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Law School Outline - Bross

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									I. NUISANCE A. Generally – An owner can’t use his property to the injury of his neighbor 1. Internalization Mechanism – Force the nuisance maker to bear the true costs of his activity B. Elements: 1. Substantial Interference Standard is low...something more than a mere inconvenience 2. W/ a protected property right [use & enjoyment of land] Often the hinging element Ask, ‘Does the Δ have a protected property right to do this?’ Jewett = set a broad standard: a landowner has a protected right to do what a normal landowner would do Fountainbleu = raised questions of easement to light & air: strict necessity question Prah = Good analysis of protected property right for new use: questions to ask: Have we protected this before? Should we protect this use now? How have times changed? 3. By conduct that is either: a. Intentional or Unreasonable (i) Spite Fences – construction that has no purpose other than to block the neighbor’s light/air. It’s a ‘useless erection’. Look at spite fences from an economic view, like in the billboard case Another argument is the aesthetics argument like in the World’s Fair v. A & P sign...judges don’t judge pretty! (ii) Jewett gives us: Character of the neighborhood [zoning is not so important in private nuisance, it may give guidelines as to character, but will not preclude or conclude a nuisance on its own] Location of the claimed nuisance Effect on enjoyment of health/life/property Activity’s economic importance to the area Nature and frequency of the nuisance in the area b. Negligent (i) Falls below a reasonable & generally accepted standard c. Subject to Strict Liability [Inherently dangerous activity] (i) usually governed by statute or common law principles (ii) coming to the nuisance doesn’t apply in S/L cases [Spur v. Del Webb] 4. Hypersensitive People – cannot claim action if they are the only ones affected...standard is what a reasonably normal person is bothered/harmed by. C. Public Nuisance specifically: [all the stuff above +] 1. Must affect a large amount of people [no set #] 2. Typically a private individual cannot bring a public suit a. Exception = A private individual has a different kind of damage, but not degree, then they can bring a public suit 3. Green v. Castle Concrete = Effect of a Zoning Ordinance a. A zoning ordinance gives an idea of what can occur in a certain area, letting you know what could happen and what you can fight b. Courts don’t do pretty [the view] 4. Barnes & Tucker = Weight of Public Interest

a. If the action helps a public interest, the courts are leery of holding it to be a nuisance. D. Remedies: 1. Injunction to stop the activity a. NY Rule is Nuisance = Injunction b. OR Rule is Nuisance may have an injunctive remedy, but court will balance factors of case before awarding one. c. Boomer = If you don’t get an injunction, you may get permanent damages for the past, present & future invasions. d. East St. John Shingle v. Portland – sewage on logs case; Court says that coming to the nuisance is not just based on who was there 1st. Also relative importance of the industry & character the neighborhood is heading toward. Prescription also comes into play. 2. Injunctions kind of suck because they’re generally grossly disproportionate to the damage caused. 3. Modern trend is to compensate instead. Living by something sucky for the common good but you’ll get the $$$. E. Lateral Support 1. The U.S. standard is based on negligence 2. The U.K. standard is based on easements: a. Acquired through express grant b. Prescriptive easement after 20 years This encourages neighbors to destroy the others’ building in order that 20yrs don’t obtain This is now achieved through ‘public notice’ so the building doesn’t actually have to fall II. TRESPASS A. Generally – he broke the close B. ‘New Look’ Trespass = Martin 1. Even though size of the intrusive elements isn’t big, the ‘force’ of the particles can lead to the trespass 2. Takings & Externalities of Gov’t [fed. gov’t is immune to Nuisance] **Airport noise = [will be revisited in takings] Federal view: a. Whether the interference is targeted at particular properties b. Does the interference nearly totally destroy the property right c. Or is the property right destroyed by planes flying below FAA standards (Avigation Easement)

C. Trespass v. Nuisance Restatement Notes: Trespass An invasion of the interest in the exclusive possession of land as by entry upon it.

Historically -> action of trespass A field of tort liability. A field of tort liability. Intentional -> liability w/o Intentional -> no liability w/o substantial harm. harm. [intentional invasion [intentional interference is not of itself a tort , it’s is itself a tort] the unreasonableness of the interference] **Nuisance and trespass are not mutually exclusive causes of action & can be brought for the same invasion depending on the circumstances involved. 1. In New Look trespass you don’t have the defenses that the industry is really important or that someone came to the Nuisance. a. Meat & Cleaver ending and ჻ the damage/action has to be pretty obvious. III. PROMISES RUNNING W/THE LAND A. Covenants 1. Covenants v. Nuisance a. Nuisance = a method of control over one landowner by another b. Covenant = mutual agreement; every party after the originals are bound i. They run with the land: Anyone who enters a land transaction w/that property must adhere to the restriction Different than personal obligation, = obligation of the land ii. Covenants are enforceable at Law ჻ $ damages 2. Elements a. Privity i. Horizontal Privity – Btwn Promisor & Promisee [must be a promise]...there must be some land transfer btwn the two original parties {ie: not just neighbors w/no common title} (1) Tenurial [English View]: Narrowest reading of Spencer’s Case Looking for present interest & future interest relationship [PI -> FI only] (2) Massachusetts View: Simultaneous privity in which the party has an interest in some piece of the land Could be PI/FI, TiC, Lessee/or Easy to get around w/creation of an easement (3) Instantaneous Privity [Majority Rule]: Transfer of prop. & creation of easement occur at same time Privity occurs instantaneously (4) Promise Alone [Restatement 3d]: No privity is required [emerging majority] ii. Vertical Privity – Btwn Promisor, Promisee & Subsequent Purchasers

Nuisance A nuisance is an interference w/the interest in the private use and enjoyment of the land, which does not require interference with the possession. Historically -> action on the case

(1) Benefit – have to succeed to a possessory interest [ANY possessory interest]...may be enforced by anyone who has taken possession w/ promisee’s permission (2) Burden – have to succeed to the ENTIRE possessory interest [much stricter on burden side] PI FI FSA P’or P’e FSA FSA O EfY b. Touch & Concern see pgs 512-513 -> can’t be any ol’ agreement, it has to do w/the land i. Tests for limits on the types of promises that T & C the land: (1) Epstein’s Economic/No Limits [NO COURTS follow this] Any promise you want Freedom of choice/Law in Economics Allows covenants that are completely pointless (2) Bigelow/Clark/Neponsit Assessment of legal rights & added value to the land (a) Benifit Side Is the promisee’s side rendered more valuable? (b) Burden Side Is the promisor’s side rendered less valuable? (3) Reichman [Land Utilization Test] Does covenant add value? Make best use of the land? Supposed to be objective but begs the question. (4) Berger [Expectations Test] Normal expectations of society = Is this the type of agreement that would normally run with the land? Works best w/specialized communities Bleeds of notice issues = Enough notice & the test is always met No court has followed this (5) Multi-Factor Consider a variety of factors AT THE TIME THE AGREEMENT WAS MADE Affirmative nature of covenant (6) Restatement [NO COURTS have adopted this] Also multifactor, but considered AT THE TIME OF LITIGATION How have things changes? Prevailing policy Current Events c. Intent i. Intent to bind certain properties ii. Look to the language -> If it looks like a promise of the land = covenant d. Notice i. All covenants must be in writing to fulfill the Notice requirement ii. New owner has duty to check title in order to learn of any covenants 3. Cases: O

a. Spencer’s Case: i. Gives elements of covenants ii. Good to use in the test part of covenants b. Miller v. Clary [NY’s problems] i. Only in NY – affirmative covenants don’t run w/the land ii. Use in an ‘Anonymous’ jurisdiction problem c. Neponsit i. Allowed homeowners association the right to sue w/o property ownership d. University Gardens i. NY upheld the Miller decision...had the chance to overturn it e. Eagle Enterprises i. Overruled Miller to some degree ii. Affirmed: ‘Promises that are forever are bad (invalid); promises that are limited are good (valid)’ B. Equitable Servitudes 1. Generally: a. Equitable Servitudes are enforceable in equity. b. Relief is generally in the form of an injunction or specific performance. c. Generally don’t need horizontal privity [see Tulk case] d. Could be akin to a K principle [Lumley v. Wagner opera singer case; equitable easement] i. Begs q. do we need T & C if we follow this principle? e. More people can be attacked or benefited including A/Pers and subleasee/ors 2. Elements: a. The Writing Issue i. Very loose standard -> has to be in writing somewhere, but doesn’t require it be in chain of title b. Notice i. Generally -> Subsequent purchasers are bound only if they had ACTUAL or CONSTRUCTIVE notice [inferred from area & circumstance] c. Intent i. Prior parties had to intend to bind the subsequent purchasers ii. Typical Ex. = ‘& their assigns’ d. Touch & Concern*** i. Maybe an element, maybe not [See Lumley & Boston Patriots cases] ii. Tip: Go through Covenants Analysis first because you have to talk about T & C; then do the E. S. analysis & bring up the Tulk case saying that you may not need this & if it is see above. 3. Cases: a. Tulk v. Moxhay i. Because there was no privity, enforcement in equity is available, but not at law. ii. Leaves unclear whether T & C is required. b. Pratte v. Balatsos i. Less restrictive view of servitudes.

ii. No need to T & C [jukebox lease held to run w/the land] just intent & notice 4. Ways to use E. S. over Covenants in Law a. Conservation Easements: promises that have no benefit in the land, keeps the easements in gross; ONLY equity b. Scenic Hwys: the gov’t doesn’t buy all the land, just ‘scenic easements’ to keep development from the view C. Common Scheme 1. Generally: a. A common scheme is evidence of intent & notice. b. Ideal evidence would be a building plan that is recorded [infer that this is the writing requirement]. c. More commonly, a combination of recording plat [the plat will reference the covenant requirement] and uniform appearance. d. Many developers now work in ‘phases’ in order to bypass huge developments being required to follow the scheme 2. Approaches [Tip – Know all 3 & discuss how facts would play out under each]: a. Property Theory [Sanborn] i. Gas station in neighborhood ii. Implied Negative Reciprocal Agreement iii. How it works: (1) Allows a prior purchaser to enforce against a later purchaser 1st purchaser makes an express promisor to the developer Developer makes an implied promise to make the rest of the development in congruence Developer can only bind property he still owns Can’t bind purchasers who came before you (2) Sanborn says if 2d purchaser is making the promise & 1st didn’t (he bought b4 2d) then the promise doesn’t include 1st b. 3rd Party Beneficiary/K Theory [Snow] i. Anyone who benefits from the agreement can enforce it. ii. How it works: (1) Prior purchaser is included in the agreement The 2d (or later) purchaser makes the agreement with the developer The prior purchasers may not created the agreement, but they benefit ჻ the prior purchasers are a part of the common scheme subject to be enforced against & able to enforce (2) The 1st purchaser is interfering w/the agreement [K] btwn 2d & developer if he is not included in the agreement c. California Theory -> Vested Rights Law in Zoning [Werner] Deeds are construed at the time the deed is delivered; no implied anything, must be in the deed! [worth @ 1 line on exam] California has animosity against private restrictions but not gov’t ones D. Defenses to Promises Respecting the Use of Land [How can we get rid of this stuff?] 1. Construing away the Restriction [Hanson] a. Look at the language in a way that would do away with the restriction [interpretation]

b. Keep in mind that courts will give deference to the administrative committee or architectural board i. Business Judgment Rule -> is the committee motivated by profit? Are they neutral? ii. Homeowners Associations are not motivated by profit & are not disinterested [do not meet BJR ჻ no deference] 2. Do the problems have to be fixed first & then sue for $ damages? [Hunt v. DelCallo] a. Equitable remedies are only available when a legal remedy is inadequate or unavailable b. Example: When land is involved, $ is no substitute ჻ E. R. always available [There’s only one Blackacre] 3. Latches/Waiver/Estoppel a. Tip: Discuss all 3 if you discuss 1 b. Latches -> too much time has passed c. Waiver -> you say something that waives your right to enforcement d. Estoppel -> you do something that takes away your right to enforcement 4. Changed Conditions [Cordogan] a. Burden is on the person who is trying to get out of the restriction [must show how things have changed] b. Original Purpose: is it destroyed by the change? c. Effect: i. Majority View = Frustration of Purpose entire neighborhood’s purpose is frustrated = Look to the whole area ii. Minority View = Hardship Theory how will the individual be affected $ wise if forced to comply problem w/ this approach = it’s like a domino effect, someone is always in the ‘buffer’ zone d. Who effected the change? If you brought about the change you are ESTOPPED from arguing against the restriction 5. Statutory Defenses to Specific Enforcement [Blakely v. Gorin] a. Statutes always prevail if they have to do with this stuff b. Example: No specific performance, only $ damages allowed 6. What developers do to PREVENT COVENANTS a. Don’t put the specifics of a development in the covenant; have them written separately so they may change b. Build in Phases c. Have a Statement of Purpose to hold up against any ‘change of condition’ claims d. Administrator to enforce rather than the nosey-neighborhood association VI. ZONING A. Generally: 1. Zoning v. Covenants – Zoning is about public issues while covenants are about private issues. 2. The local government must have written procedures. 3. The public must have access to the procedures.

4. Zoning Enabling Act grants power to cities to zone land [GA has ‘Home Rule’...more flexible] Home Rule allows localities to make more specific rules that the state has States can also delegate to the Feds through the U.S. Constitution 5. The Players: a. Elected Body [City Council/Commission] b. Board of Zoning Appeals/Adjustment [hears applications for variances] c. Planning Commission [makes the comprehensive plan] 6. Constitutionality a. Police Power – state power that is delegated to municipalities & used to create land use regulations. i. Health ii. Safety iii. Morals iv. Welfare b. Euclid i. Use zoning would be struck down only if it’s clearly arbitrary/unreasonable w/no substantial connection to police power ii. Police power is really vague language [general health, welfare, safety, morals] iii. Compared zoning to nuisance -> if a more intensive use is allowed to persist, a nuisance problem could arise B. Four Ways to Get Around Zoning 1. Fundamental Rights a. Generally: i. Showing of a Fundamental Right garners ‘Strict Scrutiny’ of the court ii. Fundamental rights of individuals that are greater than community concerns: Voting Right to exclude others from your property Right to decide who gets property when you die Right to decide who gets property while you are alive b. Cases: i. Belle Terre – ordinance was valid; police power can also protect community values ii. Moore v. City of East Cleveland – fundamental right of sanctity of the family; could have achieved the ends in a better way 2. Variances a. Generally: i. Handled by the BZA ii. Rational: When the ordinance is created it’s impossible to know all the potential quirks Fixes potential problems with the plan Meant to be used rarely but not the case in reality [in idealistic variances] iii. Two Types: (1) Dimension -> results in change of size [2ft setback to 1ft]; lower burden of proof than... (2) Use -> results in a change in the use b. Elements:

i. Unnecessary hardship which is unique to the property will result if the variance is denied (1) Unnecessary Hardship -> different ways to show: (a) Physical Characteristics – such that lot can’t be used for permitted purpose (b) Lot Value – characteristics of area such that lot has no or little value in zoned status (c) Expense – too much $ would go to fixing this (d) Hardship can not be self-inflicted (2) Uniqueness (a) Land/building has to be different than that which surrounds the property (b) Factors that are not unique: Difficulty in selling [Southland] Inability to sell [Township Falls] ii. Proposed use will not be contrary to public interest [No Adverse Impact] Southland: Increase in congestion of streets leads to an increase chance of fire 3. Special Exceptions [aka Conditional Use] a. Generally: **They depend on the nature of the zone. i. Characteristics: (1) Planned for (2) Built into ordinance (3) Allowed after meeting certain requirements (4) Use is already compatible w/ zone, just requires finding the right location w/n the zone ii. Standard of Review (1) Issue -> comparison btwn use that’s zoned vs. use w/special exception (2) Burden -> 1st w/applicant but then shifts to the opposing party or gov’t to show adverse effect (3) Opposition -> Must argue about inadequacy of the LOCATION & not against the USE [it’s already approved] b. Floating Zone is a type of special exception for certain kinds of developments i. Language would be in the comprehensive plan ii. No set location w/n any set zone [could be in multiple zones] iii. The development is wanted, but a location has not been chosen...waits for the right person w/right location 4. Amendments a. Generally: i. Amendments require the approval of the elected body [county commission/ city council] ii. Types: (1) Map Amendments -> change the lines (2) Comprehensive Map Amendments -> changes the whole map (3) Text Amendments -> rewrites the text in the ordinance

b. Three standards of review: i. Legislative (1) Makes general policy that applies to general people [open class] person asking for the change (3) Used in GA ii. Spot Zoning (1) Picks out a plot/area & treats it differently than every other piece around it (2) Presumption of Invalidity -> burden on the individual/gov’t trying to make a spot zone (3) Must Show: (a) Change in the Area [change satisfies a public need and this tract best meets that need] OR (b) Mistake in the Ordinance [comp. zone was based on a mistake about the area from the beginning] Mass. and some other states treat as a conjunctive requirement iii. Quasi-Judicial (1) Application of a general rule to a specific person (2) Benefit of an impartial decision maker [judge] (3) Test: (a) Does this change comply w/the comprehensive plan? Not every city/state has one (b) Is this the best location? (c) Is there a public need? A good public need would mean likely approval C. Flexibility Devices 1. Planned Unit Developments a. Generally: i. Similar to an amendment, but affects a whole area [looks at whole development & not whether individual lots meet zoning requirement] ii. Goals of PUD (1) Achieve flexibility [avoids cookie-cutter developments] (2) Mixed Uses [See Atlantic Station Development] (3) Allow developer imagination (4) Reduce need/allowance of variances b. Procedural Requirements i. Grant of zoning is bound to the developer’s submitted sketch ii. Enforcement of the submitted plans is necessary to achieving goals c. Cases: i. Homeowner standing for suing the city for granting a change [Franklin] (1) 3d Party Beneficiary Theory [Lake Oswago] (2) Covenant (3) Asserting a Nuisance Claim [must show damages] (2) Presumption of Validity -> burden is on the

(4) Right of Enforcement is created in favor of the individual Parcel] 2. Transfer of Development Rights a. Giving density [Lending Parcel] or taking density [Borrowing

b. Takes the development rights of one parcel & transfers to another parcel so that 2d can exceed development regs. Example: height density [Lego example] c. Four Tactics of moving density [Dupont] i. Language of Ordinance – ‘Aggregate of floor area ratio’ ii. By city ordinances that allow for flexibility by granting bonuses [Sears Tower Example] iii. Add two parcels together, build one structure iv. Buy rights from property you don’t own & transfer to property you do own (1) Transfer will be more likely to be found valid when in furtherance of city goal (2) Examples: Historical society, Portland’s urban containment boundary D. Overcoming Zoning 1. Conventional View [Pawson] a. When attacked for denial of a change by saying there is no comp. b. Gestalt of the plan ‘Spirit’ of the ordinances there are 3 views: i. Unitary View [Pawson] (1) Zoning is done in accordance w/ the zoning [zoning = plan] (2) No sep. document is necessary; internally consistent; covers whole town ii. Planning Factor View [Udell v. Hass] (1) If you have a separate document we’ll give a stronger presumption for zoning changes that follow it. (2) In ‘70’s ALI said only towns w/plans that are separate should be able to do PUDs iii. Planning Mandate [Idaho] (1) Sep. doc. must be had & followed (2) Usually got there through other statutes, not through the original enabling act (3) Even places that had plans, probably didn’t follow them if they didn’t have to (4) Give them a little warning by writing the plan and then statutorily mandate them 2. In GA you don’t have to zone at all and 1/3 of counties don’t 3. Houston – traditionally no zoning, but not unregulated a. Very elaborate street layout that is followed b. The street layout creates the density c. Developers wrote covenants that were enforceable by the city d. Since the land is all flat there is no special area to protect from intrusion of industry e. When the covenants expired the city started to zone


V. TAKINGS A. Professor’s Wiseman’s Framework 1. Due Process Questions **Presumption in favor of the government for these standards a. Is the government’s goal legitimate? based on police power or public use b. Is the government’s means rationally related to the goal? 2. Takings Questions a. Has a fundamental right been destroyed? If so it’s a categorical taking Right to exclude others Right to pass on property or devise b. Is the public benefit greater than the private harm? Use the balancing test 3. Application -> City of St. Louis v. Brune [Bathroom Case] a. Regulatory Taking – housing code constituted a taking b. Economic harm won’t always be enough unless the rational behind the public benefit isn’t strong. c. Had this been a lead paint regulation, the ordinance wouldn’t have been a taking [large public benefit] B. Exactions -> Testing for Relationships 1. Exactions = conditions required by the government from a developer to get a permit ‘green-mail’ a. Can come in the form of land, money, or physical requirements b. Conditions must be met before the developer gets a permit 2. Illinois Test a. Strictest Test...look at #2 of due process questions b. Problem is specifically and uniquely attributable to the developer’s activity c. Gov’t has the burden of proof d. Ex. If the development at full capacity will lead to a school being almost full then not specifically or uniquely attributable. Shamburg, Ill. -> developers pay for everything. e. Ill. doesn’t actually use this test, they use Wisconsin 3. Wisconsin Test a. If the evidence shows a reasonable relation between the need and the development then OK. b. Much looser than the Illinois Test c. Comp. Plan -> Gov. Spending -> Capital Improvements Budget -> Budget over time [credibility] 4. California Test a. Loosest of All b. Any requirement can be extracted from a developer c. Ex. A business park can be required to set up a daycare **Impact Fee vs. Tax -> Tax you can ask for anything; Fees you must make a showing of connection btwn the extraction and the impact. 5. Federal View -> Dolan Case a. If the story the gov’t gives is good enough, they can take land for free b. Scalia’s Rough Proportionality Test

i. Between the Need (impact of the development) and the extraction (nature & extent of the dedication) ii. Is this relationship reasonable? iii. Probably closest to the Wisconsin standard c. Narrowed by City of Monterey v. Del Monte Dunes i. Dolan only applies to cases with dedication of prop. for public uses not $$ cases 6. Commercial Takings a. Penn Central i. Ask: What is a reasonable return on the value? All holdings are one unit, not just the property in question ii. Then: Consider TDRs -> relevant to whether a taking has occurred although they may not constitute just compensation iii. And: Cannot consider the value created by others b. Harm Prevention i. Sibson case [wetlands] ii. If the gov’t reg. is preventing a harm by not allowing the development = no taking iii. Since there is no taking, then just compensation is not necessary iv. This is based on Gov’t as Regulator vs. Gov’t as Harm Preventor (1) Mugler v. Kansas -> prohib. taking OK because public harm prevention (2)Most of these cases could be argued either way -> either giving public benefit or preventing a public harm. c. 3 facts required for a taking [from Lucas] i. Deprived of any reasonable economic use of the property ii. Eliminated the unrestricted right to use iii. Rendered property valueless d. TDRs [Suitum] i. TDRs can defeat the Lucas analysis because they will give the property some value ii. They may or may not be an equal exchange w/the development value 7. Ways the Government can take for free a. The development is a nuisance i. No Right to be a Nuisance [not in the bundle of property rights] b. Public Trust Doctrine i. Lands held by the gov’t for public use ii. Navigable waters, wet sand line c. Law of Custom i. Bx of the public at large has determined that the area is public land ii. Almost like prescriptive easement by the public at large over time immemorial iii. Oregon – used this doctrine to make dry sand line public C. Takings and Externalities of Governments [Federal] 1. Fed. Gov’t is immune to nuisance suits but can be sued under the 5th Amendment [No person shall] 2. Planes

a. Rule used to be up to heavens down to center...courts determined ‘public right to use certain airspace [Avigation easement] based on public right to use navigable H20 [Navigation Easement] b. Violation of FAA airspace heights = taking c. Takings can come from trespass [total destruction or total deprivation of all or most of π’s interests] but generally not from nuisance; some exceptions: i. Loss of all prop. value & ii. Uninhabitable -> Look to FHA loan standards OR iii. Activity is directed at one particular house -> ‘bearing more than your fair share’ 3. Separation of Powers Issue a. The court can’t appropriate the federal budget by saying the feds have to pay for takings D. State Takings 1. State courts use nuisance and ‘new look’ trespass standards a. Procedure 2. Show: a. Direct and Substantial invasion of property rights b. Of such magnitude that there is deprivation of practical use & enjoyment & c. Such invasion results in a definite & measurable diminution of MK value 3. In GA: cities don’t have sovereign immunity unless it’s a core gov’t-al duty so they can be sued on a nuisance action. 4. Non-Airport Cases: a. Logging trucks on public road...dictum said try suing the county instead b. Inman Park Ramp & Swan Island -> making city pay instead of industry gets more done VI. LANDLORD – TENANT A. Generally 1. Historically a lease was completely Prop. Law -> conveyance of land a. Even if covenants of the lease were broken, no throwing out T, no stoppage of rent b. Interest of the T was in the land, not in any structures on it c. Duty to pay rent came from the land i. Now = if LL materially Br/ then T may temporarily discontinue 2. Modern view is more with K Law [sort of a duality] LL --K---> T LL --conveyance--->T 3. Classic and Standard Lease Form a. Distraint/Distress i. Distraint – right of a LL to grab all of a tenant’s belongings and hold those belongings for ransom until the tenant paid whatever the LL claimed as his due. ii. Confession of Judgment – T ‘allows’ LL to hire attorney who in place of the T confesses everything the LL says

(1) This is still valid in Pennsylvania commercial leases ჻ we want Self-Help b. Waiver of Exemptions i. Exemptions were used to preserve a minimum of furniture to tenants and other debtors regardless of obligations. ii. LLs put waiver clauses into leases to preserve their rights under common law distraint. c. Now these standard form leases are often challenged on Adhesive or Unconscionable grounds. i. Weaver v. American Oil -> about the only time a lease has been held Uncons. Here the signer was uneducated & the lease gave Δ the right to damages if π was injured by Δ’s negligence & was unable to run the station. Δ was neg. & π was burnt to a crisp B. T’s Rights 1. Delivery of Possession a. American Rule: i. LL delivers legal, not actual possession ii. T must use Act of Ejectment to get holdovers off the land iii. At most a slight majority of courts follow this rule b. English Rule: [Emerging Majority] i. LL has duty to deliver actual possession ii. T can terminate the lease & recover damages for Br/ by holdovers not ousted iii. Restatement bases this view on: (1) Foreseeability on LL’s part (2) LL is in a better position to get rid of holdovers (3) Tenant is receiving less than they bargained for if they must deal w/ holdovers 2. Quiet Enjoyment – implied in every lease a. Conduct by other Ts i. Modern trend is that LL is responsible & should have evicted them [in violation of their leases] & T may terminate the lease ii. Traditionally LL was not responsible unless lewd Bx or in common areas b. LL can’t interfere with this right personally 3. Condition of Premises a. Common Law view was ‘as is’ i. T could not stop paying rent for LL’s Br/ of express covenants in lease for upkeep bc severable from the conveyance -->T could only sue for damages ii. T could raise ‘Constructive Eviction’: (1) Virtually Uninhabitable (2) Must first leave the premises (3) Sucked for poor Ts iii. Actual v. Constructive (1) Total Actual Eviction -> T is no longer able to physically be anywhere in the premises (2) Partial Actual Eviction -> T can no longer physically inhabit a part of the premises (3) Total Constructive Eviction -> T might as well not be able to physically inhabit all (2) Downside to distraint & confession? They still take time

(4) Partial Constructive Eviction -> T might as well not be able to use part of the premises (a) Court says no go here; although statutes have allowed similar (b) Too much remedy for not enough harm b. Modern Rule = Implied Warranty of Habitability [Majority] {Residential} i. At least in good enough condition to be lived in (1) Building Code Violation = AT LEAST evidence of uninhabitability (2) Substantial Threat to T’s Health & Safety [Majority require this showing] (3) Some courts look to the nature of the building & amount of rent paid ii. T could withhold rent or make repairs himself iii. Generally no waiver, unless by statute, usually in another for separate csd. iv. Remedies: (1) Vacate & terminate after notification & nonremedy by the LL (2) Withholding Rent until defects are cured --> generally must make deposits into escrow (3) Make repairs & deduct reasonable costs from the rent 4. Destruction of Premises a. Common Law said T must continue to pay rent b. Modern View – changed by statute or case law allowing termination & stoppage of rent C. LL’s Rights 1. Eviction a. See Express Clauses of Lease also T’s Br/ must be material i. If the LL uses Automatic Ending [durational language] there is no discretion as to whether to continue the lease. ii. If the LL uses Condition Language [‘but if’] a lawsuit must do an Action of Ejectment b. LL generally has rights to Summary Proceedings for a speedier eviction trial, T has limited # of Ds c. Self Help i. 3 views of Self Help until the 70s (1) No Self-Help <- Now this is the Majority view California Minority at the time (2) Peaceable Self-Help is OK -> wait until the tenant is out & change the locks Majority at the time (3) Reasonable Force Mid # at the time ii. When courts changed from Peaceable -> to none, their reasoning was -> violence is always a potential iii. Now 2 & in rare cases 3 are only for Commercial Leases

iv. Restatement says -> S-H should be based on speed of available remedies [No one follows this] v. Cases (1) Mendes v. Johnson -> self-help is technically illegal, but it’s civil so the cops don’t care (2) Buford v. Snitman -> D.C. says self-help still around (3) Wheeler v. Thompson -> D.C. says Self-Help is illegal in Res. leases LL still does C/B Analysis as to whether S-H would be cheaper than letting T remain during a court action. 2. Abandonment a. Accept Surrender of Premises i. Termination of the lease; no further rent is due; sucks if the T is insolvent [bankruptcy rules] b. Run a T’s Account [acts as 3rd party agent for the T] c. Sit & Sue i. C. L. said no duty to mitigate ii. Slight minority of courts now say duty to mitigate iii. Restatement -> says that if the T comes up w/an acceptable replacement, the LL must take it. 3. Retaliatory Eviction a. Since the state/city has an interest in housing quality the LL is not allowed to evict a T for turning in LLs for violations of the housing code b. Diamond Housing –this is an extreme case where the LL is not allowed to evict a non-paying T even if they have no intention of fixing the property IF they intent to remain in the LL business at all. This is not widely followed in American Law The court essentially gives the choice of going completely out of business or fixing all the problems on that specific property. The company can’t just

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