Beruflich Dokumente
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LANDLORD-TENANT LAW
I. The Leasehold Estates – based on their duration.
A. Term-of-Years
1. An estate that lasts for:
a. a fixed period of time; or
b. for a period set by a formula that fixes calendar dates for a beginning and ending.
2. It can be for 1 day, 2 months, or 3,000 years, etc.
3. It can terminate early if some event or condition occurs.
4. It states from the outset when it will end, so no notice of termination is necessary.
B. Periodic Tenancy – a lease for a repeating term that continues for until either L or T gives
notice-of-termination.
1. It can be for month-to-month or year-to-year or whatever. If notice isn’t given, it
automatically renews.
2. To terminate it under the common-law:
a. For a year-to-year lease -- 6 months.
b. For a lease shorter than year-to-year -- same as the period, however not to exceed
6 months.
3. You must give a full-period of notice (i.e., by the last day before the start of the notice
period).
4. The termination date must be the last day of the period, not something in the middle.
5. Many states have statutes that shorten the length of notice that has to be given to
terminate a periodic lease.
e. Note: would the court have ruled otherwise if the parties didn’t admit that this
was a lease?
4. Problem 2 (p. 368). L leases land to T for “as many years as L desires.”
a. This is the opposite of Garner.
b. Under CL, T has a tenancy-at-will.
c. The Restatement -- cited in the problem – says the parties may agree that the
lease is terminable at the will of one party, regardless of the party.
d. The Restatement – T has a determinable fee simple – terminable at L’s will,
unless it’s unconscionable.
5. Problem 3 (p. 368) – For $500 monthly rent, L leases land to T for the duration of the
war. What estate does T have? What difference does it make?
a. How do you eliminate the possibilities?
1) If not term, and not periodic, and not at sufferance – it must be at-will.
2) But why not – if not at sufferance, not at-will, and not periodic – it must
be term.
3) Where you start determines the ending!
b. Why not just call it – a tenancy-until-war-ends?
c. If you put it in a tenancy-at-will box, either party can terminate-at-will – they
didn’t agree to this.
1. Facts
a. The Ernsts leased land to Rogers for 1 year and 7 days beginning on June 23,
1960.
b. Rogers opened a go-cart track.
c. Rent was the greater of (i) $4,200 per year at $350 a month, or (ii) 15% of gross
receipts.
d. Rogers couldn’t sublet without the Ernsts’ permission. Even if Rogers did sublet,
Rogers’s duties would remain.
e. Ernst let Rogers sublet to Conditt and extended the term to July 31, 1962.
f. Rogers stopped paying rent after October 1960, except that he paid for June
1961. But he kept in possession.
g. Ernst sues for (i) unpaid rent, and (ii) the cost of removing Rogers’
improvements.
2. Arguments:
a. Ernst argues – Rogers assigned the lease to Conditt so Conditt is directly liable.
b. Conditt argues – he and Rogers had a sublease so Rogers is directly liable.
3. Privities
a. PoE – by taking possession, Rogers gets in PoE with Ernst.
b. PoC – by signing a lease with rent, Rogers is in PoC with Ernst.
4. The Court found Conditt liable. It said it was an assignment and not a sublet.
a. The PoE ended Rogers stopped possessing the property, but the PoC continued.
5. If Rogers had subleased to Conditt, Ernst and Conditt would have PoC. Conditt couldn’t
be liable on the covenant to pay rent and the cost of removing the improvements.
6. If an assignment, PoC exists and Conditt is liable.
7. The court is confusing PoE with PoC.
2. Consequences – sublease/assignment
3. What if the Ernst lease had required L’s consent, but it couldn’t be unreasonably
withheld?
5. This case only addressed commercial leases – it’s silent as to residential leases.
E. Problems (p. 402) – these jurisdictions follow Kendall and consent can’t be unreasonably
withheld.
1. Problem 1(a) – L leases to T for 5 years. After 2, T wants to transfer the lease to T1, but
L refuses because T1 is a T in another of L’s buildings under an expiring lease that L
wants to renew.
2. Krieger – L is unreasonable. The clause’s purpose is to protect L with respect to that
particular property, not generally.
a. The authors say Krieger is a bad decision. You can’t force L to mitigate by
leasing to its T from another building.
What if T1 is not already L’s T but is a prospective T who wants to use the leased
property for a business that will compete with L?
a. Pay ‘N Pak – L is reasonable.
b. Protecting L from competition is not general protection – it’s specific to that
property.
3. Problem 2 – T can’t assign without L’s consent. L refuses so T transfers to T1 for the
term minus 1 day. This is a sublet, not an assignment.
a. Walgreen – yes it’s transparent, but it was upheld. L should’ve thought to ban
subletting as well as assignment.
4. Problem 3 – L leases to T. T must pay rent and can’t sublet or assign without approval.
T assigns to T1 with approval. T1 doesn’t expressly assume lease obligations. T1 then
assigns to T2 without approval. T2 defaults in rent and L sues T1.
a. Dumpor’s rule terminates a prohibition on assignment unless it’s specifically
reserved.
b. The Restatement rejects Dumpor’s rule.
c. T1 wins if Dumpor applies. T1 didn’t assume lease covenants so there’s no
privity of contract. And T1 assigned so there’s no privity of estate.
d. Dumpor’s doesn’t apply to subleases.
A. T in Possession
1. Berg v. Wiley (p. 403) -- illustrates modern trend prohibiting self-help re-possession if T
defaults.
a. Facts
1) L and T have a 5-year lease.
2) T had shut-down and was remodeling. The parties had several arguments
– with police – about the issue.
3) L, with the help of a locksmith and police officer, entered the premises
and changed the locks.
b. Issue – can L use self-help re-possession?
c. Ruling -- No
1) L objected to T’s remodeling without permission and operating a
restaurant while violating the health code.
2) T didn’t abandon or surrender the premises. The closing was temporary
during the remodeling.
3) At common law, L can use self-help if:
a) A breach legally entitled it to possession; and
b) it exercised its right in a peaceable manner.
4) There was no such breach here.
5) L was not peaceful. They were the very sort we try to avoid.
6) An entry can be a breach of peace even if no force is used, so long as the
acts of entry could give rise to altercations.
7) L is liable for damages to T for wrongful eviction.
8) Self-help is no longer allowed – even if peaceful. Use the Summary
Proceedings Act.
9) Notes – some states may still allow self-help, but it is gaining momentum
and is or soon may be majority rule
4. L’s Remedies in Addition to Eviction (p. 410) – L may also want back rent, future rent,
damages to the premises, etc. We’ll address later.
b. Reste Realty Corp v. Cooper (p. 422) – expands the implied covenant-of-quiet-
enjoyment; the court could’ve reached the same result relying on standard
exceptions to caveat lessee.
1) Facts – how do you feel about the parties?
a) 5-year commercial lease of basement office. She used it for sales
meetings and training for her jewelry business.
b) Water regularly ran off the driveway (not being leased) into the
basement. L’s agent promptly cleaned the mess.
c) A year later, L and T expanded the lease to cover more of the
basement. Repaved the drive, but it still leaked.
d) L’s agent died and T’s complaints were ignored. T then abandons.
e) L then bought the building and sued T for all rent. L wants
damages.
2) Rule: Constructive Eviction Theory
a) L argued that (i) T accepted the water damage, (ii) it wasn’t
“permanent,” and (iii) T waited too long to leave.
b) The prior L’s promises bind the new L.
c) Acceptance -- T didn’t accept the leakage. It worked with L.
Wait -- it didn’t wait too long, because it had hope and it received
promises. Permanence – no incidence was permanent, but it
recurred. And the driveway’s condition was permanent.
d) The driveway wasn’t part of the lease, and an inspection wouldn’t
have revealed the latent defect.
e) L had a duty to disclose latent defects. This is a new duty.
f) The covenant of quiet enjoyment – breached by an act that (i)
renders the premises substantially unsuitable for the purpose for
which they were leased, or (ii) seriously interferes with T’s use
of the premises.
g) A breach causes constructive eviction.
4) Note 4(a). L’s maintenance and janitorial service goes on strike. City
sanitation workers won’t cross the picket lines. Bad odors, bugs, non-
maintenance occur.
5) Note 4 (b). T lives in fancy building with doorman, elevator, gym, pool,
etc. State law requires premises be in accord with “uses reasonably
intended by the parties.” Does this extend the IWH?
No. IWH only protects against conditions that threaten T’s health and
safety, or, in the eyes of a reasonable person, deprive Ts of the essential
functions of a residence.
6) Note 4(c). T only agrees to pay $50 because the place is so run-down.
Then T refuses to pay because it’s so run-down.
T can’t be asked to waive the IWH. This is just an end-run around the
IWH.
(i) It’s a clearly-created landlord duty, (ii) damages are generous, (iii) T
can withhold rent, and (iv) T doesn’t have to abandon.
Downside -- if the court rules against T, it can be evicted and must pay
past rent.
3. An addition not being waste doesn’t mean you can take it. It may be waste to take it, or it
could be a fixture.
A: EASEMENTS
B. There are overlapping categories with different elements, but they’re based on history, not logic.
The Restatement 3d of Servitudes helps, but it is new.
C. Private (no government) agreements that create interests in land that bind and benefit the
contracting parties. They often (i) increase the value of 2 or more parcels, or (ii) burden 1 parcel
for the benefit of another parcel.
a. Affirmative Easement
3. A can restrict how B’s land is used – real covenant, negative easement, or equitable
servitude depending on several factors, including the remedy that A seeks if B breaches
it.
4. A can require B to perform an act on B’s land – real covenant or equitable servitude
depending on the remedy sought.
F. The functional overlap is the result of history. What courts would enforce them? Who called
them what?
G. The law of servitudes is a study of how cultural changes impacted property law. What law did
we need?
1. It’s easier to understand the law of servitudes from a historical perspective than as a
logical system.
2. The primary modern servitudes (real covenants, easements, and equitable servitudes) are
products of the 19th century – after land became fenced.
3. An easement gives the easement-owner the right to use (or prohibit the use of) land they
don’t own.
a. Easement Appurtenant – whoever owns the land that the easement benefits gets
the rights.
3) Usually transfer with the property, but they can be made non-transferable.
d. Easements by prescription
e. Estoppel – resorting to equity. 3 ways by equity: (i) estoppel, (ii) fraud, and (iii)
part performance
C. Willard v. 1st Church Scientist (Ca 1972) - Express Easement – in 3rd parties (p. 672) – May a
grantor deed property to one person and reserve an easement for 3rd party? Yes.
1. Facts
a. McGuigan owns lots 19, 20. Lot 19 had a building, and Lot 20 was vacant. First
Church of Christ, Scientist, uses lot 20 for parking.
b. Petersen bought lot 19 from McGuigan and was building an office on it. Willard,
a realtor, wanted to buy lot 19 and 20. Petersen agreed to sell lot 19 and went to
McGuigan to buy lot 20.
c. She sold lot 20 to Petersen, subject to a recorded easement -- for church parking.
The easement ran only so long as it is used for church purposes. But Petersen’s
deed for lot 20 to Willard didn’t mention the easement.
e. Willard sued to quiet title to lot 20 -- to remove the easement in the McGuigan-
Petersen deed.
a. Gross – if so, the church members can use it even if the church moves down the
street.
b. Appurtenant – probably -- the deed says the easement is “to run with the land
[lot 20?] only so long as the property for whose benefit the easement is given is
used for church purposes.”
1) We call it an appurtenant-easement-in-fee-simple-determinable.
2) It’s unclear if the easement terminates if the Christian Scientists sell the
church to a religious group. The deed says “the church”.
3. Ruling
a. Common law rule – owners who transfer land can only reserve an easement to
themselves, not to 3rd parties. This is feudally based. Either the courts wanted to
(i) limit conveyance-by-deed and promote livery-by-seisin, or (ii) believed that
only parties to a deed can take advantage of it.
b. Ruling
1) Inequitable -- original buyer paid a lower price for the property -- it was
encumbered. McGuigan said she sold it for a lower price.
2) There’s no proof that Willard relied on the common-law rule. But why
should the court presume that they negotiated with a false view of the law
before this case?
3) The old rule is archaic, unnecessary, and may frustrate the grantor’s true
intent. It is overruled prospectively; you can’t apply it unless the parties
relied on it.
c. Willard can sue Petersen on the covenants in the warranty deed -- if he insisted
on one.
4. The land being subject to a parking easement doesn’t mean it has no value. What else
could it be used for?
2. Note 2 – How can you draft a document to carry out McGuigan’s intent and not violate
the common-law rule? Is the church’s lawyer liable for malpractice?
a. Just use another piece of paper. She first conveys to the church. Then, the church
conveys to Petersen and keeps an easement.
b. She’s probably liable for malpractice. A lawyer of ordinary skill knows to use 2
pieces of paper.
3. Note 3 – The difference between an exception and a reservation? Many lawyers use
them interchangeably. Many courts don’t distinguish between them.
1. Facts
b. In 1965, Taylor built a $25,000 house; he used the road with permission for
construction purposes. There is no other way to access Taylor’s property.
c. In 1970, Taylor refused to pay Holbrook $500 for using it, so Holbrook blocked
it. Taylor sued to remove the obstruction. He argued that he had the right to use it
by (i) prescription, or (ii) estoppel.
2. Held:
b. Holbrook knew Taylor was spending money in reliance on the road. Taylor
didn’t have one by prescription, though.
2. Henry (RI 1959) – opposes Shepard-- Courts shouldn’t grant “equity” for estoppel, etc.,
to avoid the statue-of-frauds. It’s bad policy to recognize rights that restrict land use. A
license is a license, even with a harsh result.
2. Note 2 – If Taylor’s home burns down, can he build a new one using the same right-of-
way?
a. The expectations that create the servitude also define its scope and terms.
3. Note 3 – If the facts justify estoppel, should the owner of the servient parcel get
damages? Is it otherwise fair?
a. If it was worth $500 to Holbrook, why not make Taylor pay $500? Efficient
damages.
a. Before 1904 -- Bailey owns lots 4, 19, and 20; her house is on lot 4. She built a
sewer from lot 4, over lots 19 and 20, to the public sewer.
f. Post-1904 – Gray owns lot 4. Van Sandt owns lot 19, Royster owns lot 20, and
Gray owns lot 4.
g. 1936 – Van Sandt’s basement is flooded with sewage. He finds the private sewer
drain. He sues to stop Royster and Gray from using the drain.
2. Holding
a. Issue 1 -- Does an easement exist, burdening lot 19 for the benefit of lots 20 and
4.
5) The Court rejects the England rule; it adopts the Restatement’s test, based
on the parties’ intention. Consider:
b. Issue 2 – is Van Sandt a bona-fide purchaser without notice? No, he had notice.
The sewer is apparent and could’ve been discovered.
b. If a court implies an easement based on an existing use, and it’s hidden, should it
be valid against a later purchaser of the servient parcel?
1) The courts are split. Does the dominant rule matter if courts just do
what’s equitable in each case?
2. Note 2 – One person owning the dominant and servient tenements destroys an easement.
It can be re-created if a necessity arises when the new severance is made.
Othen v. Rosier (TX 1950) – Ease. by Necessity (p. 689)
1. Facts
b. When Rosier re-routed around a levee, Othen could no longer use the road.
2. Holding
a. Othan claimed an easement, while Rosier said it was at most a license he could
revoke at any time.
b. Elements of easement-by-necessity:
3) necessity existed when the 2 estates were severed (case falls apart on this
element);
c. When the severance occurred, Othan/Hill appears to have another way to another
road. That may have ended, and led to his seeking this implied easement. Plus,
there was no evidence that there was no other way when severance occurred.
d. Othan’s land being surrounded by the “servient” estate holder’s land is not
dispositive of element #3 on creation-of-necessity at time of severance.
e. Prescriptive Easement – no
1) Othan and the “servient” tenement’s owner were using the roadway; it
wasn’t only used by the owner of the “dominant” tenement.
2) Permissive use = license – joint use does not serve as “notice” of a hostile
claim.
1. Note 1
a. Over the past few hundred years, courts rely on (i) public policy, or (ii) the
parties’ intent.
a. A party bought all 5 lots, but not at the same time. The easement disappeared
when he bought lot 5.
4. Note 4
c. Exclusive use is required for prescription, but it’s defined differently than for
adverse possession.
2. Note 2 – If A acquires a prescriptive easement over O’s land, should A have to pay O
damages?
a. If damages are given, as of what date do you compute them? Date of entry?
3. Note 3 – Why should joint use prevent a prescription from arising? Is there any basis?
4. Note 4 – houses adjacent to golf courses. Should you (i) build a fence, (ii) reach an
agreement with the course, or (iii) file a lawsuit for nuisance or trespass?
5. Note 5 -- Public Prescriptive Easements
c. Continuous use by public, under claim of right. The owner is on notice by kind
and extent of use, and claimed by general public, not individuals. Similar is the
“implied dedication” theory.
d. Beach access – beaches held in public trust up to the high-tide line – prescriptive
easement?
N. Matthews v. Bay Head Improv. Assoc. (p. 701) – Does the public have a right to access
through and to use the dry-sand area not owned by a quasi-public body ancillary to its right to
enjoy tidal lands?
1. Facts
b. An association was created to care for the beach, provide lifeguards, security, etc.
But only local citizens could join it. The association also bought and leased some
land that gave beach access.
c. This effectively precluded the general public from using the beach.
2. Holding
c. The court expands this doctrine to include the right to access the dry-sand/dry-
beach area to allow access to bathing, swimming, and other shore activities for
the general welfare.
d. A beach is both wet and dry. To enjoy the rights guaranteed by the Public-Trust
Doctrine in the wet sands, the public needs access to the dry sand areas as well.
You can’t separate the parts.
e. Without access, the other rights are meaningless. Owners must allow reasonable
access to the shore and a suitable recreation area on dry sand.
f. The general public must be permitted to join the Bay Head Improvement
Association.
1. Note 1
b. Factors to consider (Supreme Court upheld the Court of Appeals after book went
to print):
c. The owner can’t prevent public from accessing privately-owned areas, but it can
charge a fair fee.
4. Note 4 – Public Trust Doctrine is rooted in Roman law, an 1892 Supreme Court opinion,
and more recent law-review articles.
A. For appurtenants, they pass automatically to assignees if (i) parties who created it so intend, and
(ii) the burdened party has notice of the easement.
B. Easements in gross are personal, as learned earlier, not ordinarily to run with the land.
1. Facts
a. In 1899, Rufus, Frank, and others formed Pocono Spring Water Ice Co.
b. They leased to Pocono for 99 years the lake created by building a dam. Pocono
would use the lake for various recreational activities. It also intended to harvest
ice during the Winter to sell.
c. Easement-in-Gross -- On the same day, Pocono grants to Frank and his heirs,
the exclusive right to fish and boat. Frank granted ¼ of his right to Rufus. They
built cabins, etc.
d. Grant to brother included "bathing" rights, but Frank didn’t have those rights to
assign. Frank and Rufus got the right to bathe by prescription.
e. The brothers began marketing the property as a vacation destination and built
cabanas, etc.
f. In 1925, Rufus died. His heirs assigned the rights to the Lutheran group, which
began to "exploit" for bathing and recreation.
g. Frank’s wife controlled another corporation that got the rights from the original
after a foreclosure, sued to prevent such uses by the defendant.
2. Held
b. Easements in-gross never used to be assignable, but court wants to honor the
parties’ intent. The easement was to Frank "his heirs and assigns”, so the intent
was that these were transferable.
c. This court also recognizes the need to distinguish between easements for
personal/recreational use, and those intended for commercial use.
d. Assignment seems more natural and appropriate where the rights are commercial.
e. Even with a commercial easement, you can argue that there could be overuse.
This court uses the "one-stock" rule - use by mutual agreement only (all parties
have a veto power) to prevent overuse.
3. Note 1
a. "One-Stock" Rule – must run it as one person. It’s designed to prevent overuse.
Easy to apply, minimizes court filings, requires unanimity, and there’s no duty of
reasonableness when exercising veto. But it has been abandoned.
5. Note 3 -- What about a "reasonable use" standard such as for riparian owners? Could be
heading there.
6. Note 4 – A owns Blackacre. A conveys an easement over Blackacre to B for the benefit
of Whiteacre, which B once owned but sold to C several months earlier. B then conveys
the easement to C. Who, if anyone, has an easement over Blackacre?
The easement conveyance from B-to-C was ineffective, because the conveyance from A-
to-B was ineffective.
Creating an appurtenant easement requires that the grantee own the benefited land, the
dominant estate. This is the “unity-of-title” requirement. Without this, no appurtenant
easement can be created.
At the time of the conveyance from A-to-B, unity-of-title was lacking because B no
longer owned the benefited land (Whiteacre).
The subsequent transfer of the easement from B-to-C would not cure the flaw in the
easement’s creation.
A. Brown v. Voss (Wash. 1986) (p. 716) – Can a dominant tenement’s owner extend an easement
to non-dominant land?
b. Brown bought B and Voss bought A. Brown then bought Parcel C, which is
contiguous to Parcel B, but not to Voss' Parcel A.
c. Brown spent $11,000 to demolish home on Parcel B and start a house on both
Parcels B and C.
d. Construction trucks, etc., began arriving and Voss blocked the driveway. He
argued that Brown was overburdening the servient tenement on Parcel A.
e. (i) Brown sued to force Voss to open the road; and (ii) Voss sued to stop Parcel C
from using Parcel B’s easement over Parcel A.
2. Trial Court -- permitted Brown to use the road, but gave Voss $1 for increasing the
burden.
b. Holding – (i) It would not increase the burden; (ii) Parcel C is landlocked
without it. Would this justify an easement-by-necessity?; and (iii) Voss didn’t
suffer real injury -- $1 damages
b. Overburdening an easement violates the law, but there was no, or only minimal,
overburdening.
d. Brown could only use it for a single-family home; if overburdening arose, Voss
could seek relief.
4. Dissent -- there is a trespass and it’s hard to measure damages. So injunctive relief is
appropriate.
5. Discussion – is this a good rule? (i) Do we want a bright-line or discretionary rule? (ii)
Which is more efficient – damages or injunction? (iii) How do we minimize the costs?
(iv) Which rule is more equitable?
A. A reasonableness test: (i) Justified -- if the issue is increased use of the dominant
parcel; it’s the original subject; (ii) Not justified -- if the issue is non-dominant
land – they never thought of it.
a. Before the lawsuit, neither side knew the issue. They were fighting over the
easement’s location. Voss’ lawyer didn’t let them tell their story. He thought it
was a slam-dunk legal issue.
b. Parcel C had direct access to Route 101 – it wasn’t landlocked, but the court
never found out.
c. Brown lost the property to tax foreclosure, and Voss bought it!
2. Note 2 – If a dominant parcel’s owner wants to split into 100 lots, can each use an
access easement?
3. Note 3 – Does having an easement imply the right to run wires or pipes for utilities?
5. Note 5 -- important
b. The use that led to their creation is more strictly applied; e.g., a prescriptive
easement to get cows to a stream can’t be extended to allow bicycles.
A. The court could protect Rosier’s entitlement by awarding damages rather than an
injunction.
A. Preseault v. United States (Fed. Cir. 1996) (p. 725): Is converting a long unused railroad right-of-
way to a public recreational trail under gov’t authority “taking” property?
i. Facts
2. Congress enacted the "rails-for-trails" law 10 years later and turned old
railways into bike paths. A servient tenement holder sued to remove the paths
because they weren’t permitted uses.
ii. Issue 1: Did the railroad have a fee simple or an easement? Easement.
1. The railroad took 2 parcels by eminent domain under a special law, but the
court held it got an easement under Vermont law.
2. For parcel 3, it got a warranty deed with language giving it fee simple, but the
court construed it under Vermont law as giving property "only to the extent
necessary to achieve the railroad goals." The court just ignored the language
of the deed!
iii. Issue 2: If an easement, does the scope include using it for a public trail? No.
2. The easements permitted only public and cargo transport. The easement can’t
be extended this way – trails were not foreseeable when granted.
iv. Issue 3: If trail use was in the scope of the easement, was it abandoned by
discontinuing railroad use, relieving the servient tenement of the easement. Yes.
2. The company removed tracks and made no effort to restore rail service.
3. Vermont collected fees for licenses for a few years, but this was an
administrative issue, not proof that there was no abandonment.
4. The Interstate Commerce Commission did not abandon it, or authorize the
rail company to abandon it, but Vermont law controls -- under it, the railway
"abandoned."
v. Issue 4: Is public use of the strip, authorized by the ICC, a taking of private
property? Yes, for 2 reasons:
ii. Note 2 -- Courts usually interpret "right-of-way" as an easement, not fee simple. But
some have relied on the parties’ intent and other facts to find otherwise.
iii. Note 3 -- easements may be terminated: (i) Release – by written document (SoF);
(ii) Expiration – of time or when an event occurs; (iii) Necessity – when the necessity
ends; (iv) Merger – if the same person owns the dominant and servient estates; (v)
Estoppel – if the servient owner reasonably relies on dominant owner’s statement;
(vi) Abandonment – mere non-use is often insufficient; (vii) Condemnation –
government takes title to land; and (viii) Prescription -- it can terminate like it was
created.
a. They prohibit a "servient" tenement holder from acting. Historically, there were 4 things you
can agree not to do: (i) block windows; (ii) interfere with light and air; (iii) remove support
of adjoining land; and (iv) interfere with the flow of an artificial stream.
b. England had no recording system, but they were created by prescription. They began
limiting them in early-mid 1800s.
c. America adopted the English rules, but there are a few new ones – conservation, etc. And we
use “equitable servitudes.”
C. Conservation and Other Novel Easements (p. 738) – the most common negative easements.
a. An easement prohibiting anyone from developing your land. Over 5 million acres are in
conservation easements – more than the total size of D.C., Rhode Island, and Connecticut.
b. The Uniform Conservation Easement Act -- one with an interest in the parcel can enforce
it, but not general public.
d. Primary Resident Easement – “no vacation homes.” It’s unclear if they can be enforced.
i. Old common-law rules are being relaxed. Know the basics, including the
Restatements.
2) Note 2
1) Facts
2) Ruling -- the "ES" ran with the land and was enforceable if Moxhay had
knowledge.
1) Note 1
b) The parties must intend that an ES run with the land (not just
between the original parties) and it must "touch and concern
land.”
4) Note 4
5) Note 5
IV. Creating Covenants (p. 750) -- with 1 exception -- next case -- they must be written (Statute of Frauds)
and not implied.
a. Facts
3) The Defendant bought the 23rd lot from the developer. There was no
negative covenant in the deed. The Defendant tried to build a gas station.
Neighbors sought an injunction.
b. Holding
c. Other Issues:
1) Is it fair assuming a buyer has inquiry notice of implied reciprocal
negative easements?
2) When a subdivision plat is filed and a lot sold with restrictions, later
purchasers buy at the risk of the same restrictions.
3) Negative easements are hard to discover.
c. Note 3 -- most courts imply negative restrictions from general plans. But not all –
CA and MA.
V. Validity and Enforcement of Covenants (p. 755). To enforce covenants in equity, show: (i) Intent the
covenant’s benefit/burden run to the original parties’ successors; (ii) The purchasers of the original
promisor had notice; (iii) The covenant touch and concern land; and (iv) Some states require vertical
privity for the benefit (not burden) of a covenant to run in equity.
1. Neponsit Property Owners Assoc. v. Emigrant Industrial Savings Bank (p. 755)
a. Facts
1) A bank bought land at a judicial sale. The deed required it to pay a $4-
yearly assoc. fee. It argued the payment was a personal covenant that
didn’t run with the land.
1) To enforce a covenant (i) the grantor and grantee must intend it to run
with the land; (ii) the covenant must "touch or concern" land; and (iii) the
promissee and party against whom the burden is to be enforced must have
"privity of estate".
c. Ruling
c) New touch and concern test -- Does the covenant alter the legal
relations (the legally enforceable advantages and burdens) of the
parties as owners of interests in land and not just as a member of
the community in general?
d) The distinction between covenants that (i) run with land, and (ii)
personal covenants depends on their effect on the legal rights that
flow from owning the land and are connected with it.
b) NPOA is the property owner’s agent: (i) Does this mean each
parcel is a dominant estate whose owner can sue on an assessment
against a delinquent owner? (ii) NPOA have exclusive
enforcement rights? (iii) What if NPOA doesn’t want to?
a. Note 1 – Why did this get litigated? Maybe the bank wanted to establish
precedent. It usually was on the other side. Or, maybe there was a grudge.
b. Note 2 – these assessments aren’t common. But back then the outcome was
uncertain. An assessment covenant is an affirmative covenant; courts don’t like
to enforce them. NPOA didn’t own land -- standing?
1) Covenants restricting the use of land almost always are held to touch and
concern land.
1) Most cases in which courts find a covenant does not touch and concern
land involve monetary obligation and tying arrangements.
f. Note 6 – Touch and Concern: Pros and Cons – they’re still controversial.
c. Problem 1(b) – No signs except your address, nor may Christmas lights be put
outside of a house.
1) Banning signs may be against public policy or unduly burden the right of
free speech. Banning Christmas lights is probably OK.
d. Problem 1(c) – No solar energy device may be installed on the roof of any
house.
f. Problem 1(e) – House sellers must pay 10% of the capital gain to the developer.
What if they appreciated more quickly than normal houses?
1) New York case – no, because there’s no touch and concern. Restatement
– yes, just look at it reasonably.
5. Caullett v. Stanley Stilwell & Sons, Inc. (p. 768) – it’s always more difficult to enforce
a burden.
a. Facts
A. Note 1
1. In the U.S., if you create an easement-in-gross, the burden runs with the
servient land.
2. Grant easement to erect billboard. Runs with land if one buys the land
knowing about it.
3. If the benefit is in-gross, the owners may be difficult to ascertain and
locate.
B. Note 2
1. Was the benefit of the assessment covenant in Neponsit appurtenant or
gross?
The court might have found that the covenant’s benefit was appurtenant
based on the agency and piercing-the-corporate-veil theories it used to
find vertical privity.
The benefit of the covenant really flowed to the other lots in Neponsit
rather than to NPOA or to the lot owners personally.
How could’ve Neponsit avoided the difficult privity issue in enforcing the
benefit other than the court’s solution?
By ruling that the burden can run even if the benefit is in-gross – based
on parties’ intent.
C. Note 3
1. The new Restatement says that benefits in-gross are freely permitted and
the burden will run when the benefit is in-gross.
D. Note 4
E. Note 5 – For a variance, a developer gives a city a covenant running with the
land limiting 5 apartments to low-income families. What rules in this chapter
harm the city enforcing this?
1. There’s no horizontal privity-of-estate between the developer and the city.
4. If the benefit is in-gross to the city, the burden won’t run to assignees.
A. A defeasable fee differs from a servitude in that the remedy for its breach is
forfeiture.
C. They were popular 100 years ago, but not any longer except with respect to gifts.
1. Facts
a. Damien leases a house to use as a group home for AIDS patients. The 4
occupants are unrelated and require some visiting-nursing care.
b. Neighbors argued that they violated a single-family-use covenant on the property.
Damien argued that (i) the covenant permits that use, and if not permitted (ii) it
violates the FHA.
c. The court says that the lower court’s findings of fact were errors of law? See
page 775.
2. Rules of Construction
a. Operating a group home for 4 unrelated folks is a residential use. The AIDS
patients use it as a home with a traditional family structure (True?).
2) The covenant doesn’t define Family so the court defines it broadly. Public
policy favors group homes for the disabled.
3) It may increase traffic but the covenant isn’t directed at traffic, and any
increase is small.
4. Issue 2 -- if the Court had ruled that “family” didn’t include a group home, the neighbors
violated the FHA.
a. Discriminatory Intent
1) You don’t have to show an intent to discriminate – only that the handicap
is a reason for the policy being challenged.
b. Discriminatory Impact
1) Only must prove that the behavior has a discriminatory effect. Enforcing
the covenant denies housing to the handicapped.
c. Reasonable Accommodation
B. Notes
1. Note 1 – the neighbors continued to harass the residents; e.g., raised champagne glass
when an ambulance took a patient to the hospital.
3. Note 3 – FHA defines handicap “as a physical or mental impairment that substantially
limits one or more of a person’s major life activities.”
a. It expressly excludes alcoholics and drug users, but not for those in recovery. A
group home for recovering drug addicts might be held not to be a single-family
home, but the FHA would protect it.
4. Note 4 – what activity is non-commercial? (i) Computer business, day care, piano
lessons, etc. (ii) Courts decide them on a case-by-case basis.
1. Private agreements that restrict those to whom an owner can sell don’t involve
government action so the 14th amendment does not apply – it’s not state action.
2. But activities of state courts and judges is state action Courts can be stopped from
hearing cases against those being sued for breaking a “private” restrictive covenant.
3. 1948 case – Hard to prove intent (from 1866 act). Now with FHA it would violate
3604(c) (publication).
D. Notes and Questions (p. 785)
1. Note 1 – Barros v. Jackson, 346 U.S. 249 (1953) – a court can’t give damages against a
seller who breaches a covenant not to sell to a non-white – it is state action.
2. Note 2
a. Were there any non-constitutional bases for declaring the covenant in Shelley
not only unenforceable but invalid? (i) Unreasonable restraint on alienation; and
(ii) Contrary to public policy.
3. Note 3 – even though unenforceable, some deeds still had discriminatory clauses as a
“signal” that a neighborhood was not friendly to non-whites.
2. They can also be modified or terminated with the consent of all – or some – interested
parties.
1. Facts
b. The builder retained a 3.5-acre corner parcel. The builder later sought to re-zone
the parcel so it could build a shopping center
c. The area had changed from (i) quiet small roads with residential/agriculture lots
to (ii) busy and noisy 4-lane roads and commercial development.
d. The homeowners in the subdivision sued for an injunction to stop the shopping
center.
2. Ruling
a. No injunction -- if the surrounding area, together with changes to subdivision,
had changed and the restrictive covenant’s goals (quiet streets, little traffic, little
noise) were impossible to achieve.
d. If the restrictions have any value to the remaining land, courts will allow
enforcement and not use the “changed circumstances” doctrine to remove a
restrictive covenant.
e. If the covenant’s original purpose can still be accomplished and the restricted
area will gain substantial benefit, the covenants stand even if the property is
worth more if used for other purposes.
f. It has to impact the entire subdivision, not just the border lots. A line must be
drawn somewhere – it draws the line at the end of the subdivision.
1. Facts
a. Rick filed a declaration of restrictions and limited lots to single-family
residences. West bought a lot and built a house, but Rick couldn’t sell other lots.
b. Rick, and his successor, wanted to develop non-residential, but West wouldn’t
consent – all the other property owners consented.
2. Holding
a. The court upheld the covenant. There was no evidence of major changes in the
neighborhood and none in Rick’s tract. He just guessed wrong.
b. She relied on it being residential when she bought, and she had a right to do so.
c. This was true even though the town decided this land was ill-suited for residential
and re-zoned it.
a. Should a court award damages or an injunction? Does it matter how many folks
oppose it?
b. In Western Land, for example, how much is the builder damaged by not building
the shopping center v. the damage to the home owners. Does it make sense for
the builder to pay them?
c. Should you ever require the opposing folks to pay damages – reverse damages?
d. Four possible rules: (i) enjoin covenant breaches – Western Land; (ii) grant
damages for breaching the covenant; (iii) deny relief against breaches if changed
conditions affect all the subdivision; or (iv) enjoin breaches of the covenant if
you pay damages to the parties breaching them.
3. Note 3 – holdouts to city development. Think of odd buildings in odd places. The white
house on Beltline.
4. Note 4 – In Western Land, the neighbors ultimately capitulating and allowed commercial
development. Low-traffic office buildings, not retail.
F. Pocono Springs Civic Assoc. Inc. v. MacKenzie (Sup. Ct. PA 1995) (p. 793)
1. Facts
b. They couldn’t get rid of it. They tried to (i) return it to the seller, (ii) gift it, (iii)
lose it though a tax foreclosure – no buyers (tried twice), (iv) give it to the
association, and (v) abandon it.
2. Holding
2) You can’t avoid tort liabilities that come with land ownership by walking
away.
b. The duty to pay money ran with the land and benefited it. The person with seisin
is responsible to pay it, no matter how it attempts to abandon. Someone always
owns property.
G. Questions and Note (p. 796)
1. Note 1 – What, if any, relief should a court give the MacKenzies? Does Restatement (3d)
of Property offer any relief? Is enforcement of covenant unconscionable?
b. The servitude wasn’t overreaching when it was created, but they never would’ve
agreed to pay the dues if they knew they couldn’t build on it.
c. It probably passed percolation tests when they bought it, but failed when they
went to build.
2. Note 2 – What would you advice the MacKenzies to do to stop the hemorrhaging of
cash? (i) Transfer it to a shell LLC with no assets. (ii) Give it to a homeless person with
no assets or a neighbor for a garden. The separate assessment may disappear if the lot
lines did.
3. Note 3
a. In feudal times, land tenants owed lords a service. Like an affirmative covenant,
but if the tenant didn’t perform, the lord got the land. He wasn’t personally liable
and didn’t risk losing other land.
b. With an affirmative covenant, all the landowner’s assets are at risk if it doesn’t
perform.
H. Restatement (3rd) of Property, Servitudes (2000) -- §7.12 – Modification and Termination of
Certain Affirmative Covenants. (p. 797).
VIII. Common-Interest Communities – a set of restrictive covenants in a common area. The law is still
developing.
A. Homeowners with fee-simple title to their homes jointly own common areas as tenants-in-
common. Homeowners must pay to support common areas even if they don’t use them.
B. Horizontal and vertical privity requirements are met because (i) the original purchasers are in
privity with the developer, and (ii) later purchasers are in privity with the original purchasers.
D. Condominium -- Each unit is separately owned by in fee simple by an individual owner. The
exterior walls, land, hallways, and other common areas are jointly owned by unit owners as
tenants-in-common.
E. By what standards should rules and regulations be judged? (i) Can newcomers simply disregard
them? (ii) Can you prohibit cats or dogs? (iii) If you don’t like it, move!
1. Facts
a. A Master Deed bans cats, and a lady owned 3. It fined her, but she sued to have
the rule declared unenforceable.
2. Ruling
a. The legislature ruled they are presumptively valid; challengers must show they’re
unreasonable by the standard applicable to equitable servitudes.
b. They are used to achieve the stability essential to the success of a shared-
ownership development. The common restrictions work like ordinary restrictive
covenants – to bind new owners, they must run with the land.
c. Buyers are entitled to rely that they will be uniformly enforced. A court will
uphold them if reasonable and reject them if unreasonable.
e. You look to those who made it, not those who want to challenge it. Case-by-case
litigation would be a nightmare.
G. California Civil Code §1360.5 – overrules Nahrstedt and allows at least one pet in each unit.
1. Note 1 – Do people with allergies deserve protection? FHA? Equal protection? No,
they’re not a protected class and it doesn’t impair a major life activity.
2. Note 2 – losing party may have to pay legal fees. So it can be expensive to be in a
litigious community.
I. What do you think the standard of review for rules set forth in an association’s charter?
1. In a co-op, a corp. has title to the land and building. People own shares and get a lease
for their living space.
2. If a shareholder doesn’t pay, the rest must pitch in to make the mortgage payments. So
there’s extensive interviews before approving a shareholder. This also allows them to
screen and eliminate potential members.
K. Mulligan v. Panther Valley Prop Owners (p. 815) – upheld rule prohibiting high-risk sex
offenders from living there.
L. Better Twin Rivers v. Twin Rivers Homeowners’ Association, (N.J. 2006) – not in textbook.
2. The court found that common-interest communities were like shopping centers or
downtown areas. Though not “quasi-municipal”, a court must apply a balancing test
while looking at 3 factors: (i) The nature, purposes, and use of the property; (ii) The
extent and nature of the public’s invitation to use it; and (iii) The purpose of the
expressive activity on the property in relation to both the private and public use of the
property.
M. Timothy Egan, The Serene Fortress: Many Seek Security in Private Communities, NYT
(9/3/95) (p. 817)
1. General Rule -- use your property so as not to injure the property of another.
2. The law of nuisance is part torts and part property. (i) torts – nuisance liability arises
from negligence or other misconduct; (ii) property – the liability is for interfering with
the use and enjoyment of land.
B. An Introduction to the Substantive Law (p. 639)
a. Facts
1) Morgan owned land on which it had a house, restaurant, and trailer park.
High Penn had a refinery 1,000 feet away; 2-3 days a week it emitted
nauseating fumes.
b. Ruling
1) Use your property so as to not harm another property. Courts lump a lot
into “nuisance” laws, but there’s no real uniformity.
3) Intentional – conduct that a person (i) acts for the purpose of causing, or
(ii) knows is resulting from his conduct, or (iii) knows is substantially
certain to result from conduct.
a. Restatement – describes nuisance well, but courts don’t follow it; e.g., Morgan
only cited it.
d. Coase
1) Assign one party the rights and they will negotiate an efficient outcome.
2) Put the burden on the low-cost avoider. (i) Could Morgan close
windows?, (ii) What can High Penn do?
a. Note 1 – Unreasonableness
1) Morgan has the textbook rule – actionable nuisance interfering with use
and enjoyment of land that is (i) substantial and (ii)
2) Trespass
3) Nuisance:
4) Why more stringent with trespass than with private nuisance (e.g. water
run-off versus released gases)? Restatement (2nd) Torts -- tries to
eliminate the different standards of proof.
5) Trespass has fewer parties than nuisance. This reduces negotiation costs
and impacts if a court is needed to resolve a dispute.
6) Restatement
c. Note 3
2) Air and light – interfering with them may be public nuisance. Overly
sensitive uses aren’t protected. Could it be a negative easement?
3) Spite and Spam -- easier for courts to find violation, e.g. spite fences.
a. Nuisance Law – one of the rights incident to land ownership. Others include
water rights, freedom from trespass, and the right to support.
b. Lateral – all parcels surrounding land provide lateral support – but only the land
in its natural state and not buildings on the land. There’s strict liability, but it can
be waived or expanded.
c. Subjacent – law is basically the same with respect to under your land.
d. Why not just apply nuisance law? Because it’s non-invasive? Or is it? Or why
not recognize another form of negative easement?
1. Estancias Dallas Corp. v. Schultz (TX 1973) – temp damages and (i) future damages, or
(ii) injunction.
a. Facts
1) The plaintiff’s house was next to a large, loud air conditioner tower that
serviced 8 apartment buildings with 155 units.
2) The apartments were built while the plaintiffs lived there.
3) The husband suffered $1,000 in damages and the wife $9000 for health,
discomfort, etc., but they chose an injunction.
4) The defendant argued that the trial court didn’t balance the equities. It’s
expensive to have an HVAC in each apartment.
b. Ruling
1) Even if the jury finds a nuisance, the court must balance the equities to
determine if it should issue an injunction.
2) The appellant didn’t show that the court failed to balance the equities.
b) Even if these apartments shut down, the city has other apartments.
4) The noise is substantial, interferes with the plaintiffs’ use of their home,
and reduced the home’s value from $25,000 to $12,500.
5) It is irrelevant that: (i) the increased cost of quiet air conditioning at the
outset would’ve been $40,000; or (ii) it now costs $150,000-$200,000 to
install quieter air conditioning now; or (iii) without air conditioning,
nobody would rent the apartments.
c. Is this inefficient?
1) Should the apartments get a windfall for not buying enough land to buffer
the sound?
2) Why don’t they buy the plaintiff’s house? It’s cheaper than installing
individual units.
3) Does it just transfer the problem to the private sector? Should the
apartment complex be required to buy its way out?
2. Is there a better way to set the ground rules to avoid private-nuisance problems and
their uncertainty?
b. Note 2 – Why was a nuisance found in Estrada when the benefits are greater
than the costs?
1) The damages are maybe $25,000 (how about damages to neighbors who
didn’t sue?). That’s the benefit to granting the injunction.
4) So what do we do?
c. Note 3 – Why not limit the remedy to damages? If it’s cheaper to fix the noise
than to pay damages, the problem will go away.
4. Boomer v. Atlantic Cement (N.Y. 1970) (p. 649) – permanent damages awarded – not an
injunction. Balance the nuisance’s harm to an injunction’s harm.
a. Facts
1) Neighbors sue a cement plant near Albany for creating dust, explosions,
noise, etc. They sought damages/injunction. The trial court gave temp
damages, but no injunction.
b. Ruling
1) The threshold question is if court should: (i) resolve the litigation between
the parties as equitably as possible, or (ii) try to promote public welfare
and broad policy objectives.
2) New York law has favored injunctions even if there was a marked
disparity between (i) the harm caused by the nuisance, and (ii) the losses
caused by an injunction.
5) The total damages are small relative to the value of Atlantic’s operation.
6) So the court gave permanent damages. This is the easiest solution given
all factors -- including the economic effect if the Court shut down the
company.
c. Dissent -- The majority is licensing a continuing wrong. When the company pays
damages, it has no incentive to improve conditions.
a. Note 1 – the harm from Atlantic’s nuisance was much worse than the court’s
opinion indicated. (i) The blasting frightened kids, cracked walls, etc., and filled
the air with fine dust. (ii) Damages awarded exceeded those stated in the opinion
-- $710,000 instead of $185,000.
1) A subsequent case similar to Boomer used the weighing test and found no
liability.
1) Do we consider all the plaintiffs? All the possible plaintiffs? The public at
large?
6. Spur Industries v. Del E. Webb Dev. (AZ 1972) (p. 656) -- Public v. Private Nuisance
and going to the nuisance.
a. Facts
1) Spur had lots of land, but its cattle feedlots kept growing. Webb started
building houses far away, but expanded toward the feedlots. Eventually,
couldn’t sell units near feedlot.
b. Ruling
a) Private Nuisance
b) Public Nuisance
ii. The general public can bring an action; Webb can also
because its loss of sales is a “special injury”.
6) The Court expressly looks to the interests of, and tries to protect, the
homeowners.
2) The underlying basis for liability for private and public nuisances are the
same:
4) Private nuisance law -- protect rights in the use and enjoyment of land.
5) Standing
a. Nuisance law is not effective in dealing with environmental other than on a local
level.
2) Each plaintiff suffers only a little damage and has little incentive to bring
an action.
b. Do we regulate pollution?
3) Cost-efficient controllers will hit this point later so they will control more
pollution. This minimizes pollution-control costs.
Source A Source B
Control Cost MC TC MC TC
1st Pollution Unit $1 $1 $3 $3
2nd Pollution Unit $2 $3 $4 $7
3rd Pollution Unit $3 $6 $5 $12
4th Pollution Unit $4 $10 $6 $18
5th Pollution Unit $5 $15 $7 $25
6th Pollution Unit $6 $21 $8 $33
MC = Marginal Cost
TC = Total Cost
2. The government wants to cut total pollution in half -- to 6. It sets an emission at $4.50 per unit of
pollution.
3. A would control 4 units and B would control 2 units. A’s cost would be $10 and B’s cost would be $7 –
the total is $17.
A. Introduction
1. Historical Background – City planners grew with the growth of industrialized cities
and urbanization.
a. How should a city grow? What is liked and disliked about cities? How do we
obtain the likes?
b. Rest. Cov. – only worked if they were adopted before a community was built.
This was rare.
a. Facts
1) This case was designed to have the Supreme Court rule that zoning
regulations were unconstitutional takings.
b. Ruling
2) The social theory underlying Euclidean Zoning is like the Garden City
movement.
3) It was also believed that after mapping and zoning little change would be
needed.
b. Note 1
2) “Higher” uses are OK in areas zoned for “lower” uses, but not vice-versa.
Lower uses can be more valuable than higher uses. Commercial property
is worth more than residential.
2) The Court uses it to strike down social legislation it deems unfair. Now
it’s used to for personal, and not economic, liberties.
d. Note 3
1) Why didn’t they argue it was an unlawful taking under the 5th
Amendment?
2) What’s the diff between (i) physically taking land, and (ii) just taking its
economic value?
f. Note 5 – Houston is the only major city without a zoning ordinance and it still
regulates use.
a. Zoning is exercising police power to protect health, safety, etc. This is a state
power. Zoning Enabling Act – permits cities to enact their own zoning
regulations (most states have it).
c. The future is too unpredictable for long-term planning. What was thought 30
years ago?
d. We’ve had a tidal wave of personal mobility and suburbanization. Fast food
restaurants, etc.
2) You could forbid (i) the non-conforming use after it was abandoned – but
they weren’t being abandoned, or (ii) forbid maintenance and repair – but
this just made them shabby.
b. Facts
1) An adult book store opened. 4 days later, the township indicated it was
changing the law to regulate “adult commercial enterprises”.
3) The bookstore appealed to the zoning board and court and lost, and
appealed again.
c. Ruling
3) You must balance (i) the government’s right to protect "health, safety,
morals and general welfare" (the "police power"), if reasonable, with (ii)
constitutionally guaranteed rights to use one's property unfettered by
government restrictions unless it: (i) violates a law, (ii) creates a nuisance,
or (iii) violates a covenant, restriction, or easement.
1) Agrees in result, but would limit it to these specific facts and not
invalidate amortization zoning restrictions.
a. Problem 1
A buys a vacant lot for $50,000. 10 years later it’s rezoned single-family; the
value is now $12,500. Under Euclid, A can’t complain.
B buys the vacant lot next to A’s for $10,000 and builds a store for $40,000 --
$50,000 investment. B earns 10% profit and a salary. It’s rezoned single-family;
the value of the land is now $2,500. If B has to shut down the store, it’s a taking
and he gets compensated. Why the difference?
1) B loses the value of the business. But B has recovered his initial
investment and has a business B may be able to move.
b. Note 2
1) Changes
b) Some states let you expand to grow your business. Some let you
change non-conforming uses to other non-conforming uses.
c. Note 3 – Amortization
3) There are cases with virtually identical facts that go each way.
c. Amend it? Lawsuit? If it’s bad only in specific situations, instead of scrapping
the whole thing, build-in flexibility.
d. The variance doctrine isn’t complex, but it’s less important than the judge’s feel
of the particular situation before it.
1) Facts
a) Restrictions on house size, lot size and set-backs made the lot un-
developable under a zoning restriction
2) Ruling
b) Undue Hardship
e) The zoning board needs to fully explain and support its decision.
1) Note 1
2) Note 2
a) Maybe.
4) Note 4
c) The party who wants the variance is more focused than the
neighbors. And more likely to offer a bribe.
g. Cope v. Town of Brunswick (Maine 1983) (p. 858) – special exception, not a
variance.
1) Facts
2) Ruling
d) Criteria’s (2) and (4) were too general to provide the necessary
guidance.
i. (2) – use won’t adversely affect the health, etc., of the
public.
f) The ordinance here set out when and what type of apartment
complexes could be built. It didn’t prohibit them.
j) There must be objective criteria and the zoning board can see if
they exist, but it can’t have discretion.
k) (2) and (4) grant too much discretion and, in any event, were
already decided by the legislative body.
h. How could the ordinance have read to be lawful?
1) Note 1
2) Note 2
3) Note 3
Week 9
1. Facts
a. A developer bought 1.18 acres subject to the city re-zoning it from single- to
multi-family (from R-1/R-2 to R-4). It was 3 blocks from the central-business
district, near other apartments, a hospital complex, etc. Neighbors opposed the re-
zoning.
b. The Planning Commission recommended denial, but the Council re-zoned the
property R-4.
c. The neighbors argued that:
2. Issue
1) You can reverse it only if you show it is not supported by any rational
basis related to public health, safety, morals, or general welfare – or it
amounts to a taking.
b. It was validly using legislative power and (i) was reasonably related to the public
health, safety and welfare, and (ii) was not invalid as spot zoning.
c. Re-zoning before amending the land-use plan was not arbitrary and capricious:
(i) a city must adopt a land-use plan before adopting an initial zoning ordinance,
but (ii) a city can amend the land-use plan after it amends the zoning ordinance.
d. The re-zoning’s reasonableness is debatable, but that’s not enough for the court
to interfere. There is a rational basis for concluding a 6-story condominium is
compatible with the area.
1. Note 1
1) Some courts use “spot zoning” to refer to improper zoning, but others use
it neutrally.
4) Reverse “spot zoning” – harm -- not benefit -- to a small group not in the
public interest.
a. Amendments are “legislative.” The legislative body’s judgment stands unless you
show there’s no rational basis; as in Rochester, if reasonable minds can differ, the
courts defer.
1) Some courts show less deference if there are red flags, such as “spot
zoning,” a quid-pro-quo agreement with a developer, or circumstances
haven’t changed.
a. Conditional Re-zoning – the property owner agrees to use the land in the
specified manner.
b. Contract Re-zoning – the owner and zoning authority agree, perhaps with the
owner agreeing to restrict its use in exchange with the re-zoning.
c. Courts have begun to accept conditional re-zoning, but contract re-zoning was
thought illegal.
2. Floating zones -- establish “zones,” but set their actual locations at a later time when
more appropriate.
a. First, the government creates a use district by ordinance that sets forth standards
and criteria to govern the uses permitted in the zone.
a. Cluster Zones
II. Expanding the Aims (Exercising the Muscle) of Zoning (p. 871)
A. Introduction
1. Zoning began as a way to control nuisances – to ensure light and air, avoid fire, prevent
overcrowding, etc.
2. It’s just about become social engineering in the name of public health, safety, and
welfare. A Maryland county council approved an anti-smoking measure – never
approved -- that imposed $750 fines against residents if their smoke irritated neighbors.
a. Facts
3) Two experts testified that property values would decline if the house were
built.
b. Ruling
3) The board considered factors other than aesthetics. And the process with
the architects was “open.”
4) The ordinances’ general standards were sufficient – the board had to find
that a proposed structure was suitable in the neighborhood and wouldn’t
adversely affect the general welfare or property values.
a. Note 1
1) Courts developing nuisance law rarely declared an ugly site a nuisance.
b. Note 2 – Stoyanoff didn’t rest its decision solely on the legitimacy of aesthetics.
It relied largely on protecting property values.
a. Facts
2) The IDC gives it the run-around. It denies plans without giving specifics
to follow: (i) does not fit in with surrounding uses, (ii) doesn’t fit the
city’s image, (iii) wants more depth to the façade, (iv) bad color, etc.
b. Ruling
3) The requirements aren’t in the code, and IDC didn’t help. He wasn’t told
how to comply, he was told to drive down the street to see what others
had done.
b. Note 1 -- Can a design board truly review art? Would Frank Lloyd Wright or
other famous architects be able to get by a review board?
a. Facts
1) Ladue’s ordinance prohibits signs on residential property except for (i) for
sale, identification, safety, and (ii) commercial and business interests,
churches, non-profits.
4) Gilleo had a sign protesting the Persian Gulf War. It was tore down a few
times. When she asked for protection, she was told that the ordinance
didn’t allow that kind of sign. Gilleo sought a variance and was denied.
She sued, alleging that the ordinance breached her “right to free speech.”
b. Ruling
1) Signs are protected expression, but are more subject to regulation than
speaking because they take up space, obstruct views, etc. Physical aspects
can be controlled, but content regulations are suspect.
2) Ladue prohibited signs with political, religious, and personal messages.
C. Notes
2. Note 2 – Signs – can you ban signs that advertise lawful home businesses?
a. Courts have been reluctant to decide how the First Amendment protects visual
art.
b. But courts often seem not to act that way. They have upheld ordinances
regulating space, distance, set-off of adult-theme stores from churches, housing,
etc. This is also true for liquor licenses.
b. Why not use nuisance laws if church conduct becomes a problem? Mega-
churches and parking.
1. Facts
a. Belle Terre (Long Island; <700 people and >1 sq. mile) enacted an ordinance
restricting land use to one-family dwellings -- meaning related people or no more
than two unrelated people. It argued it was necessary for traffic, noise, lack of air,
and space for children.
b. They leased a house to 6 students from State University at Stony Brook. They
argued it interfered with a bunch of their rights.
2. Ruling
a. The Court treated it as an ordinary zoning measure that required only a rational
basis.
c. The Court gave great deference, and saw the case as involving no fundamental
rights calling for strict scrutiny and compelling state interests.
d. The law had to (i) be reasonable, not arbitrary, and (ii) bear a rational relationship
to a permissible state objective.
e. A quiet place with wide yards, few people, and motor vehicles restricted are
legitimate guidelines in a land-use project addressed to family needs.
d. Zoning officials can concern themselves with land uses, such as the kind of
dwellings that can be built and the number people who can live in them. But they
can’t restrict who those people are, whether they are white, Jewish, married, etc.
e. The ordinance unnecessarily burdens their 1st Amendment freedom of association
and their constitutionally-guaranteed right to privacy.
4. Other Issues
a. A lot turns on the level of review and deference – strict scrutiny or rational basis?
b. Why not be more flexible? Why not consider whether the legislative
classification is in fact substantially related to the statute’s object.
2. Note 2
b. How does this compare to the Damien of Molokai case? Is this close to an FHA
violation? (We’ll see there is a exemption for space-based restrictions on the
number of persons in the FHA, but only if safety-based, not on a preference for
single-family, nuclear family, neighborhoods, etc.
C. City of Edmonds v. Oxford House (U.S. 1995) (p. 911)
1. Facts
2. Ruling
b. The Sup. Ct. looked to 3604(f)(3)(B) reasonable accommodation and treated this
as a “reasonable accommodation” case. The neighbors and city could be required
to allow this use for 10-12 recovering persons because it was “reasonable” to
accommodate in this way.
c. The FHA exempts zoning rules that reasonably restrict the number of people in a
house.
d. This ordinance was broader -- a use restriction with numbers in it. The main goal
was to promote family. So it did not qualify as an exemption.
e. Rules that cap the number of occupants to prevent over-crowding, plainly fall
within the FHA exemption; rules designed to preserve the family character of the
neighborhood do not.
f. The exemption makes sense for health and safety in homes, and viable ones
usually set out square feet needed per person, etc. Edmonds had another
ordinance limits occupants based on square footage -- it didn’t need another.
g. The lower courts must decide if Edmonds has violated the FHA.
2. Note 2
a. Oxford House v. St. Louis (1996) -- A zoning ordinance requiring group homes to
be 8 or fewer people has a rational basis and is enforceable. Not seeking a
variance defeats a reasonable accommodation claim under the FHA.
b. Albert v. Zoning Brd of Abington Twp (PA 2004): A treatment home for
recovering alcoholics isn’t a single-family detached dwelling. The average stay is
only 2-6 weeks.
3. Note 3
a. Florence Hammonds – good decision? She sells the house to the neighbors; no
more group home.
b. What if Florence sold the house to MORC? The neighbors sue, but drop the case.
Can MORC sue the neighbors for suing it?
4. Note 4
a. Group homes have become common because they’re less expensive than large
facilities and thought to be more humane.
Regulatory taking
- Per se
- Park central