Unit 1: What is Property, and why protect it?

I.

II.
III.

Why recognize Property

a. 5 Reasons to Protect Property
i. First Possession First come first serve
ii. Encourage Labor
1. Encouraging development
2. People are more likely to put productive work into
something they get to own
iii. Economic Prosperity
1. Chance at wealth via landownership
2. Benefits all of society because the work is paid for and
wealth is shared
iv. Independence/Democracy
1. Owning property gives you a stake in society
2. The more you have at stake the more you care
3. Provides economic security necessary for individual to
make political decisions that serve the common good
v. Personal Identity
1. Sense of identity
2. Becomes an extention of oneself
3. Personally may value something higher than market value
b. Capture of new property
i. Pierson v. Post
c. Property as theft
d. Creation of new property
i. White v. Samsung
Property to a lawyer is not a thing, but a set of rights protected by the
state
Property as a bundle of rights
a. The right to transfer
i. Johnson v. McIntosh
ii. Moore v. Regents of the University of CA
b. The right to exclude
i. The most fundamental of bundle of rights
ii. Trespass
1. Privledges: Consent and emergency
2. Strict liability tort
3. Not a defense to say you didnt do any damage
iii. Jacque v. Steenberg Homes, Inc.
iv. Hinman v. Pacific Air Transport
v. State v. Shack
c. The right to use
i. Private nuisance: one neighbor suing another, claiming that
neighbors use of land is interfering with their use
ii. Spite fences owners right to use land does not extend to
building a useless structure for the sole purpose of injuring
neighbor
iii. Sundower, Inc. v. King
iv. Prah v. Maretti

d. The right to destroy

i. The law rarely intervenes to protect destruction, but concern
arises when an owner seeks to destroy property that has
substantial value to society
ii. Eyerman v. Merccantile Trust Co.
e. NOTES:
i. Can be split and assigned to different people
ii. Rights change over time
iii. None of the rights are absolute
iv. A home is the height of property rights, absent owners have
fewer rights
Unit 2: Acquiring Real Property
I.

Adverse Possession
a. Justifications:
i. Preventing frivolous claims
ii. Correcting title defects protects from defects that could take
land from the people who are using it, and have been using it
iii. Encouraging development encourages owner to use land or let
it be possessed
iv. Protecting personhood what you have used for a long time
should be yours
b. Elements of Adverse Possession
i. Actual Possession must physically use the land in the
same manner the owner would given its character,
location, and nature.
1. Constructive Possession having the power and
intention to have and control property but without
direct control or actual presence upon it. (When is
this useful or important?)
ii. Exclusive Possession possession cannot be shared with
owner or general public
1. Sometimes allows for occasional and casual use by
third party
iii. Open and Notorious Possession possession must be
visible and obvious that a reasonable owner would notice
it
1. It may be relevant how much of the land the
adverse possessor is using
iv. adverse and hostile Possession cannot be authorized
by owner to use the land
1. Most contested requirement
2. Some states require claim of right
3. Sometimes bad faith is required, sometimes
good faith
v. Continuous Possession (for the statutory period) must
be as continuous as a reasonable owners would be for
the period of time specified by state statute

vi.
vii.
viii.
ix.

II.

Gurwit v. Kannatzer
Van Valkenburgh v. Lutz
Land must only be used as a reasonable owner would use it.
Quiet Title an action to settle a potential dispute over the
ownership of property
1. 3 elements, depending on the state: Petitioner must
show
a. An interest in specific property
b. That title to the property is affected by a claim by
the defendant, and
c. That the claim, although facially valid, is invalid or
unenforceable
2. If claim relies on adverse possession, claimant must show
all the elements are met
c. State of Mind
i. Bad faith required (tiny minority of jurisdictions take this
approach) encourages productive use of land, makes adverse
possession rare. Might encourage land pirates, makes
adverse possession useless for curing title defects, etc
ii. Good faith required must mistakenly believe the land is yours
iii. Irrelevant (majority position) here , adverse and hostile just
means you cannot have the owners permission
1. Article suggest that judges actually do look at state of
mind even when they say they dont they do this by
manipulating the other requirements to be more strict so
that they can or cannot give you the land based on their
opinions of your faith in regards to the land.
iv. Policy issues:
1. Intent is hard to read
2. Bad faith doesnt serve any purposes of adverse
possession
a. Limits adverse possessions ability to clear up title
defects, prevent frivolous litigation, or protect
personhodd
3. Intent has to be argued from years ago
v. Fulkerson v. Van Buren
vi. Tioga Coal Co. v. Supermarkets General Corp
d. Mechanics
i. Tacking adding more adverse passion claims to each other to
reach the statute. Requires privity a relationship between the
2 possessors. First person must in some way transfer their
possession
1. All adverse possession requirements must be met for the
entire period of the statute
ii. Howard v. Kunto
Real Estate Sales
a. Steps

i. Purchase contract: the paties negotiate and sign a written

purchase contract, prepare to consummate the transaction
ii. Executory period: the time between purchase contract, and
before closing (reason for this is to give incentive to both parties
to incur the necessary costs for closing with promise from
otherside)
1. Sellers title is examined
2. Condition of the property is evaluated
3. The buyer obtains financing (from bank or other lender)
4. An escrow is opened to consummate transaction
5. Documents are prepared
a. Deed
b. Mortgage
c. Promissory Note
d. Escrow Instructions
iii. Closing: the contract is fully performed
1. Buyer pays the purchase price
2. Lender advances the loan funds, and
3. Seller transfers title
iv. Title protection: the buyer protects her title through title
covenant, a title opinion from search of public land records,
and/or title insurance
b. Statute of Frauds
i. For sale of real property, contract must meet requirements
1. Essential terms: parties, price, and property description
must be in writing
2. Writing: formal or informal
3. Signature: must be signed by the party sought to be
bound
ii. 2 exceptions to Statute of Frauds
1. Part Performance some combination of the following
(depending on jurisdiction)
a. Possession
b. Pay part of purchase price
c. Make improvements
2. Equitable Estoppel
a. One party acts to his detriment in reasonable
reliance on anothers oral promise
b. Serious injury would result if enforcement is refused
iii. Hickey v. Green
c. Marketable title
i. Implied default term in every real estate purchase contract that
the title is marketable
1. Can contract around default by giving record of easement
or other encumbrance on deed (this is because otherwise
some titles would never be marketable)
ii. Unmarketable title, if:
1. Sellers property interest is less than the one she purports
to sell

a. Could mean less land or

b. Less title (seller purports fee simple, but only owns
life estate)
2. Sellers title is subject to an encumbrance
a. Generally referring to private encumbrances
(easements, restrictive covenants, things usually
recorded on the deed of the property)
b. Public encumbrances are not considered (like land
use regulations, zoning laws, etc
c. Should be known through proper record search
d. Violation of zoning laws
i. Not violation of housing code (simply a
defect)
3. There is reasonable doubt about #s 1 or 2
iii. Promise is that seller will deliver marketable title at closing
1. If discovered before closing, seller has until closing to fix it
2. If discovered shortly before closing seller has reasonable
amount of time to remedy
a. Unless contract says time is of the essence
3. Buyer can rescind if not remedied
iv. Lohmeyer v. Bower
d. Equitable Conversion (Contract around this!)
i. 3 approaches
1. Seller bares risk during executory period
2. Buyer bares risk during executory period
3. Party entitled to possession bares risk during executory
period
ii. Brush Grocery Kart, Inc v. Sure Fine Market, Inc
e. Remedies for Breach
i. Giannini v. First Natl Bank of Des Plaines
f. Duty to disclose
i. Caveat emptor (buyer beware)
1. Older doctrine that buyers were responsible for knowing
what they were buying, not used very often anymore
ii. If duty is applicable, generally:
1. Owner knows about defect that
2. Materially affects property value and
3. Was not known to or readily discoverable by the buyer
4. There is a fiduciary duty to disclose
iii. Rescission is allowed if seller did not disclose something in this
area
iv. Stambovsky v. Ackley
v. Strawn v. Canuso
g. The Deed
i. Types of deeds
1. General warranty deed: grantor warrants title against all
defects, whether they arose before or after he obtained
title
a. Seller assumes risk

2. Special Warranty Deed: grantor warrants title against all

defects that arose after he obtained the title
a. Risk is split
3. Statutory Warranty the state decides
4. Quitclaim deed: grantor makes no warranties about title,
grantee receives only was the grantor has, if anything
a. Cant sure for bad title (except if by fraud)
b. Buyer assumes risk
ii. Doctrine of Merger: sale contract merges into the deed at
closing
1. Cannot sue on sale contract after closing
2. Doesnt apply to all covenants in sale contract (eg
covenant to improve or repair land or take over mortgage
3. Covenant to provide marketable title always merges (this
is the core of merger doctrine)
a. Cannot be sued after closing for bad title
b. Seller promised to give certain title in sale contract,
but buyer accepted different kind of title at closing,
i. Buyer implicitly agreed that title provided
satisfied real estate sale contract
iii. Conveying the deed
1. Finalizes the transfer of property
2. Considered Delivered only when
a. Intent to convey property
b. No ability to rescind
c. present intent to transfer real estate
3. Rosengrant v. Rosengrant
4. Vasquez v. Vasquez
h. Mortgages
i. Special kind of loan that allows the bank to recover house if you
dont pay, and prevents the house from being calculated as part
of your estate if you declare bankruptcy
ii. Foreclosure kind of foreclosure required depends on state
1. Judicial Forclosure: Mortgage lacks the power of sale
clause
a. Lender must take the defaulting borrower to court
b. If the court confirms that the debt is in default, an
auction is held for the sale of the property in order
to acquire funds to repay the lender
2. Nonjudicial foreclosure: Mortgage contains the power of
sale clause
a. Debtor is given a notice of default and informed of
intent to sell the real property (done in form
prescribed by state statute)
iii. Lenders prefer non-judicial foreclosure because it is quicker and
less expensive
iv. Borrowers consent to non-judicial because overall it lowers their
costs and interest rates because banks have to pay less for nonjudicial so they can provide lower interest rate

i.

j.

v. Wansley v. First Natl Bank of Vickburg

vi. Commonwealth v. Fremont Investment & Loan
Title Covenants extra assurity that title is good
i. Present covenants: Breached, if at all, at the moment the deed is
delivered (closing)
1. Covenant of seisin: a promise that the grantor owns the
estate he purports to convey
a. This covenant is breached if the grantor purports to
convey a fee simple but only owns a life estate
2. Covenant of right to convey: a promise that the grantor
has the right to convey title
a. This covenant is breached if the grantor is a trustee
who lacks the authority to transfer title to the trust
property
3. Covenant against encumbrances: a promise that there are
no encumbrances on the title, other than those expressly
listed in the deed
a. This covenant is breached if there is a prior
mortgage on the property
ii. Future covenants: Breached when the future covenant is
violated
1. Covenant of warranty: a promise that the grantor will
defend the grantee against any claim of superior title
a. If a third party holds better title than the grantee
does, the grantor must defend the grantees title
b. If you get involved in litigation and seller gave
general warranty deed, then seller must pay
litigation costs to fight in court (same with
covenant of further assurances)
2. Covenant of quiet enjoyment: a promise that the
grantees possession of the property will not be disturbed
by anyone holding superior title
a. Covenant is breached if the grantee is evicted
because of a defect in her title
3. Covenant of further assurances (practically never used
anymore): a promise that the grantor will take all future
steps reasonably necessary to cure title defects that
existed at closing
iii. Brown v. Lober
Searching Title
i. Grantor-grantee index: organizes by the names of the parties to
the transaction
1. Normal title search: Search backward in the chain of title
by grantor until that grantor is the grantee, repeat until
you reach the required statutory period (30 or 40 years)
2. Extended title search: Find every grantor in your chain,
and you examine every deed where they were the grantor
ii. Tract index: organizes by the parcel involved
1. Much easier!
iii. Luthi v. Evans

k. Recording Acts
i. Race
1. First in time is right (whoever records first)
ii. Notice
1. Subsequent bona fide purchaser wins
2. Encourages recording
iii. Race-Notice
1. Subsequent bona fide purchaser who records first wins
iv. Shelter Rule: Bona fide purchaser is allowed to transfer his
protection to a later grantee, even if grantee knows of earlier
conveyance (so bona fide can sell to non bona fide and that non
bona fide is sill protected
v. Zimmer rule (stupid, according to Hurst) subsequent buyers
recording cannot be valud unless previous recording is valud
1. Would result in nonconstructive notice, called wild deed
vi. Messersmith v. Smith
l. Chain of Title
i. Problems
1. Deed too early interest is recorded by buyer before
seller. A-B, B doesnt record, B->C, C records then B
records
2. Deed too late Interest is recorded by seller after buyer.
A-B, B doesnt record, B->C, C records then B records
3. Wild Deed deed that cant be found, but is validly
recorded. Usually previous deed was not recorded. A ->
B, B doesnt record, B -> C, C records, Cs deed is wild
4. Deed from a common grantor same grantor divided land
but only recorded under one title the easement, it is not
visible now on the other titles title search
5. Effect is making it so someone cannot find the document,
so it does not give notice and does not count as recording
first
ii. Board of Education of Minneapolis v. Hughes
m. Notice
i. Actual Notice: knowledge of a prior interest
ii. Constructive Notice:
1. Record notice: notice of prior interest would be discovered
by a standard search of public land records
2. Inquiry Notice: notice of prior interest would be
discovered by investigating suspicious circumstances
a. Not that you did know, but that you should have
known
iii. A deed being valud, and being effectively recorded are two
different things
iv. Deed must have enough detail to create effective (constructive)
notice
1. Mother Hubbard clause (an all my other property in this
county) not specific enough to provide constructive
notice

v. Raub v. General Income Sponsers of Iowa, Inc

n. Title Insurance
i. Creature of contract law, not property law
ii. Covers different things than deed covenants
1. May not cover seisin or other things like that
iii. Terminology:
1. Exclusions: listing specific items that are excluded from
coverage for all properties
2. Conditions: specifying procedural requirements, such as
the time and matter for making claims
iv. Basics:
1. If the buyer suffers loss from a title defect that existed on
the effective date of the policy, he receives compensation
from the title company
2. Covers certain off-record defects (forged deed in the chain
of title)
v. Title assurances
1. 3 ways to be sure your title is good
a. Title covenants
b. Title Opinion based on search of public records
c. Title Insurance
vi. Riordan v. Lawers title Insurance Corp
o. The purpose of real estate records
Unit 3: Dividing Ownership of Real Property
I.

II.

Dividing Ownership in time: The freehold estates and Future Interests

a. The fee simple (you own it all forever)
i. Alienable, divisible, descendible
ii. Most valuable and marketable
iii. Duration is potentially infinite
iv. Previously required words of limitation and his heirs
v. Cole v. Steinlauf
Freehold estates and future Interests
a. Life Estate
i. Measured by the lifetime of a particular person, when that
person dies the estate ends
ii. Followed by either
1. Remainder (in third party); or
2. Reversion (in grantor)
iii. Waste doctrine
1. Permissive waste failure to upkeep
2. Voluntary waste intentionally causing damage
3. Ameliorative waste Even good changes are waste (not
the law in most places)
4. Courts only care about economic issues when it comes to
waste doctrine.
b. Fee Tail interest is only possessory during life
i. Creatd by a conveyance named to a person and the heirs of
her body

ii. O conveys to B in fee tail. O retains a reversion, which becomes

possessory if Bs line of lineal descendants expires
iii. White v. Brown
iv. Woodrick v. Wood
c. Fee Simple Determinable
i. Fee simple defeasible continues until some future occurrence
1. Transfers back to owner automatically
2. Measure of time
ii. Fee simple subject to condition subsequent continues until
some future occurrence
1. Transfers back ONLY if transferor claims it
2. Conditional
iii. Fee simple subject to executory limitations ownerships
transfers to a third party if future even occurs
1. Transfer is automatic
iv. All property must add up to a fee simple
v. Mahrenholz v. County Board of School Trustees of Lawrence
county
vi. Metropolitan Park District v. Unknown Heirs of Rigney
d. Future Interests (an interest that may become possessory in the future)
i. Retained by transferor
1. Reversion (anything left over)
2. Possiblity of reverter (FSD)
3. Right of entry (Follows FSStaCS)
ii. Created in transferee
1. Remainder happens immediately on conclusion of the
others estate, does not divest
a. Indefeasibly vested remainder
i. Created in an ascertainable person; and
ii. Not subject to a condition precedent
b. Vested remainder subject to divestment no
condition has to be satisfied before it becomes
possessory but there is some condition under which
it might be taken away before it becomes
possessory
c. Vested remainder subject to open property
conveyed to a class that is still open, people may
still be added
d. Contingent remainder not vested, either held by
non-ascertainable people, or a condition that must
be satisfied
2. Executory interest divests someone elses interest in the
land
a. Usually to a third party; or
b. to A 15 years from now
c. Automatically transfers when the condition is
satisfied
e. Rules furthering marketablility
i. The Rule in Shellys Case

III.

ii. The doctrine of worthier title

iii. The doctrine of destructibility of contingent remainders
f. The rule against perpetuities no interest is good unless it must vest,
if at all, no later than 21 years after some life in being at the creation
of the interest.
i. is good is valid and has been conveyed
1. If it violates the RAP, then it is never good.
ii. vest when it becomes certain that it will become possessory
1. Ascertainable person
2. No conditions present
3. Does not necessarily mean becomes possessory
iii. life in being anyone identifiable at the time of conveyance
(or death if in the will) named or described in the will
1. Not a corporation
iv. ROP applies to:
1. Vested remainder subject to open (classes/groups of
people)
2. Contingent remainder
3. Executory interests
v. Does not apply to any interest retained by grantor
vi. Is there anyway that in 21 years it could still be uncertain? Then
it would be void
1. Must either VEST or permanently FAIL to vest
vii. Algorithm
1. Identify interests subject to RAP
a. Vested remainder subject to open
b. Contingent remainder
c. Executory Interests
2. List lives in being
3. Look for relevant children
4. Kill everyone in step #2
5. Add 21 years
6. Is there any logical way interest could vest after this
point?
viii. Time language = conveyor has right to re-entry
ix. Conditional Language = Fee Simple Subject to an Executory
Limitation/Fee Simple Absolute
x. Modern reforms on RAP
1. Wait and see approach wait 21 years from the life in
being and see if it has vested or forever failed to vest yet.
(in exam use classic approach!)
2. Cy prey as near as near as possible, instead of wiping
out hirer interest, court will rewrite to give closest effect
as possible as conveyor intended.
3. Uniform Statutory Rule Against Perpetuities: valid if it
either satisfies traditional RAP or if it vests or not within
90 years
xi. Jee v. Audley
Concurrent ownership and marital property

a. Concurrent ownership generally

i. Tenancy in common (to A and B as tenants in common)
multiple people own the same property and they all have all the
rights associated with it.
ii. Joint tenancy (to A and B as joint tenants with right of
survivorship) same as in common, but includes right of
survivorship
1. 4 unities must all be met for joint tenancy, breaking one
severs the entire agreement
a. Time each party must receive deed at the same
time
b. Title each party must acquire title by the same
instrument (the same deed says goes to A, B and
C)
c. Interest each party must have same shares in the
estate, A cannot receive 1/3 while B receives 2/3
d. Possession each party must have equal rights to
possess, use, and enjoy entire property
2. Right of survivorship, the rights of whoever dies first go to
whoever is still living
iii. Tenancy by entirety (to A and B as husband and wife as tenants
by the entirety) same as joint but includes idea that no one
can sell their ownership without the permission of others
(including to creditors, creditors cannot come after a property on
behalf of one person when it is owned in entirety)
1. Can only occur between married couples.
2. Can only be ended by death, divorce, or agreement by
both spouses
3. Includes right of survivorship
iv. These are not customizable, court will not look at intent of
parties but instead place it in one of the 3 categories.
1. Default is tenancy in common
v. In all categories, everyone with any ownership has complete
rights to the whole land
vi. James v. Taylor
vii. Tenhet v. Boswell
b. Dispute settlement for concurrent ownership
i. Partition
1. Partition in kind the land is physically divided up (this is
default option see Ark Land co. v. Caudill)
2. Partition in sale the land is sold and the value is divided
pro rata
a. For this to happen
i. Partition in kind must not be conveniently
possible
ii. At least one person must be better off
iii. No persons can be worse off
iv. Economic interests are not everything

IV.

ii. Action in waste suit can be brought to prevent waste by one

party, recall waste doctrine
iii. Ouster one tenant being ousted and unable to use the
property, has the right to sue (results in the payment of rent).
iv. NOT resolved by voting between owners
v. Contract can be used to make agreements on how the land will
be used, including adding the right to vote over use.
c. Rights and duties of cotenants
i. Ark Land Co. v. Harper
ii. Esteves v. Esteves
d. Marital Property Generally
i. Tenancy by the entirety (see above)
ii. Common law: woman lost the ability to own, manage, and
dispose of her property upon marriage.
iii. Separate property:
1. During marriage: Property is separately owned by the
spouse who acquires it
a. Individual owns earning during marriage and all
property purchase from those earnings
2. Divorce: Most separate property state require equitable
distribution of the property owned by each spouse
3. Death: Most states offer the surviving spouse a forced
share (or elective share) of the decedents estate
a. Choice: (1) take under will or (2) receive defined
portion of estate (usually 1/2 or 1/3)
iv. Community property
1. During marriage: All earnings and all assets acquired by
those earning are owned by both spouses equally
a. No right of survivorship
2. Divorce: All community property is divided between the
spouses
3. Death: The decedent may devise her half of the
community property and all her separate property as she
devises, other half of community property belongs to
surviving spouse
v. Sawada v. Endo
e. Defining marital Property
i. Guy v. Guy
Landlord-Tenant Law
a. Nonfreehold estates
i. 4 kinds
1. Term of years or weeks or months, specififed amount of
time
2. Period tenancy 3. Tenancy at will as long as you want
4. Tenancy at sufferance overstaying your lease (mostly
done away with)
ii. Kajo Church Square, Inc. v. Walker
b. Leasehold Estates
1. Term Lease

a. A lease with a fixed duration

b. Terminate automatically and without notice
c. Restrictions:
i. Statute of Frauds applies to all land
purchases
ii. 99 year limit on lease term (avoids the dead
hand problem)
2. Periodic Tenancy
a. Renews itself at the end of the period established
by the lease
b. Bound again if not terminated
i. Year to year requires six month notice; when
shorter than a year, the notice corresponds
to the period of tenancy
3. Tenancy at Will
a. No fixed duration nor periodicity
b. Can be terminated at any time by landlord or
tenant w/out prior notice to the other
c. Upheld when it is uncertain what a lease is or what
it says
4. Tenancy at Sufferance
a. A tenant wrongfully continues in possession of the
property after his right to be there has ended
b. Landlord has the choice to treat the holdover
tenant as a trespasser and sue to evict OR as a
tenant at sufferance who is responsible for paying
rent
5. **Just because the tenant is not paying rent, doesnt
mean that the landlord can evict the tenant the landlord
has to take the issue to court
c. Assignments and sublease: Basics
i. Privity of contract you can sue based on anything in the
contract
ii. Privity of estate fewer duties, can sue based on anything in the
contract that touches or concerns the property
iii. Sublease (line)
1. L and T are in privity of contract, L can sue T and T can
sue L
2. T and S are in privity of contract, S can sue T and T can
sue S
3. L and S have no contract, and cannot see each other in
court
4. Tenant retains a right to re-enter premises
iv. Assignment (triangle)
1. L and T are in privity of contract, they can sue each other
2. T and A are in privity of contract, they can sue each other
3. L and A are in privity of estate, they can sue each other
4. Tenants entire interest is transferred
v. Just using the language tenant or assignment is not enough,
wording doesnt matter, arrangement of the contract does

vi. Saying Tenant is still on the hook for rent does not mean it
isnt an assignment
vii. Consent clauses
1. Common law default is that T can alienate their ownership
unless contract says otherwise
2. Sole discretion clause LL may refuse sublease for any
reason
3. Reasonable Clause LL may only refuse for commercially
reasonable reasons
a. New tenant has bad credit
b. History of destroying property
c. etc
4. No standard in lease silent consent clause court will
decide if there is a dispute, court usually favors free
alienability, so you better have a good reason to refuse
a. Dont use this. Make a decision and make it clear.
b. None commercially reasonable reasons
i. Moral objections (religious university ended
up a leasor to Planned Parenthood)
ii. Higher rent extortion
viii. Ernst v. Conditt
ix. Kendall v. Ernest Pestana, Inc
d. Abandonment occurs when tenant vacates the leased property w/o
justification and without any present intention of returning and he
defaults in the payment of the rent
i. Landlord remedies
1. Sue for all rent
2. Terminate the lease: treat as implied offer of surrender
and terminate
3. Mitigate damages and sue for rent (generally now
required)
e. Security Deposits
i. Sinner v. Kridel
f. Eviction
i. Generally if the landlord has a right to the property, he can
evict. Exceptions are retaliatory evictions and self-help evictions
ii. Retaliatory eviction
1. Goal is to protect people who are claiming other rights
designed to protect them
a. Health code violation
b. Etc
2. Proving retaliatory, tenant must have evidence of
retaliation
a. Did you join a home owners association or report
to a public official?
b. Did you treat them the same as other tenants in
the same scenario
iii. Good cause eviction (certain states)
1. Can only evict for one of the statutory reasons

2. Policy arguments, favor tenants personhood interest

over landlords monetary interest.
iv. Hillview Associates v. Bloomquist
v. Aimco Properties, LLC v. Dziewisz
vi. Berg v. Wiley
g. Substandard housing
i. The Fair Housing Act
1. Cant refuse rent or sale because of race, color, religion,
sex, handicap, familial status, or national origin
h. Constructive eviction
i. Tenant can leave if LL corrupts their right to quiet enjoyment,
and stop paying rent
ii. Remedy is inflexible
1. Rescission and damages
2. No way to stay and force performance
iii. Not common for residential properties
1. Tenant has to abandon and residential tenants often dont
have the means for that
2. IWH is easier to claim
iv. Fidelity Mutual Life Insurance Co. v. Kaminsky
v. JMB Properties Urban Co. v. Paolucci
i. Implied Warrant of Habitability
i. Standard:
1. Housing should be habitable and fit for living with no
latent defects that are vital to the life, health, and safety
of the tenant
2. Only the code violations that substantially threaten health
and safety are actionable
ii. Cannot be contracted around, it is a given in every residential
contract (in the states where it applies, (most states))
iii. Remedy:
1. Usually order for LL to fix problem
2. Abatement of rent until problem is fixed
iv. Bad for economics (according to Hurst)
1. Increases costs to LL, fewer LLs want to get into the
business, ultimately provides less housing. Reduces
desire for people to get into low income housing
2. Effectively makes it illegal to rent for below a certain price
(does this out price some people from being able to have
a house?)
v. Division of ownership usually comes down to $$, when you base
decision on what is best for the community at large it is actually
bad for the economy (railroads)
vi. Wade v. Jobe
vii. Teller v. McCoy
Unit 4: Land Use Regulation
Private land use regulations

I.

Easements, Real Covenants, and CICs

a. Definitions:
i. Easement: Right to use someone elses land in a particular way
ii. Dominant Land: Land benefited by the easement
iii. Servient Land: Land that is burdened by the easement
iv. Dominant Owner: easement holder
v. Servient Owner: owner of servient tenement
vi. Appurtenant Easement benefits the holder in her use of a
specific parcel of land, personal to the holder
vii. Easement in gross not connected to the holders use of any
particular land, it is personal to the holder
viii. Affirmative easement allows holder to perform an act on the
servient land
ix. Negative easement allows the holder to prevent the servient
owner from performing an act on the servient land
b. Express and implied easements
i. Calling it an easement doesnt make it an easement.
ii. Easements are more permanent
iii. Licenses are revocable
iv. Express easement = written agreement
v. Implied easement
1. Requirements
a. Severance of title to land held in common
ownership
b. An existing, apparent, and continuous use of one
parcel for the benefit of another at the time of
severance
i. Use must be reasonably contemplated when
the easement was created
c. Reasonable necessity for that use
i. Usually means alternative access or utilities
cannot be obtained without a substantial
expenditure of money or labor
restatement
vi. Millbrook Hunt, Inc v. Smith
vii. Van Sandt v. Royster
c. Easements by necessity
i. Justifications
1. Implied intent of the parties
2. The public policy favoring the productive use of land
ii. Required elements:
1. Severance of title to land held in common ownership
2. Strict necessity for the easement at time of severance
(majority approach)
a. Can you get there without trespassing (by boat, or
ice skating, or anything?)
3. Restatement approach is not strict necessity but
necessity for reasonably enjoyment of the land
iii. Berge v. State of Vermont

d. Prescriptive Easements
i. Justifications: promotes efficient use of land by allowing access
to parcels that otherwise might remain idle
ii. Easement by adverse possession
iii. All adverse possession elements must be met EXCEPT
exclusivity
1. Open and notorious
2. Adverse and hostile
3. Continuous
4. For Statutory Period
iv. Tacking may be used
v. ODell v. Stegall
e. Irrevocable License aka Easement by Estoppel
i. Justifications:
1. Fairness it would be unjust to allow a landowner to
revoke permission after user has relied on it in good faith
by substantially changing his position
ii. Required elements:
1. Landowner allows another to use his land (creating a
license)
2. The Licensee reasonably relies in good faith on the
license, usually by making physical improvements or by
incurring significant costs; and
3. Licensor knows or reasonably should expect such reliance
will occur
iii. Kienzle v. Myers
f. Interpreting easements
i. An easement is only for exactly what it says in writing
1. Updated technology counts as long as it is the same kind
of technology (horse and buggy -> car)
ii. Courts interpret easements in terms of their purpose, not in
terms of their burden on the servient track
1. Easement to access farmland is still viable when farmland
is subdivide for residential property, even though there is
more use on the easement.
iii. Most easements are created by contract, the contract will tell
you what the easement is for. Always go by the wording of the
contract
iv. Marcus Cable Associates, LP v. Krohn
g. Terminating Easements
i. Release - If document is signed back to owner of servient tract
easement ends
1. Real estate transaction statute of frauds applies for
written agreement
ii. Abandonment
1. Must show an intent to abandon easement
a. Non use; AND

b. Some action indicating intent to abandon or

purpose inconsistent with future existence of
easement
iii. Condemnation of servient land
iv. Merger of properties property
v. Misuse of Easement
vi. Estoppel owner of servient tract relies on owner of easements
promise that the easement will be ended
vii. Prescription (adverse possession) physically interfering with
use of easement for the statutory period
viii. Preseault v. United States
h. Negative Easements
i. Real Covenants promise concerning the use of the land that benefits
and burdens original parties and their successors
i. Two sides
1. Burden: duty to perform the promise
2. Benefit: right to enforce the promise
ii. Elements
1. Compliance with statues of frauds: the covenant must be
contained in a document that satisfies the statute of
frauds
2. Intent to bind successors: the original parties must intend
to bind their successors, usually in express language
(heirs and assigns)
3. Touch and Concern: covenant must relate to the
enjoyment, occupation, or use of the property
a. Monetary obligation does not touch and concern
4. Notice: the successors must have notice of the covenant
(actual, record, or inquiry)
5. Horizontal privity: privity (relationship) between the
original owners
a. Questions the kind of privity
i. Mutual interest: both parties have a mutual
interest in the land
1. Landlord/tenant
2. Co-tenants
3. Etc
ii. Successive Interest: Grantor/Grantee
relationship between original parties
iii. No requirement: an increasing number of
states have abandoned the requirement; this
is modern trend
6. Vertical privity: occurs at transfer to next owner
a. Exists only if ALL rights are transferred, successor
must receive entire estate that the original party
had
iii. Deep Water Brewing, LLC v. Fairway Resources Ltd.
j. Equitable Servitude just like Real Covenants without privity
requirement

II.

i. Only injunctions can be served, no damages

ii. Must have clean hands
iii. Tulk v. Moxhay
k. Unreasonableness of CC&Rs
i. Definitions:
1. HOA: Home Owners Association
2. CIC: Common Interest Community
3. CC&R: Covenants, Conditions, & Restrictions
ii. CC&Rs: usually put in by developer
1. Not an ad hoc agreement between neighbors
2. Attempt to sell property at higher price
iii. Problems:
1. Intrusive
2. Changes need to be unanimous; any person can sue to
enforce
3. Usually establish HOA to enforce or amend CC&Rs
a. Creates private government
b. Leads to corruption, discrimination, and general
jerkiness
iv. Ways to get out of CC&Rs
1. Prove lack of notice
2. Merger buy up all the other properties
3. Condemnation government buys the property then is
exempt from the CC&Rs and all future purchasers do not
have the CC&Rs
4. Estoppel prove unfair/untrustworthy dealings
5. Prescription violates CC&Rs with adverse possession like
requirements (open and notorious, etc) for statutory
period.
6. Release the people to whom you are bound agree to
release you
7. Abandonment
a. Has the purpose of the covenant been defeated?
b. How has this been enforced to others?
8. Changed circumstances
a. Are the benefits of the cc&r still being met?
b. Fink v. Miller
c. Vernon Township Fire Department
9. Unreasonableness
a. Narhstedt v. Lakeside Village Condominium
Association, Inc.
l. Homeowners associations
i. Schaefer v. Eastman Community Association
ii. Fountain Valley Chateau Blanc Homewoners Association v.
Department of Veterans Affairs
Nuisance
a. Must show:
i. Intention: perpetrator must know he is causing harm, or be
substantially certain that harm would result from that activity

III.

ii. Nontrespassory:
1. vibrations, noise, dust, smoke, etc
2. NOT physical entry onto land like baseball or person
iii. Unreasonable:
1. Gravity of Harm test if the gravity of harm outweighs the
utility of the actors conduct
2. Restatement approach
a. Social value of conduct
b. Suitability of conduct to character of locality
c. Impracticability of preventing or avoiding the
invasion
3. Some combination of 1 and 2
iv. Substantial Interference must be a real and applicable invasion
of the plaintiffs interests
v. Use and enjoyment of the land cant just decrease the property
value, must affect actual use of the land
b. Remedies
i. Injunction they must cease activity
ii. Damages
1. Continuing keep suing and keep getting damages as
long as nuisance goes on ( a court enforced contract)
2. Permanent 1 lump sum to make up for all past, present,
and future damages
c. Boomer v. Atlantic Cement Co., Inc
d. Thomas v. Greve
Zoning
a. Noncomforming uses prior uses are allowed to continue by common
law (but you are not allowed to expand or remodel or do major
repairs), ways around this are
i. Amortization the city uses a calculations to allow you to reach
your maximum benefit and then you must cease operations.
1. Most commonly used to eliminate uses that re views as
particularly objectionable
ii. Spot Zoning requires:
1. Singles out a small parcel of land for different treatment
2. Primarily for the benefit of the private owner, rather than
the public
3. In a manner inconsistent with the general plan for the
community
4. Problem: easily leads to corruption
iii. Variances special exception
1. When justice outweighs strict observance
iv. Under common law, non-conforming uses could be terminated if:
1. The structure was destroyed
2. The use was abandoned or discontinued
3. The use was a nuisance or the municipality acquired the
property through eminent domain
v. AVR, Inc v. City of St. Louis Park
b. Zoning amendments

i. Zoning ordinances can simply be amended legislative decision

1. Courts hesitate to get involved
ii. Problems:
1. Threatens goal of comprehensive land use planning
2. Creates a heightened risk of governmental corruption
iii. Decision is valid unless it is clearly arbitrary and unreasonable
iv. Smith v. City of Little Rock
c. Variances when justice outweighs strict observance
i. Not spot zoning, not legislative determination but judicial
determination
ii. Must fit statutory factors
iii. Courts tend to refer to zoning board and not review zoning law
d. Conditional Use permits
e. New approaches
i. Detwiler v. zoning Hearing Board of Lower Salford Township
Public Land Use Regulations
I.

Zoning
a. Constitutionality of zoning
i. Not just one rule that zoning must comply with, lots. If it
violates 1, it is invalid
ii. Due Process
1. Doctrines:
a. Rational basis test: is the regulation rationally
relation to a legitimate government interest
i. Health, safety, environmental concerns,
economic growth, property values, aesthetics
ii. Cannot be animus, cant pass legislation
against certain people (students, races,
handicapped, etc)
b. Deference: not for the court to figure out zoning
ordinances, cities know best. As long as we can
imagine some plausible way in which this passes
the rational bases test, we will defer to the city
2. Did the citys powers allow it to zone
a. Preventing nuisance before it comes to court
iii. Free speech clause (another way to argue zoning laws)
1. Is the thing you are compelling a free speech
iv. Village of Euclid v. Ambler Realty Co.
b. Aesthetic Regulation
i. State ex rel. Stoyanoff v. Berkeley
ii. City of Ladue v. Gilleo
c. Family zoning
i. Does this stand up to rational basis review
1. Interest -> Legitimate -> Relationship (between interest
and regulation)
ii. Over breath and under inclusiveness
1. This does not directly solve any of the problems they
claim

II.

2. Under inclusiveness: ordinance does not regulate conduct

that implicates the same government interest as the
conduct it does regulate
iii. Just because an ordinance is constitutional under the federal
constitution doesnt mean it is under the state constitution
iv. Moore v. City of East Cleveland
v. Ames Rental Property Association v. City of Ames
d. RLUIPA (Religious Land Use and Institutionalized Persons Act)
i. Prohibits government from creating land use ordinances that
restrict free exercise clause
ii. General Rule:
1. Statutory provision
2. Must be compelling state interested served in the least
restrictive means
3. First step: threshold question: is there a substantial
burden on religious exercise
4. Then: identify government interest behind regulation
5. Then: ask whether the government interest meets the
test (compelling government interests (health and
safety))
6. Then: How close is the relationship between government
interest and land use regulation (must be least restrictive
means for achieving government interest)
iii. Equal terms does this religious assembly get treated like any
other assembly?
Environmental law
a. Property and Ecology
i. Other peoples happiness depends on non-use of your land
ii. Just v. Marinette County
b. Public trust doctrine
i. Government holds the deed to the land, all citizens have right to
use for appropriate purposes
c. Wetlands
i. All navigable waters are part of the public trust
1. Sometimes that includes streams etc that feed into the
navigable waters
ii. Clean Water Act prohibits pollution of national waters
1. National waters = all navigable waterways
2. Army Corps of Engineers is tasked with protecting
waterways
3. Discharge of pollution includes moving things around or
taking things out and putting them back in a new form
4. Exception in statute for ordinary farming activities
a. They say it is not ordinary farming if you are
altering the land to prepare for new use
iii. National Audubon Society v. Superior Court
iv. Borden Ranch Partnership v. US Army Corps of engineers
d. Hazardous Wastes

III.

i. CERCLA allows for lots of people to be held liable for toxic

dump sites
1. Including:
a. Current land owners (if they had reason to know
about it)
b. People who owned the land when the waste was
being dumped
c. Companies involved in actual dumping
d. Companies that produced the chemicals that were
being dumped
2. Exceptions:
a. 3rd party if the release of toxic materials was due
entirely to the act or omission of some third party,
D can get off
i. Has to be someone besides a contractor who
you contract with, that is your agent
b. Innocent buyer
i. Must acquire the land after any disposal
ii. Must have no reason to know that any
hazardous substance was disposed of at the
property
1. Requires extensive pre-purchase
investigation, often including soil and
groundwater tests
iii. Must fully cooperate with government
officials
c. Contractual Protection
i. Buyer requires seller to certify that no
hazardous substances are present on the
land
ii. Seller is accountable for future cleanup costs
that arise under CERCLA or related statutes
3. Joint and several liability intent is to make sure someone
foots the bill, cleanup has to be done
ii. United States v. Monsanto Co.
e. Endangered Species
i. Bans the taking of any species
ii. Interpreted to mean harm
1. Infers that harming their habitat is harm to the animal
iii. Babbit v. Sweet Home Chapter of Communities for a Greater
Oregon
Eminent Domain an understood power of government
a. Limits
i. Public Use
ii. Compensation
iii. State/statutory regulations
1. Make sure states are not acting ultra vires (beyond their
powers) according to their own state constitutions
b. Defining Public Use

IV.

i. Usually roads, schools, etc.

ii. Sometimes now defined as public interest
iii. Hawaii Housing Authority v. Midkiff
c. Scope of Public Use
i. Rational basis review is this rationally related to a legitimate
government interest?
ii. Kelo v. New London
Regulatory takings
a. Effective taking regulation restricts an owners rights so much that
it becomes the functional equivalent of a seizure
b. Traditional approach: if government regulated the use of property
under the police power to prevent harm to the public, no taking
occurred
c. New approaches:
i. Diminution-in-value test: one way of determining whether police
power have been exceeded is the extent of the resulting
diminution in value
1. Average reciprocity advantage: benefit = burden
ii. Penn Central factor test:
1. Economic impact of the regulation on claimant
2. To what extent has regulation interfered with distinct
investment-backed expectations
3. Character of governmental involvement
a. Physically occupying
b. Purpose of government action
iii. Authorizes permanent physical occupation of land
iv. Causes loss of all economically beneficial or productive use of
land
d. Usually economic
e. Is it a taking at all?
f. Pennsylvania Coal v. Mahon
g. Penn Central Transportaition Co. v. City of New York
h. Loretto v. Teleprompter Manhattan CATV Corp
i. Lucas v. South Carolina Coastal Council