COMMON LAW PROPERTY OUTLINE
A. Comes from CL
B. Not about land but about the regulation of property rights
C. No such thing as the right to property since property can be split up into many forms
D. Property Law not often intersect and blurs into constitutional law as in the anti-discrimination laws
that tenant/landlord regulations
Social Policies for Property Law
certainty of ownership
putting resources to productive use
II. HOW TO DEFINE PROPERTY OTHER THAN BY VOLUNTARY TRANSACTION
A. BY CAPTURE
1. Those wild animals which you put totally in your control or mortally wound are your property
2. Pierson v. Post (fox and the hound)
a. illustrates the CL rule that to own a wild animal, you have to reduce it to your
possession by occupying it
b. Or you can own a wild animal under the Rule of Capture Doctrine; if you mortally
3. Ghen v. Rich (wounded whale)
a. Illustrates the CL rule of capture or the rule of professional custom dictating
4. Keeble v. Hickeringill (Interfering with duck decoy trader)
a. Illustrates the 3rd social policy reason for the rule of capture; putting resources to
b. Reasoning: need to encourage free market
5. Oil and Gas
a. Used to be likened to wild animals and rule of capture applied
b. Wild oil was one’s property when it was in one’s possession in barrels or the like
c. Creates the effect of attempting to get it faster than others.
B. BY FINDING
1. Armory v. Delamirie (chimney sweeper’s jewel)
a. Chimney sweeper awarded the jewel that he found but that the jeweler failed to return.
b. Example of the Rule of First in Time
i. A finder has title over and above all others except from the Original Owner,
or prior possessors. (even wrongdoers can have superior title if he possessed
ii. Rationale: Certainty of ownership
iii. Goals of Finders Law:
a. Promote finding of lost objects
b. Promote return of them to rightful owners
c. Minimize disputes; to have clear rules
c. Illustrates Trover: action to get the value of the object converted, rather than an action
of replevin, an action to return the object itself
d. CL has four fundamental COA:
i. Trover (Personal Prop)
ii. Replevin (Personal)
iii. trespass (Real Prop)
iv. ejectment (Real)
e. Title is relative. Prob. 1, pg. 35
i. If T1 stole a wild animal from T, in a lawsuit bt T1 and T, T has a better title
to the wild animal
ii. In lawsuit bt O and T1, O has better title.
2. Rule of Hammonds
a. Under CL, you are presumed to own whatever is on your ground and whatever is
attached to your land, such as buried objects or oil. Thus, if a B’s pipe goes onto A’s
land to drain oil, B has trespassed.
b. Rule is that if A is in possession of oil or gas taken from a different location than
where he reinjects it, and then A reinjects it into a storage cavern, it becomes a wild
animal once again and has lost possession of it. B cannot sue for trespass because it is
not A’s anymore. However, one can argue that reinjecting the oil is not returning the
gas into its natural habitat.
3. Hannah v. Peel (broach finder)
a. Hannah found a broach in an unoccupied house owned by Peel. Broach was returned
to Peel and he sold it. Peel never knew of the broach until it was found by the .
b. *House is NOT a private space, but a public space since the house had been
requisitioned by the military.
c. *Also, Hannah is not working for Peel and therefore different than South
Staffordshire’s conclusion of employer/employee.
d. Hannah shows law of fixtures (applied to REAL PROPERTY)
RULE: finder has superior title over OL iff
i. True owner is not known
ii. Finder has permission to be on land
iii. Owner is never in physical possession of property
iv. Finder is not employee of the owner
4. Bridges v. Hawkesworth (parcel of cash found on the shop floor)
a. , finder, is owner because shopkeeper did not find it, was merely asked to deliver the
package to the true owner should he appear. But finder still had superior title.
b. Parcel NOT part of land. Locus is a store, a public place. Therefore the parcel is not
part of private land.
5. South Staffordshire Water Co. v. Sharman (employee cleaning out pool who found rings)
a. OL wins because of Ration Soli Doctrine which says owner of locus owns all that
is attached or on his land
b. Rings were ON his private land, and the finder was hired by the OL, the employer.
6. Elwes (boat found under ground)
a. Lessees, gas company, found a boat on property being leased to them by .
b. reserved mineral rights to land even though it was being leased
c. Boat was ATTACHED to the land & did not pass to the lessees
d. OL wins over finder because boat had been there so long it was considered part of the
land. Ration Soli doctrine operating here too.
7. McAvoy v. Medina (customer finding wallet in barber shop)
a. McAvoy is an example of the rule of wrongdoing by finders, where finders have
title to lost property but not mislaid property and finders would prefer to be dishonest
and say that they found a lost property.
b. Social policy reasons for holding in McAvoy
i. To minimize disputes
ii. To return misplaced objects to True Owner
C. BY ADVERSE POSESSION
1. Common Law Elements of AP which allows the transfer of possession of property
a. ACTUAL physical entry giving EXCLUSIVE possession that is:
b. open and notorious (VISIBLE)
a. would reasonably inform the landowner that you are on the property
c. adverse and under the claim of right (HOSTILE)
i. possessor is claiming the land for himself and is not subordinating his right to
the owner’s right
d. CONTINUOUS for the statutory period (entry starts the SOL)
i. pattern of occupation illustrates that you are performing acts that an actual
2. Social policy reason for AP
a. To reward putting land to productive use
b. Punish absent owner
c. Psychological/emotional attachment
d. Protection of 3rd parties relying on adverse possessor
e. Clear rules to settle disputes
3. Any permission from the owner ruins AP!!
4. AP doesn’t run against the govt.
5. Van Valkenburgh v. Lutz (Triangular Tract Trial)
a. Lutz lost bc court did not find occupation by improvement
b. Also, no claim of right. Lutz did not have the intent to take the land HOSTILE
to the true owner
c. NY statute uses the aggressive trespasser standard in the state of mind in AP
d. Ct. manipulates the claim of right requirement in finding for the Van Valkenburghs.
6. Mannilo v. Gorski (15 inches in neighbors land)
a. entry for the required time was exclusive, continuous, uninterrupted, visible and
notorious, but under mistaken claim of title
b. But was it open and notorious if it’s only 15 inches?
c. Ct. says AP even if you thought it was your land.
i. Gorski loses not because of the mistake but because the AP element of open and
notorious is missing.
7. O’Keefe v. Snyder (Georgia O’Keefe case)
a. Illustrates the discovery rule and application of AP to chattel
i. Discovery Rule:provides that, in an appropriate case, a COA will not accrue
until the injured party discovers, or by exercise of reasonable diligence and
intelligence, should have discovered, facts which form the basis of a COA.
SOL is tolled upon discovery.
ii. Hard to apply the discovery rule to O’Keefe case because there was little way
to use due diligence when one does not know who the possessor is.
iii. O’Keefe places burden on true owner, the .
iv. Illustrates difficulty of applying AP to chattel when its hard to satisfy the
Visible Element of AP. (how do you put others on open and visible notice that
you have taken AP of chattel when the object is so small, like a ring or
artwork?) Answer: there is not way to satisfy the visibility requirement. If its
important enough to you and you know who the possessor is, you are on
notice and that is the visibility requirement being satisfied.
D. BY GIFT
b. Delivery (requires objective acts).
i. **If it can be delivered, it has to be!!**
ii. Constructive delivery
a. Handing over a key that will open up access to the subject matter of the
iii. Symbolic Delivery
a. Some article can be delivered in the name and stead of the thing intended
to be given.
2. Types of Gifts
a. Inter Vivos
i. Gifts between the living that transfers property during the lifetime of the giver
b. Causa Mortis
i. Deathbed gifts if you are literally expected to die.
iv. Automatically revocable if you don’t actually die.
i. A promise to leave a gratuitous gift upon death is an ineffective transfer if
done orally. You need to have it in a will or in writing.
3. Hassle does not matter in CL. It has to be delivered manually to guarantee that it is a gift.
4. Newman v. Bost (Ms Julia’s piano)
a. Intent to give a gift must clearly appear. Thus the policy does not belong to Julia.
b. A constructive delivery of a gift causa mortis will be effective where it plainly appears
that it was the intention of the donor to make the gift, and where the things intended to
be given are not present, or where present, are incapable of manual delivery from
their size and weight.
c. Ct. rejects the idea of symbolic delivery.
5. Gruen v. Gruen (Klimt painting given to his son)
a. Father gave son title to painting but retained possession of it.
b. Intention & Delivery are satisfied in the letters. Intention and Delivery are made in
the present, but delivery does not become effective until the future.
c. A valid inter vivos gift of a chattel may be made where the donor has reserved a
life estate in the chattel and the donee has had physical possession of it before the
d. The nature of the gift is not the painting, but the remainder interest to it (property
right/title) with no right of possession until after father’s death. IOW, present title,
i. By sending the letter, the father bifurcates his lifetime interest in the painting
and the son is given the remainder interest (species of future interest that kicks
in when the father dies). Irrevocable because father has given away all of the
interest he had in the painting.
e. Delivery is satisfied directly by the letter because the gift is intangible.
f. Illustrates that property is a bundle of rights that is abstract and is not given away all
at once. If you are fully in support of the concept of conceptual severance, destroying
one stick is enough to destroy your property rights and matter.
i. right to possess the property
ii. right to use the property
i. right to exclude others from the property
ii. right to dispose of the property by sale or gift.
III. WHAT COUNTS AS PROPERTY?
A. THE HUMAN BODY
1. Courts don’t like to see the body as commodity
2. Reasons for this dislike
d. Moral prohibition of people selling their body parts or organs
3. Moore v. Regents of the University of CA (mo cells)
a. Cell lines derived from excised tissue or organs are not property for purposes of
liability for conversion because the excised cells are not property. They are simply
cells processed by scientists into new property.
a. Consent: however, decision making might be impaired
i. Market Inalienability: certain things should never be sold or treated as a
ii. Conversion Theory: wrongful exercise of property of another for your use.
Can sue for damages.
5. What CAN be Sold
a. renewable body parts (hair and blood)
b. non-renewable, not needed for life (kidneys)
6. What CANNOT be sold
a. non-renewable, needed for life
b. genetic information is considered property and protected for social policy reasons
B. MARITAL INTEREST (intangibles as property)
1. At CL, property was owned by the spouse holding title, usu. Male
2. In re Marriage of Graham (MBA as marital property)
a. Wife sought division of increased earning capacity of MBA bc she financed 70% of
b. Court sees if an MBA fits into the traditional definition of property (if it is
transferable, assigned, conveyed, inherited, or exchanged) and says an MBA does not
3. Elkus v. Elkus (opera singer’s fame as marital property)
a. Husband was former singing coach who wanted celebrity status as property subject to
b. Ct. said that her celebrity status was marital property bc it fit into the broad
description of marital property in their special statute.
Is there a nuisance?
What kind? (determination of nuisance depends on unreasonability)
Is there a remedy?
What do they have to show to get it? (remember, you can always get damages.
The focus is “can they get an injunction”)
Coase Theorem and Economic Analysis
Do not fix blame but find the cheapest solution that maximizes benefits.
1. when an actor makes a decision about how to use resources w/o taking full account of the
effects of the decision. No examination of the costs or benefits. Leads to misuse and
misallocation of resources.
B. COASE THEOREM
1. When there are no transaction costs, the efficient outcome will result regardless of the choice
of legal rule.
2. Way of balancing the harm vs. utility of the actor’s conduct
3. Look at the costs and benefits to parties.
4. Do what is most effective and efficient which will provide a remedy. DO NOT look to blame
the wrongdoer (unlike CL)
a. Efficiency – when aggregate benefits outweigh the costs. Strive for the most efficient
solution (putting the land to productive use)
b. Transaction Costs – costs of bargaining. This is NOT taken into consideration
c. Externalities – NOT taken into consideration
C. PRIVATE NUISANCE - Interferes with specific individual’s use and enjoyment of private land.
1. Nuisance Per Se
a. Activity itself is automatically considered a nuisance
b. IOW, an act which is wrong at all times, under any circumstances, regardless of
location or surroundings, usually designated by statute.
2. Nuisance Per Accidens
a. Activity could be a nuisance from ’s acting in a negligent manner.
b. IOW, it is only wrong here, not everywhere, by reason of location, construction,
maintenance, or construction
c. Intentional and Unreasonable
i. Intent is to perform the act
ii. Question is “did the know about the activity causing the nuisance?” Mere
knowledge is usu. enough.
iii. Questions that determine unreasonableness
a. is the activity suited to the area?
b. Does the activity cause effects the majority thinks disagreeable?
c. Is the activity valuable to the ?
d. Is the activity unimportant to society?
i. usually ultrahazardous, negligent, or reckless behavior and they do it not
realizing its bothering someone else.
3. TESTS TO SEE IF THERE IS A NUISANCE
a. Threshold Test
i. is the act above trivial? If yes, it’s a nuisance, then go to remedies.
ii. more than slight and not a necessity for to be there
b. Utilitarian/Restatement Test
i. Balancing test. Balance the cost of action vs. social benefits.
ii. Does the gravity of the harm it’s causing outweigh its utility?
iii. Is the harm a necessity?
iv. Relevant Factors to be considered for this test:
a. cost of damages
b. cost of character of harm
c. value of ’s activity
d. extent and character of harm
e. social value of its use
f. suitability to location
g. burden on in avoiding harm
h. burden on in preventing harm
4. ***ALWAYS ASK AFTER READING NUISANCE CASES***
a. What kind of nuisance is it?
b. What remedy was asked for?
c. What relief was awarded?
1. Coming to the Nuisance (Spur)
2. Zoning ( not a determinative factor)
3. Necessity (used to avoid an injunction but only successful if its an absolute necessity to the
1. Permanent Damages – one time award for all past and prospective damages (Boomer)
2. Temporary Damages – award for damages only up to filing. Does not preclude future suits.
3. Injunction – granted at court’s discretion. Usually only granted if the harm to the ’s > harm
to and community if granted
4. Self-Help Abatement - goes and removes the nuisance himself only after the has been
given a chance to remedy the condition.
5. Suspended Injunction – activity is prohibited but can be bought off with permanent damages
(after Boomer case)
F. RELIEF OPTIONS
1. Abate the activity in question by granting the injunction (Morgan & Estancias)
2. Let the activity continue if the pays damages (permanent damages to avoid litigation)
3. Let the activity continue by denying all relief
4. Abate the activity if the pays damages (Spur)
1. Morgan v. High Penn Oil Refinery (noxious gases)
a. Ct. uses Threshold Test and holds that it doesn’t matter if oil refinery was negligently
operating or not. The fact of the matter is that the act was above trivial and was a
2. Estancias Dallas Corp. v. Schultz (A/C boombox)
a. Ct. uses Balancing Test to determine if an injunction should be granted. No harm here
to public but clearly a true harm to .
b. uses Necessity Defense to avoid an injunction, that apt. unit would be useless w/o
AC and $$ to fix the problem.
c. Ct. says that private financial benefit is not a necessity and grants injunction.
3. Boomer v. Atlantic Cement Co. (cement plant emitting fine dust & vibration)
a. Ct. uses Threshold Test & Balancing Test to determine whether an injunction should
b. Ct. doesn’t want to grant an injunction bc it employs >300 people there and is worth
c. Ct. sees to possible solutions.
1. Temporary injunction and wait for technological developments
2. Have the pay permanent damages for their total economic loss by which
the can avoid future litigation and continue the nuisance. (’s are
granted a new property right by buying off the nuisance)
4. Spur v. Del Webb (shit farm next to residential development)
a. Del Webb came to the nuisance. He bought the land to develop it because it was
cheap due to being near a manure farm
b. Del Webb wanted an injunction and because he came to the nuisance, he normally
would not be able to get it.
c. Because the manure was a health hazard, public nuisance, the injunction was granted.
A. Nuisance law is the source of police power, which allows for only certain uses of land through
B. GOAL OF ZONING
1. prevention of harm
2. achieve public benefits
3. maximize property values in the city
4. exclude low-income groups
C. EUCLIDEAN ZONING: Separation of uses
1. Comprehensive Zoning plan provides ultimate protection to nuclear family household.
2. Modern trend is to move away from this IO2 avoid unhealthy living conditions for those who
choose or are economically forced to live near unhealthy living conditions.
D. GENERAL RULES
1. Police power can be used to protect health, safety, welfare, & morals of the community
2. Town doesn’t need to prove nuisance in every zoning change
3. Safety and Health zoning is almost always permissible
4. Purely aesthetic zoning is usually rare, except via protection of property values
5. Zoning affecting family (fundamental rights) is unacceptable, but zoning affecting individuals
6. Govt. controls on the content of communication are generally subject to closer scrutiny than
controls that regulate the time, place, and manner of communication rather than content.
E. DENSITY CONTROL ZONING
1. Indirectly controls the number of people using an area of land
a. maintain a community’s attractive appearance
b. avoid overburdening of public facilities
c. exclude undesirable residents
a. minimize lot size
b. setbacks (unbuilt land set aside around structures, height limitations)
4. Police Power
a. power delegated to municipalities in order to protect the public, health, safety, morals,
or general welfare. Courts frequently uphold zoning ordinances by saying it is within
the police power of the municipality.
F. DUE PROCESS CLAUSE OF 14TH AMENDMENT
1. No state shall deprive any person of life, liberty, or property without due process of law
2. Procedural Due Process (flaw in the means/enactment)
a. zoning was enacted w/o notice to him and w/o him having had an opportunity to be
b. For example, void for vagueness as in Anderson.
c. Legislative actions do not require notice to each landowner affected
d. Administrative actions require notice to be given to each landowner affected
3. Substantive Due Process (flaw in the outcome/results)
a. An objection to the code itself.
b. Question is based on the rational basis test. “Does the ordinance bear a rational
relationship to a permissible state objective?” If yes, no due process violation
c. The offensive ordinance must be a rational way of achieving the objective, not
necessarily the best way.
4. Strict Scrutiny Standard
a. Standard which, under strict scrutiny, does not infringe upon a fundamental right.
b. BOP is on the state to justify the legislation, and they have to show that the state has a
compelling state interest in the legislation’s objective.
c. Strict Scrutiny is rarely applied under the Due Process Clause to zoning ordinances bc
housing has been held to not be a fundamental right.
G. EQUAL PROTECTION CLAUSE
1. Requires that landowners who are similarly situated be treated similarly, except where treating
them differently can be justified.
2. Difference bt EP and the DP
a. EP = the question is whether the govt. can take away the right from these persons
and NOT from others
b. DP = the question is whether the govt. CAN take away the right
3. To establish an EP claim, the must prove a discriminatory purpose or intent; a
discriminatory effect is insufficient!!
4. Rational Relationship Standard – the legislation only has to bear a rational relationship to a
permissible state objective. (Few ordinances are struck down under this test)
a. Village of Belle Terre v. Boraas
1. BT enacted an ordinance laying out the number f people and the living
conditions which defined a family. ’s were college students and filed a suit
under 42 § 1983.
2. Held: Ordinance did not infringe upon any constitutionally protected
fundamental rights and did not disparately affect different people. The right
to live in a group is not a fundamental right.
3. Rationale: maximum occupancy risks increased traffic and noise and safety
4. Demonstrates the rational basis test where you don’t have to prove the
best way, just a reasonable way to achieve the state objective.
H. AESTHETIC ZONING CASES
1. Village of Euclid v. Amber Realty Co. (Use restrictions)
a. Held: Zoning emanates from the police power to promote safety, well-efficient
working of community, and to reduce nuisances to protect private property among the
b. Euclid stands squarely in the path of Cleveland’s further industrial development, and
so there are valid nuisance concerns giving rise to a corresponding exercise of police
a. Apartment houses are a CL nuisance, detrimental to health and safety in res. Districts.
i. it would be easier to provide the proper fire apparatus
ii. there would be less street traffic, leading to fewer street accidents
iii. it would decrease noise and other conditions which produce or intensify
iv. it would preserve a more favorable environment to rear children.
2. State ex rel. Stoyanoff v. Berkeley (pyramid house)
a. Aesthetic zoning regulations upheld by claiming the protection of property
values which fall under the police power to protect.
i. Property use which offends the sensibilities can debase property values, tax
revenues will be lowered, and so the entire community will suffer adverse
ii. Rely on a statute which considers the general welfare of the district.
3. Anderson v. City of Issaquah (conforming with the signature street)
a. Illustrates that Zoning Laws cannot be unconstitutionally vague. Vagueness
denies Procedural Due Process.
i. Code does not give effective or meaningful guidance to applicants, design
professionals, or to the public officials who are responsible for enforcing the
4. City of Ladue v. Gilleo (Gulf War Sign prohibited by Ordinance)
a. Held: Broad sign prohibitions which foreclose an entire medium of expression
without adequate alternatives for communication violate the First Amendment
Freedom of Speech.
b. Here, you have a regulations based on content that was held to the strict scrutiny test.
In contrast, if you can say that your regulation is based on time, place, & manner in
which speech takes place, then there is a lower standard of review.
c. Property Angle: You should be able to use your property as you wish.
I. EXCLUSIONARY ZONING
1. City of Edmunds v. Oxford House ()
a. Regulations based on the # of ONLY unrelated people who can live together do
NOT count as maximum occupancy restrictions.
b. Such regulations should be subject to the strict scrutiny test
c. Maximum number of occupancy must be for related and unrelated persons living
2. Southern Burlington County NAACP v. Mt. Laurel (Fair share test)
a. Township zoned with the intent to minimize taxes and maximize tax resources.
Excluded various types of businesses and apartment buildings which would increase
the demand for public services and only included those single and multi-family
dwellings which would cater to those who could afford higher taxes. Result:
b. Community must zone in a way that promotes not just the welfare of the comity
but the welfare of the state.
c. Court imposed on the communities a presumptive obligation to plan and provide
housing alternatives by land use regulations.
i. Builder’s remedies – court orders project to be rezoned
ii. invalidation of ordinance – court lets legislature rewrite the ordinance
iii. redrafting the ordinance – court gives special instructions on how to write the
e. Held: a city’s zoning regulations which did not provide
opportunity for a fair share of the region’s need for low and
moderate income housing were in violation of the state’s
constitutional requirements of substantive due process and equal
protection because the regulations were not concerned with the
general welfare of ALL persons.
f. Intent of legislature is not controlling. The effect of excluding low-income persons is.
i. Mt. Laurel 2 enforced what Mt. Laurel 1 could not and held that every community,
not just those developing communities, must offer and promote a fair share of
housing. Courts can give permits to builders to build housing.
VI. EMINENT DOMAIN
A. Regulation of property rights
B. Definition: when the state or federal govt. decides they need private property for a public purpose,
they pass a statute condemning the land and the govt. then has title.
C. If the govt. takes the land under the doctrine of eminent domain, they must pay compensation for it.
D. RESTRICTIONS ONLY RELEVANT TO ED
1. Public Use
a. Land use must be for the public for land to be turned over under ED. Almost all
takings will be considered a public use. The court uses a Rational Basis test to
determine if the legislature believed that the means would promote the ends.
b. It is not necessary that the govt. actually possess and use the property at any point
during the taking. (Hawaii)
c. The taking is for public use even though the resulting renewal project is operated by
private agencies for private use, and even though the building being condemned is not
a slum. (Poletown)
2. Just Compensation
a. The govt. must pay just compensation for the land. The value of the land can be
3. Same Position Test
a. The Govt. wants to put you, via $, in the same position as if you still had the property
4. Fair Market Value
a. Usually Used. FMV is based on the highest and best use of the parcel.
5. Replacement/Personal Value
a. Courts don’t consider personal/sentimental value, replacement costs. Only used if the
FMV can’t be determined bc there is no market for a particular purpose.
b. Used as a last resort.
E. PUBLIC USE DOCTRINE
1. Hawaii Housing
a. Land redistribution scheme is a legitimate public use, done thru police power,
whose normal operation is examined under the rational basis.
i. Public Use requirement for the exercise of ED is coterminous with the scope
of police power.
ii. Deferential standard to the govt. of rational basis.
iii. Although the court disapproves of taking private property for the benefit of
another private enterprise, even though compensation is paid, a taking which
is rationally related to a conceivable public purpose is constitutional.
a. City simply has to show a public benefit in taking the land, even if the land ends
up in private hands.
b. Public Benefit can be purely economic or recreational. This is all any of the cases
using ED has to show.
c. Detroit justified the taking as a public use, since the new plant would create badly
needed jobs and hence was for the public’s economic welfare.
F. JUST COMPENSATION
1. US v. Fuller
a. Condemning private lands used in conjunction with govt. land. The rancher’s land
was very valuable bc it was next to the govt’s land. The court ruled that the
rancher was only entitled to the value of your land, not the value of use in
conjunction with the govts. land.
2. US v. 50 Acres of Land
a. Land used by non-profit church for summer camp. Govt. offers FMV. Church wants
replacement costs to set up another camp in another location. The court only gave
FMV, not replacement costs.
G. Regulatory Takings (sometimes a taking requiring $, sometimes not)
1. Not out in the open like Eminent Domain but still a taking like ED.
2. Where the land is still yours, but the govt. has used its power of regulation in such a way that
your land (or part of it) is rendered useless, just the same as if it had been taken by Eminent
3. **Land use regulation is permissible (and requires no compensation) if it
substantially advances legitimate state interests and does not deny an
owner economically viable use of his land. (Nollan and Pa Central) IOW,
when a state finds a public interest and does not leave the owner with
useless property, no taking occurs when land use if prohibited.
4. While property may be regulated to a certain extent, if regulation goes too far it
will be a taking. (Pa. Coal v. Mahon)
5. When a regulation goes so far to be a taking such that, the govt. must either
a. strike down the regulation
b. call the regulation valid under PP and pay damages for loss of value to
c. owner can file an inverse condemnation suit and force a purchase
6. TEMPORARY TAKINGS (illustrates remedies)
a. A landowner whose property is taken by a land use regulation may recover for the
time before final determination that a constitutional taking has occurred. (First
i. Temp. takings which deny a landowner all use of his land are not different in
kind from permanent takings for which compensation is mandated.
b. **Only applies where the owner is denied ALL use of the property for a substantial
c. Before 1st English, courts were reluctant to compensate for the time before which it is
determined a taking has occurred. In 1st English, courts allowed compensation for
inverse condemnation (forces state to purchase land on the ground that the state has
taken the landowner’s land)
7. TRADITIONAL REGULATORY TAKINGS TESTS
(***always ask “has there been a taking?”***)
a. Permanent Physical Occupation (categorical test)
i. This automatically is a taking no matter how minor the interference is. Has
the govt. physically invaded your land with something? This supports
conceptual severance, a strand of the bundle of rights has been destroyed.
Here the right to exclude has been destroyed.
ii. Loretto v. Teleprompter Manhattan CATV Corp. (Cable wire strung down)
a. Supreme Court held that a permanent physical occupation authorized
by the govt. is a taking w/o regard to the public interest it may serve.
c. A temporary invasion does not constitute a taking
d. A regulation which affects a permanent invasion of the owner’s
property is always a taking
b. Public Nuisance/ Harm Benefit Test(categorical test)
i. Was the Community acting to prevent a nuisance to the public? Would
regulation have the effect of protecting public from harm?
ii. Yes, NOT a taking, but a valid exercise of PP. Therefore, no compensation.
If the regulation is to stop a harm, it is NOT a taking. However, if the
regulation is to extract a public benefit, then must compensate. Mention
this case if the taking is less than 100%, but don’t let it control. It can work
only in extremely limited situations – criticized in Lucas and PA Ctrl. and
conflicts with a conceptual severance approach.
iii. OVERTURNED BY SUBSTANTIAL RELATIONSHIP
iv. Hadacheck v. Sebastian (brickmaker)
a. Residents came to the nuisance. It was NOT a taking bc the police
power was being exercised to prevent a public nuisance.
b. Held: If a regulation prevents a public harm, it is NEVER a
taking. Despite that the residents came to the nuisance, as long as it
is clear that the residents are trying to prevent a public nuisance, it is
NOT a taking. So long as the regulation is not exerted in an arbitrary
manner or with unjust discrimination.
Substantial Relationship Test (Lucas)
LUCAS RULE: Denial of ALL economically viable use of land = 100%
diminution of value = taking.
Lucas overturns the public nuisance test. Whether the regulation prevents a
harmful use can no longer be the basis for an exception from the rule that total
regulatory takings must be compensated.
SUB. REL. TEST: Use Lucas if not a permanent physical occupation
and not a diminution in value.
Govt. must show that the condition SALSI (substantially advances a
legitimate state interest.)
Exception: Private nuisances are not takings!!
c. Diminution in Value Test (Severe Economic Loss Test) balancing test
i. Question is “ Has the govt. reduced the value of your land, or frustrated
investment backed expectations? Yes, probably a taking if you have been
denied economically viable use (especially using a conceptual severance
ii. Burden is on the property owner to show a large loss
iii. Does NOT apply to nuisances
iv. Land Owner must be left with a reasonable return which is measured by
to what extent the regulation has interfered with investment backed
v. Penn. Coal Co. v. Mahon (Surface Rights not bought)
a. BIRTH OF REGULATORY TAKINGS
b. Court held that there is a taking bc it was determined thru the
diminution in value test. Dim. of value in itself is not a taking, but
too much of a diminution of value is a taking. Here, there was a
100% loss in value of the support estate and so there was a diminution
ii. No reciprocity of advantage b/c the coal co. gets no
benefit from the statute. Pillars of coal required to be left by
KA must benefit the employees, not the public.
vi. Keystone Bituminous Coal Assn. v. DeBenedictus
a. Same situation as Pa Coal except the beneficiary is public rather than
the mine owners. Thus, it is not a taking b/c the public good is
served by the regulation and bc IBE Are Not Frustrated.
b. Rationale: Here, the Coal Co. will still get reasonable returns; the
statute will not ruin their investment-backed expectations.
c. No conceptual severance here because the court looks at the whole
mine and sees that interference is only minimal.
d. Multi-Factor Balancing Test (MFBT) balancing test
i. What benefits are there as opposed to the burdens on the landowner?
ii. NOTE: This test is no longer valid unless there is an exact mirror situation
of the Pa. Central facts.
iii. DOES NOT look at it from a conceptual severance point of view. Looks at
the whole property altogether!!
IV. FACTORS OF MFBT
a. To find a taking, the focus is to look at the nature and
extent of the interference with rights in the parcel as a
b. Economic Impact of Regulation. (IBE.) If the primary
purpose is maintained with reasonable returns, there is NO
c. Character of govt. action. If the taking was in the public
interest, then NO taking.
d. Must show SALSI
v. Pa. Central v. City of New York
a. Court holds that landmark preservations are not takings.
IBE are not being completely denied.
Statute serves a clear public interest.
**Note that court says only if you have similar facts will you
have the same result of no taking**
8. CONDITIONS ON A PERMIT (AKA EXACTION)
a. Permit condition must serve the same legitimate purpose as corresponding
development ban (legitimate exercise of PP). However, if the condition imposed is
really a masked ban on construction, it is extortion and does not substantially
advance a legitimate state purpose. (SALSI) (Nollan)
i. Nollan invalidated a condition on a permit bc the condition, providing an
easement, did nothing to alleviate this perceived problem of blockage of the
beach from public view.
b. Conditions on a permit are a common way for states to get all kinds of things from
private homeowners and developers without compensations. Nollan and Dolan only
apply to conditions on a permit cases!!!
c. Test in Nollan: is there an essential nexus between advancing a
legitimate state interest and the condition?
e. Rough Proportionality Test (DOLAN)
1. If a legitimate state interest is substantially advanced by the condition
BUT is not roughly proportional to the impact of the proposed
development, it is a taking. Dolan.
2. Dolan looks for two tests to be satisfied:
a. ESSENTIAL NEXUS TEST: Is there an ESSENTIAL NEXUS
between the legitimate state interest involved and the permit
condition exacted by the city? Dolan court said yes.
b. ROUGH PROPORTIONALITY TEST: “is the impact of the
development the city foresees reasonably related to the required
condition?” In Dolan , the impact of losing right to exclude is
disproportionate to any foreseeable effect of the bike path.
f. USSC has NOT answered whether or not a <100% economic loss of property is a
g. HOW TO ANALYZE A <100% TAKING
What State will Argue What Property Owner will Argue
IBE not frustrated 100% of IBE frustrated
No Loss of Value Loss of Value in Property without houses on it. Landowner
has nothing left.
Reciprocity of Advantage No Reciprocity of Advantage.
Holmes in Pa. Coal said that owner must receive a
specific and direct benefit different from the benefit the
general public receives.
Thus, there is no reciprocity of advantage where the
owner is prohibited from using the land as he sees fit.
Conceptual Severance Approach Disfavored Conceptual severance approach is favored here.
Brandeis Dissent in Pa. Coal argued that to If even one slice of the owner’s property rights have been
find a taking, the focus is on the nature and infringed, then the whole bundle of property rights has
extent of the interference with rights in the been affected.
parcel as a whole. Thus, there has been a serious interference with the
Here, the owner’s rights to the parcel as a owner’s property rights.
whole have not been completely interfered
Land use agreements by private parties. One part of land benefits another part of land.
Three basic functional situations that we will look at:
I want to come on your land and use/do something on your land (Positive Easements)
Stopping someone from using servient land in a certain way (Negative Easements)
An express grant, usually in a deed or a will. (Creation of an Easement, Covenants)
1. An easement is a grant of an interest that entitles a person to use land possessed by another. A
right to do something on another’s land. An easement is an interest in land. The burden
passes to subsequent owners of the servient land.
2. TYPES OF EASEMENTS
a. Affirmative/positive Easement
i. The right to go onto the land of another (the servient land) and do some act on
ii. Must be in WRITING!
iii. Affirmative Easement Appurtenant
a. Regardless, attached to and runs with land.
b. **Favored if the easement language is ambiguous!!**
c. Runs with the land and remains on it when the land is sold and
d. Dominant Tenement
i. Land benefited by an easement appurtenant is attached to the
dominant tenement and is passed to any subsequent owner of
e. Servient Tenement
i. Land burdened with the easement
iv. Affirmative Easement in Gross
a. One that is personal and attached to an individual that disappears
upon that person’s death.
b. If an easement doesn’t benefit its owner in the use ad enjoyment of
his land, but merely gives him the right to use the servient land, the
easement is IN GROSS. The term “in gross” means only that the
benefit (easement) is not appurtenant.
i. A profit is the right to take something off another person’s land that is part of
the land or a product of the land. When a profit is granted, an easement to go
on the land and remove the subject matter is implied.
ii. Not intended to benefit the owner of it in the use of adjacent land, but rather
intended to give the owner an economically valuable item.
b. Negative Easements
i. You can stop someone from using the servient land in a certain way.
a. blocking your windows
b. interfering with air flowing to your land
c. removing the support of your bldg. or land
d. Interfering with flow of water in an artificial stream
e. Easement blocking view
f. Spoiling historical or environmental value
g. Conservation Easement
h. Solar easement (preventing a person from blocking a neighbor’s solar
ii. Negative easements are always appurtenant to land. It protects the owner of
the easement in the use and enjoyment of his land.
III. CANNOT BE CREATED BY IMPLICATION OR RESTRICTION. ONLY
CREATED BY WHAT IS BARGAINED FOR AND WHAT IS WRITTEN
c. Creation of Easements via:
iv. Implication (includes necessity)
3. Willard v. 1st Church of Christ, Scientist
a. Overturns CL rule that grantor is not allowed to reserve easements for a 3rd party
b. Court rejects the CL rule and favors the INTENT OF THE GRANTOR.
c. Grantor created an appurtenant easement in a fee simple determinable. (Fee simple
= perpetual duration). IOW, Grantor sold lot on the condition that parking is
conveyed IFF you are a church!!
4. LICENSE v EASEMENTS
a. License = permission given by owner which would otherwise be a trespass.
b. Licenses are revocable whereas easements are not revocable.
i. Exceptions where licenses are irrevocable
a. License coupled with an interest
b. License which becomes irrevocable under the rules of estoppel. Very
similar to an easement.
i. Holbrook v. Taylor
a. License may not be revoked where licensee has
erected improvements at a considerable expense.
b. gives tacit approval by allowing to use road to
build house. Similar to adverse possession.
ii. Holbrook is not followed in all the states.
iii. Henry v. Dalton said that if you want to create an easement,
you have to get it in writing.
5. EASEMENT BY PRIOR EXISTING USE (all capped and bolded words are factors
necessary to be true to have an easement by prior existing use!!)
a. Usually arises when there is a common owner (when land is commonly owned)
where one parcel is placed in service to another.
b. Van Sandt v. Royster
i. Van Sandt’s basement was flooded by a sewer line travelling under his land to
the neighboring houses. Van Sandt bought the land from a Ms. Bailey who
owned and sold the two surrounding lots as well.
ii. Easement was implied from prior existing use.
a. prior use must have been known to the parties at the time of
CONVEYANCE or at least, have been within the possibility of
knowledge at the time.
b. Even if the easement is not included or mentioned in the deed, parties
to a conveyance may be assumed to intend the continuance of uses
known to them which are in a considerable degree NECESSARY
to the continued usefulness of the land.
c. Also, they will be assumed to know and to contemplate the
CONTINUANCE of reasonably necessary uses which have so
altered the premises as to make them APPARENT upon reasonably
d. Here, and wife made a thorough inspection of the property and
knew the house was equipped with modern plumbing.
c. Critical moment in time when quasi easement ripens into easement by
implication is when land is first parceled off and severed from common
ownership. From then on, the subsequent owners are burdened with this easement
and have no control over it.
d. If 1st severance is granting DOMINANT ESTATE, then the quasi easement must be
REASONABLY NECESSARY to the enjoyment of the servient estate.
e. If 1st severance is granting the SERVIENT ESTATE and grantor retains dominant
tract, then the quasi-easement must be STRICTLY NECESSARY to the enjoyment of
the dominant estate.
f. Easement by implication does not disappear if another option becomes available
because necessity is not of the essence here. Easement by implication is a permanent
easement if all of the other factors are met, even if that particular easement is no
6. EASEMENT BY NECESSITY
a. EASEMENT BY NECESSITY CREATED IIF:
i. common ownership of parcels at one time
ii. roadway is a necessity, not a mere convenience
iii. necessity arose when the claimed dominant parcel was first severed from
the claimed servient parcel.
b. Burden to prove the necessity arose when claimed dominant parcel was severed from
claimed servient parcel is on person wanting easement.
c. Usually arises with a landlocked owner and is transferred if easement by necessity is
still necessary after there has been a privity of ownership.
d. Easement by necessity does not arise just because there is a landlocked owner.
There also has to be a common owner and privity of ownership!!!
e. Easements by necessity disappear when the easement is no longer necessary such as
when the owner secures another way out from the landlocked parcel.
f. Othen v. Rosier
i. Easement by necessity failed bc it wasn’t a necessity when all the land was
a. Since he has no easement by necessity, if he wants a way out, he must
purchase an easement.
ii. Easement by necessity also failed bc there was no easement by prescription
a. PRESCRIPTIVE TITLES must be (1) adverse and (2) exclusive
b. All prescriptive easements start with trespass and start running with
the first trespass.
c. *To keep your prescriptive title, you must tear down any barriers that
the owner constructs as soon as possible. This illustrates that the use
is not permissive and that the adverse use is continuous.*
d. Those who want prescriptive titles do not want title to the land like in
adverse possession. They just want the ability to use that portion of
the land, to cross back and forth.
iii. Most courts follow Othen and require strict necessity, but some have granted
an easement by necessity where access to the land exists but it is claimed to
be inadequate, difficult, or costly.
7. BEACHES (PUBLIC TRUST DOCTRINE)
a. Public Trust Doctrine is the doctrine from CL which declared that the area from the
water to the mean high-tide (wet sand area) belongs to public. The dry sand portion of
the beach was subject to private ownership and prohibited from public use until
Matthews was ruled.
b. Public Trust Doctrine extends to all land covered by the ebb and flow of the tide and
all inland lakes and rivers that are navigable.
c. Public Trust Doctrine requires that the public be afforded the right to enjoy all dry
sand beaches owned by a municipality (Matthews v. Bay Head Improvement Assoc.)
8. EASEMENTS OF WAY
a. An easement appurtenant to one parcel of land may not be extended by the owner of
the dominant estate to other parcels owned by him, whether adjoining or distinct
tracts, to which easement is not appurtenant. Brown v. Voss.
b. IOW, any extension of an easement appurtenant to a particular parcel of land is a
misuse of the easement.
9. TERMINATION OF EASEMENTS
a. Abandonment = termination of easement by law
i. This is not an easy test to meet. You have to clearly and unequivocal show
abandonment without doubt by an UNAMBIGUOUS ACT.
ii. Owner of dominant tenement must demonstrate an intent to relinquish
ownership or a purpose inconsistent with a future interest.
b. Lack of Regular Use DOES NOT = termination of easement
c. To find the scope of the easement, you look at what is reasonably foreseeable
according to the intent of the grantor.
B. NEGATIVE EASEMENTS
1. The right of the dominant owner to stop the servient owner from doing something on the
2. Categories of Negative Easements are extremely restrictive:
a. blocking your windows
b. interfering with air flowing to your land
c. removing the support of your bldg. or land
d. Interfering with flow of water in an artificial stream
e. Easement blocking view
f. Spoiling historical or environmental value
g. Conservation Easement
h. Solar easement (preventing a person from blocking a neighbor’s solar collector)
3. These functional agreements are recognized at law by using Covenants
a. enforceable at law (Real Covenants) or
b. at equity (Equitable Servitudes)
C. REAL COVENANTS
1. A promise respecting the use of land that runs with an estate in law.
2. Requires vertical privity of estate
i. VERTICAL PRIVITY – privity of estate bt one of the covenanting parties and a
successor in interest
ii. HORIZONTAL PRIVITY – must be privity of estate between the original
a. Where there is privity of estate, the contract is enforceable against assignees only
if the plaintiff can demonstrate that the burden has run to the defendant.
b. Types of legal relationships that satisfy Horizontal Privity
Landlord-tenant (only type of horizontal privity recognized at CL)
Restatement – mutual or successive interests (all 3 above)
3. In Covenants, both parties possess both a benefit and a burden TO LAND, bc the whole
reason for entering into the covenant is with the understanding that others will be burdened as
4. Ambiguities in restrictive covenants are resolved in favor of the free enjoyment of land bc
restrictions on the use and enjoyment of land will not be read to be implied.
5. THUS, RESTRICTIVE COVENANTS HAVE TO BE CLEAR AND AMBIGUOUSLY
STATED IN WRITING.
D. EQUITABLE SERVITUDES
1. DEF: covenant respecting the use of land enforceable against successive owners or
possessors in equity regardless of the enforceability at law
2. **IOW, courts enforce the covenantal rights of an owner of benefited property against a
successor, with notice, to the burdened land, even though the covenant did not run with the
land at law. However, this right against the burdened depends on the covenant having been
made for the benefit of other land, either retained by the grantor or part of a perceptible
3. Enforcement can be made to 3rd parties iff the requirements of real
covenants are met:
a. Parties who intend the promise to run with the land
b. a subsequent purchaser has had actual or constructive notice of the
covenant (Tulk v. Moxhay)
i. constructive notice:you are presumed to know of covenants
c. covenant touches and concerns land (IOW, whether the covenant alters
the legal relationship of parties as owners of the land; use of land and
value of burdened land is substantially effected)
d. vertical privity is required to enforce an equitable agreement
4. All covenants begin to run with the land when the owner first sells the lot.
Observance thereof passes to each purchaser with notice of the easement.
IOW, subsequent possessors are bound by the servitude.
5. Most courts feel that an equitable servitude is an interest in land and for that reason require
that it be in writing.
6. Privity of estate notwithstanding, a person who acquires real property with
notice of a restriction placed upon it will not be allowed, in equity, to
violate its terms. (Tulk v. Moxhay)
7. Sanborn v. McLean
a. Example of an equitable servitude by implication. Normally they have to
be in writing!!!
b. ’s could not build a gas station bc
i. INQUIRY notice was present. What a reasonable person would have
noticed if he had inquired. He would have discovered that the common
owner had burdened all the lots retained with reciprocal restrictions.
(reciprocal restrictions of his lot on the deeds to other lots regardless of
whether or not his particular deed contained language specifying therein.)
ii. Covenant touches and concerns the land.
a. WAYS TO BE PUT TO INQUIRY WHEN THERE IS NO INDICATION OF
A RESTRICTION ON YOUR DEED
i. plan with restrictions
ii. advertising brochures
iii. oral representations
iv. uniformity of lots
8. AFFIRMATIVE COVENANTS (type of equitable servitude)
a. covenant to DO SOMETHING, rather than to refrain from doing something as in a
b. DOES NOT RUN WITH THE LAND so as to charge the burden of performance on a
c. COVENANTS, WHETHER AFFIRMATIVE OR NEGATIVE, MUST STILL
FULFILL FOUR REQUIREMENTS
i. must appear that the GRANTOR AND GRANTEE INTENDED that the
covenant should run with the land
ii. covenant must TOUCH OR CONCERN THE LAND with which it runs
iii. it must appear that there is PRIVITY OF ESTATE between the promise or
party claiming the benefit of the covenant
e. AFFIRMATIVE COVENANTS CANNOT BE CREATED IN FAVOR OF A 3RD
i. exception: obligations to a community association or to reciprocal
obligations imposed pursuant to a common plan of development.
ii. See Neponsit Property Owners’ Association, Inc. v. Emigrant Industrial
A corporation formed as a medium for the enjoyment of common
rights of property owners owns property which would benefit by
enforcement of common rights and has cause of action in equity to
enforce the covenant upon which such common rights depend.
f. if a covenant does not touch or concern land and involves a monetary obligation and
tying arrangement, it will not be enforced. BUT!!! If you get a valuable property right
in exchange for the payment, it will be enforced.
g. 3RD RESTATEMENT OF PROPERTY, SERVITUDES
i. Gets rid of the touch and concern land requirement
h. Caullett v. Stanley Stilwell & Sons, Inc.
i. grantors reserved covenant to build or construct a building on said premises.
ii. Burden of a restrictive covenant does not run with the land
where the benefit is in gross.
iii. Ct. held that it was a benefit in gross and thus burden does not run with the
land - >NO COVENANT.
iv. Why? because does not touch and concern land
a. benefit from building a land is mere money
b. thus, benefit is only personal. IOW, it is a benefit IN GROSS and
thus burden does NOT run with the land.
c. BENEFIT IN GROSS is when burden is placed on land and there
is no benefit to any retained lands. Harder to sell & hard to enforce.
d. BURDEN IN GROSS is where the benefit is placed on land and
there is no burden to any retained lands. Easier to sell.
E. SCOPE OF COVENANTS
1. Hill v. Community of Damien of Molokai
a. Group home for people with AIDS were residing in an area which had a restrictive
b. A covenant that restricts occupancy only to related individuals or
that bars group homes has a disparate impact, not only on the
current residents of the Community’s group home who have AIDS
but also on all disabled individuals who need congregate living
arrangements in order to live in traditional neighborhoods and
c. Court’s reasoning: The covenant violates FHA via:
i. discriminatory intent
ii. disparate impact
iii. community denies access to housing in order to implicate the “reasonable
accommodation” requirement of the FHA
d. Moreover, any attempt to enforce the discriminatory covenant can be discriminatory
in itself, such as a lawsuit trying to enforce it. See Shelley v. Kramer.
2. Shelley v. Kramer (RACE = SUSPECT CLASS)
a. restrictive covenant to not sell to any one who is “not of the Caucasian race”.
b. Covenant is challenged on the grounds that it violated the equal protection clause of
the 14th amendment.
c. Residents say that covenant is outside of the scope of strict scrutiny bc it is a
PRIVATE AGREEMENT, not one through the state.
d. Court said it is one enforced through the state because the lower courts judicially
e. These days, such lawsuits hardly are litigated as constitutional violations. Because
your remedies are higher and better under a statutory violation (FHA), most litigation
regarding covenants restricting suspect classes use the argument that it violates the
F. ABANDONMENT OF COVENANTS
1. Real covenants and equitable servitudes are extinguished when merged
under a common owner, just like an easement. (Termination by Merger)
2. However, there are other ways to end covenants. You can also end covenants by
showing that the original purpose of the covenant can no longer be
accomplished and substantial benefits no longer insure to the restricted
area by their enforcement.
a. Western Land v. Trukalowski
Appellant wanted to build a gas station in an area which had a restrictive covenant
to have the are remain residential.
privately owned restrictions cannot be overturned by zoning
Court said that the covenant cannot be terminated even if it makes no
sense when there is sufficient evidence that the objects and purposes
of the restrictions have not been thwarted/abandoned/waived by
residents themselves and they remain of substantial value to the
homeowners in the subdivision.
3. You can also show a covenant has been extinguished if you can show that the residents
abandoned, waived by the residents themselves. i.e. if they all signed an agreement.
4. Remedy for residents to keep restrictive covenant in place: INJUNCTION
5. Even if there is a change of conditions in an area, the covenant is still
enforceable because the original owner elected to promote a residential
development and purchasers were induced by this promise.
a. Rick v. West
i. even a landowner who is the only one refusing to let go of the
covenant can insist upon adherence to the covenant
G. COMMON INTEREST COMMUNITIES
1. CID = Common Interest Development
2. CCR = Covenants, Conditions, and Restrictions,
3. Nahrstedt v. Lakeside Village Condominium Association
a. Condo unit’s CCR, created in the development’s declaration, prohibited animals in the
condo units & Nahrstedt wanted to keep her 3 cats and used the excuse that her cats
were noiseless and created no nuisance
b. You know that this is an equitable servitude because there is notice, it touches and
concerns the land bc it was a condo until, there is vertical privity, and parties intended
that the covenant would run with the land.
c. TEST TO SEE IF CCR IS ACCEPTABLE
i. under a presumption of validity, test is if the restriction is
contained in the declaration of the common interest development
and is recorded with the county recorder
ii. this presumption of validity is NOT ENFORCED if the restriction
a. is arbitrary,
b. imposes burdens on the use of lands it affects substantially
outweigh the restriction’s benefits to the development’s
c. violates a fundamental public policy
VII. ESTATES IN LAND
A. Possessory Estates
1. FEE SIMPLE (endures forever)
a. May endure forever and held unconditionally, subject to no restrictions
b. How to create a fee simple
i. At CL, you MUST use specific words!!!
a. To John (words of purchase)
b. And his heirs (words of limitation)
i. Without “and his heirs”, John’s heirs do not get the fee
simple when he dies.
ii. “& his heirs” DOES NOT convey a property interest. It is
just a term of art used to identify a fee simple!!!
ii. Today, you can just say “to John and fee simple” or “to John” to create a
2. White v. Brown
a. potential life estate although not clear from holographic will
b. Illustrates that language and background facts are always relevant, if not
c. Ms. Lide gave her home to her sister-in-law “NOT to be sold.”
i. This “not to be sold” expresses an intent to impose a disabling restraint on a
fee simple rather than an attempt to create a life estate. This restriction
demonstrates grantor’s motive to keep the house and prevent its sale.
d. WHERE INTENT APPEARS AMBIGUOUS, THE THING BEING
CONVEYED IS A FEE SIMPLE.
i. when ambiguous, look at general rules of construction (statutes).
ii. presumed intent is that one would want to benefit those relatives actually
closest to her. Thus, it is a fee simple.
3. LIFE ESTATE (does NOT endure forever)
a. To create a life estate (LE), Steve says “To Amber for Life”
b. Gives Amber the life estate for her lifetime, but that is it; no power to give the
property away when she is dead
c. However, while she is alive, she can transfer it to someone else, like John.
d. WHY? Estate is measured by Amber’s lifetime.
e. **Unless said otherwise, you should always presume someone has heirs.**
f. What grantor has is called a reversion in fee simple. (What Steve has since he gave
the LE to Amber. He gets the property back if Amber dies with no heirs and if she
does not transfer it to anyone else)
g. If grantor gives to a 3rd party in the future, its called a remainder in future interest.
(remainder in fee simple/ remainder in life estate)
4. INHERITANCE (problem 2 at page 204)
a. At CL, when O dies intestate, the son of the son owns Blackacre (B2).
b. Under Modern American Law, we don’t care anymore about the son of the son. Thus,
under Modern American law, A gets half of Blackacre and B1, B2, and B3 split the
other half equally.
i. W cannot get Blackacre because B never had Blackacre when B died. O still
c. (prob.3) If A dies intestate without issue, he may still be survived by any heirs. Thus,
if A dies without issue, Blackacre will not escheat to the state.
d. Prob. 4
i. Example of escheat
ii. O gives A a LE and B a remainder in fee simple. Because B has a future
interest in fee simple, O has given everything he had away. If B dies without
heirs and then A dies, the fee simple goes back to O’s estate. This is KA an
escheat. (notice that it is highly unusual for A to not have any heirs at all)
a. A remainder is a future interest created in a 3rd party that will become possessory upon
the natural termination of an immediately preceding LE.
b. Kinds of Remainders
i. VESTED REMAINDER
a. Given to an ascertained person (alive and present) and
b. not subject to a condition precedent
c. No reversions in vested remainders! Instead, you have shifting or
springing executory interests.
II. CONTINGENT REMAINDER
a. Given to an unascertained person (yet unborn) OR
b. is subject to a condition precedent
c. All contingent remainders are followed by reversion!!
iii. Ex. #1: To Amy for life, remainder to Ted
a. Same as “To Amy for life, Then to Ted.”
b. Present possessory life estate goes to Amy. Ted has a vested
remainder interest in fee simple.
iv. Ex. #2: Steve give “To Amy for life, remainder to Ted if he
a. Amy has a present possessory LE. Ted has a contingent
remainder in fee simple.
b. Implied that there is a reversion to grantor (Steve) if Ted does
not survive Amy.
v. Ex.#3: To Amy for Life, remainder to Amy’s children
a. Amy has a LE
b. Amy’s kids are not born yet = unascertained person so they
have a contingent remainder in fee simple
c. Owner has a reversion in fee simple
vi. Ex. #4: O conveys Blackacre “To A for life, then to B for life.” O
dies with a will devising all of his property to C. Then A and B
both die. Who owns Blackacre?
a. A has a LE
b. B has a vested remainder for life
c. O has a right to reversion in fee simple
d. When B dies, Blackacre reverts back to O. But since its legal
to convey, descend or inherit a reversion and O has conveyed
his property to C, C gets the reversion.
6. When language is unclear, assume that a fee simple is being given. White v. Brown.
7. Doctrine of economic waste
a. Baker v. Wheedon
Deterioration and waste is not enough to force a sale. You also
have to show that it is in the best interest of ALL of the parties.
Baker should have given Anna a fee simple or a trust.
Since lawyers disfavor life estates, trusts have replaced life estates. No reason in this day and
age to give someone a life estate. Creating a trust allows someone to manage property while
they are alive and then you can give it to someone else after they die.
PROBLEM: Griffin grants “TO JAY FOR LIFE, REMAINDER TO JESSICA’S CHILDREN.”
Jay and Jessica are both alive and Jessica has no children. What is the state of the title?
Jay has a LE,
Jessica’s children have a contingent remainder in fee simple.
Griffin has a reversion in fee simple.
Jessica dies without children during Jay’s lifetime. Who has what?
Jay has LE
since Jessica has no children, the contingent remainder has disapperared, and the estate reverts back
to Griffin if Jay dies.
Jessica dies during Jay’s lifetime and her only child, Eric, grants all of his rights and titles to Jennifer. What
is the state of the title?
Jay has a LE.
Eric has a vested remainder interest in fee simple.
Since he gave it to Jennifer, Jennifer has the same thing.
Jay dies and Jessica is alive but has no children. What is the state of the title?
Jay’s LE is gone, but since Jessica has no children, the reversion kicks in.
Professor Griffin has a reversion in fee simple.
There are both alive and Jessica has one child, Eric. What is the state of the title?
Jay has a LE. Eric has a vested remainder in fee simple subject to open. (subject to open meaning
the vested remainder is subject to being shared if she has more children)
Vested remainder in fee simple bc Eric is alive.
No reversion because it’s a vested remainder and not a contingent remainder.
PROBLEM: Steve grants to “HEATHER TO LIFE, REMAINDER TO DAVID AND HIS HEIRS IF DAVID
SURVIVES HEATHER, BUT IF DAVID DIES BEFORE HEATHER DIES, THE REMAINDER TO KAREN AND
At the time of the grant, what is the state of the title?
Heather has a LE.
David has a contingent remainder in fee simple because he is only entitled to the estate if he survives
Karen has a contingent remainder in fee simple because she is only entitled to the estate if David dies
before Heather. (IOW, David & Karen have alternative contingent remainders since either one gets
it or the other)
Steve has a reversion in fee simple.
Heather dies and David is still alive. What is the state of the title?
David has a fee simple.
David dies before Heather. What is the state of the title?
Heather has a LE.
Karen has a vested remainder in fee simple.
David dies and then Heather dies. What is the state of the title?
Karen has a fee simple.
Karen dies first. What is the state of the title?
Heather has a LE.
David still has a contingent remainder.
Since Karen had a contingent remainder but she dies, Karen’s heirs have a contingent remainder,
contingent upon David’s death.
Karen dies. Then David dies. Then Heather dies. What is the state of the title?
Karen’s heirs have a fee simple.
Reversion is unlikely but it will happen if they all die at the same time.
B. FEE SIMPLE DEFEASIBLE
Fee Simple Determinable (FSD)
Fee Simple Subject to a Condition Subsequent (FSSCS)
Both are accompanied by a future interest bc they give away < fee simple
1. Fee Simple Determinable
May last forever but can come to an end (divested) upon the happening of a particular event.
a. How to create it:
i. give a present interest with a condition
ii. so limited, it will divest automatically if the stated event occurs.
iii. MUST USE WORDS OF DURATION (“so long as used for,” “while used
for” “during continuance of”
b. Possibility of reverter
i. a future interest
ii. right of future, automatic entry if condition broken
iii. can be expressly or implicitly retained – don’t have to say it bc its implied by
cutting short of an act when something happens.
2. Fee Simple Subject to a Condition Subsequent
a. Interest of grantee may be cut short if the grantor decides to reenter upon violation of
condition. However, no automatic reversion!!
b. MUST HAVE LANGUAGE THAT SAYS THAT THERE’S A RIGHT TO RE-
c. This language creates a fee simple & shows divestment only through a right of re-
entry IFF the condition is broken.
d. Right to Re-Entry
i. power of termination
ii. can cut short this interest if I re-enter and take the land when condition is
iii. can only be created by grantors, NOT by 3rd parties
iv. grantor must do something affirmative to retake property.
RULE: A grantor CANNOT give a right of reverter to a 3rd party in initial grant but later he
can sell his interest to a 3rd party.
a. Deed held that that the “land was to be used for school purposes only’ otherwise to
revert to grantors.”
b. Issue: FSD or FSCS?
c. Court found that the language of the deed was ambiguous but interpreted that “only”
indicated duration to create a FSD.
d. Unlike Marenholz, courts usually find a FSCS where ambiguity exists bc they do
not like to automatically terminate an estate.
e. Why it matters whether or not it was a FSD or a FSCS.
i. If FSD, then Marenholz wins bc Hutton owned an interest in the land as soon
as the condition was violated; so there was an automatic reversion to Hutton.
So Hutton has a fee simple and conveyed a fee simple to Marenholz.
ii. If FSCS, the school wins bc no steps were taken for re-entry. He never had a
fee simple bc the right of re-entry was never acted upon. Thus School has a
f. INTENT of grantor was to give city a FSD.
C. EXECUTORY INTERESTS
1. Another form of a future interest
2. Divests or cuts short the preceding interest BUT can only take effect by divesting another of
3. Executory interest ALWAYS follows a vested remainder in fee simple.
Example: To Amy for life, then to Ted, but if Ted doesn’t reach 25 before Amy dies then to Fred.
Life Estate Vested Remainder in Fee Simple Shifting Executory Interest
A = LE
T = Vested remainder in fee simple subject to divestment by F
F= Shifted executory interest
No reversion bc everything has been given away!!
**We don’t call Ted’s grant a contingent remainder bc it goes to Ted automatically. The condition is in **
**the next clause rather than in the same clause that grants Ted his remainder. NOTE THE COMMA!!**
4. Types of Executory Interests
a. Shifting Executory Interest
i. Divests another transferee (see Fred example)
b. Springing Executory Interest
i. Divests the ORIGINAL grantor. It’s usually in fee simple.
a. O grants “To C upon my death”
b. C has a springing executory interest that divests the original grantor.
EXAMPLE: O conveys “to A for life, then to B if B gives A a proper funeral”
A has a LE
B has an springing executory interest
In-between when A dies and the funeral, O gets the reversion. Then, if funeral, B divests
O, the original grantor.
Here, there is a reversion bc you don’t know whether the contingency is effective or not at
the time of the death.
EXAMPLE: O conveys “to A for life, then to B and her heirs if B attains the age of 21 before A dies”. At
the time of the conveyance, B is 15.
A has a LE
B has a contingent remainder in fee simple
O has a reversion in fee simple
Passes perpetuities rule. Bc B is 15, there is a logical possibility that the remainder could
vest within 21 years of A’s death.
TEST TO SEE IF PERPETUITIES RULE IS SATISFIED:
Ask if there is a logically possibility that the remainder COULD LOGICALLY
vest within 21 years after the death of the life in being.
If Yes, passes perpetuities.
If no, fails perpetuities.
EXAMPLE: Steve grants “To Amy for life, remainder to Donna’s kids”. At the time of the conveyance,
A&D are alive and D has 1 child, Luke.
A has a LE
L has a vested remainder in fee simple subject to open
Unborn children have a contingent remainder.
EXAMPLE: O conveys “to A for life, then to B for life, then to C and his heirs”
A has a LE
B has a vested remainder for life
C has a vested remainder in fee simple
Thus, no reversion
SEE ELENI OUTLINE FOR MISSING GAPS!!!
1. Rule: A conveyance of a future contingent interest is invalid if there is a possibility that the
interest will remain contingent for more than 21 years after the deaths of all the people who
are alive on the effective date of the conveyance.
-If Yes, fails perpetuities
-If No, passes perpetuities.
2. Perpetuities period starts only after everyone dies who was alive when the conveyance took
effect. PPD. = lives in being + 21 years
a. anyone who is alive on the effective date can serve as a life in being and can affect
3. You must prove that a contingent interest will necessarily vest OR fail
within 21 years after some life in being at the creation of the interest.
4. ONLY APPLIES TO CONTINGENT FUTURE INTERESTS such as:
vested remainders subject to open,
contingent interests created in transferees.
5. DOES NOT APPLY TO
people who get reversions,
vested remainders that are indefeasibly open
possibility of reverter
right of entry
6. Under the rule, you DO NOT look at when the interest ACTUALLY vests. Only look at when
the interest MIGHT LOGICALLY vest. Thus, a conveyance is invalid so long as it could vest
logically in the future.
7. Under the rule, everyone is presumed to be able to have children at any time during their
8. TEST TO SEE IF PERPETUITIES RULE IS SATISFIED:
Ask if there is a logically possibility that the remainder COULD LOGICALLY
vest within 21 years after the death of the life in being.
-If Yes, passes perpetuities
-If No, fails perpetuities.
Ex. To Jay for life, remainder to Jessica’s children.
Jessica’s children have contingent remainders in fee simple. At Jessica’s death, can you
know whether or not she has children?
Yes. Logically, you can know whether the remainder stays contingent for more than 21
years after her death by whether or not she has kids by the time of her death. Passes
the Perpetuities Rule. If she has kids, you can logically say that it will not remain
contingent for more than 21 years.
Jessica is the validating life bc she is the one who affects the vesting.
Ex. To A for life, then to A’s first child to reach 25
Illustrates the Afterborn Child Problem
Perpetuities Period = A’s life + 21 years
If kids are born after the effective date of conveyance, then there is
NO VALIDATING LIFE and the clause is not valid bc you cannot logically prove
that A’s first child will reach 25 within 21 years after A’s death. Might vest too remotely.
[For ex. If A dies and leaves B, a 3 year old child, she will not reach age 25 within 21
years. If the gift vests in B, it will vest 22 years after A’s death and that is too remote.]
Validating life is A bc she affects the vesting but the contingent remainder is
void bc she was NOT necessarily and absolutely alive and named in the
WHAT EXACTLY IS THE CONTINGENCY?
TEST ALL OF THE PEOPLE THAT CAN AFFECT WHETHER A CONTINGENCY WILL
Ex. Focus on Jessica bc she has an affect on vesting bc she is the one who is having the kids.
Must be able to show, as a matter of logic, that J’s going to have a kid reach 21 by the end of the period or
not. This makes it valid or invalid.
Could the contingency vest within “life in being” + 21 years?
We’ll know by the time Jessica dies – don’t need to actually go through the 21 years. Just add 21 to the
age of any child.
TEST EACH GRANT and EACH CONTINGENT REMAINDER!!
KNOWING FOR SURE THAT THE GRANT COULD ABSOLUTELY FAIL
MEANS THE GRANTS IS STILL VALID!!!!
NAMING IS CRUCIAL!!!!If you name someone who is alive, you give a validating life.
You violate the rule by naming an abstraction who is not yet alive at the time of conveyance.
If the gift might vest too remotely, you violate the Rule.
VALIDATING LIVES MUST BE:
ONE WHO CAN AFFECT THE VESTING
ALIVE AT TIME OF CONVEYANCE
NAMED IN THE CONVEYANCE!!!!
If naming who you give grant to, they can serve as validating life. If name in a general group, then more risky.
Eliminate the risk of violating the rule by naming someone.
For ex: Body Heat Problem
A sure way to violate the rule is to use an abstraction and not name Heather specifically.
“To the first child of my sister to reach 25”
H is a party to a class, alive, would affect the vesting BUT NOT NAMED.
Afterborn child problem kicks into play. First child to reach 21 could be one who is not yet alive.
AFTERBORN CANNOT BE THE VALIDATING LIFE AND GIFT COULD
VEST TOO REMOTELY.
EX: To A for life, then to A’s kids for their lives, then to B if B is then alive, and if B’s not alive to B’s heirs.
[Assuming A and B are alive]…
A=Validating Life B=Validating Life for B’s B=Validating life
Grant Valid Remainder; Grant Valid Grant Valid
A’s kids = contingent remainder in life (bc unascertained)
B= contingent remainder
B’s heirs = alternative contingent remainder
9. Brown v. Independent Baptist Church of Woburn
a. Violates the Perpetuities Rule bc church might cease to be a church beyond the lives
in being + 21 years. IOW, church could cease to be a church at an indefinite time in
b. Court rules in favor of the legatees bc the original grant violates the Rule of
i. When a clause violates the Rule of Perpetuities, the clause is simply struck
out. Striking out the executory interest clause leaves a possibility of reverter
to the legatees bc the court saw that the possibility of reverter was in the
estate. Thus the court rules in favor of the legatees.
c. *Note* Holding above is WRONG both in law and policy. T’s heirs should actually
have the reverter bc testator had a fee simple (To her and her heirs) determinable with
a possibility of reverter. Once testator dies, the heirs should have been substituted in
bc possibility of reverter can only be retained by grantors and their heirs.
d. POSSIBILITIES OF REVERTER ARE NOT SUBJECT TO
BEING TESTED BY THE RULE OF PERPETUITIES bc reverters
automatically happen. We don’t care how long it will take.
10. Jee v. Audley
a. Audley left money “unto my niece Mary Hall and the issue of her body lawfully
begotten. And in the default of such issue, I give the money to be equally divided
between the daughters then living of my kinsman John Jee and his wife.”
b. This language would create a fee tail in Mary Hall if land was involved, but a fee tail
could not be created in personal property. Thus, Mary Hall had the equivalent of a fee
tail – a fee simple.
c. Problem was that “in default of such issue” was construed to mean by the Court as
meaning when Mary’s bloodline runs out.” Bc Mary’s bloodline might run out when
she dies or at an indefinite time in the future, the gift might vest too remotely.
(Afterborn child problem)
d. Fails the Perpetuities Rule bc the gift may not necessarily vest or fail within 21 years
after the death of any or all of the people alive at the time of the conveyance.
e. RULE: Under the Rule of Perpetuities, it must be assumed that
a person of any age can have a child, no matter what the person’s
physical condition. And, of course, a person of any age can adopt a
EXAMPLE: O conveys “to A for life, then to A’s children who reach 25”. A has a child, B, age 26, living at the
time of the conveyance. Is the remainder valid?
No. Gift is a class gift given to all of A’s children who reach 25.
Afterborn child problem. A child, other than B, could come at an indefinite time in the future to reach
age 25 and an afterborn child cannot be the validating life.
EXAMPLE: O conveys “to A for life, then to A’s widow, if any, for life, then to A’s issue then living.” Valid?
No. Afterborn WIDOW problem.
Another widow, other than the one A is married to at the time of the conveyance, could come along.
A’s widow is NOT NAMED. Under Rule, validating life must be names and alive at the time of the
conveyance to be valid. We don’t know if she is alive and she is not named at the time of the
EXAM TIPS ON ESTATES IN LAND
Fully answer the questions! Go clause by clause.
Clarify contingent remainder, vested remainder, subject to open, subject to
divestment, in fee simple or in life estate
When you explain why a grant is void under the Rule of Perpetuities, don’t make it a
conclusory statement. (E.G. Explain why there is no validating life. Explain under
what circumstances it would vest within 21 years.)
VIII. LANDLORD-TENANT LAW
A. Types of Leasehold Estates
Term of Years
Tenancy at Will
Every leasehold includes the following:
1. An estate in the tenant
2. A reversion in the LL
3. Exclusive right to possession and control in the tenant; and
4. Generally, a K bt the parties
HOW TO ANALYZE LEASEHOLD ESTATE PROBLEMS
1. Categorize the type of lease first, then start on the analysis
2. Ask “is the lease commercial or residential?”
3. How does the court interpret the lease? As a property right or a K?
B. TERM OF YEARS
1. Any agreement for a fixed period when you know the exact calendar date that it will end.
2. No notice is required to bring the estate to an end.
3. One can sell term of years, but the term of years is still operative
4. Term must be for a fixed period but can be terminable earlier upon the happening of some
event or some condition
5. MOST IMPORTANT TYPE OF LEASEHOLD ESTATE.
C. PERIODIC TENANCY
1. Lease for some fixed duration. Continues until the LL or T gives notice.
2. If sufficient or no notice is given, the lease automatically extends for another period/fixed
duration, and the T is bound to pay rent.
3. Ex: “To A from month to month” OR “To B from year to year”
4. Notice is required to terminate, and it must be = to a full period.
a. If a full period will place one in the middle of a period, one must wait for the end of
that full payment period.
b. Under the CL, 6 months notice for a year lease; otherwise a full period.
5. EX: Month to month tenant begins Jan.1, decides on March 20 to vacate, earliest
termination date is April 30.
a. Many states have shortened the length of notice required to terminate to 30 days
anytime before termination.
b. Need to give one-month prior notice at least.
5. Don’t use the word “annual”. Courts do not know if that means yr to yr or month to month.
Courts pay attention to the INTENT OF THE PARTIES.
6. Death of LL or T HAS NO EFFECT on a periodic tenancy (but does on a tenancy at will.
7. Specific language establishing length of period MUST BE USED!!!
D. TENANCY AT WILL
1. No fixed period. Express agreement that lease ends when either LL or T decides to
2. No duration or payment terms
3. Ex: “To T for as many years as L desires.” One party has a right to terminate. When the
parties’ intent is clear, courts enforce the agreement as written even though perpetual right
(tenancy at will)
4. THINGS TO LOOK FOR IN A TENANCY AT WILL:
Intent of the parties
Language that says that the LL can terminate at will.
a. T has a lease until he wants to terminate
b. “To T for as many years as T desires.”
c. App. Ct held that this was a life estate determinable, not a tenancy at will, bc applying
a K shows the clear intent of the parties.
d. If the lease had said “To T for as many years as LL desire” = Tenancy at will.
E. FAIR HOUSING ACT
Goals of FHA
Promotion of integration
§3604 Discrimination in the Sale or Rental of Housing and Other
(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate
for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any
person bc of race, color, religion, sex, familial status, or national origin. (HARDER
(b) To discriminate against any person in the terms, conditions, or privileges of sale
or rental of a dwelling, or in the provision of services or facilities in connection
therewith, bc of race, color, religion, sex, familial status, or national origin.
(DEALING WITH BS THAT NO ONE ELSE IS DEALING WITH)
(c) To make, print, or publish, or to be made, printed, or published any notice,
statement, or advertisement, with respect to sale or rental of a dwelling that
indicates any preference, limitation, or discrimination based on race, color,
religion, sex, handicap, familial status, or national origin, or an intention to make any
such preference, limitation, or discrimination.
(e) blockbusting: when realtor tells family that minority families move in and they sell
(f) discrimination bc of handicapped (physical and mental)
NOTE: This Act DOES NOT COVER discrimination on the basis of sexual preferences,
unmarried people, and class.
EXEMPTIONS UNDER § 3603
Intended to protect personal relations and respect the right to privacy.
(b)(1) AKA Murphy’s exception
If you own a private home and you do not own more than 3 single-family homes at
one time, and does not use a broker, and does not advertise in a discriminating way,
you can discriminate.
(b)(2) If private LL is renting office space in her building of four units or less and she
occupies one of them, plus no discriminatory advertisement, she can discriminate.
NOTE:If you use a broker to rent out, the exemptions do NOT apply.
a. Language requirements is a proxy for discrimination bc it shows preference on
the basis of national origin. AKA HOLMGREN RULE.
b. Advertisements containing human models is a prima facie case for a violation of FHA
If ad suggests to ordinary reader that a particular race is preferred or
dispreferred for the housing in question, an ad indicates impermissible racial
discrimination. RAGIN RULE.
This is also true for oral statements.
c. Discriminatory effects are enough to start out a prima facie case of discrimination. You need
not prove intent at first. But intent should still be considered. Ask:
shows discriminatory effect
must show no discriminatory intent to refute discrimination
must show nondiscriminatory intent is simply a pretext to win
must show nondiscriminatory intent is NOT simply a pretext to win.
d. Refusal to rent to a gay couple = not covered or protected by FHA. Sexual Orientation is
NOT protected by the FHA
e. Refusal to rent to people with AIDS = protected by FHA bc AIDS = handicap.
f. Familial Status
i. Familial status is NOT a reference to marital status. It refers to being in a family or
ii. BUT cannot discriminate against SINGLE PARENT FAMILIES.
iii. Ad containing the word “Married” might violate the FHA bc it might suggest that
single parents are dispreferred.
iv. Discriminating against unmarried people with no kids is OK.
g. Sexual Harassment = Sex Discrimination
i. Greiger: If it’s a severe enough form of sex harassment
ii. If it relates to rental, refusal to rent – automatic discrimination.
i. If wealth is being used so that it has a disparate impact, or affects race, etc., then it
may violate the FHA bc it’s a neutral characteristic serving as a proxy for a prohibited
FHA provision (race, sex, etc.)
i. Bronk v. Ineichen
a. REASONABLE ACCOMODATION = an accommodation that must
facilitate a disabled individual’s ability to function, and it must survive a cost-
benefit balancing that takes LL’s economic or aesthetic concerns as expressed
in a no-pets policy and the individual’s needs for the accommodation.
1. L regularly rents 1 bdrm apts. to households consisting of 2 adults and 2
bedroom apts. to hh’s consisting of 2 adults and 2 children. L refuses to
rent 1-bedroom units to 1 adult and 1 child.
Violates FHA because of familial status.
2. L refuses to rent to a heterosexual couple bc they are unmarried.
No protection against unmarried couples under FHA.
3. L refuses to rent to a gay couple bc he objects to the partners’ sexual
No protection for gays under FHA
4. L refuses to rent to a gay couple bc of a fear of AIDS.
No sexual orientation claim but they do have a handicap claim IFF
one of them actually does HAVE AIDS.
AIDS = handicap and it is protected under the FHA.
5. L rents to a single woman, and then, several weeks into the tenancy,
begins harassing her with demands for sexual favors.
Violates FHA by discriminating on sex.
Sexual harassment = sex discrimination bc he is discriminating
against her bc of her sex.
6. L wants to evict T bc T has a mental disability that results in seemingly
Before you evict you have to show that you tried your hardest to
reasonably accommodate T; Otherwise, violates FHA bc of mental
F. DEFAULTING TENANT AND T’S DUTIES AND RIGHTS
1. TENANT’S DUTIES
a. duty not to commit waste
i. T cannot make substantial changes that affect or alter/reduce the value of the
property. See C.
b. duty to repair
i. Under CL, this is extended only to ordinary maintenance (ex. Lightbulb)
c. addition to property or improvements
i. Permission to add. If not considered waste, might become waste if L has to
remove it at termination.
ii. Get LL’s permission
iii. Cannot take new improvement fixtures out when you leave. This would be
waste bc it’s now a part of the property.
d. Duty to pay rent
i. CL = even if the bldg. burn down, you have to pay rent, bc you are renting the
ii. Modern law = your duty to pay rent ends when the bldg. burns down.
AN ILLEGAL LEASE IS A DEFENSE FOR NONPAYMENT OF RENT
a. when a tenant wrongfully abandons the premises and renounces the lease, and if there
is no statute or lease provision, the LL may
i. Accept the surrender of the leasehold and relieve T of further liability
ii. retake possession on behalf of T to mitigate damages
iii. sue for rent, or
iv. consider it a breach and sue for damages
Arises when a tenant remains in possession after termination of the tenancy.
Holdovers usually give rise to a periodic tenancy that results in a new term.
a. WHEN A TENANT OVERSTAYS THE LEASE PROVIDED, THE LL MAY
treat T as a trespasser and evict them OR
consider T as a holdover T, thus implying a new tenancy by implied or
b. LL CANNOT change his mind and tell T that he is evicted and then suddenly
consider T as a holdover T. (Creshale)
c. Maximum holdover period = 1 year. When the choice is unclear, the lease is extended
on a month-month basis bc Courts would rather recognize a month to month lease.
d. If T leaves equipment behind after vacating, he is only considering a holdover if the
equipment interferes w/L’s use of property.
e. At CL, 1 day over the lease = a holdover. Modern law = good excuse and particular
circumstances will rebut.
G. L’s DUTIES, RIGHTS, REMEDIES
1. At CL, duties include
Duty to disclose latent defect
Duty to maintain common areas used by tenants
Duty to undertake repairs LL promised or volunteered to make
Abstain from fraudulent misrepresentations as to condition of the premises
To abate other T’s moral conduct and other nuisances on the property
2. Modern Law includes all of the above + COVENANT OF QUIET ENJOYMENT (COQE)
for both residential & commercial bldgs.
1. breach absolves T from paying rent
2. may be expressed or implied in every lease
3. REMEDY for breach of COQE is CONSTRUCTIVE EVICTION
4. a wrongful but actual eviction is also a breach of this covenant
5. no notice is required
6. T must leave within a reasonable time when t realizes things will not get better. If
T stays, it implies you didn’t think it was so bad.
TEST FOR BREACH OF COQE:
1) Has LL substantially interfered by action or inaction with the T’s use and enjoyment of the
premises such that the premises are substantially unsuitable for the purpose for which they
were leased. (Reste Realty)
2) Is the LL causing /controlling the activity?
Look at Duties Involved:
Duty to disclose latent defect
Duty to maintain common areas used by tenants
Duty to undertake repairs LL promised or volunteered to make
Abstain from fraudulent misrepresentations as to condition of the premises
To abate other T’s moral conduct and other nuisances on the property
3) If LL breaches COQE:
a) T must give LL a chance to fix problem
b) T has been constructively evicted. (Reste Realty) She must leave within a
reasonable time (when you realize that things won’t get better). If T stays, it implies
that she didn’t think things were so bad and her right to claim CE is lost.
c) T pays NONE of the remaining rent
3. T Warranty of OUT BEFORE WITHHOLDING RENT!!!
a. IMPLIED IN ALL RESIDENTIAL LEASES THAT RESIDENCE IS SAFE,
CLEAN, AND SUITABLE FOR HUMAN HABITATION!!!
b. If Commercial lease, use Constructive Eviction
c. You don’t have to move out. You can stay and withhold rent.
d. Cannot write a clause that gets rid of IWH
STEPS FOR IWH
1) Does the residence comply with the housing code?
2) Does the residence have conditions that do not endanger the safety or health of the T OR
Is the residence substantially unfit for living?
3) Was there notice to the LL to allow LL to correct/remedy the situation?
4) Remedy Options
Standard K Remedies
Repair and Deduct from rent
4. Retaking Property
a. CL = courts allowed a LL to exercise self help if
LL is exercising his right peacefully bc the policy is to promote non-violence
LL is entitled to possession
b. Today, courts dislike self-help and a LL should take certain steps if a lease is being
Go through the courts
Get a summary eviction proceeding (a quick 3-10 day procedure used for