PROPERTY II

Assignment 3:Landlord Tenant Relations

- Lease v License
- License: a personal, revocable and unassignable permission to do one or more
acts on the land of another without possessing any interest therein.
o Merely authorizes the licensee to use the land in the possession of
another.
o Grants no interest in land.
o A license is terminable at the will of a licensor,
 If terminated, only the interest in land that was granted ends. The
licensor may still be liable in contract for the breach.
o Example: guest at a party, customers in a store.
- Lease - a possessory interest that normally gives the tenant the right to exclusive
possession.
o the landlord gives possession to the tenant (leasee) in return for the
obligation for the latter to pay rent.
o A lease must include:
1. Uses of property allowed (less limited =lease)
2. Descriptions of space (more defined= lease)
• or failing to provide a description, the parties must act
upon the agreement as relating to a particular space after
the agreement is entered into.
3. Provisions for periodic rent (a strong indication of lease)
4. Duration (limited=lease)
o If the document or agreement is ambiguous you look to the intent of the
parties
Types of Leases
Leases: Dual Nature
- Conveyance of an estate
o Promises were independent of other’s performance.
o LL delivers possession; T pays rent & maintains premises even if other
provisions are breached.
- Contract
o Covenants are mutually dependent.
o Becoming dominant approach
Tenancy for term of years: a lease for a fixed period of time:
o Beginning and ending dates fixed.
 Or on the occurrence of an event. (rare)
o Created by express agreement between landlord and tenant.
o be determinable: “you can have a lease for 10 years so long as no
alcohol is sold there”
o is always self-terminating. You don’t have to do anything to terminate
the lease. You don’t have to give notice, when the end of the lease
arrives, then the lease is terminated.
 Periodic tenancy: A tenancy that does not end automatically on a fixed date, it continues
for succeeding breaks.
o It is automatically renewable at the end of each period.
- Creation:
o express agreement; implication (where tenant pays rent on, say, a
weekly basis and nothing else is said about a lease, there is a periodic
tenancy from week to week)
o If you have a holdover tenant from a term of years tenancy, the
landlord has the option to hold you to a periodic tenancy
o if you enter into an invalid lease (landlord and you agree to enter a lease
for 2 years orally: statute of frauds) Since you are in an invalid lease for 2
years, the court is not going to hold you to a 2 years, so the court is going
to look at the way you pay and the court will want you to have a month to
month lease.
- Periodic tenancy requires notice for it to be ended.
o There is a maximum of 6 months notice
o Common law: the amount of notice required is the same as the period
 i.e if the tenancy is week-to week, a week’s notice is required; if
it’s month to month, a month’s notice is necessary. However, if
the period is a year or more, six month’s notice is required.
o Modern rule: By statute, many states require only 30 days’ notice,
regardless of the period involved
o ineffective notice, the majority of jurisdictions will interpret it as no
notice at all:
o Ex. suppose that you are in a month to month lease, the lease started on
January 1st and you want to end it in March, you need to give a month
notice or 30 days. You cannot terminate the lease in the middle of a
period. The lease has to be terminated on the last day of the period.
Unless you give notice on the last day of January, your notice is going to
be longer than 30 days. So, if you give notice on January 15, that 30 days
notice will allow you to leave on February 28 or 29.
o You can’t give notice in the middle of a period to get out of that lease
at the end of that same period
o Just because you are paying your lease on a month to month basis does
not mean that you have a month to month lease. It may be the way that the
owner wants to get paid.
o Next possible date rule: whatever your notice is, we will find out when it
can be applied.
- The death of either the landlord or tenant does not affect the duration of a
periodic tenancy.
Tenancy at will: A tenancy that either landlord or tenant, or both, can terminate any time
with reasonable notice. It has no fixed duration.
- Creation: it can be
o expressly created, or
 o implied by law if the lease does not provide for periodic rent (which
would make it a periodic tenancy or tenancy from period to period)
 If you are paying rent, the ‘tenancy at will’ will become a periodic
month to month lease.
 If you have a holdover tenant or a tenant who is under an invalid
lease, the moment the tenant becomes a holdover tenant and the
landlord said to him that he shouldn’t be there whether it is a term
of years or periodic, the tenant is now a tenant at will which
means that the landlord can evict you anytime he wants to.
 If the landlord allowed the holdover tenant to stay and to pay a
month rent, and does that every month then, it will become a
periodic tenancy.
- Termination of tenancy at will:
o landlord or tenant terminate the tenancy,
o operation of law:
 landlord’s selling the property,
 an attempt to assign by either party or
 the death of either will terminate the tenancy.
- Common law: the termination is immediate.
- Statutory modification: typically requires 30 day notice (contrast with periodic
tenancy) There is no end period to worry about. I have exactly 30 days to get out.
- Statute of frauds:
o the common law required writing if lease was for greater than 3 years.
o American statutes typically require writing if it is over 1 year
- Invalid oral lease; tenancy at will that converts to periodic: year to year,
irrespective of rental payment;
- Minority view: it depends on how rent is paid; Or tenancy at will with 30 days
notice to terminate.

Tenancy at Sufferance/ Holdovers: created when a tenant wrongfully maintains

possession of the premises (hold over) after the expiration of the lease.
- The lessor may, if he chooses (in most jurisdictions) either evict the tenant or
hold the tenant to a new tenancy merely by accepting rent.
- Not trespassers since they were allowed to be on the property for the first place.
o But they are going to be treated as trespasser the day that they were
supposed to vacate.
o It is not a tenancy at all; it is a description of a tenancy in breach
- No notice or other action by the landlord is required to terminate it.
- Some jurisdiction will not give the landlord their options if you have a judicially
recognized reason for staying over.
o Not held for the next term or year but you will have to pay for that period
of time that you occupy the premise.
 This is allowed under the theory of unjust enrichment
- Ex. If I am on a term of years lease, and I hold over. The landlord can hold me to
another term of year. Same thing, if I am on a year to year periodic lease, the
 landlord can hold me to another period. All the original provisions of the
previous lease will apply if I am held to a new lease. And the landlord can raise
the rent, must expressly refuse. If you refuse to pay the new rent, the landlord can
evict you. But you will only have to pay the old rent that you owed and the next
month that the landlord held you to.

Assignment and Subleases

Sublease: a tenant’s transfer away of less than the entire estate left to him in term of
duration (eg. 1 year of lease with 3 years left)
- A sublessee is not liable for covenants running with the land; he can’t sue or
be sued by the landlord
Assignment: occurs when a tenant transfers away the entire remainder of his lease, in
term of duration.
- An assignee is in “privity of estate’ with the landlord and can sue the landlord
and be sued by the landlord
- To distinguish between assignment and sublease: See if the tenant has any time
left on the lease, if so, it is a sublease; if not, it is an assignment. What is
determinative is the time remaining.
- If the transferor retained any benefit for him (even if it is one day), the
assumption is that it is a sub-lease rather than an assignment. You cannot have a
reversion when you intend to do an assignment.
- Privity of estate: is a means of binding someone to an agreement he didn’t
personally make.
o Exists between an original landlord and a tenant because the tenant holds
a lease and the landlord holds the reversion.
o When an assignee assumes all of the tenant’s possessory rights, he holds
the lease, and the landlord still holds the reversion, putting them in privity
of estate.
- Privity of contracts means the two parties have agreed between themselves to do
or not to do something; in other words, they have a contract.
- 3 ways to see if there is an assignment:
1. did you give all your benefits away
2. if there is ambiguity in the document the court looks at the intent of
the party,
3. The possibility of repossession or the right to re-entry
- Ex. What if I am a head tenant (I have 2 years left) and I assign my right to
another party and that party breaches: landlord has now privity of estate with the
new assignee. The landlord can directly sue the assignee. Had it been a sub-lease,
the landlord could not sue or evict the sub-leasee. What the landlord could do
is cancelled the head-lease than the person would become a trespasser
- As many covenants as the first assignee assumed, there will be privity of
contract.
- Even after privity of estate disappears, the original tenant can never get away
from his contractual duties.
o Unless there is:
o novation= new contract to replace the old one or a
 o recession= contract over, the lease no longer applies.
- Touches of concern - covenant that run with the land.
o Whoever receives all the benefit of the land, have all the obligations.
o If the transfer from the original tenant is an “assignment, the transferee is
traditionally considered to be bound by every promise contained in the
lease that “touches and concerns” the transferred interest.
o Rent is always considered to ‘touch and concern’ the leased premises.
- If a sublessee of the original tenant has not expressly assumed the obligations of
the original lease, the sublessee is not liable for monetary damages for failing
to comply with these obligations.
- The sublessee is not liable because no privity of estate exists between the
sublessee and the original landlord.
- The landlord may be able to enforce some of these covenants by using equitable
remedies
- tenant/sub-landlord A tenant that leases to a sub-lessee.
o If the sub-tenant failed to pay rent, only the sub-landlord can do
something about it not the original landlord.
o The sub-tenant rights are dependent on the sub-landlord rights.
 If the sub-landlord rights are abrogated by the landlord, then, the
landlord can evict the sub-tenant
o If the head-lease is breached and the landlord has the right to
regain possession, the landlord cannot sue the sub-tenant for damages
o In a tenant/sub-lease relationship, the ‘privity of estate” is between the
tenant and the sub-lease. The landlord has nothing to do with it.

TENANT’S RIGHT TO ASSIGN OR SUBLEASE

- In the absence of a lease provision restricting the tenant’s right to assign or
sublet, the tenant may assign or sublet without the landlord’s permission. This is
allowed since the law favors the alienability of estates
o Alienability rights: ability to separate self from property rights.
- If the lease---whether oral or written--- is silent, then presumption is free
alienation is permissible
o whether by assignment or sub-lease
- Landlord can restrict assigning and sub-leasing activities.
o However, you have to be very clear about what you are restricting.
- Can the landlord have an absolute bar against assignment and sub-lease? In the
majority of jurisdiction, the courts are going to see if it is clear that tenants are
barred from such transfers.
- The court will construe an ambiguity against the landlord in favor of
transferability.
- If lease uses only “assignment”, then sub-leasing can be done without permission.
If you only use the word ‘sub-lease” then assignment can be done without your
permission.
o The landlord has to use both if he wants them to be subject to his
consent.
- CL: Landlord could reject potential occupiers arbitrarily.
 - The landlord can be arbitrary if it is explicit in the document
- NY Rule: where there is a provision stating permission is required landlord can
be arbitrary in decision
- The landlord must have reasonable commercial reason for not consenting to the
sub-lease:
1. Financial responsibility of the proposed assignee or sublessee
2. The assignee’s or sublessee’s suitability for the particular property
3. Legality of the proposed use
4. Need for alteration of the premises
5. Nature of the occupancy
- The landlord’s consent cannot violate the FHA statutes:
o Racial: discriminatory purpose or effect.
o Sex: includes harrassment.
o Familial Status (perhaps not effect)
 Exempts specially defined senior housing.
o Handicapped – broadly defined
o Recovering addicts; AIDS sufferers are protected.
- Must provide reasonable accommodations in rules/services to give equal opp. to
use/enjoy.
- Applicable to all sales or rentals (including advertising) of dwellings.
o Bars discrimination based on race, color, religion, nat. origin, sex,
children and handicap.
o Remedies: injunction, damages, punitive damages available.
- Exemptions:
o Private clubs/religious orgs (w/limits).
o Single-family dwellings:
o If owner owns 3 or fewer dwellings; and doesn’t discriminate in ads or
use broker services BOTH required
o Only one transaction per 24 mths if not owner-occupier.
o Owner-occupier of 4 or less units.
- Must prove discriminatory intent.
o May use discriminatory effect to establish prima facie case, but this
may be rebutted by “articulation of non-discriminatory basis” by
defendant.
o If so, plaintiff must either prove that this is “pretext” or have evidence
of actual intent.

Interference with Quiet Enjoyment

− The landlord delivers on day 1, Legal possession, the bundle of rights.
− And also, he delivers Actual possession, the landlord has to make sure that no
one is interfering with that right.
o Actual possession is delivered only at the inception of the lease (day 1). If
you, as a tenant, go to the property and you notice at the inception of the
lease that it is occupied by someone else, you do not have to pay rent until
the landlord takes care of that problem.
 − You can’t cancel the lease if the premised is occupied.
o The landlord has to be given a reasonable time to make the property
available for you.
− Landlord is not responsible for interference during the lease since you are in
possession.
− If while you are in possession someone makes a complaint of ejection the
landlord is responsible for that and you can get damages because landlord did not
give you exclusive possession
− The landlord should guarantee the covenant of quiet enjoyment;
o Covenant of Quiet Enjoyment – landlord guarantees the tenant has
possession free and clear of disturbance and hostile claimants.
o Modern expansion - landlord will not do something physically that
interferes with the possession; that landlord will make repair.

LANDLORD’S DUTIES TO THE TENANT

The landlord has a duty
(1) to provide the tenant with the legal right to possession
(2) not to interfere with the tenant’s physical possession;
(3) to make possession actually available to the tenant.

− If landlord decided to share possession with you, or locked you out of property,
he is interfering with the basic instruction of quiet enjoyment of the lease.
− Quiet enjoyment: it is a covenant, implied in every lease, providing that the
tenant will not be ousted by any third party with paramount title or title superior
than the landlord. And that the landlord and his representatives will not interfere
with the tenant’s use and enjoyment of the premises
o If landlord interferes Tenant is entitled:
 Not to pay rent while landlord is interfering with the property.
 Sue for damages.
1. However, the action must be tied with the landlord’s
conduct.
− Constructive eviction: when the acts or omissions of the landlord may have the
effect of evicting the tenant, although the landlord does not physically prevent the
tenant from occupying the premises.
o The interference must be substantial, that is, the premises must become
uninhabitable for the intended purpose.
o Ex: failure to provide heat or water, failure to control unreasonable noise
created by a neighboring tenant, may make it impossible for the tenant to
remain in the premise.
− the landlord has a duty to control common areas.
o Ex. Thus, even if another tenant (and not the landlord himself) creates an
unendurable racket in common areas, there is constructive eviction.
− landlord has a duty not to allow nuisance, according to some courts.
 o Ex.Thus renting to a crack dealer, who operates a crack den on the
premises, would make the landlord accountable for the nuisance.
− If a court finds that a tenant has been constructively evicted, the lease is
terminated and the tenant owes no rent for the period following termination
− In some jurisdiction, if you don’t vacate you cannot claim constructive eviction.
What if after you vacated, you were wrong? Now, you owe 2 rents!
− You have to give the landlord notice and a reasonable amount of time to fix.
Then you have to vacate or leave
− If the tenant is aware of the landlord’s wrongful conduct when taking possession,
the right to assert constructive eviction in the future is waived.
− Implied Warranty of Habitability: Each residential lease is deemed to contain
an implied warranty that the landlord will deliver the premises in habitable
condition, and maintain them in that condition during the lease term.
− The landlord cannot waive the implied warranty of habitability because this will
be violation of public policy.
o Tenant can withhold rent until the landlord fixes the premise.
 even if the tenant knew about the defects before the lease or pay a
small price for the place.
o Tenant can even seek for damages for all the years that the premise was
defective.
− The test for violation of implied warranty of habitability:
o the defects must be so serious that a reasonable person would find the
premises inhabitable.
− The landlord is not responsible for defects created by tenant.
− Remedies
o Pay a reduced value for the time that you have been waiting.
o Make the repair yourself and deduct the amount from the rent (some
jurisdiction don’t like that option because tenants can make unnecessary
repairs and that will not be fair for the landlords).
o Pay no rent and wait for the landlord to sue for rent.
 If you do that, then you can use it as a defense. Especially, it is a
defense for an unlawful detainer action. You can use the decreased
value as a set off.
o You can sue for damages by remaining in possession of the premises and
continuing to pay rent.
o Unlawful detainer action: a summary proceeding, a statutory created
proceeding that focuses on whether the rent should be paid or the tenant
could be kicked out. It is a status against landlord’s self-help or unlawful
eviction. It is a status against forcible entry and detainer.

TENANT REMEDIES
− Actual eviction: the tenant is dispossessed of most or all of the leasehold
− Tenant can terminate the lease, refusing to pay further rent.
o Most court allow termination even if the tenant remains on part of the
leasehold
 − Constructive eviction: If there has been a constructive eviction
o the tenant can only terminate the lease if she abandons the premises
within a reasonable time.
o Remaining in possession, tenant can only sue for damages.
− The tenant who is constructively evicted may vacate the premises and terminate
the lease, thereby avoiding liability for future rent. 3 steps must be taken
1) Provide landlord with notice of the interfering defect or condition
2) Allow a reasonable period of time for the landlord to cure the problem
3) Vacate the premise within a reasonable period of time.

TENANT DUTIES
− The tenant has a duty to
o pay rent,
o not to commit waste,
 Harmful ordestructive use of property.
o not to interfere with other tenant’s enjoyment of their leased premises;
o not to use the premises for illegal purposes and
o to make necessary repairs (Min)

LANDLORD’S REMEDIES
- If the tenant is in possession and has breached by not paying the rent, the
landlord’s options are as follow:
1) Landlord can terminate the lease (no rent, possession, the tenant is now a
tenant at sufferance, you can evict the tenant) you cannot self-help.
2) LL will have to do the forcible entry and unlawful detainer act so the tenant
can be evicted.
3) LL may evict them and later collect your rent.
- Since you terminate the lease, you can relet and get past damages for all the
time the tenant was in possession. (Also attorney’s fee if it is in the lease)
- You can also let the tenant stays (every month that the tenant stays is another
month that he/she owes you). You can sue for damages
- Surrender and acceptance doctrine: when a tenant surrenders the premises to a
landlord before a lease term expires and the landlord accepts that surrender the
tenant is no longer in privity of estate with the landlord and has no obligation to
pay any rents.
- Traditional rule: landlords are not required to mitigate by reletting.
- Trend rule: landlords have obligation to relet.
o Passive mitigation requires only the minimal attempt to mitigate
o Active mitigation requires the landlord to have vigorously attempted
to mitigate.
- Landlord is only entitled to rent that has accrued up to the date of trial.
- In order to recover for future rent there must be another case brought
o The landlord is required to use what the reasonable landlord in the
situation would use to mitigate.
- The landlord can recover for rent with multiple causes of action
- The landlord can bring suit for anticipatory breach.
- The landlord can sue for accrued and future rents where the jurisdiction does
not close the matter.
- Landlord can only recover what he would not have avoided with reasonable
diligence.
- The breaching party must prove the landlord did not exercise reasonable
diligence to minimize loss

EASEMENTS
− Easement: it is an irrevocable right to use another’s person land for specific
purpose. In other words, it is a non-possessory right to use land in the
possession of another.

− You cannot revoke an easement, once you give it, it is gone. You can give an
easement for life, fee simple, for term of years; easement can also be implied by
law.
− if it is revocable, it is not an easement but a license

− ***The idea of burdening property is called servitude. 3 types of servitudes:

easement, real covenant, and equitable servitude. Not widely recognized.
****

− Servient estate: The land subject to the easement (burdened by the easement)
− Dominant estate: The land benefited by the easement is called the
− Easement does not give exclusive possession, leases do.
− Affirmative easement authorizes the holder of the easement to do a particular
act on the servient land.
− Ex: an easement that allows A to cross B’s land is affirmative in character; it
permits the holder A to do something on (travel across) the servient land B.
− Negative easement entitles the dominant owner to prevent the servient owner
from doing a particular act on the servient land
− Easement Appurtenant: it benefits the easement holder in using the dominant
land and burdens the servient land.
o It passes with the property that it benefits and has the potential to continue
indefinitely.
o An easement appurtenant affects at least two parcels of land
o An easement appurtenant exists only when there is both dominant land
and servient land.
o The easement appurtenant is attached to the dominant land, not to any
particular owner of that land.
o Ex: A’s right to cross B’s land Blackacre is presumably an easement
appurtenant, attached to Redacre.
o When the dominant estate is transferred, any easement appurtenant to it
automatically passes with it.
 o If a recipient of the easement owned a nearby parcel of land that would
benefit from the easement, it is presumed that an appurtenant easement
was created unless strong evidence to the contrary; 3 reasons:
o Most easements are intended to be appurtenant, so it is reasonable to
think so in the absence of evidence.
o Since appurtenant easement passes automatically with a grant of the
dominant estate, a finding of appurtenancy tends to protect the grantee of
that estate from the consequences of an inadvertent failure to include a
separate grant of an easement with a grant of fee
o Any detriment to the servient estate is usually offset by a benefit to the
dominant estate. This offset would not exist if the easement was in gross.
o You can’t transfer an appurtenant easement without transferring the
dominant estate. You cannot sell the right alone since it is attached with
the land.
o The law favors the easement appurtenant over the easement in gross
because this result facilitates the productive use of land.

− Easement in Gross: it is personal to the holder. It benefits the holder in a

personal sense, whether or not he owns any other parcel of land. Thus, it is
attached to the holder, not to the land.
o The easement in gross involves only servient land; no dominant land
exists.
o The easement in gross remains with the holder when there is a transfer of
the servient land with notice.
o Easement in gross is a personal right to use the land of another but it is
not related at all to another piece of property
o Easement in gross is personal with the grantee. Thus, if the grantor sells
the land whoever buys the property will have to abide by the easement.
The burden runs with the land but the benefits are personal to the grantee.
***The intention of the parties determines whether a particular easement is appurtenant
or in gross.***

Creation
− By Deed: Must be in writing to be valid.
− By Reservation: The easement by reservation arises when a deed creates a
wholly new easement that is retained by the transferor upon conveyance of
land to another.
o At common law, an easement could only be reserved in favor of the
grantor.
o Stranger to the deed rule: Easement in favor of a third person was
invalid.
o The grantor can reserve an easement for himself but for not someone else.
o A reservation retains for the grantor a newly created property right.
o Reservation = easement
 − By Exception: retains for the grantor a pre-existing interest in a described
geographical part of the property or recognizes a previously existing property
right in a third party.
− Ex: suppose that the land conveyed is already burdened by an easement before the
conveyance, if the transferor retains this pre-existing easement, it is called an
exception
− If grantor wants to reserve an easement for a 3rd party, he should grant the
easement first then while conveying the land, excepting the easement.
− Traditionally, an exception in favor of a third party is invalid.
− When there is an exception, the presumption is in favor of a fee simple
***However, most of the things that is done to restrict people on how to use their
property is done by restrictive covenant not by negative easement***

DIFFERENCE BETWEEN EASEMENT AND FEE SIMPLE

− If the grant does not fix the width, length, and location of an easement, the court
will look to the intentions and reasonable expectations of the parties
− In the absence of language relating to the use or purpose of the grant or language
limiting the estate conveyed, a transfer of a strip of land is generally construed as
passing an estate fee.
− The more descriptive that you are with the land, the more it is a fee
− Consideration: the more money the larger the scope of the easement.
− Ex. If an easement for a ‘right of way’ mistakenly says that the easement holder
can use ‘50 feet wide” for the right of way, it doesn’t necessarily means that the
easement holder have to use that 50 feet description, the holder has to only use
the reasonable length for the right of way
− Factors to determine whether a fee simple or an easement:
1) amount of consideration (the more consideration, the more likely it is a fee)
2) The particularity of the description of the property (the more descriptive=
fee)
3) The extent of the limitation upon the use of the property
4) The type of interest which best serves the manifested purpose of the parties
5) The peculiarities of wording used in the conveyance document
6) To whom the property was assessed and who paid the taxes on the property
7) How the parties to the conveyance, or heirs or assigns, have treated the
property

INTERPRETATION AND EXTENT

− You can expand the scope of your easement reasonably to accommodate your
reasonable growth, if you have a commercial place
− Relocation :
o CL: No unilateral relocation of the easement by either party ( majority
rule). You need permission.
o Restatement Rule which allows for unilateral movement of an
easement so long as: BY THE SERVIENT to permit normal use and
development.
 1. It doesn’t significantly lessen the utility of the easement,
2. Increase the burdens on the dominant estate to use and enjoyment,
or
3. Frustrate the purpose for which the easement had been established.
o All at the servient estates expense.
o Must be what parties agree upon.
− If there is normal development, (no radical change) you can increase the
intensity of use of the easement over the years. You cannot put additional
burden on the easement.
− The dominant estate cannot use the easement nor permit its use for the
service of land which was not part of the dominant estate at the time the
easement was created. This is trespass.
− In the absence of an express agreement, the easement owner is assumed
to have a duty to make those repairs necessary so as not to interfere
with the servient owner’s use and enjoyment of his property.
− If an easement is appurtenant to a particular parcel of land, any extension
thereof to other parcels is a misuse of the easement unless the servient
estate does not overburden it. ( you can expend easement to any other
parcel as long as it doesn’t overburden the servient estate) Brown v Voss
− According to the Restatement 3rd, you need a declaratory judgment to
change the location of an easement if the grant is silent about that.
(Relocation must not burden the servient estate or frustrate the purpose of
the easement). You can’t engage in self-help.
− Whatever the grant of the easement says goes unless it is ambiguous thus you
go with the intent of the parties.
− Extension of use of easement/ Expanding intensity:
o When an easement is created by grant or reservation and the
instrument creating the easement does not limit the use to be made of
it, the easement may be used for any purpose to which the dominant
estate may then, or in the future, reasonably be devoted. (as long as
there is no extra burden to the servient land)
o However, no use may be made which is different from that established
at the time of its creation and which imposes an additional burden
upon the servient estate.

EXPRESS EASEMENT: SUCCESSION

***If the granting document designates an easement as either ‘appurtenant or in gross’
the words of the grant are given effect

***If the grant does not specify, the court will attempt to determine whether the parties
intended an easement in gross or appurtenant. The court will look at the language of
the grant and to the circumstances surrounding the grant. In ascertaining the intention
of the party, there is a presumption that the parties intended the easement to be
appurtenant

*** For an appurtenant easement, when the dominant estate is transferred to someone
 else, the benefits run with the dominant estate whether or not it has been expressly
stated in the conveyance.

**** For appurtenant easement: When the servient estate transfers his land to someone
else, then the burden transfers to the next holder of the servient estate. That happens
whether or not the easement is specifically defined in the document. As long as there
is a properly established easement it doesn’t matter if it is described. However the
transferee must have actual notice, constructive notice or inquiry notice of the
easement if they are a BONA FIDE PURCHASER FOR VALUE

**** The transferee of the servient estate has to take with notice

***Easement in gross: if the servient estate transfers the property does the burden run?
Yes the burden runs subject to notice to the bona fide purchaser for value.

***Easement in gross doesn’t care where the right holder is located. (movement has
nothing to do with easement in gross)

***Easement in gross: common law rule is that easement in gross are not assignable
*** Can you transfer the incorporeal right of an easement in gross to a 3rd party?
Common law rule is NO

*** Modern rule: Easement in gross is transferable if the easement is commercial in

nature not merely personal (economic benefit/profit)

Restatement 3rd: easement in gross is transferable if the document says that it is (if the
party intends it to be)

***Can I create a joint-tenancy in the easement, can I transfer part of the easement in
gross, and can I share it. Common law: NO

***new law: if your joint-use does not create a burden of the servient estate, and it grows
naturally, then what’s the harm? Joint-holder has to act in concert.

***older view: we will presume the easement not assignable but you can show by a
preponderance of evidence that it is assignable ( demonstrating that is commercial)

***if the primary purpose of the easement in gross is to gain personal satisfaction, it is
deemed not commercial and there is a rebuttal presumption that is not assignable

EASEMENT BY PRESCRIPTION
*** An easement by prescription is almost like adverse possession. The difference is
that you are not possessing adversely but you are using adversely. If you are activity
in the property falls short of possession (you are using the property for your benefits,
do it through the statutory period, it is open, continuous).
***Your use of the easement by prescription is limited to the very narrow-purpose for
which you were once engaging (if you were hiking, you can’t use a horse)

***easement by prescriptions are not favored but when they are granted they are
construed within the tight contour of the actual use of it.

TERMINATION OF EXPRESS EASEMENT

Expiration in accordance with express terms of the conveyance:
1) End of enumerated time period
2) Purpose for which it was created is accomplished or accomplishment becomes
impossible
3) Created as a determinable easement subject to condition subsequent and condition
breached

Extinguishment as the result of subsequent events

1) Act of the easement owner: severance of appurtenant easement, release,
abandonment, excess use or misuse which cannot be enjoined without
terminating the easement
2) Act of other parties: eminent domain, mortgage foreclosure, tax sale
3) Act of servient owners: adverse use for the prescriptive period, conveyance
to bona fide purchaser without notice of the easement
4) Act of either easement owner or servient owner: merger, estoppel

****Abandonment: You have to unequivocally intend to abandon your property right.

If I stop using an easement but I don’t have the intent to abandon it, it is not abandon.
Non-use by itself doesn’t mean abandonment

***When the servient estate purchases the dominant estate, the easement is merged and
it disappears. (you don’t recreate the easement by splitting up the estate again unless
you create it explicitly). The same thing happens to the easement if the dominant
owner purchases the servient estate.

*** Servient estate owner can terminate easement by prescription: The easement
holder has to know that you are no longer recognizing their rights. Why is it difficult?
It is because as the servient estate owner, you have the right to use that easement. So,
even your heavy use of the easement doesn’t make it necessarily so that you
adversely own it. You have to make it virtually impossible for the dominant holder
to use it the easement.

***Estoppel: reasonable reliance and detrimental harm: if you reasonably relied on the
act of the dominant estate owner that the easement was going to be abandoned, and
the dominant estate holder watches you changes your financial position, and now
enforcing the easement would put you at substantial loss. The dominant holder will be
estopped
***Mortgage foreclosure: it depends on when the mortgage was first taken. If the owner
had a first mortgage and the easement was created after the first mortgage then,
the property will go free in clear of all encumbrances. If the easement pre-existed the
mortgage, the foreclosure will be subject to the easement

***Tax sale: if the property is bought out of a tax sale; it will be free and clear of the
easement.

***Reverse prescription: easement can be terminated through reverse prescription. It is

based on the same principle of adverse possession (but it not adverse possession since
there is no possession)

***Just as you can earn easement right through prescription, you can lose it by somebody
else if the person interferes with you right so substantially. (using of easement)

*** A dominant easement owner goes away and not using the easement, if you (servient
owner) let the easement owner know that you are stopping the easement, then you can
get the clock going for reverse prescription.

NON-EXPRESS EASEMENT
Factors to be considered in determining whether an easement should be implied:
1) The terms of the conveyance
2) The consideration paid
3) Whether the claim is made against a simultaneous conveyee
4) The extent of necessity of the easement
5) Whether reciprocal benefits result to the conveyor and the conveyee
6) The manner in which the land was used prior to its conveyance and the
subsequent action taken by the parties involved
7) The extent to which the manner of prior use was or might have been known to
the parties
8) The result that would best meet the reasonable expectations of land owners
and purchasers, and arrive at result that are fair to all parties
9) The ability of parties to act to avoid the confusion
10) Public policy considerations, such as the avoidance of economic waste and the
promotion of full utilization of land
11) The size, shape, and location of the land in question
12) Whether the claimant is the conveyor or the conveyee

Three elements are required for an easement implied from a prior existing use:
1. Unity of ownership at severance of title
2. The easement must be open, obvious, and visible, benefitting one part of the
premises and burden another.
a. Not as necessary when grantor retains servient estate.
3. An existing, apparent, permanent and continuous use when severance occurs, and
4. Reasonable necessity for the use at the time of severance
 − When the common owner of the two parcels conveys the quasi-dominant
estate, the grantee may claim an implied easement by grant in the quasi-
servient estate under the proper circumstances.

− if the parcel retains by the common owner is the quasi-dominant estate, he

may be in position to assert a claim to an easement implied by reservation in
the lot conveyed
− An easement is implied, “if at the time of the severance, the parties had
reasonable grounds to expect that the conveyance would not terminate the
right to continue prior use.”
− An implied easement arises also when the parties intend to create an
easement at the time the property is severed, but neglect to include it in a
written agreement.
− In determining the scope of implied easement, a court cannot look to written
language for guidance. The extent of use prior to severance is the major factor
in making this determination.

EASEMENT BY NECESSITY
− It is an easement that is necessary for the reasonable use and enjoyment of the
dominant parcel. This easement arises by operation of law based on the
circumstances of the case, without any express agreement.
Two elements for easement by necessity:
1) Unity of ownership at severance of title
2) Strict necessity for the easement at the time of severance
a. Strict necessity; if the owner of the dominant estate has any legal
mean of reaching the land—regardless of how inconvenient,
expensive, or impractical it may be—no strict necessity exist.
− The most prevalent type of easement by necessity is a right of way that arises
upon conveyance or retention of a landlocked parcel of land. This is an easement
that requires a high degree of necessity when title is severed
− The servient owner is usually permitted to select the location for the road
easement, as long as the route is reasonable.
− The easement by necessity endures only for so long as the necessity exist.
o Once the necessity ends (highway is built) the easement by necessity
terminates.
− The scope of an easement by necessity is deemed to be coextensive with the
present and future reasonable use of the dominant estate

COVENANTS: CREATION AND VALIDITY

− Easements are a servitude because property is being burdened (you have given up
some of the bundle of you rights) they are a grant to another person to make a use
of property.
− Servitude: rights in land possessed by another
− Promissory servitude: (real covenant and equitable servitude) talk about your
use of your property; restricting you to do something or forcing you to something.
You are again given away a portion of your bundle of your right.
− Covenant: a binding promise or agreement and conveyance of property rights.
• Broken into benefits and burdens
• Prom’ee is benefitted
• Prom’or is burdened
− Covenant Running with the Land: an agreement that may be enforced by or
against a successor to real estate.
− Real covenant: is enforceable in action for damages.
• Example: The promise: Alfred, owner of Appleacre makes a written
promise to Barney, owner of Blackacre, no structure built on Appleacre
will interfere with Blackacre’s direct access to sunlight. The breach:
While Blackacre remains undeveloped, Alfred builds a house that shadows
one-half of Blackacre during peak daylight hours. The remedy: Since
the court is unlikely to order Alfred to tear down his house, Barney seeks
damages equal to the reduction in property value, or increased cost of his
planned investment in solar panels.
− Equitable servitudes are covenant at equity; your relief is injunction.
• Example: The Promise: Alan, owner of Ashacre, promises to Barbara,
owner of Blueacre, that Ashacre will only be used as a single-family
residence. The Breach: Alan contracts to have Ashacre developed as a
convenience store. Remedy: Before construction is underway, Barbara
seeks an injunction from the court that prohibits Alan, under penalty of
contempt of court, from building anything but a single-family residence.
− Some covenants can be construed both as a real covenant and equitable servitude.
(damages for past violation and injunction for future). So, covenants is not either
or.
• Example: The Promise: Amber, owner of Arboracre, promises to Bob,
owner of Beigeacre, that a retaining wall will be built and maintained to
prevent falling rocks onto Beigeacre. The Breach: Amber deeds the
property to Annette, who takes no action when wall partially crumbles.
Rocks fall and do considerable damage to Bob’s pool. The Remedy: Bob
seeks damages to compensate for the property loss and an injunction to
compel Annette to repair the wall.
− A real covenant may be an:
• Affirmative covenant - a promise to perform a particular act, or
• Negative covenant - a promise not to perform a particular act.
− Covenants are NOT easements
• They do not provide a rights that would otherwise be a trespass – they
don’t let another party “use” the burdened estate.
− Covenants may be appurtenant or “in gross”
• If appurtenant, a covenant benefits a parcel, and is not personal to the
promisee/owner.
• If “in gross,” the promise is a personal benefit to the promisee, unrelated
to the promisee’s ownership of any land.
 − Statute of Frauds applies
• With rare exception (covered later), all covenants must be in writing in
order to be enforceable
• May be found
• In a deed
• In a lease
• In a separate document
• Exceptions do apply (estoppel, part performance)
Covenant enforceable unless
− Covenant would be enforced unless “unreasonable”
− Common interest community requires subordination of individual property
rights to collective judgment to be successful
− Covenant must reasonably further collective “health, happiness and enjoyment
of life” of the common interest community
− Enforced unless violates public policy, or bears no rational relationship to
protection, preservation, operation or purpose of affected land, or imposes
burdens disproportionate to beneficial effects
− Must consider effect on common interest community as a whole not on
individual owner
− Any servitude that does not violate public policy is probably good
How terms are interpreted affect validity
− If language is unclear or ambiguous, resolve in favor of free enjoyment of
property.
− No implied restrictions, only those enumerated by language.
− Reasonable interpretation, but strictly to avoid illogical, unnatural or strained
meanings.
− Restrictions to be given ordinary and intended meaning.
Validity of Covenant – public policy & constitutional concerns
− Covenants can’t violate public policy, can’t violate enforceable statutes, and
can’t deprive state or federal constitutional rights
− Restraints on alienability – state adopted Restatement position
o Must protect enforcer’s interest in land
o Limited in duration
o Accomplishes a worthwhile purpose
o Conveyances that are limited are not frequently made
o Number of prohibited persons is small

ENFORCEMENT AND RUNNING OF COVENANTS

In the exam before you even go to the chart:
- Who are the parties?
o P – seeks to enforce burden
o D – seeks to ignore burden
- Ask yourself what covenants are we trying to enforce?
o Beneftit or burden
 P – benefit
 D – Burden

Original covenanting party?

1. Yes – runs
o Whether covenant was created
o Validity of covenant
o Whether covenant was breached
o Appropriate remedy
2. No – must determine
o Does benefit run? (Does THIS person have right
to enforce covenant?)
o Does burden run? (Can THIS property owner
be sued for the breach)
- What remedies are the parties seeking?
o Monetary or equity

- Old restatement: burden in covenant in gross cannot be enforced because there

is no benefit to a neighboring land

- New restatement: Covenant in gross should be enforceable whenever the parties

to the covenant intended this result. (if the party holding the benefit still has a
legitimate interest in the property)

***The burden does not run if the benefit is in gross, that is, if it fails to ‘touch and
concern’ land

***Covenants are often bi-lateral ( I make a promise that benefits me and burden you,
and you make a promise that benefits you in burden me= 2 covenants).

***Be careful about what kind of covenant you have in the exam “bilateral or
unilateral”

***It is the kind of relief that you ask for that determines what kind of covenant it is
***if something runs as a real covenant, it also runs as equitable servitude

6 elements must be established:

1) The covenant must be in writing
2) The original parties must intend to bind their successors
3) The covenant must “touch and concern” the land
4) Horizontal privity must exist
5) Vertical privity must exist
6) The successor must have notice of the covenant

INTENT
 - Intent: intent takes place at the making of the covenant. If the parties intended
that the promises/covenants run with the land both as burden and benefits ( it is
rare that they will split it).
- Intent must be that the benefit and/or the burden of the covenant run for each to
run.
- Covenant language used first.
- Circumstances may permit inference.
o Nature of restriction
 Subdivision requires everyone to keep as single family unit, if
covenant didn’t run with the land benefit is futile.
o Situation of parties
o More closely related to physical land restriction, more courts likely to
infer intent

NOTICE
- If you are a bona fide purchaser with value and you purchase without notice,
you will not be bound by the covenants.
- Notice can be actual, inquiry or constructive. Notice is important when we are
finding out if the burden runs or not.

***Donee (person who receives a gift) will be bound by the covenants even if they didn’t
have notice.

TOUCH & CONCERN

- Covenant must burden or benefit or must at least affect person in peculiar status
as landowner (possessor).
- If there is a remote connection then its personal and doesn’t run with land.
- Traditional requirement: physical impact.
o Covenant has “direct” influence on use, occupation, enjoyment of land.
o Specific negative restrictions most easily placed here.
 i.e only allowing property to be developed as single family home.
- Some courts ask effect on market value
o If depresses – burden touches
o If appreciates – benefit touches
o But this approach has problems
- Logical connection” between the covenant and parcel.
o Ask how much sense the benefit or burden would make if the parcel were not
involved.
- Negative Covenants - where restriction relates to use (e.g. only for residential
purposes), almost always touches
o Non-compete uses: most courts deem burden to touch and concern
o Concern about monopolistic effect tempered by parameters courts set
o Beware of who is trying to enforce
- Affirmative Covenants –
o Traditionally skeptical.
 o Money: had to directly affect use of land (repair covenants, e.g.)
 Rent was exception: always touched.
o Modern trend – connection need not be as closely tied with use, but
should relate to burden of ownership or value.
 Increases value of property or neighboring property.
- Benefitted Parcel - Will need to establish touch & concern both, depending on
circumstances
o Negative restrictions: typically seen as enhancing use and enjoyment
of benefited parcel (physical impact).
o Affirmative: often enhance property values of benefited parcel.
- Benefit in Gross – only affects someone and their personal rights.
o Does not touch and concern.

OLD RESTAMENT
Old Restatement: The burden runs only when it concerns the physical use and
enjoyment of the land.

***For the burden to run in a covenant at law, both the burden and benefit must touch
and concern the property. (If I want the burden to run, the benefit must touch and
concern the property, the burden must touch and concern the property)

***No benefits in gross for the burden to run.

***if I am dealing with a benefit in gross, under common law, the burden is not going to
run for legal relief and probably not for equitable relief

Ex: A promises Sierra Club (an organization) that he would not build on his land and
help preserve the conservation of his land. A sold to C. C built a major building on
the land that’s detrimental to the purpose of the conservation. Sierra Club cannot get
damages from C. (The benefit of Sierra Club was in gross, it doesn’t touch and
concern the land)

***if you want the benefits to run at law, you have to have an advantage on the physical
sense to the beneficiary use of land or a decrease competition use of the land (if all
that we are concerned about is that the benefits should run, then that ‘touch and
concern’ does not have to have a physical impact but an economic impact.)

***Common law or Old Restatement approach: For the burden to run the ‘touch and
concern’ has to involve both benefited and burdened property and the court tend to
look for a physical impact to the benefit property.

***if all we are concerned about is whether the benefits run, we need to have some
economic benefits to the enforcing party in connection with the land. (not physical
impact)

INCONVENIENT COVENANTS
*** The law tries to prevent the running of those promises whose running is likely to
prove ‘too convenient’ either to society or to successors of the promisor. Weighing
the advantage and the disadvantage is important to determine the inconvenience of a
covenant. Factors tending to make a covenant inconvenient:
1) Its duration is long or indefinite
2) The burden on the land of the promisor is greater than the benefit to the land
of the promise
3) The purposes of the covenant could be accomplished by means other than a
covenant running with the land
4) The covenant serves only frivolous or whimsical purposes (arbitary)
5) The existence of the covenant makes it difficult to sell or use the property,
and (restrain and alienation)
6) The promise can be performed by the original promisor as easily as it can be
performed by the person in possession ( personal covenant)

Ex: Sam owns Lot 1 and Lot 2, Sam wants sells Lot 2. However, despite lowering the
price of Lot 2 twice, Sam couldn’t sell it. Finally he found Dora, in an attempt to
induce Dora to buy the property Sam promised on the deed behalf of himself and all
successive owners and occupier of Lot 1 that he would cut the lawn of Lot 2. Is this
touch and concern the land if Sam sells Lot 1? (Look at the inconvenient party)

PRIVITY
- Horizontal: conveyance relationship existed between original covenanting
parties.
- Vertical:
o Strict – successor takes entire estate of transferor.
o Relaxed – successor takes a lesser estate from transferor.
o None – not a successor, but has substantial interest in parcel that was owned by
covenanting party.
NEW RESTATEMENT
- The general rule under the new Restatement is that all successors are bound by
the promises whether in privity or not. Exceptions:

1) One who holds a title superior to that of the original promisor or creator of
the servitude cannot be burdened

****Ex: Suppose that the person who had made a promise was a sub-leasee. The Sub-
leasee made a promise regarding conducts on the property, so when the lease expired
the landlord cannot be burdened by it.

2) With respect to affirmative covenants, persons who hold estates of lesser

duration than those of the original covenanting parties generally are not
subject to burdens and cannot obtain the benefits of such covenants,
except in certain situations involving lessees (covenants to repair and maintain
or render services run) and life tenants
***Ex: if the original covenanting parties had a fee and I am a successor to the burden
estate and I have a lease or life estate, I cannot be burdened or benefited by these
affirmative covenants

3) Person holding possession adversely generally cannot obtain the benefits of

affirmative covenants, with the exception of covenant to repair and render
service to the property

***Ex: People who are in adverse possession but are waiting for title of the land, those
people cannot obtain the benefits of the affirmative covenants. They are nonetheless
subject to the burden. Once they become actual fee owner through adverse
possession, the general rule applies

***For the exam: before you get into any analysis of “intent, touch and concern and
etc”, you have to do a diagram. What do I need to see to show it is running, who has
conveyed to whom, am I dealing with original parties? Am I dealing with one side
that conveyed? Both sides have conveyed? Which is running? Burden or benefit or
both? What kind of remedies?
Covenant at law: BURDEN to run
1) Written
2) Intent
a. That burden is enforceable against successor
3) Notice
a. Under recording act.
4) Touch & Concern
a. Benefit and Burden
5) Strict vertical privity
6) Horizontal privity

Covenant at law: BENEFIT to run

1) Written
2) Intent
a. That benefit be enforceable by successors
3) Touch & Concern
a. Only benefit
4) Relax vertical privity

Equitable Servitude: BURDEN to run

1) Written
2) Intent
a. That burden be enforceable against successors.
3) Notice
a. Any kind of notice.
4) Touch & Concern
a. Benefit and Burden
5) Any possessory interest in benefited land
Equitable Servitude: BENEFIT to run
1) Written
2) Intent
a. That benefit be enforceable by successors
3) Touch & Concern
a. Benefit and Burden
4) Possessory interest in the benefited land
a. Substantial interest in land of original cov’or
b. Intended 3rd party beneficiary.

New Restatement: BURDEN to run

1) Intent
2) Notice
3) Not illegal, unconstitutional, or against public policy
4) None, except holder of superior title to promisor and lesser estate holder to
affirmative covenants not bound ( save some lessees)
New Restatement: BENEFIT to run
1) Intent
2) Not illegal, unconstitutional or against public policy
3) None, except lesser estate holders to affirmative covenants don’t benefit ( save
more lessees) and adverse possessors (short of statute) are limited to certain
types of benefits.
- When you are dealing with original covenanting parties, all you have to worry
about is if there is a valid covenant or contract.
o If original prom’or ask if burden runs?
o If original prom’ee ask if benefit runs?
o If neither ask if both run.
 Must first determine if the state applies the traditional rules or the
Restatement (Third) rules.
 Must also determine if the aggrieved party is seeking damages,
injunction, or both.
 Must then apply appropriate rules to determine if either benefit,
burden or both run.

DEFENSES TO THE ENFORCEMENT OF COVENANT

- Covenant that runs with the land doesn’t have to be supported by separate
consideration
- Waiver of enforcement: this is where a party wants to enforce a benefit but it is
prohibited to because there has been some knowing waiver on a permanent basis
on the benefit of the contract
- Estoppel: You rely on a non-enforcement of a covenant to your economic
detriment, I am aware of that I could enforce it, I don’t and now I am trying to
enforce it ( the court will estopped me)
- Laches: It is undue delay of enforcing one’s rights. The nature of lashes is that
the delay is so unreasonably long, that the person who has the delay is aware of
 the violation and has done nothing about it. The wait is going on so long that the
other side should be estopped from enforcing it. It is like estoppel without
reasonable reliance (the prejudice in favor of the violator occurs because of the
long wait)
- The court will look at the extent to which the hardship on the D increased
because of the changed circumstances that were not anticipated when the
covenant was made.
- Changed Circumstances: Covenants can be terminated if the conditions in the
neighborhood have so changed that the covenant no longer serves its intended
purpose.
1. Look at the surrounding environment, have things changed?
2. What’s going on in reality around this situation such that it has changed
so much that enforcing this promise no longer makes?
3. Has the changed condition adversely affected the benefited lot?
4. Is it now impossible to achieve the original parties’ intent even if the
covenant is enforced?
- Relative Hardship: courts may refuse to enforce a covenant if enforcement will
result in a hardship to the owner of the burdened land that is disproportionate to
the benefit to be obtained from enforcement.
o If the hardship on the D is very great, and the benefit to the P is relatively
minor, the court may refuse to issue an injunction. Particularly if the D
acted without knowledge of the covenant.

***When using the doctrine of ‘relative hardship’ the court will require that the
defendant does not act with malice. Just because the court won’t enter an injunction
doesn’t mean that the court won’t give damages. If it is a covenant that can function
as a real covenant/equitable servitude, the court may not give an injunction but still
give legal relief.

NEGATIVE RECIPROCAL COVENANT

****Ex 1: Developer owns Blackacre and conveys one of its lots to A subject to a
restrictive covenant. If A breaches, Developer can enjoin the violation and any
subsequent purchaser of the Developer’s retain land can enjoin A if the benefit is
appurtenant to subsequent purchaser’s land.
This is because the covenant in the deed is a unilateral covenant that burdened A’s lot
and benefited the rest of the Developer’s land. So, each lot sold later remains
benefited and all new owners can enforce the covenant against A

***Ex 2: 2 years later after selling the lot to A, Developer sold another lot to B with a
similar deed that contains the same restrictive covenant that A’s deed contains. B
breaches the covenant in his deed. Under traditional law, A cannot enforce the
covenant against B nor against any subsequent purchaser although B’s deed includes
the same covenant.
The covenant in A’s land only burdened A’s land, it did not burden the Developer’s
remaining property –unilateral covenant---
Ex 3: The covenant in all deeds out from Developer restricts each lot to a single family
house. C purchases the last lot and wants to build a gas station there. Developer
waives the restrictions. Neither A, B, or any other purchasers of the previous lot can
enforce the covenant under traditional law.
The benefit is now personal to the Developer since he no longer owns any lot to which
the benefit might become appurtenant, plus he waives the enforcement of the
covenant. Second, all previous purchasers are now stranger to the deed to C

IMPLIED RECIPROCAL NEGATIVE COVENANT: To remedy that problem, once a

court finds that there is a common scheme, the court will conclude that the common
owner (Developer) intended to impose the identical covenant in all parcels from the
time the common scheme began. Thus, the entire tract become burdened and
benefited as soon as the common owner sells the first lot as part of the common
scheme. This is called ‘Implied Reciprocal Negative Covenant’

****The problem with negative reciprocal covenant is that when the purchaser is doing
title searches, he is no going to see an obligation to the entire lot. So, what about the
notice problem?
The general scheme itself should trigger notice. You may be required to go to the original
title to see if there were restrictive covenants. By looking around at the neighborhood
and seeing that every other lot is developed in a particular way, and that knowing that
they were developed by one developer is enough to put you on inquiring notice. In
conclusion, the court will find away to get over the notice requirements.

****We need to know when the common scheme started. If there were no covenants with
Lot 1 and Lot 2, and the common scheme started with Lot 3, then Lot1 and Lot 2 are
not part of it.

Common Interest Communities

NUISANCE
PUBLIC / PRIVATE NUISANCE
Public Nuisance: unreasonable interference with the rights common to the general
public.
- i.e. health, safety, morals, or comfort of the public.
o Drug houses, illegal gambling houses, etc.
- Allows governments to close facilities that violate.
- For public nuisance, everybody suffers in the same way from the nuisance.
- Private individuals don’t have the right to enjoin a public nuisance.
o Private individuals may petition their public officials to enjoin a public
nuisance but they cannot do it themselves
Private Nuisance: unreasonable, non trespassory, interference with the use or enjoyment
of property right of another.
- Common Law:
- Elements
 1. Interference is substantial and unreasonable
2. Conduct is intentional and unreasonable or reckless, wanton, negligent, or
ultra-hazardous.
 Traditionally the effect must be unreasonable.
 Modernly the act must be unreasonable.
3. Causation: the D actions are a substantial cause of the interference.
4. Injured party must have some interest in the land.
- Law will not protect ultra sensitive plaintiff.
- If the cost of the injunction weighs more than the P’s benefit, then there has been
economic waste.
- Restatement
***Private nuisance: is an act or condition on the defendant’s land that substantially and
unreasonably interferes with the plaintiff’s use and enjoyment of plaintiff’s land.

***For nuisance, the interference is usually an intangible invasion (smell, light, sounds,
dust, pollution) rather than a physical invasion which is the subject of trespass

***I can be negligent in the operation of a business and because of my act of

carelessness, I can cause interference with somebody use and enjoyment of their
property. (Nuisance could be fault-based, but it doesn’t have to be always fault-based)

***Trespass offends the right to possess; exclusive possession

BOOMER v ATLANTIC CEMENT

Boomer v Atlantic Cement: the court use the threshold factor first to find the nuisance,
then goes to the utility factors

***The court refused to issue an injunction in Boomer although it declared the cement
company a nuisance. Instead the court awarded plaintiffs compensatory damages for
their injuries to date and authorized them to bring suit in the future as further injury
was suffered.

***It was a conditional injunction: an injunction to be vacated when Atlantic paid

permanent damages to plaintiff. ( in effect, this essentially awarded plaintiff
compensatory damages in lieu of an injunction)

****The court reasoned that the only way to comply with an injunction to abate the
emissions would be to stop operations all together. This would shot down a big plan
that gives works to 300 people. ( loss of a $45 million plants, 300 workers and higher
cement price outweighed the benefits to plaintiff)

***If the cost of an injunction outweighs the benefit, the court will deny an injunction
and instead award damages.
*** “Balance of equities”: There is not an automatic right to injunction. A court will
issue an injunction only if the resulting benefit to the plaintiff is greater than the
resulting damage to the defendant. The public interest is also weighted.

***Before Boomer, a court could either find no nuisance (allowing the factory to
continue harming plaintiff); 2) issue an injunction against the nuisance (thereby either
closing the socially-valuable factory, or more likely, forcing the factory owner to pay
a windfall to eliminate the injunction). Boomer provided a 3rd option—the payment of
permanent damages in lieu of an injunction

***The Restatement says that if you are seeking damages for nuisance, there ought to be
some balancing done. If you are seeking an injunction, you don’t have to worry
about the balancing that the Restatement is talking about as a general rule

*** “Invasion of another’s interest”, it is not any kind of invasion but rather an invasion
that is caused by another’s conducts. (There is a focus on conduct)

**** “Intentional and unreasonable”, it means that the conduct has to be intentional but
the nature of what you are doing has to be unreasonable. You have to know that your
act is causing some consequences but the nature of these consequences have to be
unreasonable.

***b) Or you have to be truly negligent (breach of a duty and that breach causes some
substantial harm to someone else’s right to enjoy and use his property

Affirmative and Negative act: The conduct necessary to make the actor liable for either a
public or a private nuisance may consist of
an act
a failure to act under circumstances in which the actor is under a duty to take positive
action to prevent or abate the interference with the public interest or the invasion of
the privacy interest.

*** Nuisance can be either affirmative or negative conduct.

***b) Ex: I got a tree in my property, after a lightning storm a huge bow is hanging over
my neighbor’s property. My neighbor has kids. There is no harm yet but the
negligence of letting the bow hanging is interfering with the neighbor’s use and
enjoyment of his property. The neighbor is no letting is kid play in the backward.

Intentional Acts: An invasion of another’s interest in the use and enjoyment of land or an
interference with the public right, is intentional if the actor,
acts for the purpose of causing it, or
Knows that it is resulting or is substantially certain to result from this conduct
Unreasonable Acts; An intentional invasion of another’s interest in the use and enjoyment
of land is unreasonable if
The gravity of the harm outweighs the utility of the actor’s conduct, or
The harm caused by the conduct is serious and the financial burden of compensating for
this and similar harm to others would not make the continuation of the conduct not
feasible

***This is where you use the balancing test ( especially for damages):
a) Ex: I know that my operating this pump is making a lot of noise but I am giving water
to the community and I am keeping the area from being flooded (utility). The
question is, is the utility of that conduct outweighs the right of the person who is
complaining about the violation of his right of use and enjoyment?

***b) Ex: I am liable if my conduct caused some serious interference with the right of
use and enjoyment of land and if I have to compensate for that, I am not going to go
out of business.

Gravity of Harm Factors: In determining the gravity of the harm from an intentional
invasion of another’s interest in the use and enjoyment of land, the following factors
are important:
The extent of the harm involved ( how much of the plaintiff’s property is affected)
The character of the harm involved (what kind of harm is it, noise, and radiation health
problem?)
The social value that the law attaches to the type of use or enjoyment invaded ( the law
will be more favorable to a dwelling house than to a brothel)
The suitability of the particular use or enjoyment invaded to the character of the locality;
and ( your house doesn’t fit well here since this a factory area)
The burden on the person harmed of avoiding the harm ( Can I do something like putting
a wall to restrict the vibration)

THE PARTY WHO IS CREATING NUISANCE

Utility of Conduct Factors: in determining the utility of conduct that causes an intentional
invasion of another’s interest in the use and enjoyment of land, the following factors
are important:
The social value that the law attaches to the primary purpose of the conduct (you making
all the noises, is it for something society valued like cement, creating electricity etc,
look at the market! Is only 1 or 18 of the same factories in the same area)
The suitability of the conduct to the character of the locality ( is there activity is not
suitable for the place, look at the environment )
The impracticability of preventing or avoiding the invasion ( look at the cost the offender
would have to undergo to limit or eliminate the nuisance)

***( c ) As a defense, the defendant can say that he is using state of the art technology
and still, the nuisance cannot be eliminate
Malicious Harm Rule; An intentional invasion of another’s interest in the use and
enjoyment of land is unreasonable if the harm is significant and the actor’s conduct is
for the sole purpose of causing harm to the other; or
contrary to common standards of decency

***For malicious harm, there is no need to balance. If the court finds a conduct satisfies
the element of malicious harm, the court will make you stop.

Threshold Rule: An intentional invasion of another’s interest in the use and enjoyment of
land is unreasonable if the harm resulting from the invasion is severe and greater than
the other should be required to bear without compensation

****At some point, no matter how useful your conduct is, if the harm is severe that no
one could tolerate it, we are not balancing. For damages purpose, you will have to
compensate

Easy Avoidance Rule: An intentional invasion of another’s interest in the use and
enjoyment of land is unreasonable if the harm is significant and it would be
practicable for the actor to avoid the harm in whole or in part without undue hardship.

*** When the harm to the plaintiff is significant but it is not devastating, and it is easy for
the offender to avoid, then we will find a nuisance.

Opposite Suitability Rule: An intentional invasion of another’s interest in the use and
enjoyment of land is unreasonable if the harm is significant, and
The particular use or enjoyment interfered with is well suited to the character of the
locality; and
The actor’s conduct is unsuited to the character of that locality

*** If you focus on those factors alone, one is suitable and the other not suitable and
there is significant harm to the plaintiff, then there is nuisance

SPUR INDUSTRY v DEL WEBB

Spur industries v Del Webb Development: a party who ‘comes to the nuisance’ must
indemnify a pre-existing lawful enterprise if it is enjoined from operating its feedlots.
Because the harm was too much, so you have to pay for the injunction.

Spur: The court issues an injunction against the nuisance but requires the plaintiff to
compensate the defendant for costs of compliance.

***Because plaintiff was the direct cause of the problem, the court exercised its equitable
powers to require plaintiff to indemnify the defendant for the costs of moving or
shutting down.

***if the company was located itself in a place where it was foreseeable that would
become a city, the ‘come to the nuisance” doctrine wouldn’t applied.
*** Sometimes, you can get an injunction but because the equity does not balance in your
favor (because you knew that cattle feedlot was out there, and you knew you were
going to develop) you can’t expect the legitimate business to abandon their business

***The appropriate remedy in a nuisance action should be an injunction cancellable upon

payment by the defendant of damages to the plaintiff for past injuries and for future
injuries that would flow from the continuation of the defendant’s activities.

CONDEMNATION
5th Amendment: ‘… nor shall private property be taken for public use, without just
compensation”

***Government has a right to take property or condemn for public use. There is no
problem when it is “post office, schools, military bases”; but what about condemning
land to build a “shopping mall or to give to Meijer”?

HAWAII HOUSING AUTHORITY v MIDKIFF

Hawaii Housing Authority v Midkiff: Could the state of Hawaii condemn land from a
landlord and then convey to his tenant? The court says yes as long as it conforms to
the rational basis test for “public purpose”

***Midkiff: “Public use” is now defined by the purpose underlying the government
action, not by the identity of the land user

“The public use” requirement is thus coterminous with the scope of a sovereign’s police
power”. The state has the power to define what the “public use” is.
-

*** “Where the exercise of the eminent domain power is rationally related to a
conceivable public purpose, the Court has never held a compensated taking to be
proscribed by the ‘public use’ clause’”
So, according to the Supreme Court, “public use” is a rationally basis test. “Public
purpose”: health, safety moral, welfare, better quality of life etc, could be decided by
the state.

*** As regard to condemnation, the appropriate question is not whether in fact the
condemnation serves a public purpose. A court only has to inquire whether the
decision is rationally related to a conceivable ‘public purpose’. In other words, could
the legislature rationally have believed that the condemnation would serve a
permissible public purpose?

*** The Hawaiian oligopoly was undermining better quality of life, so the taking was for
“public purpose’ to create social stability. We are taking land from A to give to B, we
 are not doing to make B feel better, but we are doing it to create a market. Such
market under the rational basis test, conforms with the “public purpose”

***As long as property is taken for a legitimate public purpose—that is, a purpose within
the scope of the government police power—the public use requirement is satisfied.

KELO v CITY OF NEW LONDON

Kelo v City of New London: a public organization decided to improve their community,
they form a committee and debated about what would be good for their community,
they then made a decision to condemn a neighborhood for economic improvement.
They acted like a public body and made a judgment that this condemnation will be
good for their community. The Supreme Court agreed.

*** “The mere fact that property taken outright by eminent domain is transferred in the
first instance to private beneficiaries does not condemn that taking as only having a
private purpose”. “Public purpose” could be indirect.

***The court doesn’t want to second guess governmental decision. Once the question of
“public use” is decided, court is done.

Poletown: if you can make a showing that there will be substantial improvement to the
local economy, even though it is going to be indirect through the operation of a
private factory, that’s enough for “public use” to justify condemnation

****Poletown: if you can prognosticate the improvement of the community, then you
can show a ‘public purpose.’ And in Poletown, GM failed miserably in its prediction
and promises after the eradication of a decent neighborhood in favor a factor plant.

*** The problem with that method ( Poletown) is that the private companies shouldn’t
be the ones to make the showing, they shouldn’t be the one to start the ball rolling
since they will be driven by their own passion for profits and will certainly paint
things in their favor. These decisions should be made by public figures.

COUNTY OF WAYNE v HATCHCOCK

County of Wayne v Hathcock; Developers wanted to develop an economic zone around
the airport, new business, expansion. However, some of the owners in the
neighborhood did not want to sell. The court did not want to follow Poletown, where
the developers presented ‘showings”

***Instead the Michigan court says that there are only 3 instances where a government
can condemn private property and give back to somebody as private property under
Michigan constitution:
Where ‘public necessity of the extreme sort’ requires collective action (railroads, canals,
etc )
Where the property remains subject to public oversight after transfer to a private entity
( ex: land is condemned and is given to a private property that is going to produce
water but that company is under public supervision)
Where the property is selected because of “facts of independent public significance’
rather than the interests of the private entity to which the property is eventually
transferred. ( the act of condemning itself is what’s good, we are condemning it
because it is blighted)

***Hatchcock only applies to Michigan

Regulatory Taking
- Land use regulation: takes many forms like building, zoning ordinance; single
family, duplex, industrial can be etc; there are an array of limitations
- Land use regulation limits and sometimes decreases property value because of
restrictions it imposed; zoning, conservation, landmark preservation, exaction
- Land use is not like condemnation where the government just takes property for
public use and compensates you, but a land use regulation to a certain extent can
become a ‘taking’.
- The police power authorizes government to regulate the use of land to protect the
public health, morals, safety and welfare.
- Thus, a land use regulation would be upheld against a substantive due process
attack if it had a rational relationship to a legitimate government interest, such as
public health or safety
- Whenever there is a regulation that equals a permanent physical invasion of
someone’s land that is a taking.
- Whenever there is reduction of the market value of someone’s land to zero, that is
a taking .
- Takings occur under 2 rules
o Categorical rule – it fits into a catergory that requires compensation…i.e.
physical invasion, economic devaluation.
o Balancing test

LORETTO v MANHATTAN CATV CORP

Loretto v Manhattan CATV Corp: Loretto revolves around the installation of cable
television equipment at a NY City apartment building. NY had enacted a statute that
authorized cable television companies to install cable and related facilities on
residential rental property. The sum of $1.00 was determined to be reasonable
payment in return. A cable company installed a non-cross over cable line at Loretto’s
building that provided cable television to Loretto’s tenant. Loretto sued, claiming that
the state law was a taking of property without just compensation.

****Loretto: the court recognizes this bright line rule; “Any permanent physical
occupation authorized by government is a taking without regard to the public interest
that it may serve”
***The cable installation was a taking since the facilities were attached to the building
with bolts and screws and thus were permanent.

***Loretto only applies to physical takings. It can be classified as a regulatory taking

case only in the narrow sense that the government had authorized the permanent
physical occupation of land by a third party.

***Can temporary physical invasion is a taking? Yes, but a “balancing test” will be used.

YEE v CITY OF ESCONDIDO

Yee v City of Escondido: the Yees, owners of two mobile-home parks, brought this suit
for damages alleging that a state law, in conjunction with a local rent control
ordinance, deprived them of all use and occupancy of their real property amounting to
a physical taking of that property

***The law regulated how a land owner may terminate a mobile home owner’s tenancy.
Also, the ordinance impeded the landowner ability of using rent to control who is
going to rent the land. The Yees argued them of all the use and occupancy of their
real property, amounting to a physical occupation of that property.

***Just because the regulation affects the landowner economically doesn’t mean it is a
taking. The landowners, still own their lots.

***Mere regulation is not tantamount to a taking

PENNSYLVANIA COAL v MAHON

Pennsylvania Coal v Mahon: The Pennsylvania Coal Company conveyed a parcel of land
to plaintiff’s predecessor in title, but reserved in the deed the right to remove all the
coal under the land surface. Mahon ( plaintiff) purchased the property—apparently
with notice of this restriction.
In the interim, the state adopted a statute that prohibited the mining coal under residential
areas in a manner that caused the subsistence of any dwelling. When the company
warned the Mahons that its future mining operations would soon cause their home to
subside, they sought an injunction pursuant to this statute. The Coal argue the statute
was unconstitutional.

***The Court argued that the statute was a taking of the coal’s company property’s right

***Pennsylvania Coal: “if regulation goes too far it will be considered a taking”

**** Diminution of value test : that is the extent to which the regulation diminished the
fair market value of the property. According to the court in Pennsylvania, the extent
of the taking was “great” because the statute took the coal company’s entire support
of estate.
***Justice Brandeis: The relevant property was the whole property owned by the coal
company; thus the extent of diminution in value could be determined only by
comparing by (a) the value of the coal kept in place v (b) the value of the whole
property

***So, according to Brandeis’s approach the status only diminished a portion of the
whole property and not caused a 100% diminution in the value of the property

***” “Average Reciprocity”: the reciprocal benefits of regulation compensate for its
burden. That is, a regulation was justified when the burdens it imposed in land
owners were offset by the benefits it conferred on them.

Ex: An ordinance that restricts A from building a building exceeding 2 stories in height,
burden A because he cannot build a 3 stories building but also benefits him adjacent
landowners are si
***So in Pennsylvania, where is the average reciprocity?
***The court is looking at the extent of the nuisance, the extent of public interest
(character of the government action, how important is it to the public)
This is a balancing test: the Court is comparing the extent of the public interest with the
extent of diminution and the court concluded that the statute did not manifest a public
interest

***You bought the land by knowing of the risk in the deed, you shouldn’t be relying on
government regulation to bail you out.
Balancing Test Factors
1. Degree to which the property has been diminished in value.
2. The remaining economic viability of the property
3. The degree to which the investment-backed expectations of the property
owner have been thwarted by the regulations.
4. Character of the government’s actions. (Benefit to public, due process,
was the process used fair etc.)
5. Whether the regulation affords a reciprocal advantage to the property
owner.

PENN CENTRAL TRANSPORTATION v NEW YORK

Penn Central Transportation v New York: the Grand Central Terminal building was
designated a “landmark” under NY City’s preservation laws. Under the landmark
law, any change in the exterior architectural features of a landmark or interior work
required advance approval from a city commission. However, city ordinances also
allowed the owner of a landmark to transfer unused development rights from the
landmark parcel to other nearby parcel
The owners of the terminal ( Penn Central) leased the airspace above the terminal to UGP
proprieties for a 50 year term. UGP’s plan to construct a 55 story office building in
the airspace over the terminal required approval from the landmark commission. The
commission rejected the proposal based on aesthetic considerations. Penn Central and
UGP filed suit, alleging that the application of the landmark law to the property was a
 taking of their property right in the airspace. Second, the law diminished the value of
the land

***Penn Station’s lawyers argue—drawing on Pennsylvania— that they have lost all
their right to the airspace, thus that constitutes a taking

****Penn Station: “Taking jurisprudence does not divide a single parcel into a discrete
segment and attempt to determine whether rights in particular segment have been
entirely abrogated”. The Court would consider the impact of the law on rights in the
parcel as a whole, not merely the impact on the airspace

- Investment-Backed Expectations: if you buy land devoted to a legally-permitted

use, you have a reasonable investment-backed expectation that the use will
continue. For example, the Penn Central Court stressed that the landmark
preservation ordinance did not interfere with the owner’s ‘primary expectation’
which is the continuing the existing terminal use
- If a parcel of land is already subject to land use regulation at the time of the
purchase, the buyer cannot have a reasonable investment-backed expectation that
he will be able to violate the law

***Investment-Backed expectation: are you losing money to the newly property rights
that you have discovered. Did you initially invest money and reasonably expect the
airspace to create money for you? This is an opportunity loss not an out of pocket
loss.

***Penn Station can sell the rights of its airspace that it cannot use to somebody else
(reciprocal benefits). That’s a value to Penn Station

*** The building wasn’t single out because there are 400 buildings that are landmark

***Factors to look at : ( case by case specially when dealing with significant economic
impact)
Degree to which the property has been diminished in value ( negative impact on the
investment, residual value)
Reciprocal advantage ( are you being singled out)
Character of the government action ( how substantial of a public benefits are we dealing
with, how fair was the government in the way they handled the process)

LUCAS v SOUTH CAROLINA COASTAL COUNCIL

Lucas v South Carolina Coastal Council: Lucas a real estate developer paid $975, 000 for
two beachfront lots in a residential development located on a barrier island off the
coast of South Carolina. Since Lucas’ lots were 300 feet away from the beach, at the
time of the purchase, they were not covered by a statute that required coastal lands to
obtain a permit before developing their property. 2 years later, the state adopted a
statute that prohibited all construction along a long stretch of shoreline, including
both Lucas’ lots.
Lucas: The court identifies two “categories” where a taking could be found without a
fact-specific inquiry:
Regulations that compel the property owner to suffer a physical ‘invasion of his property
( Loretto)
Regulation that deny “ all economically beneficial or productive use of land”
(Pennsylvania Coal)

***If the regulation is the true cause –no matter how good the regulation is to the public
—and the diminutive value is zero, then there is a taking and the state has to
compensate

***However, if the value of the property was zero before the regulation (pre-existing
nuisance), then you had no bundle of rights to begin with

Palazzolo v Rhode Island; regulation was passed before Palazzolo purchased the property
(no reduction to zero). There was no bundle of rights to begin with.

***Inverse Condemnation: Inverse condemnation is a term often used to describe

property owner’s cause of action against the government to recover damages for the
value of property that the government has in fact taken, although the government has
not brought any action under the power of eminent domain

Tahoe-Sierra preservation Council v Tahoe Regional Planning: A moratorium on

development prohibited construction for 32 months to protect the environment.

***Plaintiffs argue that for 32 months they have lost all their right to make a profit out
the land since the government restriction. (Temporary taking). The court disagreed
with that assessment.

***Where the regulation is temporary, then Lucas or the diminution of value to zero
cannot be satisfied

***However, using Pennsylvania Coal analysis, a regulation that is temporary may be a

taking. For instance, what if the land that was subjected to the temporary regulation
was providing an ongoing stream of income and suddenly halted because of the
temporary regulation. You can make a case using Pennsylvania Coal.
- If a law was a taking and it was repealed, gov still has to compensate for the time
it was enforced.

EXACTION
Exaction: an exaction is a requirement that the developer provide specified land,
improvements, payments or other benefits to the public to help offset the impact of
the project
***You already have regulated property, the property owner wants an escape from the
regulation (variance, special treatment, exception) something that the public authority
have a power to do. And the property owner will make a case to say that he is
qualified for the exception. The public authority, in return of granting the exception,
they want something back. That something back is called an exaction.

***The question is whether that something back is more than what the government is
entitled to get under the Constitution. If it is more than what the government should
get, then it is a taking and the government has to pay compensation.

***There needs to be a relationship between the public value and the exaction for it to
substantially advancing legitimate state interests.

*** There has to be an essential nexus between the thing you are asking and the public
value. If you go on without that connection, you have to pay for it. (For instance there
is no logical connection or essential nexus between an exaction to build a building
that block “ocean view” and an easement that would allow people to walk through the
owner’s land. Nolan v California Coastal Commission

DOLAN v CITY OF TIGARD

Dolan v City of Tigard: Dolan owned a plumbing store in Oregon, she planned to double
the size of her store, pave the exiting gravel parking lot, and build an additional retail
building on her land. The city granted her the permit but required that she dedicated
about 10% of her land to the city because the project would increase the amount of
impervious surface of land. And also because the expanded store would attract
additional customers, the city insisted that Dolan also dedicate an easement for a
pedestrian/bicycle pathway

***Dolan: the Court found an unconstitutional taking of these facts because the
dedications demanded by the city lacked the required degree of connection with the
impacts of the projects

*** For essential nexus: The court determined that limiting development within the
floodplain promoted the city’s interest in preventing floods; and providing the
pedestrian/bicycle pathway served its interest in minimizing tragic congestion. ( The
Nollan standard is satisfied here)

***However, the Court said that the 5th amendment required “rough proportionality”; a
determination that the required dedication is related both in nature and extent to the
impact of the proposed development.

***For example, the city’s interest in flood control could be satisfied by a less intrusive
condition such as allowing Dolan to retain title to the floodplain land but prohibiting
any future development. Also, the court found no evidence that the pedestrian bicycle
path easement was adequately related to the increased traffic that the project would
 cause. Since the record merely reflects that the path “could” offset the increase traffic,
not that it “would” offset this traffic.

***The 10% requirement is too much; it upsets the concept of “rough proportionality”

***Rough proportionality; the amount that you are taking must be roughly proportional
to the burden that befalls on the city

*** It is a 3 throng test for exaction

Is the regulation valid,
Is there an essential nexus,
And even if there is, is the amount of the exaction roughly proportionate to the nature
and the extent of the project’s impact

THE PUBLIC TRUST DOCRTINE

Public Trust Doctrine: such doctrine rests on each state’s sovereign ownership of lands
and waters within that state. As a trustee of lands submerged by tidal or navigable
waters, the state typically has an obligation to ensure that these lands are used for the
benefit of the public in such activities like fishing, commerce, and navigation

***If the sovereign state conveys such property to a private owner, the state remains
encumbered by the trust and the rights of the owner are accordingly limited.

***As a trustee the state has a perpetual duty to act in the best interest of the public. The
state cannot abdicate (renounce to) his role as a trustee of the public trust

***The public trust can be extinguished when the state transferred the property to a
private company for a public purpose. As long as the property is serving the public
purpose, the state cannot come in to regulate it.

***Any grant of property that encompasses that the public trust area is granted subject to
the public trust. Whenever the state feels that a private party’s use of public trust land
is inconsistent with the purpose of the public trust, the state may revoke the grant of
the public trust land

***You look at state law when it comes to public trust

*** Public trust it is a common law concept, it is not meant to be static and it can be
amended.
Reasonableness factors: 1. Location of the dry sand area in relation to the foreshore,
2.Extent and availability of public owned upland sand area, 3. Nature and extent of the
public demand, and 4. Usage of the upland sand land by the owner.

Theory is an umbrella, things that indirectly affect PR lands is covered by the doctrine.

Govt. has to consider impact of beneficial use on PT land.

 ZONING
***All zonings in one sense or another do some sort of exclusion

In Euclid the justification for zoning was focus on nuisance (these zones will keep away
uses that are appear to be nuisance)

***Police power resides in the state but a lot of police power is decided at the local level.
Every state has some sort of home rule legislation; it delegates some of the police
power to entities

*** Home rule is seen through the enabling act. It enables the local government to
engage in some action; it directs them to the establish the zoning board, the counties
may be the ones to decide where the zoning will be created

***The zoning districts are right along the township line. Before any zoning is
established, they have to come with some “comprehensive plan”. Comprehensive
plan is not law, it is not legally binding, it is kind of inspirational

***Comprehensive plan: people show up to meetings and give their input, “this is the
kind of community we want to be, X % for residence, Y % for commercial etc”

***The legislative body has to approve the comprehensive plan that the commission has
suggested. The legislative body has to adapt it and they have to pass ordinances that
reflect the “comprehensive plan”

**Sometimes, the ordinances do not match the comprehensive plan ( developer may
influence the legislative body etc)

***So, when a zoning is passed with have these zoning ordinances alongside the
comprehensive plan and these 2 things serve as the governing documents that inform
developers, individual home owners, and corporation about what they can or cannot
do in the community

*** What happened when these “community ideals and goals” are influence by
prejudice?

Mount Laurel : “ we don’t want to become the kind of community where everybody will
move in, more tax, larger sewage line etc”. So, we are going to zone in such a way
that you will need large lot in order to build and you have to build home of certain
sizes.

Mount Laurel : So, they have something in place that will make it impossible to build
lower income houses. When the developers come and see they can’t build, then the
issue becomes racially charged because the idea is that you “folks are trying to block
 people of color out of here by maintaining your high economic way” So, they went to
court

*** What they are doing is not harming any community, so what’s wrong? It is that they
are not giving any fair opportunity to people of lower income to come and live in
Mount Laurel

***The New Jersey Supreme Court said that when the community of Mount Laurel is
exercising its police power, it was given to it by the state; it is the state’s police
power. Since it is NJ’s police power then you can exercise it without thinking outside
of Mount Laurel. You can’t foist the entire problem on the state.

***So, they went and mildly change their zoning ordinance in Mount Laurel but it was
still very difficult to do build low income houses there. That triggered another law
suit.

***Another New Jersey Supreme Court revisited the issue in Mount Laurel II and said
that: you need to affirmatively assess the need in your region for low income houses
and you need to respond that in your zoning. The court said that zoning is not about
only nuisances, you also need to help solve some other ills.

****Drawing on Mount Laurel: The legislature of the state went a step further and
creates a plan for redeveloping community; they set up a council whose job is to
come with a state development “guide plan” that focuses on the entire region. The
state is now going to look at the low income houses and use resources that a small
village like Mount Laurel could never have used.

***The “guide plan” gives you options. Say that your community is a gated one for
instance; you can buy off your obligation by giving money to another community to
build more houses for lower income people.
However you complied with the plan, you have to submit it to the council and if they
agreed that you have done a good job, they would certify it. That means the
developers, if they are going to sue you, they have to prove by clear and convincing
evidence, that the council was wrong and you were wrong.

***The “guide plan” is optional; you don’t have to do it. But if you do not do it, you have
opened up yourself to the same type of lawsuit that we have in Mount Laurel.

***A constitutional right does not guarantee a specific type of remedy. It can be
vindicated in many ways.

Euclid: The US Supreme Court says that a zoning ordinance is presumed to be

constitutional. Second, the ordinance will be upheld against substantive due process
and equal protection attacks unless it is arbitrary and unreasonable, having no
substantial relation to the public health, safety, welfare, and morals (police power).
And the court may not conduct an independent review of the wisdom or policy of a
 zoning ordinance; if the validity of the legislative classification is “fairly debatable,
the legislative judgment must be allowed to control’.

***Euclid established the “rational relationship” test

***Zoning: You don’t comply constitutionally by applying the state power under the
state’s constitution. Even if you passed the Euclid test, you cannot zone by
exclusively looking at the boundaries of your community, you have to zone by
looking at the general welfare of the entire region

***The police power is delegated by the state at the local level when you use you have to
do so as though you are acting on behalf of the same not as if you are acting on behalf
of your community. (this theory applies to other state since what it is equal protection
and inherent police power)

Village of Arlington Height v Metropolitan Housing Development: we don’t want single

family home right next to the big factory, so we used a buffer (something in between
to insulate) that will prevent single family being next to the factoring. But apparently
the buffer was not needed.

***The underlying thing was that the buffer was used to keep minority out. It was alleged
to be racial. The court said that just because at the council meeting some people
express their racial prejudices that doesn’t mean that was the underlying reason was
the zoning ordinance was suggested

***The developers made a constitutional argument that the buffer violates the 14th
amendment of equal protection.

***The court said that you have to show racial intent; racially disproportionate impact is
not sufficient. You need more prove than just the impact

***Racial motivation: you can show the effect or showing a pattern of all the decision
that had a negative impact that and cannot be explained other than by racial prejudice.
You can look at the transaction: show that the procedure here was different, for instance
if they did not follow their own rule
You can also look at the history of this particular transaction: say that there the
community was already zoned R5 and when they learned that lower income people
was coming they rushed to change it to R3 that would be indicative of their racial
prejudice.

Bay Area Addiction Research v City of Antioch: the minute that the community learned
about that the addicts are moving to their community, they passed an emergency
ordinance. We want to make sure that the drug addicts who are moving here will not
have a negative impact on our property value
***The Bay Area Addiction Research seeks a preliminary injunction, asking the court to
maintain the status quo while litigating the case since they were going to be evicted
soon from the court house. For preliminary injunction: you have to prove that you
have likelihood of success; you have to prove that you will suffer an irreparable harm
if you don’t get the injunction.

***Bay Area Addiction Research could easily demonstrate that they will suffer an
irreparable harm without the preliminary injunction since they were going to be
evicted. To show the likelihood of success they argued that the ordinance violated the
American Disability Act (ADA)

*** The court said that your concern as a community is that these folks are going to pose
a danger. On the ADA you have to be qualified (show that you are the person who
needs the protection of the ADA; that you are disabled). And if you are disabled, you
do not have to show motivation. If it is, the community has to make reasonable
accommodation

***You can’t use nebulous language, over-generalized statement: “oh, drug users are
dangerous! ”

***If you are a community that is trying to exclude people on some sort of classification
whether economic, race or disability, you are going to run against statutory protection
and the analysis will change; it is not just going to be Euclid.

DISCOURAGING OR CONTROLLING GROWTH

***We don’t anymore growth; growth is bad. That’s why a lot of community sees it.

***Growth ordinance are usually upheld against the due process and equal protection
attacks. Normally, the court will review these ordinances under the rational
relationship test and will found that the circumstances easily justified the growth
restriction.

***Restriction that look to curb traffic congestion, crowded schools, shortage of sewage
treatment capacity are often seen within state’s police power

***When you said “no development” you are not targeting any particular group of people
(black, rich, poor etc). So, it is more difficult to show how it is invalid

***When you said an ordinance is constitutionally invalid; that can mean 2 things. It is
invalid on its face or it is invalid when applied

***Supposing that an ordinance is racially motivated; on its face the restriction from R3
to R5 is within the state police power and it is done in connection with the police
power. But as it was exercised it was abused because it violates a constitutional right

***if it was invalid on its face, we wouldn’t have to go through these steps
Associate Home Builders of the Greater East Bay v City of Livermore: if the moratorium
on new construction passes the rational relationship test, a city can place it .

The argument it is a burden on travel. Your zoning ordinance excludes me, because I
want to go there, it is unconstitutional.

***The court said that the burdened on inter-state travel was indirect (we distinguished
between people who are here and not) so, you are not subject to it.

*** Associate: the court said that you have to forecast the probable effect and duration of
the restriction (the longer it is the more suspect it is; 2) to see what the competing
interests are (what are the reasons for no growth). You have to look at these factors

***Julia Sturges v Town of Chilmark: they are ok with the growth but they want it to go
slowly (every 10 years). This case was about whether the zoning was invalid.

*** The court asked for specificity; don’t talk about generality (How the restriction on
building for 10 years will help cope with the sewage expansion and so forth)

***You have to back up your concerns with data; you cannot say that it might be true
(you have to give some examples)