Property Outline

Propertys Origins and Nature

Origins

Property defined by:

1) Constitutions
2) Statutes
3) Court decisions
Two forms:
1) Real property
2) Personal property
Bentham property is entirely the creation of law
Bastiat property is the necessary consequence of the nature of man

Job

Stewart property is something that you have a legitimate claim of entitlement to.
Marshall anything thats important to a person should count as property
Board of Regents v. Roth P was hired as an assistant professor for the term of one year
and then dismissed at the end of the year without a hearing. Court held that his job was
not property because he did not have a legitimate expectation of continued employment.

Degree/Career

Graham jurisdiction property is everything that has an exchangeable value or goes to make
up wealth or estate.
Elkus jurisdiction marital property is property acquired during the marriage regardless of
the form in which the title is held (economic partnership concept of marriage).
In re Graham wife worked while husband got MBA. When they got divorced, she
wanted part of his future earnings from the value of the MBA. Court holds that she is not
entitled because an educational degree does not have an exchange value or any objective
transferable value on the open market. Not inheritable, not acquired by the mere
expenditure of money.
Elkus v. Elkus husband wanted equitable distribution of the marital property of his
wifes career/celebrity status as an opera singer. Court held that he was entitled because
an attempt to limit marital property to professions that are licensed would discriminate
against the spouses of those engaged in other areas of employment.

Name/Appearance

Right of publicity is a property right in ones name or image, does not end with the persons
death.

Not infringement if the use can pass the transformative use test ask whether the celebrity
image is one of the raw materials from which an original work is synthesized, or whether
the depiction or imitation of the celebrity is the very sum and substance of the work in
question. (Person adds a significant creative component of his own). Consider whether the
use will reduce the commercial value of the persons likeness.
ETW v. Jireh Publishing Artist depicts Tiger Woods in painting with other golf greats, P
wants compensation. Court holds that P is not entitled because the painting passes the
transformative use test.
Policy
Seems morally right to own your own identity.
People should have the right to reap the benefits of their own hard work encourages
effort.
Reputation could be diminished.
Freedom of speech and expression should be protected.
Fame belongs to the public.
Might not want to encourage merchandising.

Body Parts

Body parts are not property.

Moore v. Regents of the University of California P had rare disease, doctors drew
blood and removed Ps spleen for medical purposes, but knew that they were financially
valuable. Doctors created a cell line, and P tried to sue for wrongful conversion and get
some of the proceeds from the cell line. Court held that body parts arent property, and
you cant have a conversion action for something thats not property.
Policy
Your body, your property.
Worry of theft because if its not property, its not illegal to take it.
Cells no longer belong to you after they leave your body.
Dont want to deter research.
Morally wrong to count body parts as property slippery slope into slavery,
prostitution, and selling body parts.

Methods of Acquiring Property

Creation
Right of Publicity
Infringement established by:
1) Ds use of Ps identity (not confined to name or likeness)
2) For Ds advantage, commercially or otherwise
3) Lack of consent, AND

4) Resulting injury
White v. Samsung P Vanna White sues D Samsung for infringing right of
publicity in their ad. Court holds in favor of P that the law protects the celebritys
right to exploit the value of their identity.
Policy
People should be entitled to the fruits of their labor
Its good to have a rich public domain.

Purchase

Traditional rule of caveat emptor (let the buyer beware) nondisclosure of a defect in the
property known to the seller and not the buyer never amounts to fraud.
Exceptions to caveat emptor (5 possibilities)
1) Have to disclose if its a haunted house
2) Have to disclose if theres a seller-created reputational defect
3) Have to disclose if theres a nonphysical defect
4) Have to disclose if theres a condition created by the seller that materially impairs the
value of the contract and is known only to the seller
5) Have to disclose if theres anything a reasonably prudent purchaser exercising due care
wouldnt discover
Stambovsky v. Ackley P bought house not knowing that it had a reputation for being
haunted and wanted to rescind sale. Court holds that rescission is appropriate.

Find
Types
Lost property
1) Owner parted with the property unintentionally
2) Finder has preference to possess the property over all others but the true owner
3) If the finder was trespassing, the owner of the land has a higher right to the
property, but cases are split as to whether a trespassing finder has rights over
subsequent possessors.
4) If the finder wasnt trespassing, courts are divided as to whether a found object
belongs to the finder or the landowner.
Mislaid property
1) Property intentionally placed in a particular place and mistakenly left there.
2) Property goes to the owner of the land rather than the finder to increase the
chances that an owner will recover his property.
Embedded property
1) Generally awarded to the landowner rather than the finder because it is considered
part of the real property.
2) Exception treasure trove (gold, silver, or money intentionally buried in the earth
for later recovery, hidden or concealed for such a length of time that the owner is

probably dead or undiscoverable) goes to finder as long as finder was not

trespassing
Abandoned property
1) Owner intends to relinquish ownership and engages in some type of action to
demonstrate that intent.
2) Finder becomes the true owner

Benjamin v. Lindner Aviation P finds money in the wing of a plane hes servicing and
claims possession. Court holds that the property was mislaid, so it belongs to the owner
of the premises where it was found. The premises was the airplane, not the hangar,
because the true owner would initially look for the plane if he was trying to find his
money.

Gift

Transfer of property from one person to any without payment

Inter vivos gifts transfers from one living person to another
Gift causa mortis given when donor believes he is on the verge of dying, and intends to
transfer only if he actually dies (retains possession if he survives)
Valid gift is irrevocable.
Gifts can be subject to a condition subsequent as long as the condition isnt the giver
changing his mind.
Elements
Intent to transfer title (not just possession)
Delivery of the property (either actual or constructive, may be accomplished by a
writing, distinguishes gifts from promises to give in the future)
Acceptance by the donee (presumed when the gift is of value)
Gruen v. Gruen Ps father gives him title to painting but retains a life estate and keeps
it hanging in his home. D stepmother claims the gift is not valid because it was just a
promise to give it to P when he dies. Court holds that letters show intent and
constructive delivery (gift was a remainder, cant be physically delivered).

Adverse Possession
Real Property
Elements:
1) Actual possession possessor has to actually be on the land during the time
period
2) Exclusive possession possession not shared with owner or the public as a whole
3) Open and notorious not in secret, would give a reasonably diligent owner notice
that someones there
4) Hostile or adverse possession is without the permission of the owner and
inconsistent with his rights as the owner
a) Objective possessors state of mind doesnt matter, just actions

b) Subjective possessor must have good faith belief that he has title (some
jurisdictions require color of title paid property taxes or have an invalid
document showing that you own the land)
5) Continuous as continuous as the average user, consistent with the nature of the
property (seasonal)
6) Statutory period amount of time owner has to bring eviction suit (ex. 10 years)
Important Notes
Abandonment if a possessor intentionally relinquishes possession, adverse
possession comes to an end and statute of limitations must start up again if
possessor renews possession.
Tacking successive adverse possessors who are in privity of estate can add
up their years (A possesses for 7 years, grants title to B who possesses for 3
years, total of 10)
Tolling statute of limitations does not run while owner falls into certain
categories (incarcerated, a child, insane).
Ineffective actions (told police people were trespassing) do not defeat an
adverse possession claim
No adverse possession against the government
Nome 2000 v. Fagerstrom Ds possessed Ps property during the summer months
in Alaska. Court held that possession only had to be as continuous as is
consistent with a true owners use. Only granted Ds part of the parcel because
they did not actually possess the rest (stakes dont count).
Policy
Adverse possession seems like legalized theft if youre brazen enough to
occupy someone elses property for a long time, you get to keep it.
Protects justified expectations over time sympathy for trespasser grows,
dont want a 40th generation descendant of a landowner to be able to evict a
40th generation descendant of a trespasser.
Personal Property
Same elements as adverse possession for land, except for open and notorious.
Three options:
1) Conversion rule clock starts running when property is wrongfully taken and the
owner dispossessed.
2) Discovery rule clock starts running when owner discovers or reasonably should
have discovered that the property is missing; owner must establish that he used
due diligence to discover the location of the property.
3) Demand-and-refusal rule clock starts running when the owner demands the
property back and the possessor refuses to return it. (More protective of property
owners, but they may not delay unreasonably in bringing suit once refusal is
communicated defense of laches)

OKeefe v. Snyder Ps paintings went missing but she didnt do anything about
it. Years later, discovers where they are and brings suit for their return. Court
institutes discovery rule.
Guggenheim Foundation v. Lubell museum discovered painting was missing but
didnt look for it. Years later, discovers where it is and brings suit after D refuses
to return it. Court institutes demand-and-refusal rule, but defense of laches
remains viable.
Policy
Demand-and-refusal is more protective of property owners and discourages
theft.
Discover rule is better because it protects good-faith possessors.

Shared Ownership
The System of Estates
Estates and Future Interests
Fee simple absolute right to possess property now and forever, can be inherited
Life estate right to possess the property for your lifetime
1) Reversion After death, property reverts back to grantor.
2) Remainder After death, property goes to a third party.
3) O to A for life or O to A for life, then to B
Fee simple determinable right to possess property until some condition occurs.
1) Possibility of reverter if the condition occurs, the future interest automatically
vests in the grantor.
2) Clock starts running immediately on adverse possession.
3) O to A as long as used for school purposes
Fee simple subject to condition subsequent right to possess property until some
condition occurs.
1) Right of entry if the condition occurs, the future interest vests in the grantor
once he asserts it.
2) Clock starts running on adverse possession once grantor asserts his claim.
3) O to A, but if the property is ever used for anything other than school purposes,
O shall have a right of entry
Fee simple subject to executory limitation right to possess property until some
condition occurs.
1) Executory interest if the condition occurs, the future interest vests immediately
in a third party.
2) O to A, but if the property is not used for school purposes, then to B
Leasehold right to possess property for a certain period of time.
1) Reversion when the period is up, the property reverts to the grantor.
2) Remainder when the period is up, a third party has the right to possess it.
3) O to A for ten years

Future Interests
Reversion
Executory interest
Possibility of reverter
Right of entry
Remainder
1) Vested belong to an ascertainable person and there are no conditions that
must be satisfied before the remainder is certain to become possessory.
O to A for life, then to B (B has vested remainder)
a) Absolutely vested will not change
b) Vested remainder subject to open the remainder is to a class that can
increase. O to A for life, then to Bs children Class closed when any
member becomes entitled to possession.
c) Vested remainder subject to divestment can be divested by the
happening of a later event. O to A for life, then to B, but if B drops
out of law school, then to C
2) Contingent belongs to an unascertained person or there is a condition
that must be fulfilled before it can become possessory. O to A for life,
then to B if she has graduated from law school (B has contingent
remainder)
Rule Against Perpetuities
Traditional rule no future interest is good unless it must vest, if at all, within 21
years after the death of some life in being at the creation of the interest.
Not concerned with when the person will actually possess the property, just when it
will vest.
If the interest is in a will, the interest is created when then testator dies, not when the
will is written.
Rule does not apply if both the present estate owner and the future interest owner are
charities.
Only applies to contingent remainders, vested remainders subject to open, and
executory interests. (Future interests in the grantor or his heirs are exempt)
Steps:
1) Look for one of the applicable future interests
2) Identify the contingency (Whats the condition?)
3) When will the contingency resolve itself? (When will we know for sure whether
the person will get the property?)
4) Contingency has to be resolved within 21 years of the death of a person alive at
the creation of the interest, otherwise its void.
Modern rules
1) Wait and see test court will not hold that a future interest violates the rule until
the perpetuities period passes and they are certain that the future interest has not
vested within that period.
2) Wait and see period of 90 years after the date of the creation of the interest for all
interests that would otherwise be void under the traditional rule.

3) Saving statute any interest that would violate the rule shall be reformed to give
effect to the intent of the creator when it can be ascertained.
Policy
Compromise between the right of property owners to do what they want with
their property and the public interest of not having land tied up too far into the
future.

Concurrent Ownership
Creation
Three types of concurrent interests where each tenant has the right to possess the
whole property:
1) Tenancy in common each co-owner has a separate interest in the property, each
can do what he wants with his share, shares dont have to be equal
2) Joint tenancy
a) Like tenancy in common, but joint tenants have a right of survivorship (when
one dies, his shares transfer to the other)
b) Doesnt go into probate process, so saves on time and money
c) Can sell their shares, but then it becomes tenancy in common
d) Must have the four unities:
i)
Time each interest created at the same time
ii)
Title each tenant acquired interest by the same instrument
iii)
Interest each tenant has equal share
iv)
Possession each tenant has the right to possess the whole property
3) Tenancy by the entirety Like joint tenancy, but only available to married
couples, and no tenant can sell interest unilaterally. Terminated by divorce.
Community property property acquired during marriage is presumed to be owned
together unless the parties specifically designate it as owned separately.
Kipp v. Chips Estate one clause of deed calls them joint tenants, but another
clause describes them as tenants in common. Court holds that you have to look at
the totality of the document, and the clause calling them joint tenants is internally
inconsistent because it refers to heir and assigns.
Policy
Legislature favors tenancies in common because it promotes choice in who
you leave property to (can still leave it to the other tenant if you want to).
Partition
A remedy for cotenants when they cannot agree on how the property is to be used.
May voluntarily partition, but are also entitled to force the other owners to partition
by bringing a lawsuit (judicial or involuntary partition).
Types of partition:
1) Physical partition (partition in-kind) physical division of the property

2) Partition by sale property is sold and the proceeds are divided based on the
interest of each owner.
Physical partition is favored over partition by sale because the sale of ones property
without consent is an extreme exercise of power.
To get a partition by sale, you need to show that:
1) The physical attributes of the land are such that a partition in-kind is impractical
or inequitable (too many owners, gold mine in one place, hard to partition a
house) AND
2) The interests of the owners would be better promoted by a partition by sale.
Delfino v. Vealencis P wants to develop land so wants partition by sale, D wants
physical partition because she wants to keep her trash hauling business. Court
holds for physical partition because the property is easy to divide and physical
partition is favored by the legislature.

Landlords and Tenants

Leases
Landowner transfers right of possession to a third party landowner keeps a
reversion
Types of leaseholds:
1) Term of years lease lasts for a specific amount of time and automatically expires
when the term is up.
a) Both the tenants term of years and the landlords reversion are transferable,
but if the landlord transfers his reversion, the new owner has no power to
terminate the lease unless the lease provides otherwise.
2) Periodic tenancy lease lasts for a period of time that is renewed automatically
unless either party terminates the arrangement.
a) Transferable unless the lease provides otherwise.
b) Requires notice to terminate, usually equal to one period or six months for a
year-to-year tenancy.
c) If notice is not given at the end of a period, it may be invalid.
3) Tenancy at will terminable at any time by either party.
a) At least half the states have statutes that require notice
b) Most states have outlawed self-help evictions, requiring landlords to use court
proceedings to recover possession.
c) Terminates at the death of either landlord or tenant, not transferable.
4) Tenancy at sufferance tenant wrongfully holds over after the termination of a
prior tenancy.
a) Tenant liable to the owner for the fair rental value of the property during the
period of occupation
Common Law Rule of Self-Help
A landlord has the right to retake possession of leased premises if two
conditions are met:
1) Landlord is legally entitled to possession
2) Landlords means of reentry are peaceable

Modern rule the only lawful means to dispossess a tenant who has not
abandoned or voluntarily surrendered the property is to resort to the judicial
process.
Berg v. Wiley D tries to retake possession of leased restaurant by
changing the locks. Court holds that it would be illegal under the
common law rule because the means were not peaceable (violence only
failed to erupt because P was not present at the time), but they decide to
adopt the modern rule anyway.
Policy
A landlord might believe he is legally entitled to possession but be
wrong, and it would be harsh to evict a tenant over a mistake.
There are fast-track procedures for landlord, so it shouldnt be too big
of a burden to wait (but theyre still losing money)
Keeps potential violent confrontations to a minimum.
Hurts the poor because landlords will charge a risk premium for fear of
the inability to evict, and landlords will be less likely to rent to risky
(poor) tenants.

Subleases and Assignments

L leases to T, and T leases to T1.
Assignment T1 takes the balance of Ts term.
Sublease T1 takes less than the balance of Ts term.
Transfer from T to T1 is not allowed if it is a tenancy at will or transfer is prohibited
by the lease.
L can recover unpaid rent from anyone who he is in privity of contract (signed a
contract) or privity of estate (successive possessors) with.
1) Under sublease, L can only recover from T
a) L has entered into privity of contract with T
b) L has never entered into privity of contract with T1
c) Possession reverts back to T before reverting to L, so they are not successive
possessors and there is no privity of estate.
2) Under assignment, L can recover from both T and T1
a) L has entered in privity of contract with T
b) L has never entered into privity of contract with T1
c) Possession reverts back to L directly after the end of T1s term, so they are
successive possessors and there is privity of estate.
Ernst v. Conditt P landlord leased a Go-Cart track to T, who leased it to D T1,
and P wanted to recover unpaid rent from T1. Court held that P could recover
from T1 because even though the lease called it a sublease, it was actually an
assignment because T1 took the balance of Ts term. Look at intent, not just the
language.

Abandonment
If a tenant stops paying rent and moves out before the end of the lease term
(abandonment), L has the right to sue to recover possession as well as back rent and
the cost of finding a replacement. L can also:
1) Accept Ts surrender of the lease
2) Re-let the premises on Ts account T liable if L cant find anyone, the new T1
defaults, or L has to accept less rent
3) Sue for damages
a) The difference between the reserved rent and the fair rental value of the
premises
b) Acceleration clause remaining rent for the rest of the term is due on default.
4) Wait, allowing the rent to accrue, until the end of Ts term, and then sue for the
total.
a) Modern rule is a duty to mitigate damages L must make reasonable efforts to
find a new tenant. Consider whether L advertised the land, offered or showed
it to prospective tenants, or rejected suitable tenants proffered by T.
b) No duty to mitigate for commercial property.
Sommer v. Kridel T breaks lease and sends letter asking to be released. L
doesnt respond, doesnt lease the apartment even though there was a willing
tenant, and then sues T for back rent. Court holds that L is required to carry the
burden of proving that he used reasonable diligence in attempting to re-let the
premises.
Stonehedge v. Movie Merchants fundamental unfairness in allowing the
breaching tenant to require the nonbreaching landlord to mitigate damages
caused by the tenant.
Policy
Duty to mitigate discourages apartments from sitting empty (encourages
efficient use of land).
Unfair to landlord who didnt do anything wrong.
High turnover of tenants has costs.
Rents may go up because L passes the risk premium to T, but they may go
down because it forces L to compete.
Implied Warranty of Habitability
Nondisclaimable
Generally does not apply to commercial leases
Implied covenant of quiet enjoyment implicit promise that L was conveying
property suitable for Ts intended use. If promise was breached, there was
constructive eviction (T could leave and not have to pay rent). Precursor to implied
warranty of habitability. Still governs commercial uses.
Standards

Option 1 warranty is breached when L fails to comply with applicable

building code provisions so as to materially impair health and safety
render the property truly unsafe, unsanitary, or uninhabitable.
Option 2 L has an obligation to conform with general community
standards of suitability for occupancy, measured independently of
applicable housing codes.
T need not show that L did anything wrong, is at fault, or acted unreasonably
to prove a violation of the warranty.

Notice
T has a duty to provide notice of the problem to L.
Option 1 there is a violation the moment the condition occurs.
Option 2 there is a violation once L is notified.
Option 3 there is a violation after L has had a reasonable time to fix the
problem and has not done so.
Available Remedies
Termination of the tenancy (rescission of the contract) T may stop paying
rent and abandon the premises.
Rent withholding T may withhold rent until L fixes the problem, allows T to
stay on the premises while the condition continues (unlike quiet enjoyment),
some states require T to pay rent into an escrow account.
Rent abatement rent is reduced from the actual rent to the fair rental value of
the premises subject to the unlawful condition.
Damages T may request that some amount of past rent be forfeited by L
because of violations during the time for which those rental payments applied.
If T suffered any real damages to person or property, he may get monetary
damages for those injuries exceeding the rent. May get money for moving
costs.
Injunction T gets court order requiring L to fix the problem.
Repair and deduct T may make minor repairs and deduct the cost from the
rent.
Housing code remedies T may call on a local housing inspector to inspect
the premises and order L to fix the problem.
Green v. Superior Court L sued to regain possession of the land. T admitted
nonpayment of rent, but defended action because L had failed to maintain
premises in a habitable condition. Court held L not entitled because Ts
nonpayment was justified under implied warranty of habitability.
Policy
Serves public health concern.
L is in a better position to know of and fix defects (might require T to go into
parts of the building he doesnt have authorization for).

Should be treated as a contract where each partys obligations are contingent

on the other party complying with his obligations because its more fair.
Can lead to higher rent and more homelessness because poor people cant
afford places without defects.
Creates race to the bottom for landlords if Ts are allowed to waive.

Retaliatory Eviction
Ls can generally evict for any reason or none at all, except:
1) In cities with rent control, Ls cant evict without good cause.
2) Ls cant evict tenants for certain discriminatory reasons.
3) Ls may not bring eviction proceedings against Ts if their motive is to retaliate
against T for asserting legal right protected by the implied warranty of
habitability.
Ls can evade the doctrine by going out of the rental business and converting the
property to other uses?
Restatement retaliatory eviction is only illegal if:
1) There is a protective housing statute
2) L is in the business of renting residential property
3) T is not materially in default in the performance of his obligations under the lease
4) L is primarily motivated in so acting because T has complained about a violation
by L of a protective housing statute
5) Ts complaint was made in good faith and with reasonable cause
L must wait to evict T until:
1) L can show a legitimate, nonretaliatory business reason for the eviction (or maybe
T has prove that the eviction is retaliatory)
2) Repairs have been made and T is given sufficient time to find other suitable
housing.
3) A certain amount of time is up (such as 180 days).
Building Monitoring Systems v. Paxton T complained to health department
when condition of apartment remained unacceptable and L served T with eviction
notice. Court held retaliatory eviction illegal.
Policy
If Ls were entitled to evict Ts for reporting housing code violations, many Ts
would be deterred from reporting, and the legislature intended housing to be
habitable.
We cannot saddle a landlord with a perpetual tenant requiring L to show that
his actions are not the result of retaliatory motives is a difficult burden for Ls
to overcome.
Housing Discrimination
Fair Housing Act bans intentional discrimination and facially neutral policies that
have a disparate impact on protected groups (discriminatory effect) burden then
shifts to D to prove a legitimate reason thats not a pretext for discrimination.

FHA prohibits discrimination based on race, color, religion, sex, national origin,
disability, and familial status (families with children).
Exemptions:
1) Single family homes whose owners dont own more than three homes, dont use
sale or rental agencies, and dont advertise.
2) Rooms or units in dwellings containing living quarters intended to be occupied by
no more than four families, but only if owner actually maintains and occupies
one of such living quarters as his residence.
3) Religious organizations or private clubs.
Mister v. A.R.K. Partnership L wont rent to unmarried, cohabiting couple, and they
argue its discrimination on the basis of sex and marital status. Court holds that its
not discrimination because L rents to both single and married people, and both men
and women. Discussion of original bill showed that legislators didnt believe
cohabitators would be protected.

Relations among Property Owners

Trespass and Nuisance
Trespass
Elements:
1) Unprivileged
2) Physical invasion of
3) Property possessed by another.
Do not need intent to trespass, just intent to enter the land just prove voluntary entry
without license.
License permission to enter property possessed by another, generally revocable at
will.
Remedies:
1) Nominal damages available without proof of harm to property
2) Compensatory damages remedy actual harm to the property or persons on it
resulting from the trespass.
3) Permanent damages measured by the diminution in the fair market value of the
land.
4) Punitive damages to deter trespasses from occurring.
5) Injunction orders the trespasser to cease the intrusion in the future or to remove
intruding structures or agents of the trespasser.
Trespassing can be above or below the surface of the land (but doesnt exclude
airplanes)
Trespass to Chattels
Using someone elses personal property.
Must interfere with the possessors use or possession of, or any other legally
protected interest in, the property itself to be actionable.

Intel v. Hamidi D sent Ps employees unwanted emails. Court holds that

an electronic communication that neither damages the recipient computer
system nor impairs its functioning is not a trespass to chattels.
Consequential economic damage (lost productivity) is not an injury to
the companys interest in its computers. Policy issue: Intel was not
objecting to the fact of the emails, it was objecting to the content free
speech issue.
Nuisance
Elements of nuisance:
1) An activity that
2) Unreasonably interferes with
3) Anothers
4) Enjoyment of his land
Limits ones own property rights.
Private nuisance D is causing harm to a particular property owner or set of owners
Public nuisance D is causing harm to the public as a whole, suits sometimes brought
by the government.
Liability will only be found if:
1) The harm is substantial
2) The conduct creating the harm or the consequences of that conduct is
unreasonable: (factors to consider)
a) Location (pig farm reasonable in rural area, but not Beverly Hills)
b) Character or extent of Ds activity (burden of stopping the activity)
c) Character or extent of Ps harm (burden of avoiding the harm)
d) Priority (who was there first in time)
e) Relative social value (courts have more sympathy for things that seem useful
or valuable)
Defense if P is just overly sensitive (most people wouldnt find it a nuisance)
Spite fence cases landowners are protected from malicious obstruction of access to
land by neighbors.
Prah v. Maretti P uses sun as source or energy through solar panels, and Ds
new house would block it. Court holds that despite a rejection of the doctrine of
ancient lights (landowner entitled to continue receiving sunlight across property),
this just means that it is not automatically a nuisance, but still can be found to be
a nuisance. More social value today in alternative energy; unrestricted
development seen as less of an intrinsic good.
People v. General Motors car companies are causing pollution, which is
unreasonable changing the climate.

Easements

The right to use land owned by another.

Not revocable at will, unlike a license.

Absent any agreement, its the servient tenements responsibility to maintain the easement.
For changes in the scope of easements, you use a reasonable foreseeability test (to the seller
of the easement).
Easements by Express Grant
Easements Appurtenant
Easement for property A (dominant tenement) to cross property B (servient
tenement)
Benefits A and burdens B
Runs with the land if owner A sells to C, C gets the easement
Easements in Gross
Easement for a particular person to cross property B
No dominant tenement, just servient
Does not run with the land if D has easement and sells real property to E, D
still has the easement
Urbaitis v. Commonwealth Edison Dodson owns a parcel of land, sells
something (fee simple or easement) in 1909 to railroad. Railroad stopped using it
in 1946 and sold it. P says they abandoned the easement by ripping up the track,
D says they own it in fee simple. Court holds for D because the Conveyances Act
said that it has to be clear that youre creating an easement. The term right-ofway was a shorthand for the land itself.
Easements by Estoppel
Licenses are generally created informally and run with the person.
Becomes irrevocable if the licensee makes improvements at considerable expense
(substantial investment) in reasonable reliance on the license.
Policy
For easement: Unjust to allow licensee to spend money and then take away
license.
Against easement: Should discourage unreasonable reliances on licenses, its
bad to burden land with unwritten restrictions.
Holbrook v. Taylor P starts building a house with a license to cross Ds
property. Dispute arises later and D obstructs land. P seeks injunction to remove
obstruction. Court holds that the license has become irrevocable because P made
improvements while relying on it.
Kitchen v. Kitchen Two brothers owned a farm and the land adjoining it. They
farmed part of D brothers adjoining land and put an irrigation system through it.
P brother bought out the farm and tried to claim an easement by estoppel to
continue farming Ds land and let the irrigation system cross it. Court holds that

oral licenses are not valid because they create an interest in land which, under
the statute of frauds, must be in writing.
Easements by Prescription
Elements:
Actual relaxed requirement (path doesnt have to be exactly the same, just
the same substantial identity, allowed to consider vulnerability to forces of
nature)
Open and Notorious
Exclusive relaxed requirement (can be shared with true owner, just not the
public, unless the public is claiming the easement)
Adverse
Continuous owner has to block successfully, not just try (just has to be as
continuous as a true owner would use it)
Statutory Period
Policy
For easement: over time, sympathy for trespasser increases.
Against easement: unjust taking, costly and ineffective to prevent all trespass,
harsh rule that ineffective attempts to defeat the continuous element work to
establish adversity.
Concerned Citizens of Brunswick County v. Holden Beach Enterprises, Inc. the
public starts using a path to the beach, D buys the property and puts up barriers,
but the public tears them down and continues to use the path. Problem with
actual the path changed due to shifting sands, and the new paved road isnt
exactly the same. Problem with continuous the barriers were there
sometimes.
Easements by Implication
Prior Existing Use
Elements:
Dominant and servient tracts originated from a common grantor
The use was in existence at the time of the severance (quasi-easement)
The use is apparent, continuous, and reasonably necessary for the
enjoyment of the dominant tract
Russakoff v. Scruggs Realty company owned parcel of land with manmade lake, and subdivides the rest to make a neighborhood. D buys the
lake and tries to charge neighbors for use. Court holds there is an
easement because the realty company was the common grantor, at the time
of the severance, the existence of the lake raised property values, it was
apparent to D that the neighbors were using it, the use was continuous
since they bought their homes, and it was reasonably necessary for

enjoyment because they took it into account when they bought their
houses.
Policy:
For easement: want to protect people who are already using it.
Against easement: Discourages alienability, upsets expectations of
servient estate.
Necessity
Elements:
Dominant and servient tracts originated from a common grantor
The use is necessary (not just reasonably necessary)
Use was necessary at the time of severance
Schwab v. Timmons U.S. government owned land, split it up and sold it
off. Ps inherited land and sold off means of access to road. Ps are now
trying to get an easement by necessity. Court says no. There was a
common grantor, and necessity because the parcel is landlocked, but not
necessity at the time of the severance because they could get to a difficult
road before they sold it off.
Policy
For easement: public policy against landlocked parcels because we
want people to have access to roads (land more valuable). Logical
because the original parties probably would have created an easement
if theyd thought about it.
Against easement: People shouldnt convey away their means of
access.

Covenants

Land use restrictions intended to run with the land.

Creation
Elements of a Covenant
1) Intent the original parties intend to bind their successors
2) Touch and concern the promise must actually concern the land, not just the
individuals
3) Privity of estate
a) Horizontal privity A and B have a mutual interest in the same land (not
just neighbors)
b) Vertical privity the successor takes the type of estate of land that the
original landowner owned
c) For a burden to run to a successor, you need horizontal and vertical
privity, but for a benefit to run, all you need is vertical.
Elements of an Equitable Servitude

1) Intent
2) Touch and concern
3) Notice (actual or constructive) knew of the restriction or reasonably should
have known
Implied Covenants
The purchaser has constructive notice of a covenant based on the
common plan of the area
Runyon v. Paley Ps said D couldnt build condos because Ds property was
subject to restrictive covenants, court said P1 could enjoin building but not P2
because P2 did not have vertical privity (no covenant) and there was no intent for
them to get the benefit (no servitude) because P2 bought the land after the
agreement was made.
Policy
Allowing owners to enter agreements to restrict the use of land furthers
interests in contractual freedom.
Covenants grant owners the security of knowing that neighboring uses will be
limited in predictable ways.
Enforcement of covenants restricts the freedom to use land, making it less
adaptable to changes.
If many places have multiple restrictions on use, it may be difficult for
someone looking for property in a particular place to find a bundle that suits
her particular needs.
Termination
Ways to terminate a covenant:
1) The land all comes into common ownership
2) Everyone agrees to release each other
3) Restricted duration expiration of time limit written into the covenant
4) Abandonment widespread noncompliance and no objection
5) Estoppel substantial investments because of reliance on a promise not to
enforce, or if the other person is also breaking the covenant
6) Changed conditions circumstances have changed to the point that there is no
substantial benefit to the dominant estate if the servitude is perpetuated
El Di v. Bethany Beach D restaurant wanted liquor license, but P town filed suit
to enjoin. Court held covenant had terminated because of changed conditions
because Ds patrons had been able to bring in their own alcohol for years and
enforcement would subvert the public interest of regulating consumption.
Policy
Permitting the enforcement of servitudes after they have lost their utility
reduces land values and turns the law into an instrument of extortion.

Condominiums and Private Subdivisions

In a condo, each owner owns his unit in fee simple, but the common areas are owned
by everyone as tenants in common or a Homeowners Association where everyone is
automatically a member.
Covenant is only enforceable if it has intent, touch and concern, notice, AND is
reasonable:
1) Cant be arbitrary
2) Cant be contrary to public policy
3) Cant impose burdens that substantially outweigh the restrictions benefit
Some states allow unreasonable restrictions if they were created by the original
agreement
Nahrstedt v. Lakeside Village P condo owner sued D homeowners association
to keep it from enforcing a restriction against keeping her cats. Court says no
because P must show that the burdens so substantially outweigh the benefits of
the restriction that it should not be enforced against any owner (not case-bycase).
Policy
Have to balance individual rights and group rights.
In practice, condo owners dont read all the rules and it would be a big burden
to make them move.

Relations between Property Owners and the Government

Zoning
The Planning Process
State legislature passes a zoning enabling act authorizes cities to zone and to create
local administrative agencies to administer zoning regulations.
The cities enact zoning ordinances.
Ordinance creates a planning commission.
The planning commission zones the city divides the jurisdiction into zones and
specifies what uses are permitted in each zone. (Typically permits lighter uses in each
area than what it is zoned for). (Quasi-legislative)
The planning commission decides what complies with zoning regulations, and often
has authority to promulgate regulations to fill in the gaps. (Quasi-judicial)
If an applicant is turned down, they can appeal to the Board of Appeals (if there is
one) and then up to the trial court, etc.
Any local acts can be overridden by legislative statute.
Richardson v. Little Rock Planning Commission D wants to build development
but is turned down by the planning commission because of proximity of cul-de-sac
and marginal development potential. Court holds that a planning commission
doesnt have the discretion to arbitrarily turn down plans that meet the minimum

requirements; cant use marginal development potential because its not

authorized by the act.
Policy
For zoning: After development, its hard to get everybody to agree to limit
themselves to certain uses, but its for the general welfare.
Against zoning: restricts peoples property rights.
Nonconforming Uses
Nonconforming uses are uses that are inconsistent with zoning limitations.
Typically grandfathered in.
Must have been lawful and in existence when the new zoning ordinance was passed.
Cannot be extended or intensified in a way that constitutes a substantial change.
1) Does challenged use reflect current purpose?
2) Is challenged use a different manner of original use?
3) Substantially different impact on the neighborhood?
Rays Stateline Market v. Town of Pelham P has nonconforming convenience
store and wants to add a coffee counter and change the sign advertisements.
Court holds that this does not constitute a substantial change its within the
current structure, P is still using the store to sell goods, will not have an
impact on traffic or the neighborhood.
Amortization
Two jurisdictions: amortization is never lawful, and amortization is lawful as
long as its reasonable.
Time limit on the continuation of a nonconforming use.
In many jurisdictions, amortization is lawful as long as the provisions are
reasonable: (Sullivan factors)
1) Nature of present use
2) Length of amortization period
3) Prospective development of vicinity
4) Beneficial effect to community offsets losses of landowner
If theres a transfer of title during the amortization period, the clock keeps
running.
PA Northwestern v. Moon Township P opens adult bookstore, town enacts
zoning ordinance that prohibits it, and gives them 90-day amortization period.
Court holds that any amortization is an unconstitutional taking of property. A
lawful nonconforming use establishes a vested property right that can only be
destroyed if it is abandoned, a nuisance, or extinguished by eminent domain.
Policy
For amortization: not allowing it locks in communities with nonconforming
uses that are against their general welfare.

Against amortization: could deter investment and economic development,

unfair because people are entitled to the fruits of their labor, hurts property
rights.
Ironies: punishes people who dont develop their land; nonconforming uses
become monopolies, so have a large incentive to stay put and we dont trend
toward conformity.

Variances
Permissions to depart from the zoning law when application of the ordinance to a
particular parcel would:
1) Impose an unnecessary hardship,
2) The proposed use would not be contrary to the public interest, and
3) The proposed use would not substantially impair the purpose of the zoning plan
and ordinance.
Generally granted to relax lot and building restrictions, but not use restrictions.
Variances are routinely granted even absent a showing of hardship if its not a
dramatic change and no one objects.
Hardship
A variance will not be granted where hardship is self-imposed.
Hardship doesnt literally mean hardship, just the inability to do what you
want with your lot.
No hardship unless there is no economically viable use of the property, or no
reasonable return on the owners investment.
Many states require that the property be different in some unique way from
the surrounding property, and that this deviation be the cause of the hardship.
Some states allow a showing of practical difficulties owner must prove
significant economic injury from enforcement of the zoning ordinance.
Lang v. Zoning Board of Adjustment D wants to build backyard swimming pool
and his neighbor doesnt want him to. Pool does not conform to requirements
because of exceptional narrowness of his lot. D does not have to prove personal
hardship or that the property would be zoned into inutility just needs to prove
that the unique condition of the property is the primary reason for nonconformity.
Courts will defer to local zoning boards decisions only set aside when theyre
arbitrary, capricious, or unreasonable.
Policy
For variance: Gives flexibility; cant predict the best outcomes in all
situations, so need some discretion; standards are more fair.
Against variance: Rules are better because theyre clear classifications; easy to
predict and conform conduct; standards give too much discretion to decisionmakers who may not apply them fairly or correctly.
Aesthetics

A building permit may be denied on aesthetic grounds if the building:

1) Would be detrimental to neighboring property values
2) Is not in conformity with the character of the community
3) Does not serve the general welfare purpose of the ordinance
The decision cannot be arbitrary (unguided by the ordinance) or unreasonable
Stoyanoff v. Berkeley Ps want to build an ultramodern pyramid home, and the
city of Ladue wont let them. Ps challenge ordinance as exceeding the power
granted by the zoning enabling act and being unconstitutional. Court holds that
the zoning board is allowed to make regulations for the general welfare, and
this counts because of the issue of property values.
Policy
For aesthetic zoning: Its not arbitrary because there is a process where
everyone has input; preserves the value of other peoples homes.
Against aesthetic zoning: Reduces innovation and treads on property rights.

Household Composition
Restrictions regarding the maximum number of occupants permitted to occupy a
dwelling are exempt from the Fair Housing Act.
Towns dont have to provide reasonable accommodation for the handicapped when
the rule is about the maximum number of occupants and is designed to prevent
overcrowding.
Towns do have to provide reasonable accommodation when the rule is designed to
preserve the family character of the neighborhood.
Edmonds v. Oxford House Town passes single family ordinance that limits
maximum number of people permitted to occupy a dwelling to five, but only if
theyre not related. Ps run group home for recovering drug addicts and
alcoholics (handicapped), so they want reasonable accommodation. Court
holds town has to give it.
Policy
When text of a statute is ambiguous, look for precedent, and then look at the
legislative history.
Look at the purpose of enacting the statute.
Majority exemption should be construed narrowly because the purpose of
the statute was to assure fair housing and prevent discrimination.
Dissent exemption should be construed broadly because the policy of the
FHA is to provide for fair housing while simultaneously allowing towns to
zone.
Exclusionary Zoning

Zoning has to be for the general welfare, which cannot be limited to current or
future residents of the town (has to be for the general welfare of the residents of the
state because zoning is a police power of the state)
Applies to developing municipalities.
Towns (at least developing ones) must affirmatively act to provide low income
housing.
NAACP v. Mount Laurel Town zoned land so that it was full of large lots,
commercial use, and no multifamily housing (apartments), which had the effect of
excluding low and moderate income families. Court says the town cant have
these zoning ordinances, and later says the town must provide low income
housing.
Policy
If all towns zoned like this, low income people would have no place to live.
Keeping taxes low is for the benefit of the residents of the town.
Saving on property taxes is not a good enough reason because government has
a higher obligation than just making money.
Problem with complying with the new rule because theres no incentive for
developers to build when they cant make much money, and they make a lot
less building lower income housing.

The Takings Clause

The government may only take private property if it is for a public use, and they give just
compensation.
Process the government condemns the land and brings a lawsuit against the landowner to
force a sale.
Policy:
1) If the government had to negotiate with each owner, it would be extremely timeconsuming and expensive because every owner would have the incentive to hold out.
2) If we required public ownership, how long would the government have to possess it
before selling?
3) If we required actual public use, would it have to be free?
Personal property no regulatory per se takings, analyze under Penn Central.
Public Use Requirement
If it is not for public use, the government may not take it at all.
If the taking would arguably promote the general welfare, it satisfies the public use
requirement deference to the government to decide what is public use.
A taking must be rationally related to some conceivable public purpose.
Berman v. Parker government took property in a blighted area and resold it to
developers who would develop it consistent with the governments plan. Court

said it was legitimate because a taking is for public use if it effectuates a

legitimate public purpose.
Hawaii Housing Authority v. Midkiff government authorized existing tenants to
purchase their property from the landlords because it was concentrated in a few
hands. Court said it was legitimate because the public purpose of creating a
better-functioning real estate market promotes the general welfare.
Poletown Neighborhood Council v. City of Detroit government took homes in
order to construct a Cadillac plant for GM. Court said the retention or creation
of jobs and/or economic development constitutes a legitimate public purpose
even if the property is transferred from one private owner to another.
Kelo v. City of New London government took Ps house for economic
development, but the land was not blighted. Court said economic development
was a legitimate public use.
Policy
There is nothing to stop the government from making one private owner
transfer land to another private owner as long as the second owner would use
the land in a way that was more beneficial to the public.
A bright line rule that a taking for economic development alone is not a public
purpose would favor the middle class over the poor because the poor live in
blighted areas and would be more likely to have their land taken.
Regulatory Takings
A governmental regulation affects the value of property, and the landowner brings an
inverse condemnation suit to force the payment of just compensation.
Balancing test factors:
1) The extent of the economic impact reduction in value and/or interference with
investment-backed expectations.
a) Denominator problem look at impact on owners current, whole property
2) Character of the governmental action
a) Not arbitrary rational or comprehensive plan
b) Necessary to accomplish governments goal
c) More vs. less intrusive
3) The extent to which the regulation singles out a few property owners rather than
burdening many people (but if P is disproportionately burdened, but P and
everyone else also benefit, there may be average reciprocity of advantage)
Penn Central v. New York government regulation did not allow changes to
historical landmarks, and Grand Central Station wanted to build a skyscraper on
top of the station. Court says P is not owed just compensation because their
original investment-backed expectation was to have a railroad station, and P is
not singled out because there are lots of landmarks, and average reciprocity of
advantage because P is benefitted by the landmarks too.

Policy
Property cannot be broken up into discrete segments, because then any of
them could be said to have been taken with a 100% wipeout.
Physical Takings
A permanent government-authorized physical occupation of any amount of a persons
property.
A physical taking is a per se taking automatically entitled to just compensation,
regardless of the public interest that it might serve.
Exceptions:
1) The Fair Housing act requires landlords to rent property against their will if the
landlord had refused to deal with a potential tenant because of his race.
2) Heart of Atlanta Motel v. U.S. rejected motels argument that the government
took its property rights by requiring it to rent rooms against its will to AfricanAmericans.
3) PruneYard Shopping Center v. Robins California Supreme Court interpreted
state constitution to require private shopping centers to allow people to circulate
petitions on their property because of free speech and it was a temporary physical
invasion that didnt interfere with the use of their land.
4) Block v. Hirsch Anti-eviction laws where landlord cant evict as long as tenant
pays mandated rent and landlord does not want the property for occupation by
himself or his spouse or children are not physical takings.
5) Yee v. City of Escondido court upheld rent control law that prohibited eviction
unless landlord wished to convert property to nonrental use.
Loretto v. Teleprompter Manhattan CATV NY law provides that a landlord must
permit a cable television company to install its cable facilities upon his property,
and P wants just compensation. Court says any physical taking is a per se taking.
Kaiser Aetna property owner invested in dredging a pond and building it into a
marina community. Court held marina could not be compelled to allow free
public access.
Policy
Permanent physical invasions are the most intrusive.
Right to exclude (especially strangers) is traditionally one of the most
important in the bundle.
Permanent is hard to define does it just mean without a foreseeable end?
Wipeouts
A per se taking occurs when there is (two ways to read) a 100% diminution in value
or deprivation of all economically viable use of an owners property.
95% diminution is not enough.
Exception if the property use was already illegal under nuisance law.

Lucas v. South Carolina Coastal Council P bought beachfront property,

planning to build houses, but government enacted law that disallowed building on
the beach because of erosion. Court held that lots now had no economically
viable use and P deserved just compensation.
Denominator Problem
When asking whether its a 100% wipeout, what is the denominator?
Palm Beach Isles Associates v. U.S. the proper denominator is the tract
of land the owner currently holds, not the original purchase.
Purchase after Regulatory Laws are in Effect
Some cases hold that deprivation of all economically viable use is not a per se
taking if the regulation was in effect before purchase, but other cases hold the
opposite.
Good v. U.S. Lucas did not dispense with the requirement that the owner
have reasonable investment-backed expectations, and an owner who
purchases after the regulation is in effect cannot reasonably expect to
develop it in violation of the law.
Palazzolo v. State ex rel. Tavares deprivation of all economically viable
use should not be allowed even if an owner bought the property after
enactment of the regulation unless it fits within the nuisance exception.
Law is not assumed valid when it would deprive property of so much of its
value as to be unconstitutional.
Hunziker v. State P prevented from building when excavators discovered
Indian burial ground. Court held Lucas rule did not apply because the
restriction on developing property where human beings are buried was
part of the law at the time the owner purchased the land and thus
inhered in the title.
Andrus v. Allard government banned sale of eagle feathers, but court
held not a taking because it is personal property and part of their value
comes from possession, which was still allowed.
Policy
Total deprivation of beneficial use is, from the landowners point of view, the
equivalent of physical appropriation.
May freeze nuisance law because nuisance is supposed to be a use of land that
is unreasonable considering all the circumstances, and new considerations
become important over the years.
Temporary Restrictions

If a temporary restriction constitutes a taking, the government has to give just

compensation, but temporary restrictions are not always takings.
First English Evangelical Lutheran Church v. Los Angeles if the government
physically takes property for a limited time, they have to compensate for that
period of time. If a regulation creates a taking, government has to compensate
for the period of time it was taken even if its later repealed.
Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency P
landowners challenged moratorium on building while government was coming up
with a comprehensive land-use plan. Court held that duration of the restriction is
part of the Penn Central factors, different from Lucas because they still have an
economically viable use of building after the ban ends.
Policy
The ordinary process of government takes time, and we shouldnt have to
compensate for short temporary restrictions (like not building until you get a
permit).
Dissent: we wouldnt have to compensate for ordinary delays because theyre
inherent in the land itself but hard to draw a line.
What constitutes permanent? (Lucas ban lasted two years, and Tahoe ban
lasted a lot longer)

Just Compensation
Measured by what the property owner loses, not what the government gains.
If there is no net loss to the owner, just compensation = 0.
Phillips v. Washington Legal Foundation interest is the private property of the
owner of the principal.
Brown v. Legal Foundation of Washington IOLTA programs generated interest
on money that would otherwise not have been able to generate interest. Court
held it was a per se physical taking because of Phillips, but that just
compensation was 0 because Ps net loss was 0 since they wouldnt have been
able to make any interest without the government program.
Policy
Should be measured by the market value of the property.
The government shouldnt be allowed to take all property that wouldnt exist
but-for a government program (like welfare benefits).
The majority says that the government cannot take property that the owner has
a reasonable expectation of keeping.
Should not be measure by subjective value people may subjectively value
their land to an extreme degree.