustained. Strict foreclosure of tax lien mortgage under
statute imposes on municipality absolute duty to ascertain outstanding
mortgages of record. Records, if reasonably explored in this case, would
have disclosed to plaintiff that defendant was record mortgagee. The fact
that record also provided means for plaintiff to ascertain filing of tax lien
mortgage did not constitute "actual knowledge." "Notice" is not necessarily
"actual knowledge." Accordingly plaintiff effectively exercised its special
right of redemption.
Baltimore Life Ins. Co. v. Harn, 15 Ariz. App. 78, 486 P.2d 190 (1971).
Mortgage contained a clause providing for acceleration of the debt
upon conveyance of the title of the mortgaged property to a third person.
When the mortgagor thereafter conveyed in violation of this clause, mort-
gagee brought an action to accelerate the debt, including therein not only
the principal sum due, plus accrued interest and attorneys' fees, but also
including an additional amount representing a prepayment penalty. The
trial court dismissed the foreclosure suit.
HELD: Since an action to accelerate and foreclose a mortgage is an
equitable proceeding, it is not enough for the mortgagee merely to prove
that the acceleration clause has been violated. The mortgagee must also
show that the mortgage security is jeopardized before it will be entitled to
equitable relief.
This decision, holding that an acceleration-on-sale clause is not valid
per se, does not follow the prevailing case law.
Bradford v. Thompson, 470 S.W.2d 633 (Tex. 1971).
Purchasers of realty assumed payment of a promissory note providing
for monthly installments of $60 payable "on or before" the 15th of each
month. Purchasers, after paying many installments of $70, ceased their
payments. The holder of the note foreclosed pursuant to power of sale
contained in deed of trust securing payment, and thereafter instituted suit
against purchaser in trespass to try title.
HELD: For purchasers. Excess payment made in one month must be
applied to satisfy a required payment in subsequent months. Purchasers
were never in default.
Initial interpretation of the quoted language where contained in

installment note.
Chambers v. Nation, 497 P.2d 5 (Colo. 1972).
A mechanic's lien on an oil and gas well had an effective date prior to
creation of a purchase money security interest on a pumping unit. When
the owner defaulted on payment, the pumping unit was repossessed.
HELD: (1) A purchase money security interest in property takes prece-
dence over any pre-existing lien, including a mechanic's lien; (2) a mechan-
ic's lien does not attach to proceeds realized from sale of extracted oil and
gas because such property is not listed in the statute.
Cook v. American States Ins. Co., 275 N.E.2d 832 (Ind. 1972).
Mortgagor Cook sold property to McIntire who assumed the mortgage
indebtedness. Indiana law provides that as between the mortgagor-grantor
and the grantee that the mortgagor-grantor becomes surety and the grantee
becomes the principal obligor. Mortgagee accepted a deed from the grantee
in satisfaction of grantee's obligation under the mortgagor indebtedness.
Mortgagee then instituted action against mortgagor-grantor on the promis-
sory note, reasoning in part that although the mortgagor-grantor was a
surety he was also still a principal obligor and thus not released when the
grantee was released.
HELD: Mortgagor-grantor is discharged of liability based upon prin-
ciple that a surety is discharged when the liability of his principal is extin-
guished.
Clarification of Indiana law relative to suretyship.
Davis v. Davis, 196 N.W.2d 473 (Minn. 1972).
HELD: An acceleration clause in a mortgage does not require mort-
gagor to tender entire principal balance in order to reinstate mortgage
after default under statute which provides for reinstatement by payment
of amount actually due and the default actually existing.
A case of first impression, adopting minority view.
Guinn v. Brentmoore Farms, Inc., 253 So.2d 136 (Fla. App. 1971).
A $110,000 note secured by mortgage on 761 acres provided for annual
amortization payments of principal of $4,000 and also provided that all
sums received by the mortgagor from sale of livestock and timber would be
paid to mortgagee in reduction of principal. During the first year the
mortgagor realized $35,000 from such sales and paid it to the mortgagee
pursuant to the note. At the end of the first year the mortgagor failed to
pay the annual amortization of $4,000. The mortgagee accelerated payment
and brought foreclosure proceedings. The mortgagor paid into court a sum
larger than the total of the $4,000 installment due plus interest and reason-
able attorneys' fees. As a defense the mortgagor claimed that because of
the then conditions of the money market it would work an extreme hard-
ship on him to be forced to refinance the mortgage. The trial court dis-
missed the foreclosure complaint on the basis that it would be unconscion-
able to allow the acceleration and foreclosure of this mortgage.
HELD: Reversed. The issue presents "a battle of interest rates" which
does not raise a legal issue in an arm's length transaction. The obligations
of contracts must still be enforced.
Hampton v. Gulf Federal Savings & Loan Ass'n, 249 So.2d 829 (Ala.
1971).
Plaintiffs obtained a mortgage loan from a lending institution on
March 15, 1964. In accordance with the provisions of the mortgage, the
mortgagors obtained fire and extended coverage insurance on the prop-
erty, paid the first year's premium thereon and delivered the original of the
policy to the mortgagee, retaining a copy for themselves. The insurance
policy contained the usual provision protecting the interest of the mort-
gagee. The mortgage provisions provided that in addition to making the
monthly payments of principal and interest the mortgagors were required
to make monthly payments in an amount sufficient to pay the annual
charges for insurance and taxes when due. Plaintiffs continued to make
their monthly mortgage payments including the estimated amount into the
tax and insurance escrow during the years 1965 and 1966. Payment of the
second and third annual premiums were made by the mortgagee in March
of those years from the funds which it had received from the mortgagors
and in response to bills and statements from the insurance company
requesting such payments. However, the policy of insurance expired accord-
ing to its terms on March 12, 1967, and it was not renewed either by the
mortgagee or the mortgagors. On April 14, 1967, the mortgagor's home,
which was not insured, was totally destroyed by fire. In an action against
the lender seeking to recover damages for its failure to renew the insurance
policy and to make payments thereon the complaint had a count on con-
tract and a second was based on tort which alleged that the defendant was
under a duty to make the payments for insurance. The trial court granted
defendant's motion for summary judgment.
HELD: Affirmed. The duty to insure the premises was upon the mort-
gagors, not the mortgagee. The rights and duties of the parties were estab-
lished by the contract between them. Any negligence, i.e., a potential
breach of duty, must arise out of a positive duty which the law imposes
because of the existence of the contractual relationship as mortgagor and
mortgagee, or because of the negligent manner in which some fact which
the contract provides for is done. In the absence of any agreements to the
contrary, there is no general duty imposed upon a mortgagee by virtue of
its status as a mortgagee to insure the mortgaged premises. Under the terms
of the mortgage agreement it was the mortgagor who had expressly coven-
anted to keep the improvements on the security property insured against
damage by fire and such other hazards as the mortgagee might require to
be insured against. As regards the monthly insurance escrow payments, the
mortgagee was authorized to pay for such items as charged or billed without
further inquiry. There was no provisions in the instruments from which it
could be reasonably inferred that the mortgagee undertook the duty of
securing insurance or renewing the policy which had expired.
Hayek v. Western Steel Co., 478 S.W.2d 786 (Tex. 1972).
Owner, acting as his own builder through numerous separate original
contracts, failed to retain the 10 per cent retainage required by Article

5469. A materialman of the owner's foundation contractor sued the owner
to collect the unpaid balance for material furnished. The owner sought to
limit plaintiff's recovery to an amount equal to 10 per cent of the contract
with the foundation contractor.
HELD: For the materialman. Laborers and materialmen are entitled
to share liens to the extent of 10 per cent of the aggregate value of all
completed improvements, rather than 10 per cent of the separate contract
underCase
which each such laborer's or materialman's work was performed.
of first impression. Dissent points out that under the
decision,
either (i) the owner will be required to pay more than the total contractual
obligations incurred by him for the construction of the improvements, or
(ii) original contractors who fully perform and pay their bills will ulti-
mately receive less than the amount stipulated in their contracts with the
owner.
LaSala v. American Savings & Loan Ass'n, 5 Cal. 3d 864, 489 P.2d 1113
(1971).
On the reverse side of a deed of trust, in fine print, appeared a clause
giving the lender the right to accelerate in the event the mortgagor should
secure secondary financing on the property. The owner subsequently did
execute a second mortgage. The mortgagee sent him a letter advising him
of its right to accelerate but offered to waive this right in return for a
lump sum payment of $150 and an increase in the rate of interest from
6 to 9 per cent. A class action was brought against the bank to declare the
acceleration clause void.
HELD: The enforcement of this acceleration clause as written would
unlawfully restrain alienation and is, therefore, void. Such a clause is
entirely different from one which permits the mortgagee to accelerate in
the event of a sale of the mortgaged premises. Such a clause is not unrea-
sonable from the bank's standpoint since the bank should have the right
to condition its continued extension of credit to the mortgagors on their
retaining their interest in the property as it existed at the time of the
making of the mortgage loan. A sale of the property usually divests the
owner of any interest and involves a transfer of possession with the respon-
sibility for maintenance and upkeep on the part of the new owner. A
second mortgage, on the other hand, does not terminate the mortgagor's
interest in the property nor does it involve a transfer of possession.
Lomanto v. Bank of America N.T.&S.A., 92 Cal. Rptr. 442 (1972).
Plaintiff and his wife borrowed $11,500 from the defendant bank,
executing a note evidencing the loan and also a deed of trust on real
property to secure it. One paragraph of the deed of trust contained a future
advance provision. Sometime after the closing of the original loan, the
plaintiff husband, acting on his own, obtained two unsecured short term
loans from the defendant bank, executing three promissory notes totalling
$17,000. Subsequently, when all three notes were in default the bank com-
menced a nonjudicial trustee foreclosure sale in accordance with the pro-
visions of the trust deed. Thereafter the plaintiff and his wife brought an
action for declaratory relief and an injunction against the bank contesting
the validity of the future advance provision. The plaintiffs alleged that the
bank had not directed their attention to the quoted clause or its legal
impact and effects, and that at no time did the plaintiffs undertake or
agree to its terms; that the bank failed to explain its interpretation of the
terms of the deed of trust, but had presented the deed to the plaintiffs as
"a routine matter of business" for their signature; and that the plaintiffs
did not know that the deed of trust included anything more than the
immediate transaction, the securing of the $11,500 loan, and the giving of
the property described in the deed as security. The bank demurred and
refused to grant plaintiffs leave to amend whereupon the plaintiffs appealed.
HELD: If the plaintiff husband alone were involved the demurrer
would be sustained without leave to amend since he had received the
money evidencing the two short term loans. As to the wife, however, the
trust deed contract on a printed form prepared by the bank was of a type
classed as a contract of adhesion. This term refers to a standardized contract
prepared entirely by one party to the transaction for the acceptance of the
other. Such a contract, due to the disparity in bargaining power between
the draftsman and the second party, must be accepted or rejected by the
second party on a "take it or leave it" basis without opportunity for bar-
gaining. As regards the plaintiff's contention that they were not aware of
the presence of the language complained of, the court declined to rule as
a matter of law that the bank had such a duty and stated that if the
particular provision was of a type found in the usual form of trust deed,
then there was no such duty on the bank to explain the language. However,
if the provision in question was an unusual provision and if the bank had
contracted to deliver to the borrowers a trust deed in the "usual" form,
then the wife might have a basis for declaratory relief. It could not be
said as a matter of law that the specific clause is a usual provision although
the court would take judicial notice that some provision for securing future
advances is not unusual in a printed form of trust deed, but not all printed
forms contain such provisions.
Milstein v. Security Nat'l Bank, 27 Cal. App.3d 482 (1972).
This case involved the right of an encumbrancer to the proceeds of a
condemnation action. The trust deed contained a provision obligating the
trustor to restore the damaged building and also provided that the
beneficiary would be entitled to any condemnation award and that it
could release the money so received or apply these funds to the indebted-
ness.
HELD: Under the rule of good faith and fair dealing, the award
should be released to the trustor for purposes of repair regardless of any
decision by the beneficiary to the contrary.
Modern American Mfg. Corp. v. Nelson, 469 S.W.2d 124 (Ark. 1971).
Owners of property entered into a contract with a builder to erect a
new home for them on part of their property. The price of $10,300 was to
be financed by an FHA mortgage. The builder presented many papers in
connection with the transaction which the owners signed without reading.
Spring 1973] MORTGAGES AND LIENS 193
One of them was a deed of the property to the builder. Having recorded
the deed Jones then obtained a certificate of title and presented this along
with a contract signed by the owners to a lender. He obtained a construc-
tion loan mortgage and after some of the money was advanced the builder
went bankrupt. Thereupon the lender foreclosed and the owners counter-
claimed against the bank to cancel the deed and the mortgage.
HELD: Deed and mortgage cancelled. Even though the contract
submitted to the lender designated the owners as purchasers and not as
owners, the lender, as transferee of Jones, stood in no better position than
he did because it was not a bona fide purchaser for value without notice.
Because the owner was in actual possession of the property the lender-
mortgagee was charged with notice of this possession and thus under an
obligation to make a diligent inquiry to learn the nature of the interest of
the owners and why they were in possession of the property while the land
records indicated they had no right. Since the lender never inspected the
property it could not claim to be a bona fide purchaser for value.
Oklahoma Hardware Co. v. Townsend, 494 P.2d 326 (Okla. 1972).
B&B Home Builders, Inc. owned a building lot and entered into an
executory contract with Townsend to build a house on the lot according
to certain plans and specification and to convey the improved premises to
the Townsends free and clear of all encumbrances. Pursuant to an agree-
ment with B&B, plaintiff in error's assignor furnished materials for the
construction of the building. The lien statement was filed but written
notice of the lien was not served upon the Townsends. The trial court
found that the Townsends, the purchasers of the property, were the
"owners" within the lien law; that the materialman failed to give written
notice to the "owners" as required by statute; and that the property was
not subject to the materialman's lien. The materialman appealed.
HELD: When an owner of a building lot (an executory vendor)
contracts with another (an executory vendee) to build a house on the lot
according to certain plans and specifications and to convey the improved
premises to the executory vendee, a materialman, who furnishes materials to
the executory vendor for the construction of the improvements prior to the
time the executory vendee obtains record title to the premises, comes within
the purview of the statute. Under the above circumstances, the executory
vendor is the "owner" of the premises within the meaning of the statute,
and it is not necessary to serve written notice of the lien upon the executory
vendee, even though the materialman may have furnished some of the
materials for the construction of the improvements and may have filed his
lien after the executory vendee obtained record title.
Pietrov. Leonett, 30 Ohio St. 2d 178, 283 N.E.2d 172 (1972).
Husband and wife executed a joint and several promissory note secured
by a mortgage upon property owned as joint tenants by husband and wife.
Wife on her husband's death became the sole owner as the surviving co-
tenant, sold the property, paid off the promissory note and sought contribu-
tion from her husband's estate for one-half of the balance due upon the
note. Wife's position was that "when two persons share a common burden
as joint debtors and one is compelled to pay more than his share he is
entitled to contribution from his co-obligor and the right of contribution
flows from the debt which is evidenced by the note and not from the
mortgage lien which is security for the debt." Executor of the husband's
estate stated that the execution of the joint and several notes should not
be controlling since the surviving spouse is now the sole owner of the
property which was the security for the debt.
HELD: A surviving spouse, who owned real property with her hus-
band as a joint tenant with the right of survivorship, is entitled to receive
contribution from her husband's estate.
Sher v. South Shore Nat'l Bank, 274 N.E.2d 792 (Mass. 1971).
A first mortgagee brought a foreclosure proceeding, and gave to a
second mortgagee the required statutory notice which notice did not require
informing him of the date of the foreclosure sale. The property was
appraised at $52,500 and it was sold at public sale for $35,500. The second
mortgagee had written to the foreclosing mortgagee asking to be notified
of "any problems whatsoever in connection with the first mortgage." There-
upon the second mortgagee sued the first mortgagee for negligence and bad
faith in the conduct of the foreclosure sale.
HELD: In the absence of a special agreement, the first mortgagee was
not obligated to do anything further than to give the notice required by
statute. This he did. It was up to the second mortgagee to protect himself
by appearing at the foreclosure sale and bidding. The mere fact that the
property was sold for only two-thirds of its appraised value does not itself
establish bad faith or lack of due diligence on the part of the first mort-
gagee. Furthermore, the first mortgagee never assumed any obligation to
notify the junior mortgagee of the date of sale.
Tahoe Nat'l Bank v. Phillips, 92 Cal. Rptr. 704 (1971).
The plaintiff bank agreed to lend $34,000 to the defendant who,
together with three co-venturers, needed further capital to embark upon an
apartment development. In return for an additional loan the tenant gave
plaintiff a promissory note together with an assignment of rents and an
agreement not to sell or encumber the realty described therein. The real
property described in the assignment was not the venturer's apartment
development but his unencumbered residence. Plaintiff recorded the assign-
ment and thereafter the defendant recorded a declaration of homestead on
the property. The defendant did not convey or encumber the property.
Upon default in the payment of that loan, plaintiff brought suit and among
other things asked that the assignment be construed as an equitable mort-
gage and that the court decree its foreclosure.
HELD: The assignment was not an equitable mortgage. Plaintiff bank,
which occupied the more powerful bargaining position and deliberately
chose to use a standardized form providing for the assignment of rents and
a covenant against conveyances, cannot be permitted to transform this
assignment into a mortgage contrary to the reasonable expectation of its
borrower. As to the purpose and the terms of the assignment, it is the type
of agreement commonly used with unsecured loans, it contains no words of
hypothecation and includes language inconsistent with the mortgage. The

trial court erred in evoking extrinsic evidence offered by the bank to prove
the assignment to be a mortgage.
Tucker v. Pulaski Fed. Savings & Loan Ass'n, 481 S.W.2d 725 (Ark.
1972).
Purchase money mortgage in the amount of $23,000 was made by the
lending institution. The mortgage contained a clause providing for accel-
eration of the debt if the mortgagor sold the property without the mort-
gagee's consent. Subsequently he did sell the property although the mort-
gagee had informed him beforehand that it would not approve of the
transfer. The mortgagee thereupon declared the mortgage debt to be due
and payable under the acceleration clause and instituted foreclosure pro-
ceedings. The mortgagor claimed the acceleration was invalid as an arbitrary
restraint on alienation. In addition the mortgagor counterclaimed claiming
that the mortgagee, by collecting monthly payments for taxes and insurance
premiums and not paying interest thereon to the mortgagor, violated a
fiduciary duty alleged to have been created because the mortgagor claimed
the funds so accumulated were held in trust for the mortgagor.
HELD: The acceleration clause was a restraint on alienation. It could
be upheld only if it were not an absolute restraint. It would not be an
absolute restraint if the bank was required to justify its action by proving
it had grounds which were clearly reasonable. An action to accelerate and
foreclose a mortgage being an equitable proceeding, it is not enough to
allege merely that the acceleration clause has been violated. Absent an
allegation that the purpose of the clause is in some respect being circum-
vented or that the mortgagee's security is jeopardized, a plaintiff cannot be
entitled to equitable relief. As to the mortgagor's claim that the mortgagee
was liable for interest on both the tax and insurance escrows, there is no
evidence that appellee coerces its borrowers to establish escrow accounts;
in fact, the mortgagors, on their present loan, do not pay any moneys into
an escrow account. Actually, the escrow account results in a service to the
borrower for it absolves him of the responsibility and trouble of paying the
taxes and insurance. A mortgagee is entitled to be in a position where he
knows that the taxes and insurance will be paid, otherwise his security
would be very much in jeopardy.
United States v. Kosher, 41 U.S.L.W. 2252 (2d Cir. Oct. 30, 1972).
A and B were co-owners of property in New York but only A owed
taxes to the federal government. In proceedings to enforce its lien the
government sought to sell the interest not only of A but also of B. Section
7403 of the Internal Revenue Code, which is entitled "Action to Enforce
Lien or Subject Property to Payment of Tax," provides in subsection (c)
that the court shall adjudicate all matters involved in the action and deter-
mine the merits of all claims to and liens upon the property and may
decree a sale of such property . . . and a distribution of the proceeds of
such sale according to the findings of the court in respect to the interests
of the parties and of the United States.
HELD: The government has the right to sell the interest of all parties
in the property, even though one or less than all may be delinquent tax-
payers. The party or parties who are not delinquent will share in the
proceeds of sale depending upon the particular interest they may have.
The Second Circuit follows the ruling of United States v. Trilling,
328 F.2d 699 (7th Cir. 1964); United States v. Washington, 402 F.2d 3 (4th
Cir. 1968); and United States v. Overmay, 424 F.2d 1142 (9th Cir. 1970).
These four circuits are in conflict with the decision of the 5th Circuit in
Folsom v. United States, 306 F.2d 361 (5th Cir. 1962).
Wait Lumber Co., Inc. v. Masid Bros. Inc., 189 Neb. 10 (1972).
Action to foreclose mechanic's lien against fee owner of the property.
The lien had been created under contract between him and a tenant of
the property. The tenant, after creation of the indebtedness and the lien,
abandoned the property, whereupon the landlord retook possession.
HELD: The lien was a valid lien upon the fee title to the property
for the reason that the landlord had merged the tenant's estate into the fee
estate when he retook possession and accepted the surrender.
Clarifies Nebraska law on the rights of mechanics' liens claimants as
against a landlord.
White Lakes Shopping Center Inc. v. Jefferson Standard Life Ins. Co.,
490 P.2d 609 (Kan. 1971).
A life insurance company issued a commitment for a permanent mort-
gage loan of $3.5 million conditioned upon the completion of the pro-
posed shopping center. The builder was required to make an advance
payment of $77,000, which was to be refunded promptly on the closing of
the loan, but "if the loan is not closed, then the $77,000 deposited is to be
retained by Jefferson as liquidated damages." As the work progressed the
builder requested the mortgagee to increase the amount of the commitment
which it did on two separate occasions, finally raising the loan to $3.85
million. When the mortgagor made a third request for an increase to $4.25
million it was denied. The mortgagor then secured a loan for that amount
from another lender. It thereupon sued the mortgagee for the $77,000
claiming (I) that the money should not be retained because it was in the
nature of a penalty and (2) the mortgagee had violated its own agreement
to provide full and adequate financing.
HELD: Advance payments, which are to be forfeited in the event of a
breach by the borrower under a loan commitment, are properly to be
regarded as liquidated damages if (1) the amount is within the customary
percentage required for similar loans and is reasonable in view of the
probable and presumptive loss to the lender in the case of breach; and
(2) the amount of the actual damage in case of breach could not be easily
and readily determinable. These two facts were found in this case. The
mortgagor could not use parol evidence in order to vary the terms of the
written commitment to prove its claim that the mortgagee had promised
to loan an amount sufficient to meet its ultimate financial needs.
Young v. Tri-City Remodeling, 335 N.Y.S.2d 308 (City Ct. 1972).
A homeowner contracted for a new roof and signed an agreement to
pay for the same in a number of installments. It appeared what the roofer
would have charged the homeowner if he had paid in cash or over install-
ments. The promise to pay was secured by a note and mortgage on the
house. Before any work was done the homeowner attempted to cancel the
contract because the roofer had not complied with the requirements of the
truth-in-lending act.
HELD: The mortgagor could not cancel because truth-in-lending did
not cover the transaction. The fact that a homeowner is to pay for improve-
ments in more than four installments does not of and by itself prove the
existence of a finance charge. Therefore, in the absence of evidence of a
finance charge, the truth-in-lending act does not apply.
This court relied upon Mourning v. Family Publication Service, Inc.,
449 F.2d 335 (5th Cir. 1971) which invalidated the four installment rule
found in Reg. Z, §226.6(k) as being in conflict with §103(f) of the Truth-in-
Lending Act itself. Certiorariwas granted in the Mourning case on March
20, 1972 and thus the case was before the Supreme Court at the time of
this report.
C. Legislation
A labama
Act 2052: Abolishes the defense of holder in due course status with
respect to a consumer credit sale or consumer lease by the Alabama
U.C.C.C. Not applicable to FHA insured or VA guaranteed mortgages.
California
Ch. 508: Amends Government Code 27321.5 to prohibit recordation
of a deed of trust or mortgage unless it contains provisions affording the
trustor/mortgagor notice by mail of any default or intended foreclosure sale.
Ch. 698: Amends Civil Code 2949 to prohibit the acceleration of any
installment note secured by a deed of trust or mortgage on a single-family,
owner-occupied dwelling by virtue of any junior encumbering of the
property. States that this provision is not intended to restrict the rule of
LaSala v. American Savings & Loan Association, 5 Cal. 3d 864 (1971)
dealing with such "due on encumbrance" clauses (reported supra).
Kentucky
KRS: 426.525: Permits a mortgagee after default to take possession of
the property abandoned for the purpose of preserving and maintaining the
same, harvesting crops, or letting the same and adding any reasonable
expenses to the mortgage indebtedness.
Massachusetts
Ch. 183: Adds section 59 requiring that no penalty or late charge be
collected against any mortgagor/occupant of any dwelling house of not
more than four units, if payment is made within 15 days of the due date
with a maximum charge of 3 per cent of the principal and interest due.
New York
Ch. 421: Prohibits a mortgagee who accelerates a mortgage on an
owner-occupied one- or two-family dwelling by reason of a transfer of

ownership from charging any prepayment charge.
Ch. 506: Makes a mortgagee, who receives escrow money from a mort-
gagor for the payment of real estate taxes, liable to the mortgagor, upon
the failure to pay such taxes, for the amount of the taxes, plus penalties
and interest imposed.
XVIII. OIL AND GAS
Colpitt v. Skelly Oil Co., 499 P.2d 415 (Akla. 1972).
The appeal involves action by Skelly Oil Co., while serving as the
designated unit operator of a waterflood unit known as the "Sporn Unit"
in Lincoln County, in acquiring, by assignment, a producing oil and gas
lease covering an 80-acre tract of land adjoining Colpitt, the "unit area."
Plaintiff sought to establish beneficial interests in the lease and to require
defendant to account for oil produced under the lease.
HELD: There was no evidence from which it could reasonably be
inferred that the taking of oil from the well on the adjoining tract bene-
fited Skelly greatly during waterflood operations in the unit area, and
adversely affected the amount of oil produced or recoverable from the wells
in the unit area. Regardless of how the relationships between the various
unit lessees and between the one designated as the operator of such a unit
and the other unit lessee might be characterized, those relationships arise
out of, and are based upon, a written contract - in this instance designated
as the plat of unitization.
Flag Oil Corp. v. King Resources Co., 494 P.2d 322 (Okla. 1972).
The facts here were complex. The appeal involved the effect, if any,
of an amendment to an oil and gas lease under the potential for extension
provided by a conventional "thereafter provision." The matter was com-
plicated by a two-year shut-in royalty clause.
HELD: Purpose of the lease amendment was to permit the extension
of the lease's primary term by payment of shut-in royalty, so that during
such extension the lease would not terminate on account of the lessee's
failure to market gas produced on the leased land. The lessee had a reason-
able time after the specified date within which to market such production.
Examination of the complexities of the shut-in royalty clause in
Oklahoma and necessity of explicit language to achieve that goal.
XIX. OPEN SPACE AND CONSERVATION

Cooke and Power, Why Florida's Green Belt Won't Work, 2 REAL
ESTATE REv. No. 1, at 84 (1972). Florida's effort to protect farmlands near
urban areas achieves the wrong ends and protects the wrong people.
Costonis, Development-Rights Transfer: A Proposal for Financing
Landmarks Preservation, 1 REAL ESTATE L. J. 163 (1972). This article deals
with what the author terms the "anomaly" of the ongoing pillage of our
historic and aesthetic heritage in the face of literally hundreds of preserva-
Spring 1973] OPEN SPACE AND CONSERVATION - PLANNING AND ZONING 199
tion ordinances and statutes. All these laws have been enacted ostensibly
to stem their disappearance. Most of these ordinances deal quite adequately
with the historic-aesthetic side of preservation by defining proper criteria
and administrative procedures for identifying and designating individual
landmarks or historic societies. The author feels that few, if any address
the economic consequences of preservation realistically or equitably. The
tenor of his article is the development of ideas and methods for the
"preservation" of these landmarks and not just their creation.
XX. PLANNING AND ZONING

Aloi, Legal Problems in Planned Unit Development, 1 REAL ESTATE
L. J. 5 (1972). The purpose of this article is to explore the threshold legal
problems of the compatability of planned unit development with the
Euclidean rationale, cluster zoning, delegation of legislative authority,
districting and uniformity, as well as comprehensive planning. Included
also is an even more intensive review of the zoning problems in the
implementation of a planned unit development district, the floating zone
and conditional or contract zoning.
Bergin, Price-Exclusionary Zoning: A Social Analysis, 47 ST. JOHN'S L.
REv. 1 (1972). The author points out that there appears to be a great
demand in academic circles that price-increasing land-use ordinances either
be overridden by the courts or be barred by state legislatures. This writer
takes the position that the social case for overriding price-increasing land-
use ordinances has not been made. He also believes that the overriding of
such ordinances, either by the courts in ex post facto review or by the state
legislatures reducing local land-use control, will not only seriously imperil
desirable local autonomy, but also accomplish very little of benefit for the
urban poor. The article directs itself against the use of negative restraints
upon local land-use choices, i.e., restraints which operate to break down or
bar price-increasing land-use regulations.
Clapp, Potentially "Counter-Intuitive" Elements in Federal New Com-
munities Legislation, 9 SAN DIEGO L. REv. 70 (1971). A discussion of some
of the operational considerations in the federal new communities legis-
lation established to date.
Costonis, The Chicago Plan: Incentive Zoning and the Preservation of
Urban Landmarks, 85 HARV. L. REv. 574 (1972). The article proposes a
plan to provide for municipal landmark preservation. It analyzes the
destruction of America's urban landmarks and the use of development
rights transfers to preserve the urban landmarks.
Curtin, Preservation of Open Space in California; Associated Home
Builders v. City of Walnut Cheek, 47 L. A. B. BULL. 108 (1972). This decis-
ion has broad implications for both developers and municipalities and
encourages the trend toward imposing on developers the cost of the full
economic impact of a development on a community.
Freihofer, Zoning Use Variances vs. Construction Use Variances, 51
MICH B. J. 489 (1972). The stated purpose of this article is to explore
the Michigan cases and determine the proofs and findings necessary to
justify the grant of each type of variance under present Michigan law, to
state the questions as yet undecided, and to venture a prophecy as to the
possible result when the question is squarely presented to the Michigan
Supreme Court.
Garner, Introduction to English Planning Law, 24 OKLA. L. REV. 457
(1971). The purpose of the article is to discuss the British scheme of land
use planning and its three principal concepts: (1) a development plan
prepared for each local planning authority's area; (2) a strict system of
development control reinforced by detailed controls over special topics;
and (3) very wide powers of compulsory purchase or "eminent domain,"
permitting some measure of positive planning.
Johnson, Exclusionary Zoning, Damage Actions Under the Civil Rights
Act, 1971 L. AND Soc. ORDER 538. An examination of the best means for
using the Civil Rights Act of 1964 to gain redress for damages incurred
through the use of exclusionary zoning.
Karlin, Horton and Polster, Zoning: Monopoly Effects and Judicial
Abdication, 4 Sw. L. REv. 1 (1972). Discusses the purpose and effects of
zoning upon property rights. Both good and bad effects are examined as
well as the necessity of zoning laws.
Krasnowiecki, Zoning Litigation and the New Pennsylvania Proce-
dures, 120 U. PA. L. REv. 1029 (1972). This article offers an analysis of the
new procedural provisions of the 1968 Pennsylvania enabling law govern-
ing zoning and planning and also the problems that arose under prior
practice to which the provisions are addressed. A comparison of the major
differences that have existed between the Pennsylvania procedures and
those prevailing in other states serves to illustrate the unique nature
of the Pennsylvania approach as well as the purpose which lies behind the
new provisions.
Kusler, Open Space Zoning: Valid Regulation or Invalid Taking, 57
MINN. L. REv. 1 (1972). An increasing awareness of environmental prob-
lems and dwindling supplies of open land have resulted in the adoption
of land use regulations to preserve open space for a variety of broad public
objectives. These regulations include flood plain zoning, wetland and
conservation zoning, lake, shore and coastal protection districts, agriculture
and forestry zones, and scenic preservation zones. The aim of all these is
either to prevent or severely restrict structural development. Since this is
a developing area in the field of constitutional law, there are no clearcut
judicial tests to assist one in determining whether a particular regulation
validly controls or invalidly "takes" private property. This article is de-
signed to clarify factors considered by courts in determining whether par-
ticular open space regulations "take" property. It is based upon a detailed
examination of cases contesting the constitutionality of open space and
other land use controls. The article should assist planners, lawyers and
others in drafting constitutionally sound regulations and deciding when
compensation should be paid to achieve particular planning objectives.
Ledbetter, Subdivision Control in South Carolina, 24 S. C. L. REv. 155
(1972). Article emphasizes the importance of effective land use control in
Spring 1973] PLANNING AND ZONING
rural areas, which are rapidly urbanizing. Also points out that South
Carolina Comprehensive Planning Act grants basic authority needed by
local governmental units to control physical development of their com-
munities.
Lowell, Land Use and Operational Controls in the Planned Develop-
ment, 9 SAN DIEGO L. REV. 28 (1971). A discussion of the current status
of the planned development with focus on historical developments of land
use controls, operation of homeowners associations and legal considerations
in establishing effective and viable covenants, conditions and restrictions.
Lundberg, County Zoning in Montana: A New Look at an Old Prac-
tice, 33 MONT. L. REV. 63 (1972). This article makes an inquiry into county
planning and zoning as it is permitted in the state of Montana.
Perry, The Local "General Plan" in California, 9 SAN DIEGO L. REV. 1
(1971). A discussion of the local general plan in use in California which is
a guideline to municipal zoning, subdivision and capital land improve-
ments. This is a survey of the past use as well as thoughts on its future use.
Podell and Podell, "Beauty" Zoning Is Unfair to Property Owners, 2
REAL ESTATE REv. No. 2, at 92 (1972). Aesthetic and ecological zoning runs
counter to our tradition of property rights and personal freedom.
Sternlieb, Burchell 8 Hughes, Planned Unit Development: Environ-
mental Suboptimization, 1 ENv. AFFAIRS 694 (1972). The role of planned
unit development as a means of land use control is discussed as the best
system available for controlling local subcommittees by grouping residen-
tial, commercial and industrial components.
Sussna, Apartment Building Trends, 44 PENN. B. Q. 101 (1972). The
author believes that apartment building developers have, with good cause,
learned to dread suburban land use control. Too often has the major tool
of American land use control, zoning, been used by suburban municipalities
either to exclude or frustrate multi-family housing. The purposes of this
article are to ascertain the quantitative trends, to focus on some apartment
zoning cases and to offer some suggestions concerning the breaking of cur-
rent bottlenecks.
Sussna, Building Codes and Housing, 36 Ky. B. J. 63 (1972). A discus-
sion of the various ways of clearing up the confusion presently existing in
building codes. The author emphasizes the important innovations which
can be made in this area together with resultant cost decreases.
Sussna, Remedying Premature Subdivisions, 17 N.Y.L.F. 1050 (1972).
This article discusses in detail the problem of the premature subdivision
lacking such amenities as drinking water supply or sewage disposal, and
proposes a comprehensive study which would contribute to the evolution
of a solution.
Woodroof, Land Use Control Policies and Population Distribution in
America, 23 HASTINGS L. J. 1427 (1972). The author demonstrates the
extent to which our present maldistribution of population is a collateral
product of our laws and discusses the importance of zoning - a direct
method of regulating population distribution - in terms of its effects on
the quality of population concentrations, evaluating planned unit develop-
ments and federal new towns legislation.
Symposium, Land Use, 46 ST. JOHN's L. REv. 632-694 (1972). Goldstein,

InstitutionalPurchaseMoney Financing of Cooperative Apartments, at 632;
Morris, "Zoning Imagination" - Dimensional Zoning, at 659; Berger, New
Communities in the United States - A Survey, at 694.
Bartlett v. Zoning Commission, 161 Conn. 24, 282 A.2d 907 (1971).
In order to preserve and protect the tidal marshlands and wetlands
bordering the town's tidal waterways zoning regulations were adopted which
prevented the plaintiff from using his marshland property for other than
wooden walkways, wharfs, duckblinds, public boat landings and public
ditches. While provision was made for a special exception for other uses
the plaintiff could not use the land except to dig a channel and erect a
boathouse on piles sufficient to accommodate his own boat, if he had one,
and to erect piers, docks, piles for lifelines, rafts or jetties.
HELD: Zoning regulations are a legitimate subject for the exercise of
the police power provided they are not such an unreasonable exercise of
that power as to become arbitrary, destructive or confiscatory and so uncon-
stitutional. These regulations for all practical purposes amount to a taking
of the plaintiff's property for a public use without just compensation. The
regulations are, therefore, void.
Bora v. Zoning Board of Appeals, 161 Conn. 297, 288 A.2d 89 (1971).
The zoning board of appeals granted the defendant permission to
operate a cafe where alcoholic liquor would be sold without requiring him
to provide eight off-street parking spaces. The board granted the variance
on the condition that the defendant would operate the cafe only between
the hours of 5 p.m. and 1 a.m.
HELD: By statute only a town may reduce the number of hours within
which liquor outlets may operate. Thus, the board itself in setting the
condition under which the defendant could operate purported to exercise
a power it did not have. Furthermore, it attempted to exercise that power
by applying it to a particular outlet. Consequently, its action in granting
the variance could not be sustained.
Cadoux v. Planning & Zoning Commission, 162 Conn. 425, 294 A.2d
582 (1972), cert. denied, 92 S.Ct. 2496 (1972).
The plaintiff filed an application with the defendant commission for
an amendment to the zoning regulations establishing a town shopping
center district. The property involved adjoined an existing shopping center
providing various services and retail outlets which existed as a nonconform-
ing use since the zoning regulations of the town zoned the entire town into
one residential unit. The plaintiff's appeal from the action of the commis-
sion claimed that the zoning regulations of the town bar from within the
town the use of property for the conduct of ordinary commercial activities
and since there is only one district for the entire town, and that is limited
to residential, the regulations are illegal and arbitrary.
HELD: Town is a residential community and is so located that there
is a general orientation of its residents toward neighboring towns in the
Spring 1973] PLANNING AND ZONING
southwestern region of Connecticut as well as the City of New York, for

employment, shopping and other services. The town has no public water
supply, sanitary sewers or public transportation. Its function is that of a
residential area for single-family homes in a rural setting. It cannot be
concluded that the commission was unreasonable or that it failed to con-
sider the needs of the community.
In overruling the plaintiff's claim the court referred to decisions in
other jurisdictionswhich, in effect, held that it is not clearly arbitrary and
unreasonablefor a residential municipality to pass an ordinance preserving
its residentialcharacter so long as the business and industrial needs of its
inhabitantsare supplied by other accessible areas in the area at large. The
court also found that the shopping center in this town, although its use is
nonconforming under the present zoning regulations, contains the post
office, a service station, a food market, a dry cleaner, a package store, a
hardware store, a hobby store, a real estate office, a drygoods store, a bank,
a drug store and a luncheonette.
Deerfield Estates, Inc. v. Township of East Brunswick, 60 N.J. 115, 286
A.2d 498 (1972).
Action by a developer to compel the township to install water mains
to the subdivision. The final subdivision approval contained a condition
imposed by the planning board that water mains must be installed or their
installation effectively guaranteed. The developer wrote a letter to the
township requesting that the township undertake the required installation
and upon refusal suit was instituted to compel the same.
HELD: A municipality which has a planning board and has adopted
an adequate subdivision ordinance may impose as a condition of sub-
division approval a requirement that necessary water mains be installed
and that under certain circumstances the expense of such installation may
be required to be borne by the developer. The case was returned for further
proceedings before the planning board and the township committee.
Case of first impression.
Golden v. Planning Bd., 30 N.Y.2d 359, 334 N.Y.S.2d 138 (1972).
The town of Ramapo adopted a master plan calling for maximum
orderly exploitation of the land within the town for public, industrial,
commercial and residential uses. At the same time it adopted a capital
improvement program which provided for the construction over an 18-
year period of the necessary sewers, parks, schools, roads and warehouses.
It then amended its zoning ordinance to prevent premature development
before the necessary improvements were made, such as the prevention of
the development of a tract of land for residential purposes until either the
town or the builder had provided the sewers, schools, parks, etc. contem-
plated by the capital building program. A builder alleged that the zoning
ordinance was unconstitutional and void because it unreasonably prevented
him from using his land.
HELD: The ordinance is constitutional. While a zoning ordinance
which endeavored to exclude poor people and blacks from the town and to
permanently limit its population would be unconstitutional, this ordinance
did not attempt to do that. Rather, it contemplated a large influx of new

citizens from outside the town. Recognizing such an increase, the purpose
of the ordinance was merely to phase that influx to the town's ability to
provide the necessary facilities and services - all of which it intended to
construct within ten years. Thus, the ordinance restricted development of
a tract only temporarily and for a legitimate reason.
Hobbs v. Smith, 493 P.2d 1352 (Colo. 1972).
Defendant kept two horses in his back yard and exercised all reasonable
skill and care in maintaining the property where the animals were kept.
No health regulations and no zoning regulations were being violated, but
flies were attracted to the general area by the horses, and noxious odors
permeated the area of the adjoining property of plaintiff.
HELD: Even though no zoning regulations and no health regulations
were violated and even though the owner exercised all reasonable skill and
care, the court may grant relief, including injunction, where it is found
that the acts complained of constitute a private nuisance.
Adopts modern and majority view that a private nuisance can be
enjoined, even though it is permitted under zoning laws.
McCrann v. Town Plan and Zoning Commission, 161 Conn. 65, 282 A.
2d 900 (1971).
Plaintiffs, adjoining neighbors to a housing for the elderly project,
complained that the planning commission approved the site plans without
requiring the developer to provide for the protection of certain trees
located on their property which have branches and roots extending into the
subject land. The regulations provide that the commission consider safe-
guards to protect adjacent property, and the neighborhood in general,
"from detriment" when acting on a proposed site plan.
HELD: The zoning regulation requirement that the commission con-
sider the protection of adjacent property does not in any way abrogate the
rule that where trees are located on the property of one party and the
branches or roots extend onto the property of a second party, the latter
may lop off the branches or roots up to the line of his land. Thus, the
project builder has this right as regards the plaintiff's trees though this
does not mean that he is permitted to disregard the welfare of the trees.
A. C. Nelsen Enterprises v. Cook, 188 Neb. 184, 195 N.W.2d 759 (1972).
Plaintiff obtained permission from the City of Omaha to occupy the
premises in question for the retail sale of mobile homes. Pursuant to such
permit, plaintiff expended a large sum and obligated additional substantial
sums for the purchase of inventory for said business. Subsequently, approxi-
mately three months later, plaintiff was notified that the certificate had
been issued in error and was void, and plaintiff was ordered to discontinue
the use of the property.
HELD: Where a certificate of occupancy or building permit has been
issued lawfully, even though in accordance with a questionable interpre-
tation of the applicable ordinance, it may not arbitrarily be revoked where
the permittee has incurred substantial expense and liability in reliance
upon it.
PLANNING AND ZONING
O'Connor v. Rockford, 3 Ill. App.3d 548; 279 N.E.2d 356 (1972).

Trial court dissolved preliminary injunction restraining city from
establishing a sanitary land fill in county outside the city limits.
HELD: Affirmed. The city had statutory power to establish a sanitary
land fill and this superseded the county zoning ordinances, where the city's
exercise of its power was reasonable and not in bad faith. Case holding that
a city has no power to disobey its own zoning ordinances is distinguishable.
Town of Oronoco v. City of Rochester, 197 N.W.2d 427 (Minn. 1972).
Defendant acquired land in adjacent township for purpose of establish-
ing a solid waste disposal sanitary land fill. Land was zoned for agricultural
use under township and county ordinances.
HELD: Township zoning ordinance should not be applied to restrict
action of city undertaken pursuant to statutorily granted right of eminent
domain.
A governmental body is not subject to zoning restrictions where prop-
erty is to be used for governmental purposes. Adopts majority rule.
Rutgers v. Piluso, 60 N.J. 142, 286 A.2d 697 (1972).
Action instituted by Rutgers University, the State University of New
Jersey for a declaration that it is not subject to the local township zoning
ordinances.
HELD: The enacting statute respecting the University reflected the
legislative intent of the growth and development of Rutgers as a public
university for the benefit of all the people of the state and was not to be
thwarted or restricted by local land use regulations.
Case is apparently the first definitive holding setting forth criteria by
which state authorities are immune from local zoning regulations.
Schere v. Township of Freehold, 119 N.J. Super. 433, 292 A.2d 35 (1972).
Suit to contest a zoning ordinance restricting two tracts (one of 200
acres and the other of 100 acres) to farming and one-family residential lots
with a minimum of 40,000 square feet.
HELD: These lands were in a substantial degree rendered beyond
practical reasonable utilization under the restrictions of the zoning ordi-
nance and, although fiscal considerations may be given some weight in
zoning, such considerations will not justify imposing substantial functional
nonutilization on the property owners' lands.
Court noted that a deliberate governmental attempt to prevent by
zoning the residential utilization of land apt for the purpose on behalf of
the generality of the population in need thereof in favor of reserving such
land for utilization by more affluent users seems to conflict with present day
judicial thought as to appropriaterelationships between zoning policy and
social housing needs.
Stucki v. Plavin, 291 A.2d 508 (Me. 1972).
A landowner owned land located in two different zones. The zoning
ordinance provided that regulations applicable to less restrictive zone may
apply to whole lot provided extension of use into more restrictive zone
shall meet the approval of the board of zoning appeals. Board granted
REAL PROPETY, PROBATE AND TRUST JOURNAL [Vol. 8:144
permit for construction of shopping center on whole lot. Superior Court

sustained the board of zoning appeals.
HELD: Reversed. Zoning provision in question is unconstitutional on
its face because legislative body delegated power to administrative agency
without prescribing any standards or conditions on basis of which power
or discretion was to be exercised. A legislative body cannot constitutionally
delegate its duty to determine standards.
Weyls v. Zoning Board of Appeals, 161 Conn. 516, 290 A.2d 350 (1971).
When zoning regulations were adopted the plaintiff's cabin was not
winterized and was used during the summer months as a part of a summer
resort facility. Prior to the time the plaintiff purchased the cabin in 1965
it had been winterized without a building permit but in violation of the
zoning laws. On an appeal from the refusal to vacate the building it was
HELD: The facts disclose a prolongation of a nonconforming use
into a season in which such use had not existed at the time of the passage
of the zoning regulations. An increase in the use of property from the
summer months to a year-round use is a type of enlargement intended to be
proscribed by the zoning regulations. Any extension of the use of the plain-
tiff's cabin beyond the months during which it had been used before the
adoption of zoning is in fact, as well as in law, the extension of a non-
conforming use.
C. Legislation
Tennesssee
Ch. 241: Enacts a Prospective New Community Certification Act to
authorize the certification by the state planning commission of certain areas
within the state as prospective new communities. Also prohibits annexation
of any certified prospective new community.
XXI. PUBLIC HOUSING AND URBAN RENEWAL
Edson, Everyman's HUD, 1 REAL ESTATE REv. No. 4, at 79 (1972). A
guide through the labyrinth of one of Washington's most complex agencies
- the Department of Housing and Urban Development.
Freidberg, For NHP, Everything is Coming Up Roses, 2 REAL ESTATE
REv. No. 3, at 32 (1972). In its first two years of operation NHP, the
National Housing Partnership, has developed a variety of methods for
financing local housing partnerships.
Goldberg, State Agencies: Housing Assistance at the Grassroots,1 REAL
ESTATE REv. No. 4, at 14 (1972). Housing agencies offer a viable alternative
to federal aid programs enmeshed in the redtape web.
Guido, The Impact of the Tax Reform Act of 1969 on the Supply of
Adequate Housing, 25 VAND. L. REv. 289 (1972). The author believes that
tax subsidies for housing embodied in the Tax Reform Act may not be as
effective a tool to use in upgrading the quality of housing as the proponents
of reform had hoped.
Kral, The Real Estate Crisis of the Inner City, 53 Cm. BAR REc. 367
Spring 1973] PUBLIC HOUSING AND URBAN RENEWAL 207
(1972). Discusses the work of the Cook County Housing Court in dealing
with problems created by abandonment of inner city apartment buildings
by owners and lienholders unwilling to incur expenditures to maintain
or repair. Suggests a number of ways in which these problems should be
tackled at ground level.
Nachbraur, Empty Houses: Abandoned Residential Buildings in the
Inner City, 17 HOWARD L. J. 3 (1971). This article reports an investigation
into the factors which are causing owners to abandon residential units in
the inner city. Its research into causes is to lay a foundation for making
recommendations toward a partial solution to the housing shortage through
preservation of the inner city housing stock. The problem of what to do
with empty houses and how to halt the processes which remove sound
structures from the market is a relatively new one for city officials. Because
there is a paucity of empirical research on the problem, the initial step
in the research for this article was to undertake a study of a 21-block area
of Washington, D. C. The results of this study are reported along with
information relating to other cities. The author believes that the problems
which lead to abandonment are interrelated and only a comprehensive
plan directed at each and all of the causes can succeed in halting this
spread of abandonment.
Symposium, The Lawyer in Housing and Urban Development:
Edited Proceedings of the National Seminar, 4 URBAN LAW. 223 (1972).
Coverage includes: The 701 Program, A Rewarding Role for Lawyers in
Low and Moderate Income Housing, The National Housing Partnership:
A Description.
California's Low-Income Housing Referendum: Equal Protection and
the Problem of Economic Discrimination,8 COLUM. J. L. &cSOC. PROB. 135
(1972). An examination of California's referendum requirements and a
discussion of how the Equal Protection Clause could be used to bar certain
kinds of economic discrimination.
Lindauer v. Oklahoma City Urban Renewal Auth., 496 P.2d 1174
(Okla. 1972).
In a condemnation proceeding commenced by the Oklahoma City
Urban Renewal Authority, Lindauer challenged the authority's right to
condemn property on the grounds that the law violated the equal protec-
tion clause of the Fourteenth Amendment to the United States Constitution,
the trial court held the act constitutional.
HELD: Affirmed.
Case of first impression as to constitutionality of Oklahoma Urban
Redevelopment Law.
C. Legislation
Illinois
Ch. 67 : Provides for reimbursement expenses to any persons dis-
placed from home or business as a result of a federally financed project
under Title I of Housing Act 1949.
Iowa
H.F. 1257: Gives a municipality the power to acquire or dispose of by
purchase, construction or lease, or otherwise to deal in air rights and
facilities or easements to lateral or vertical support of land or structures
of any kind.
Missouri
S.B. 586: Amends 99.320 and 99.420 by providing that a land clearance
project, urban renewal project and a land clearance for redevelopment
authority shall have the power to develop, construct, reconstruct, rehabili-
tate, repair or improve residences, houses, buildings, structures and other
facilities within the area.
XXII. PUBLIC LANDS

Gross, Submarginal Lands: An Instance of How the Legislative Process
Fails Native Americans, 48 N. D. L. REV. 561 (1972). Examines 38-year
history of submarginal lands purchased for, but never delivered to, specific
Indian tribes.
Steadman, Forgive U. S. Its Trespass? Land Title Disputes With the
Sovereign - Present Remedies and Prospective Reform, 1972 DUKE L. J. 15
(1972). Article examines the judicial remedies available to private parties in
area of land title disputes with federal government and explores prospects
and problems of statutory reform in area, including the suggestion that it is
time to abolish sovereign immunity in land title disputes.
Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296,
294 A.2d 47 (1972).
This is an action to challenge an ordinance of the Borough of Avon-
by-the-Sea setting a fee for persons using the public beaches where the
ocean front municipality charges nonresidents higher fees than residents.
HELD: An ocean front municipality may not absolutely exclude
nonresidents from the use of its dedicated beach. The ancient principal of
English law is that land covered by tidal waters belongs to the sovereign
but for the common use of all the people, and such lands passed to the
respective states as a result of the American Revolution. In the latter half
of the 20th century the public rights in tidal lands are not limited to the
ancient prerogatives of navigation and fishing, but extend as well to
recreational uses. The public trust doctrine should be molded and extended
to meet changing conditions. A municipality may validly charge a reason-
able fee for the use of its beaches, but it may not dscriminate in any
respect between residents and nonresidents. Municipalities may consider
legitimate costs in the operation and maintenance of the beach front in
assessing their fees and they may properly regulate and limit on a first come
first served basis the number of persons allowed on the beach at any one
time.
Spring 19731 PUBLIC LANDS - SURVEY OF THE LAW
This case may upset the private character of many of the beaches along
the Atlantic Ocean opening all to residents and nonresidents alike. A
dissent (two Justices) did not think the common right as persuasive as the
majority of opinion and could see no merit in the contention that inequality
between fees renders illegal the fees imposed upon the nonresidents.
C. Legislation
Illinois
Ch. 24: Empowers a municipality to annex any contiguous 60 acres
of land or less located in unincorporated territory where land is wholly
bounded by one or more municipalities and a forest preserve district.
Iowa
H.F. 574: Provides that cities may assess the cost of public improve-
ments extending through or abutting on lands owned by the state and
provides for assessments against state lands for institutional roads.
Virginia
Code 7.1-21: Amends statute in which lands and buildings are ceded to
the United States with concurrent jurisdiction by adding parks, parkways
or other recreational areas.
XXIII. SURVEY OF THE LAW

Bell, Annual Report of Real Estate, Probate and Trust Law Com-
mittee (of the State Bar of Texas), 35 TEX. B. J. 584 (1972).
Johnson and Barbee, Annual Survey of Texas Law - Property, 26 Sw.
L. J. 24 (1972). Discusses cases dealing with mechanics' liens, use restrictions,
landlord and tenant, mortgages and covenants.
Jossman, 1971 Survey of Michigan Real Property Law, 18 WAYNE L.
REv. (1972).
McCoy, Annual Survey of Texas Law - Oil and Gas, 26 Sw. L. J. 59
(1972). Discusses cases dealing with surface rights, the open mine doctrine
as to life tenants, the Texas Relinquishment Act, pooling and unitization,
and interpretation of instruments.
McKnight, Annual Survey of Texas Law-MatrimonialProperty,26 Sw.
L. J. 31 (1972). Discusses, inter alia, cases dealing with homestead.
Georgia'sEnvironmental Law: A Survey, 23 MERCER L. REV. 633 (1972).
Survey of Developments of Virginia Law 1970-71, 57 VA. L. REV. 1552
(1972). Eminent domain, real estate commissions, gifts, leases, zoning, ease-
ments, valuation of property.
A Survey of Recent Developments in the Natural Gas Industry, 5
NATURAL RESOURCES LAW. 419 (1972).
Survey of South Carolina Law: July, 1970-June, 1971: Property, 23
S. C. L. REv. 633 (1971).
Survey of Washington Real Property Law, 7 GONZAGA L. REV. 214
(1971).
XXIV. TAxATioN
Alexander, Real Estate Syndication and the Effect of the Tax Reform
Act of 1969, 25 U. MiAMI L. REv. 197 (1971). A discussion of the legal
problems of a typical real estate syndication. Special considerations given to
the effects of the Tax Reform Act of 1969.
Deutschman and Creamer, FHA Syndications Under the Microscope,
2 REAL ESTATE REV. No. 3, at 5 (1972). Public and private tax-shelter
syndications of FHA projects are examined in a definitive study that
recommends standards in crucial areas.
Epstein, The Application of the Crane Doctrine to Limited Partner-
ships, 45 S. CAL. L. REv. 100 (1972). The author discusses the general
doctrine of Crane v. Commissioner, 331 U.S. 1 (1946), setting forth certain
rules for computing the cost of property acquired with borrowed funds,
as specifically applied to limited partnerships involved in real estate invest-
ments, and argues the inconsistency therewith of the position taken by the
Commissioner in applying Treasury Regulations §1.752-1(e) and Revenue
Ruling 69-233.
Feder, How Real Estate Is Faring Under the Federal Income Tax, 2
REAL ESTATE REv. No. 1, at 44, The Revenue Act of 1971 and legal
decisions of particular interest to real estate professionals are surveyed.
Gurko, Federal Income Taxes and the Urban Sprawl, 48 DENVER L. J.
329 (1972). The author urges amendments to the Internal Revenue Code
which would "avoid favoring the developer of open land as opposed to other
forms of economic activity."
Hagman, Property Tax Reform: Speculations on the Impact of the
Serrano Equalization Principle, 1 REAL ESTATE L. J. 115 (1972). In Serrano
v. Priest, 487 P.2d 1241 (Cal. 1971), the California Supreme Court held that
the California school finance system violated the equal protection clause of
the 14th Amendment of the United States Constitution. The author believes
that, regardless of what the Supreme Court of the United States may rule
on such cases, the so-called "Serrano Principle" will be widely applied in
school financing in America and that merely shifting to other taxes reflective
of local wealth will not satisfy the principle.
Hayes, Iowa Tax Law and Procedure - 1971, 21 DRAKE L. REv. 282
(1972). Reviews 1971 legislative efforts in Iowa (prompted largely by financ-
ing of several public school systems) to prescribe a ceiling for increases in
school costs, concurrent with increasing income tax rates; to generate other
sources of increased state revenues from income taxes, inheritance taxes,
property and commodity taxes, including special types of assessments and
tariffs on utilities, services, etc.
Kroncke & Crettanberg, Depreciating Residential Property Under New
Tax Rules, 2 REAL ESTATE REv. No. 2, at 49 (1972). The dollar consequences
of differing depredation methods for new and old residential property can
be precisely measured, but the social consequences cannot.
Lane, Final Regulations on Depreciation and Rehabilitation of Resi-
dential Property Clarify Many Areas, 37 J. TAXATION 18 (1972). An analysis
Spring 1973] TAXATION
of the final regulations on the Tax Reform Act of 1969 relating to tax-
sheltering of rental property qualifying for accelerated depreciation and
the five-year write-off for rehabilitation expenditures.
Long, Tax Shelter in Real Estate Partnership: An Analysis of Tax
Hazards That Still Exist, 36 J. TAXATION 312 (1972). A commentary on the
formation of a partnership-maximizing its deductions, special allocations,
dispositions of partnership interests and other forms of ownership.
Malkin, Who Gets What in a Tax-Shelter Syndicate, 2 REAL ESTATE
REv. No. 3, at 26 (1972). A packager explains why section 236 (and other
type syndications) are a perfect marriage between developers and investors.
Millett, Taxation of Real Estate Investment Trusts, 17 S.D. L. Rv. 291
(1972). The article discusses a real estate investment trust as comprehended
by section 856 of the Internal Revenue Code. The statutory requirements
and the specific tests which must be met are discussed.
Oppenheimer, REITS Seeking Equity Kickers Travel a Perilous Sea, 1
REAL ESTATE REV. No. 4, at 31 (1972). The use by REITs of equity partici-
pations could be a dynamic combination, but complex tax rules make this
not a game for novices.
Ridenour, Philip and Patricia, Serrano v. Priest: Wealth and Kansas
School Finance, 20 KAN. L. REV. 213 (1972). The authors believe that a few
cases, perhaps only Brown v. Board of Education, have portended greater
impact on public schools than Serrano. Central to the court's decision is
the disparity of wealth between school districts, and it is upon this single
concept, wealth, that the entire decision rests. This article discusses the
court's definition of wealth and applies that definition and the court's
holding to the school finance situation presently existing in Kansas.
Smith, Tax-Sheltered Investments: Oil and Gas v. Real Estate, 56 MAss.
L. Q. 399 (1971). In this comprehensive article, the author discusses the
relative tax and investment merits of the two most popular types of tax
shelters. He then provides some guidelines as to how a potential investor,
aided by competent professional assistance, can choose between good and
bad investments of each type.
Sommer, A Summary of Current Real Estate Tax Assessment Protest
and Judicial Review in New York State, 44 N.Y.S. B. J. 475 (1972). This
article brings the reader up to date on the tax review procedure in New
York State.
Walker, A Land Tax Isn't the Way to More Rational Land Use, 2
REAL ESTATE REv. No. 1, at 100 (1972). Examination of the investment process
in real estate shows up the facilities in tax and land value for social benefits.
Weinstein, Advantages of Separating Land Ownership from Building
Ownership, 1 REAL ESTATE L. J. 175 (1972). The author points out that
currently real estate is one of the most popular and sought after of the tax-
sheltered investments. One of the ways to achieve this benefit is to exclude
the land from the acquired property, since land is not a depreciable asset.
Then, all of the cash investment is used to acquire a depreciable asset
- the building. But the author believes that this procedure has a real dis-
advantage - it places the ownership of the asset most likely to increase in
value, the land, in the hands of someone else. While this result may be
good from the point of view of taxes, he does not believe it is good from
the point of view of estate building, which should be the real aim of all
investment, including tax shelters. The article points out the ways in
which careful planning and structuring can achieve a happy combination
of tax savings and estate building.
Weinstein, DangerSigns for Tax Shelters in Real Estate, 1 REAL ESTATE
L. J. 81 (1972). In recent months, both public and private real estate tax
shelters have received serious blows, and the author believes that we can
expect to see some adjustments in the standard format so that real estate
deals will continue to be viable vehicles for investment and tax saving.
Wharton, Application of Federal and State Securities Regulation to
Real Estate Transaction, 12 S.T. L. J. 237 (1971). A growing area of concern
for real estate lawyers.
White, An Equitable Real Estate Tax Policy for Private Recreational
Facilities,44 N.Y.S. B. J. 93 (1972). This article demonstrates the need for
real estate taxing procedures in reducing acreage values to an affordable
level by accepting the present land use rather than some vague alternate use
as the basis for the assessed value of country clubs which add scenic beauty
to urbanized areas and thus enhance the value of adjacent real estate.
Student Symposium on Kentucky Property Tax, 60 Ky. L. J. 75-156
(1971-72). Muskie, Preface, p. 75; Nader, Introduction, p. 77; Stephenson,
Property Assessment Remedies for the Kentucky Taxpayer, p. 84; Stevens,
Property Tax Revenue Assessment Levels and Taxing Rates: The Kentucky
Rollback Law, p. 105; Turner, Property Tax Assessment Administration in
Kentucky, p. 141; Stephenson & Stephenson, Public Schools: Serrano v.
Priest - A Challenge to Kentucky, p. 156; Markham, The Property Tax -
A Withering Vine, p. 174.
Children's Development Center, Inc. v. Olson, 288 N.E.2d 388 (Ill.
1972).
This was an action by a religious corporation to restrain collection of
real estate taxes assessed against part of a convent owned by the corporation
and leased to a not-for-profit corporation at an annual rental in excess of
$9,000 and used to provide programs for educationally handicapped chil-
dren. Illinois law exempts from taxation all property used exclusively for
religious purposes or used exclusively for school and religious purposes,
and/or for orphanages and not leased or otherwise used with a view to profit.
HELD: The test in determining tax exemption of property is whether
or not it is used primarily for tax exempt purposes. Where property is
leased for a profit but is used primarily to serve a tax exempt purpose such
as the school purposes here, the property is exempt from taxation under
the statute.
The leasing of real estate for a profit by a tax-exempt corporation
does not necessarily destroy its tax exempt status.
Diffenderfer v. Central Baptist Church, 404 U.S. 412 (1972).
This was an action for a declaratory judgment to the effect that Florida
statutes violated the First Amendment to the extent that they authorized a
Spring 1973] TAXATION
tax exemption for church-owned property used for commercial purposes.

The property in question is a parking lot adjacent to the church in down-
town Miami. The lot is used by church-goers on Sunday but as a com-
mercial parking lot other times. A three-judge federal district court upheld
the validity of the statute.
HELD: Judgment vacated and remanded with leave to the appellants
to amend their pleadings. The case was moot because of a new Florida
statute which provides that church property is exempt from taxation only
if the property is used predominantly for religious purposes and only "to
the extent of the ratio that such predominant use bears to the non-exempt
use."
Doran v. Cullerton, 51 Ill. 2d 553, 283 N.E. 2d 865 (1972).
The Illinois Constitution of 1970, effective on July 1, 1971, authorizes
the legislature to enact homestead exemption or rent credits. A law passed
in June 1971 provided an exemption for the year 1971 and subsequent years
of $1,500 assessed valuation of "real property that is occupied as a residence
by a person 65 years or older who is liable for paying real estate taxes on
the property and is the owner of record ... or who has a legal or equitable
interest therein as evidenced by a written instrument except for a leasehold
interest."
HELD: Constitutionally, the homestead exemption cannot operate
retroactively to 1971 tax assessments made prior to the effective date of the
constitution. The prior constitution was in full force until June 30, 1970,
and the case of Hoffman v. Lenhausen, 48 Ill. 2d 323 (1971) held a home-
stead exemption unconstitutional as it applied to 1970 taxes.
Immanuel Baptist Church v. Glass, 497 P.2d 1174 (Okla. 1972).
County assessor assessed and placed a house and lot of the church on
the tax rolls for the year 1969, and County Board of Equalization denied
the church's protest. The church appealed to the district court which
entered judgment in its favor. The church contended at all stages of the
proceedings that the parsonage is exempt from taxation by Article 10,
section 6 of the state constitution.
HELD: In order for property to be exempt under this provision it
must be dedicated and devoted to religious purposes. When viewed in this
light, it is plain that a parsonage owned by the church which houses the
pastor who is engaged in fulltime ministerial work, which is provided to
him as a part of the compensation for his services, and which serves various
religious purposes, is property used exclusively for religious purposes and
is therefore exempt from taxation. (See also Holland Hall School v. Glass,
497 P.2d 763 (Okla. 1972), which held that a headmaster's house owned by a
school which houses the headmaster and his family and serves various school
purposes is property dedicated to school purposes and is therefore exempt
from taxation under Article 10, section 6.)
Island County Committee on Assessment Ratios v. Department of
Revenue, 500 P.2d 756 (Wash. 1972).
The state Department of Revenue and the Superintendent of Public
Instruction can reduce distribution of state aid to local school districts to
encourage property revaluation by counties to achieve uniformity in local

property tax assessments and a uniform system of public schools. Individuals
and an association of taxpayers, parents of school children and officials of
school districts challenged the practices of the department and superinten-
dent in computing state aid to local school districts on the grounds that as
applied such practices are discriminatory and based on a false misconception
that property is being taxed uniformly at full capacity.
HELD: Although the superintendent is not free arbitrarily to withhold
distribution to school districts because of variable factors, he is free to set
and withhold a reasonable amount to avoid potential deficiencies in the
latter months of a biennium.
People ex rel. Cty. Col. v. Northwestern U., 51 I1l. 2d 131 (1972).
HELD: The state has the right to exempt an educational institution
from all property taxes, even where the property is used for commercial
purposes. The charter tax exemption from all taxes including, as here, taxes
on real property used for commercial parking purposes, does not violate
the equal protection clause of the 14th Amendment by arbitrary discrim-
ination against other educational institutions since the contract with the
state affords a rational distinction. Further the tax exemption is not invalid
under the due process and equal protection clauses of the 14th Amendment
by increasing other taxpayers' taxes since this proposition if accepted would
invalidate all exemptions.
Robinson v. Cahill, 118 N.J. Super. 223, 287 A.2d 187 (1972).
Suit brought by residents, taxpayers, etc. challenging the constitution-
ality of the system of financing public schools which relies heavily on local
property tax.
HELD: The New Jersey system of financing public education leads to
a great disparity in districts with respect to that ability to finance and denies
equal protection rights guaranteed by the New Jersey and federal Con-
stitution. It discriminates against pupils in districts with low wealth.
Case is in accord with cases in other states and now before the Supreme
Court of the United States. The Supreme Court of New Jersey has stayed
indefinitely the effective date of the judgment pending its review.
C. Legislation
Illinois
H.B. 4437: Provides dual valuation for land used for airport facilities
for assessment purposes in counties over 200,000. One valuation is to be
based on what property would bring for airport purposes.
S.B. 1363: Under certain formula conditions, provides reimbursements
to homeowners and tenants 65 and over or who are disabled, in relation
to the amount of their real estate taxes as opposed to their income. Tenants
are regarded as paying 25 per cent of their income for taxes.
Indiana
P.L. 48: Provides for a deduction from assessed valuation for a period
of five years for certain rehabilitated residential realty.
Spring 1973] TAXATION - TORTS AND NUISANCE
New York
Ch. 689: Adds Real Property Tax Law 467-b permitting the partial
abatement of real estate taxes on apartment houses occupied by tenants
62 years of age or older who are not recipients of welfare.
Ch. 771: Amends Real Property Tax Law 467 to increase from $5,000
to $6,000 the income limitation under which senior citizens shall be entitled
to real estate tax.
Tennessee
Ch. 407: Provides that when a mobile home tax is assessed separate
from the land it is not a lien on the land.
Virginia
Code 58-16.2: Provides for a service charge to be levied by local govern-
ments upon the owners of all real estate exempted from state and local
taxes, except certain land owned by churches or religious bodies. The
charge is assessed for the purpose of furnishing police and fire protection
and for the collection and disposal of refuse.
XXV. TORTS AND NUISANCE

Keeton, Torts, 26 Sw. L. J. 10 (1972). The purpose of this article is to
survey the significant cases on the law of torts as relating to occupiers of
land in Texas.
Joe Adams & Son v. McCann Construction Co., 475 S.W.2d 721 (Tex.
1971).
General contractor built wooden forms above ground. Subcontractor's
employees poured concrete into the forms, which collapsed, dumping them.
They sued contractor and recovered on findings that collapse was proxi-
mately caused by contractor's negligence in constructing the forms. Con-
tractor sought indemnity against subcontractor under subcontractor's agree-
ment to indemnify for injuries sustained "through or on account of any
act or in connection with" subcontractor's work.
HELD: Summary judgment for subcontractor. To protect indemnitee
against his own negligence, language must be clear. This general language
will not do it, particularly where indemnitee's negligence was sole cause,
and indemnitor had no connection with it.
Great Lakes Motorcycle Dealers Ass'n, Inc. v. City of Detroit, 196 N.W.
2d 787 (Mich. App. 1972).
HELD: Motorcycles cannot be constitutionally barred as a class from
traveling certain blocks of Detroit's streets under an ordinance aimed at
excising their noise and speed from selected areas through a blanket
prohibition applied to specified street sections. No sufficient connection
existed between the statutory purpose of quiet safe streets and the statutory
approach of allowing no use whatsoever of selected blocks by any two-

wheeled motor vehicle. The purpose of the statute could easily have been
satisfied by enforcement of existing speed and noise regulations and such
an additional ordinance was arbitrary, unreasonable and discriminatory.
Kimberlin v. Leer, 500 P.2d 1022 (Nev. 1972).

Vendor of real property was sued for wrongful death of minor tres-
passers. Two children drowned in one of several 15-foot deep test holes dug
with consent of vendor in a shallow lake containing winter run-off water.
The drowning occurred six days after vendor had conveyed title to vendee.
The lower court dismissed for failure to state a claim.
HELD: Affirmed on the authority of the RESTATEMENT (SECOND) OF
TORTS §353, that vendor's failure to disclose to vendee concealed conditions
on the premises which involved unreasonable danger to the health and
safety of those on the premises imposes liability on the vendor for injury
only to persons upon the land with the consent of the vendee.
This jurisdictionstill refuses to accept the attractive nuisance doctrine,
although the vigorous dissent would have adopted it.
White v. Cox, 17 Cal. App.3d 828, 95 Cal. Rptr. 259 (1971).

An owner of an apartment unit in a condominium development
tripped over a sprinkler which a groundkeeper had carelessly left on a
walkway. In a tort action against the owners' association the unit owner
attempted to recover damages.
HELD: A condominium unit owner may maintain a tort action against
an owners' association when (1) the association in fact acts as though it
were an independent entity by conducting its affairs through a board of
directors and executive officers who have general discretion in the operation
and maintenance of the condominium development; and (2) the individual
unit owners and members of the association have no direct control over the
operation of the association.
This case is an obvious refusal to follow the general rule which bars
suits against an unincorporatedassociation by one of its own members.
Wright v. Creative Corp., 498 P.2d 1179 (Colo. App. 1972).

A home builder was charged under the negligence, strict liability and
implied warranty theories for his failure to use tempered glass in a plate
glass door. A remodeler of the same house was also charged under these
theories for having moved the plate glass door to a different location and
having created an illusion of space. The trial court dismissed the complaint
for failing to state a claim.
HELD: (I) The complaint stated a claim for relief under the negligence
theory. (2) No claim was stated in strict liability because there did not exist
any difficulty in determining the negligent party. (3) No claim for relief can
be established under the implied warranty theory except where the claim is
by a purchaser against a builder-vendor.
Further extension of MacPherson v. Buick, 217 N.Y. 382, 111 N.E. 1050,
to structures on real property.
Spring 1973] TORTS AND NUISANCE - USURY
C. Legislation
New York
Ch. 106: Amends General Obligations Law 9-103(1(a) to include
bicycle riding among the various activities such as hunting, hiking, horse-
back riding and snowmobiling with respect to which a landowner owes no
duty to keep the premises safe nor to give warning as to hazardous con-
ditions.
XXVI. USURY
Podell, The Application of Usury Laws to Modern Real Estate Trans-
actions, 1 REAL ESTATE L. J. 136 (1972). An exploration of the usury
ramifications of modem real estate investment devices, which considers
(1) the general characteristic of usury laws; (2) the interaction of those
laws with several categories of real estate investment devices; and (3) the
effects of a possible determination that moneys received are usurious. There
are discussed the following phases of usury laws: (I) the corporate exemp-
tion; (2) the basic elements of usury; (3) participation schemes based on
income or proceeds, sale or lease-back or in financing benefits.
American Timber and Trading Co. v. FirstNat'l Bank, 334 F.Supp. 888
(D. Ore. 1971).
A usury class action suit was instituted by the borrower against a
national bank which had used a 360-day year for computation of interest
on a loan. The plaintiff charged that the bank violated the usury prohibi-
tion under the National Banking Act which prevents charging a higher
rate of interest than is allowed under the laws of the state where the
national bank does business. In determining whether it was proper for the
bank to compute interest on the basis of a 360-day year, the district court
was unable to find any Oregon state court case which had determined the
question.
HELD: Because the bank's method of computation of interest pro-
duced in a single calendar year more interest than would be allowable by
applying the maximum legal rate to a calendar year of 365 days, the method
used violated the Oregon usury statute. To ascertain whether the com-
putation of interest on an annual basis could be equated to a 360-day year,
the phrase "per annum" as used in this statute is to be interpretetd to mean
"by the year." The ordinary person assumes this to mean that there are
365 days in a year. Hence, using a 360-day year, the bank charged a usurious
rate of interest when it charged the maximum percentage rate allowed under
the Oregon statute.
Crocker v. Brandt, 292 A.2d 541 (Vt. 1972).
A contract of sale of real property and the purchase money mortgage
given at the time of the consummation of the sale both provided for pay-
ment of the purchase price and interest in monthly installments of a

specified amount. When these payments were broken down to principal and
interest the result was that the interest amounted to 6 per cent, the maxi-
mum permitted by law. Both instruments also required monthly payments
over the same period of time of an additional $25 which was stated to be
for consultation services. This made a total monthly installment payment
of $330. It further appeared that the parties had always treated the addi-
tional $25 monthly payments as an additional interest except when it came
to drafting the contract and mortgage. A memorandum signed by the
parties provided that the interest rate was to be 8 per cent - to be divided
into a 6 per cent interest payment and a 2 per cent consulting fee. The loan
amortization schedule used by the parties also had a specified 8 per cent
interest requiring monthly payments of principal and interest of $330.
HELD: These facts indicate an attempt to circumvent the usury law
by disguising excess interest as a fee for consultations that never occurred.
The interest rate was settled and agreed upon at 8 per cent and not 6 per
cent and was thus usurious as a matter of law.
Havens v. Woodfill, 266 N.E.2d 211 (Ind. 1971).
Husband and wife entered into a partnership agreement, a joint
venture and a trust agreement, all for the purpose of obtaining three
separate loans at a rate of interest in excess of the maximum of 8 per cent
permitted to be charged to individuals. The issue presented was whether
such an express purpose to avoid the usury laws will be permitted by
individuals.
HELD: Even though the usury statute exempted from the maximum
rates loans to corporations, partnerships, limited partnerships, joint ventures
and trusts, nevertheless, when individuals formed partnerships, trusts, etc.
for the express purpose of evading usury laws, the usury statute will still
apply to those loans.
Case of first impression which is an extension of the New Jersey rule
which holds that, where a corporation is formed for the express purpose of
evading the usury laws, the effort fails.
Pease v. Taylor, 496 P.2d 75 (Nev. 1972).
Action to enforce a 90-day promissory note for $16,500. Defendant had
actually received $12,000 at the time the loan was made from which was
deducted a loan fee of $1,100. Trial court granted judgment for face
amount of the note. The usury statute states that, "Any agreement for a
greater rate of interest than herein specified shall be null and void and of
no effect as to such excessive rate of interest."
HELD: Reversed. The statute voids all interest where the transaction
is usurious.
Court overrules 1967 precedent and amends legislative act by judicial
fiat.
C. Legislation
Kentucky
KRS 360.011: Permits interest of 8/2 per cent per annum on money
Spring 1973] USURY - VENDOR AND PURCHASER
due on any obligation in writing secured by a lien on one single-family

residential real estate property.
Virginia
Code 6.1-327: Expands statute that disallows certain entities such as
corporations and partnerships from using usury defenses so as to include
limited partnerships and joint ventures organized for the purpose of hold-
ing, developing and managing real estate for profit.
Code 6.1-328: Loans insured or guaranteed by the Secretary of Hous-
ing and Urban Development or his designees or made pursuant to the
requirements of the Federal Home Loan Mortgage Corporation are added
to the statute which disallows usury defense on a loan insured by various
federal governmental agencies.
XXVII. VENDOR AND PURCHASER

Braun, Marketing Recreation Property: A Strategy for Survival and
Profit, 2 REAL ESTATE REV. No. 3, at 83 (1972). A professional sales force
and greatly improved market and products strategies are the key to over-
coming the challenge of government regulation and "consumerism" in the
recreation field.
Hardin, The Home Builders Discover Market Analysis, 2 REAL ESTATE
REV. No. 3, at 44 (1972). Homebuilders are discovering market analysis
is not just for selling soap and that good locations alone do not solve all
problems.
McNamara, The Implied Warranty in New-House Construction: Has
the Doctrine of Caveat Emptor Been Abolished?, 1 REAL ESTATE L. J. 43
(1972). The purpose of this article is to (1) review recent court decisions
upholding an implied warranty in newly constructed housing and (2) augur
what the future holds for builders and other members of the construc-
tion industry. Except for the custom-built house, the warranty clause in
an AIA contract and the standard VA and FHA warranty, there appears
to be no written warranty in general use which a new homeowner gets from
the builder-vendor. Absent an expressed written warranty, is there an
implied warranty, imposed upon the builder-vendor by the law, which
affords some measure of protection to the purchaser of a new house?
Price, Buying Country Property-CaveatEmptor!, 1 REAL ESTATE REV.
No. 4, at 62 (1972). A long-time rural broker offers some guidelines to city
folk who venture in search of a place in the country.
Rifkind and Borton, SEC Registration of Real Estate Interests: An
Overview, 27 Bus. LAW. 649 (1972). The authors believe that the variety of
methods devised to sell real estate in the United States is indeed a testament
to the fertility of the mind of the American real estate promoter and his
astute counsel. The fact that a great many of these methods involve the
offering of a "security" requiring registration under the Securities Act of
1933 they believe is a testament to the fertility of the minds of the Congress,
the courts and the Securities and Exchange Commission. The fact that
there frequently is great difficulty in determining just which of these

methods should be so registered is the basis for this article.
Shanker, The Treatment of Executory Contracts and Leases in Bank-
ruptcy, Ch. X and XI Proceedings, 18 PRAc. LAW. No. 4, at 15 (1972). The
author contributes further to the current discussion of rejection of executory
contracts.
Wendt, Cash-Flow Analysis by Computer, 2 REAL ESTATE REV. No. 3, at
63 (1972). A demonstration of how a computer-cash flow model forces the
investor to think through alternatives and assumptions involved in buying
and selling real estate.
Bankruptcy and the Land Sale Contract, 23 CASE W. REs. L. REv. 393
(1972). This note suggests an amendment to the Bankruptcy Act with
respect to rejection of executory land sales contracts.
[To be concluded in Summer issue]
Respectfully submitted,
THOMAS F. GALLIVAN, JR., Chairman,Suffield, Conn.
The chairman acknowledges the substantial contribution made by JOHN C. HARRIS, JR.
of Florence, Ala., LEE WILLLIAMSON of Jackson, Miss., and JOHN C. SMITH of LaMirada,
Cal., law students, as well as JAMES J. BROWN of Lexington, Ky., R. A. HILLHOUSE of Phoenix,
Ariz., THOMAS R. JAMES of Memphis, Tenn. and CHARLES R. OFSTREICHER of Portland, Me.,
practicing attorneys, non-committee members, who did the work of certain committee mem-
bers who were unable to carry out their assignments.
Subcommittee on CurrentLiterature: Subcommittee on SignificantDecisions:

EDWARD S. HIRSCHLER, Vice Chairman, ROBERT W. STOREY, Vice Chairman,
Richmond, Va. Atlanta, Ga.
RICHARD B. AMANDES, Lubbock, Tex. WINSTON L. ADKINS, Houston, Tex.
THEODORE J. AMELSON, Norfolk, Va. LEO E. ANDERSON, Los Angeles, Cal.
JAYME C. BILLEY, JR., Sherman Oaks, Cal. G. ROBERT ARNOLD, Orlando, Fla.
PETER S. CHAMBERLAIN, Dallas, Tex. M. DEE BIESTERFELD, Denver, Colo.
GEORGE WEBER COEN, Lancaster, Ohio JAMES RAY BROWN, Kansas City, Mo.
WILLIAM F. FRATCHER, Columbia, Mo. RALPH CHAPMAN, Brattleboro, Vt.
IRVING D. GAINES, Milwaukee, Wis. HARRY G. COSTELLO, St. Paul, Minn.
JOHN DORSEY GARRISON, JR., Hartford, Conn. CHARLES W. DEANER, Las Vegas, Nev.
PORTIA Y. HAMLAR, Detroit, Mich. ARTHUR G. ECCLESTONE, JR., Norwood, Mass.
JOHN D. HEALY, JR., St. Paul, Minn. HERMAN GINSBURG, Lincoln, Neb.
EARLE H. HOUGHTALING, JR., Walden, N. Y. LEO J. JOLIET, Cleveland, Ohio
MED Z. HUFFMAN, Storm Lake, Iowa MELBURN E. LAUNDRY, Elk Grove Village, Ill.
ROBERT KRATOVIL, Chicago, Ill. FRANCIS E. MULLEN, Providence, R. I.
ALAN J. LEIDECKER, Washington, D. C. DONALD B. PATTERSON, Brookhaven, Miss.
HIRAM H. LEsAR, St. Louis, Mo. DAVID PLIMPTON, Portland, Me.
LACY L. LUCAS, JR., Greensboro, N. C. S. W. PRINGLE, Pittsburgh, Pa.
HAROLD E. MCINTOSH, San Francisco, Cal. JOHN RADLEY, Peoria, Ill.
ROBERT S. FREY, Louisville, Ky. W. JACK SCHROEDER, Evansville, Ind.
ELMER M. MILLION, Norman, Okla. HARRY J. STEVENS, JR., Short Hills, N. J.
JOHN E. NORRIS, Lake City, Fla. J. RICHARD STUDENNY, Alexandria, Va.
WILLIAM P. OWEN, Fort Lauderdale, Fla. EMERSON J. WILSON, Reno, Nev.
DONALD L. PADGITr, Evanston, Ill. JULIAN D. WINSLOW, Wilmington, Del.
DORCAS D. PARK, Springfield, Mass.
ROBERT L. QUINN, Steubenville, Ohio.
Subcommittee on Legislation:
JULIUS C. SMITH, III, Greensboro, N. C.
L. JACK SWERTFEGER, JR., Decatur, Ga. E. L. COLEBECK, Vice Chairman,
L. E. WELTMER, Mankato, Kan. Florence, Ala.
Spring 1973] SURVEY OF REAL PROPERTY LAW 221
DANIEL T. BERGIN, Phoenix, Ariz. C. GRICE MCMULLAN, JR., Richmond, Va.

ROGER H. BERNHARDT, San Francisco, Cal. C. RICHARD MCQUEEN, Atlanta, Ga.
SYLVESTER JAMES BOUMIL, Lowell, Mass. WALTER J. MORGAN, Cleveland, Ohio
RICHARD J. CRAVENS, Chicago, Ill. ALLAN F. NASH, Denison, Iowa
THOMAS E. CREIGHTON, Denver, Colo. ROBERT S. NICHOLOFF, Hibbing, Minn.
HOWARD DAVIS, Oklahoma City, Okla. JAMES W. PADDOCK, Lawrence, Kan.
EnrrH M. DEBUSK, Dallas, Tex. PAUL A. SANSBURY, Darlington, S. C.
JAMES WILFRED DOHERTY, Laconia, N. H. ROBERT SIEGEL, Lewiston, Pa.
JONATHAN C. EATON, JR., Minot, N. D. ROBLEY J. SIMPSON, Cleveland, Ohio
LLOYD S. JACOBSON, Milwaukee, Wis. RALPH C. SMITH, Washington, D. C.
JONATHAN LOOKADOO, JR., Arkadelphia, Ark. RONALD B. SMITH, Providence, R. I.
H. MAX MARQUARDT, Kalamazoo, Mich. WALTER SOLAN, St. Louis, Mo.
JOSEPH 0. MCDANIEL, Elko, Nev. JAMES C. SPANGLER, Chicago, I11.
THE ABA SECTION
of
PUBLIC CONTRACT LAW
Invites you to join the members of this relatively new section,
dealing with the entire field of Federal, State and Local procure-
ment. At this point in our history, when all levels of Government
are spending more, it is a rare attorney who will not come into
contact with a Government contract problem, be it the prime
contract, a subcontract, a labor program imposed by the contract,
an SEC disclosure arising from the contract, a tax exemption
problem, etc.
As a member of the section you will not only receive the Public
Contract Law Journal and the quarterly Public Contract Newsletter,
two of the most significant publications in the field, but you will
also have an opportunity to assist in the continuing process of
development and improvement of the law by participation in one
or more of over 25 committees.
As an ABA member you may join the Section of Public Contract

Law by sending your name and address with your check for the
annual dues of $10.00 to:
Section of Public Contract Law

American Bar Association
1155 East 60th
Chicago, Illinois 60637

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Bluebook 21st ed.

ALWD 7th ed.

APA 7th ed.

Chicago 17th ed.

McGill Guide 9th ed.

AGLC 4th ed.

MLA 9th ed.

OSCOLA 4th ed.

warranty against inhabitability is to be included in oral and written leases

II. AIR SPACE

"upon any other terms acceptable to the owner," with a commission of

V. CONDOMINIUMS AND COOPERATIVES

Knight, Incorporation of Condominium Common Areas? An Alterna-

Symposium: Earthquake, 47 L. A. B. BULL. 137-168 (1972). Taylor,

Hanson v. Zoller, 187 N.W.2d 47 (N.D. 1971).

Kaylor v. Wilson, 260 Md. 707, 273 A.2d 185 (1972).

IX. ECOLOGY AND ENVIRONMENTAL CONTROL

Georgia Water Quality Control Board in the light of other available

Martin, Private Environmental Litigation, 36 Ky. B. J. 24 (1972). A

Symposium, California's Coastline, 47 CALIF. B. J. 402-439 (1972).

Sierra Club v. Morton, 405 U.S. 727 (1972).

(1971). A discussion of the conflict between the rights of private ownership

ings of Nebraska and raises the question as to the propriety of recovery of

XI. ESTATES IN LAND

Kufel v. Chopeinsky, 29 Ohio Misc. 61, 278 N.E.2d 60 (1972).

XIII. FuTuRE INTERESTS

XV. LANDLORD AND TENANT

REV. No. 1, at 96 (1972). N. Y. City's rent stabilization plan is an encourag-

Blocker v. Blackburn, 185 S.E.2d 56 (Ga. 1971).

without prior warning or a hearing. Such a result is a denial of due process

Gray Drug Stores v. Foto FairInternation,Inc., 32 Ohio App. 2d (1972).

Case of first impression. Court adopts Connecticut rule rather than

motivated by a desire to accommodate the grocery rather than the wish to

HELD: Weaver is released from any responsibility under the clauses.

attempt to resolve the confusion in the income tax treatment of bonus,

XVII. MORTGAGES AND LIENS

to be of more current practical value than some of the others mentioned

Plaintiff was assignee of a second mortgage interest by assignment duly

Initial interpretation of the quoted language where contained in

contracts, failed to retain the 10 per cent retainage required by Article

hypothecation and includes language inconsistent with the mortgage. The

owner-occupied one- or two-family dwelling by reason of a transfer of

XIX. OPEN SPACE AND CONSERVATION

XX. PLANNING AND ZONING

Symposium, Land Use, 46 ST. JOHN's L. REv. 632-694 (1972). Goldstein,

southwestern region of Connecticut as well as the City of New York, for

did not attempt to do that. Rather, it contemplated a large influx of new

O'Connor v. Rockford, 3 Ill. App.3d 548; 279 N.E.2d 356 (1972).

permit for construction of shopping center on whole lot. Superior Court

XXII. PUBLIC LANDS

XXIII. SURVEY OF THE LAW

tax exemption for church-owned property used for commercial purposes.

encourage property revaluation by counties to achieve uniformity in local

XXV. TORTS AND NUISANCE

approach of allowing no use whatsoever of selected blocks by any two-

Kimberlin v. Leer, 500 P.2d 1022 (Nev. 1972).

White v. Cox, 17 Cal. App.3d 828, 95 Cal. Rptr. 259 (1971).

Wright v. Creative Corp., 498 P.2d 1179 (Colo. App. 1972).

ment of the purchase price and interest in monthly installments of a

due on any obligation in writing secured by a lien on one single-family

XXVII. VENDOR AND PURCHASER