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									                                       Property Spring Outline
                                           Appel – 2004

1. Marital Interests
    - 2 types of systems
            1. Community property
            2. Common law
                      - husband controlled everything wife had
        - anything acquired by wife post-marriage was his; real property remained in her name,
        but was controlled by husband
        - husbands were liable for torts of their wives - this is the only thing that attempts to
        equalize the relationship
        - some state passed Married Woman‟s Property Act (MS was 1 st ) - women gained control
        of their property, but still had domestic duties
                - although this was a pre-existing duty, so courts deemed it a lack of consideration
                for promising to leave her property
            a. Common law marital property system
                      1. Sawada v Endo
                - P injured when D hit him with car; P won suit and is trying to collect money
                - after accident, Ds transferred property to their kids - D had owned this property
                as tenancy by entirety with wife, kids pay nothing and Ds still live on property
                - it looks like D conveyed his property to avoid having it sold to satisfy the
                judgement - this is a fraudulent conveyance
                - question - is the interest in one spouse subject to execution by the creditors
                              - 4 groups of states:
                          1. Property is under exclusive control of the husband - and can convey
                          property without wife‟s permission
                                  - more traditional view - if this was the case, creditors would be
                                  able to reach his property
                          2. Estate can be sold to satisfy the separate debts, subject to other spouse‟s
                          contingent right of survivorship
                                  - if in this case - can sell during person‟s lifetime, but if she
                                  survives him, she gets it back (so wouldn‟t sell for as much)
                          3. Either spouse can‟t convey the land - creditors of one spouse can‟t reach
                          the land at all
                                       4. Creditors can get to the property during the marriage
                                                - flip of group 2
                                                - you can attach survivorship
                              - reasons the court gives for joining group #3
                                       - being able to take out loans based on the property
                                       - public policy interest in keeping family together
                                       - can‟t create tenancy be entirety to avoid creditors
                                       - create an equal relationship between spouses
                              - so the Ps get nothing - the interest of the family is more important
                              - why was this not a fraudulent conveyance?
         - they had tenancy by entirety and since creditors can‟t reach the wife‟s
         property, it doesn‟t matter how they conveyed it
         - since a creditor couldn‟t have gotten it even if they retained the property
    2. US v 1500 Lincoln Ave
- mr is druggist who is criminally sentenced for dispensing drugs illegally
- gov‟t sues civilly to get the property - since there is a law that says you forfeit
the property that you commit a felony on
              - wife asserts innocent owner defense - defense per the legislature
                       - you have to have no knowledge or consent to assert this
         - so you can be liable if you knew he was participating in the activity, but
         you didn‟t participate in it
              - the property - pharmacy - is owned in tenancy by entirety
- government argues that drug conviction severed tenancy by entirety - and
created a tenancy in common - then gov‟t could sue for partition
              - dist court says this is a lame argument
              - court of appeals -
         - says that the government won‟t get whatever he had - ie survivorship
         interest - they can preserve their lawsuit and sue later
              - this moves PA from group 3 to group 2
              - why do this?
         - enforce cong policy of getting tough on crime - so not dismissing the
         - if this was just a postponement of the lawsuit - this would be tried too
         late - although this doesn‟t make sense - since it‟s a civil suit
              - effect of the forfeiture - if there wasn‟t tenancy by the entirety
                       - property would be partitioned
         - would leave the innocent with half - but subject to the whole mortgage
      i. Termination of Marriage by Divorce
              - termination of tenancy by entirety by divorce
              - how courts divide property depends on the state
- 60s - adopts no-fault divorce, although fault may matter when dividing property
              - equitable distribution - dividing property equally
         - factors in ED - pre-nups, age, health, social status of parties, previous
         marriages, length of marriage
         - courts do this more fairly now - as opposed to common law, where man
         would get property and woman would get alimony
                       - not as fair to women - since he could dodge alimony
              1. In re Marriage of Graham
         - dispute about whether MBA was property that needed to be divided in
         divorce proceedings
         - she argues that she put him through school and his future earnings
         increased after the degree
                       - trial court says that MBA was divisible property
         - CO Sup Ct said that MBA wasn‟t marital property - it was uniquely his -
         since can‟t sell, transfer, leave in will
                        - why not ask for alimony? MBA was more, probably wouldn‟t have
                        gotten it - since she had career
                                      - why isn‟t it property
                                 - if law school refused to give degree, would argue it was
                                 depriving property without due process
                                              - dude with JD hit by bus, family gets future earnings
                                 - dissent in spleen case said there are lots of things that you can‟t
                                 legally transfer (ie prescription drugs) that would be considered
                        - here - court says it‟s not enough like property to get money for it
                            2. Elkus v Elkus
                        - opera singer‟s husband trying to get money for her career and celebrity
                        - contributions husband made to her career - gave up his career, was voice
                        coach, teacher, critic
                                              - she wasn‟t at her present level when they got married
                        - her argument - her career and celebrity are inherent skill of hers - not
                        something that is learned
                                              - it‟s so personal that it can‟t be divided
                                      - arguments to distinguish O‟Brien -
                                 - more difficult to determine future earnings of opera singers than
                                 of doctors
                                              - gift from god argument - very personal
                     ii.Termination of Marriage by Death of one Spouse
                        - under common law, for personal property - widows get 1/3 if surviving
                        issue, ½ otherwise
                                              - widowers (males) get everything
                                      - common law for real property
                                 - dower - applied to freehold land which husband was seized
                                 during the marriage and was inheritable by husband and wife‟s
                                          - 1/3 life estate in parcel - attached during marriage and had
                                          to be released
                                 - courtesy - like dower, except issue have to be born alive
                        - dower has been abolished in most jurisdictions - replaced with forced
                        elective share
                                 - legis sets a certain percentage that applies to all property in
                                 probate estate
                                 - you can chose to follow the will or forced elective share
           b. Community Property System
                  - important for 2 reasons -
              1. Character of property doesn‟t change when you enter or leave one of the states
              that has community property
                            2. Uniform marital property act functions much like community
                   - idea that marriage is a team, earnings are shared
- all property that isn‟t community property is separate p roperty - what you came to the marriage
                               with and things acquired during the marriage through gift, devise and descent
                               - no such thing as tenancy by entirety, no right of dower or courtesy
                               - migrating couples -
                                        - important, since many people retire to community property states
                                        - when moving, the property does/doesn‟t retain it‟s original
                      c. Rights of Domestic Partners
                               - same sex unmarried couples -
                                        - used to have case of Marvin v Marvin - held their relationship to be
         husband and wife
                                        - she gave up her job, in reliance that she would be supported for the
         rest of her life
                          - court says that you can enforce express contracts b/n married couples when the
                          consideration is based on meretricious sexual services (unless sex isn‟t based on
                          - common law marriage - if people held themselves out to be married - they were
                          married at law - this has mostly been abolished
                               - Principles of Marital Dissolution - by ALI in 2000
                                        - in some circumstances, domestic partners may have property rights
                                        - no state has yet adopted this principle
                               - should common law marriage be resurrected?
                                        - can do some of this through contract or will
                                        - but some things - like hospital visitation - can‟t be set up by contract
                               - Baker v State
                                        - gay people wanting same rights of married people
                                        - VT Constitution says you can‟t have people who are excluded from
         the common benefit
                          - in order for the court to say they aren‟t going to allow gay marriage, have to say
                          they are furthering the public interest - promoting marriage and raising kids
                                    - problems with this - same sex couples don‟t or can‟t have kids, have kids
                                    outside of marriage
                               - there is WA case that says that same sex partner can have a right to an
         equitable share of the estate
                               of someone who dies intestate - WA is community property state
                               - there is an argument that not recognizing same-sex marriage is sex
                                        - since you are treating men and women differently
                               - 1998 - Defense of Marriage Act
                                        - for purposes of fed law, don‟t recognize same-sex marriage
                                        - states don‟t have to recognize same-sex marriages from other states if
         they don‟t want to
                               - transgendered people - KS Sup Ct says that what sex you are born with is
         what you are for good

        2. Leaseholds: law of landlord & tenant
           d. Lease hold Estates - 4 types of tenancies in the common law - 1st 3 are truly
                   i. Term of Years
                         - tenancy for a fixed period (can be just a day or month), no notice is
                     ii.Periodic Tenancy
                        - tenancy of some fixed duration that continues for the succeeding period
                        unless there is notice of termination - most states require 30 days
                                    - at common law, historically, if tenancy was for a year, needed
6 months notice
                     iii.Tenancy at Will
                                  - can be terminated at any time by either party, most states
require notice
                                   - can have a tenancy that is at the will of one party, but this
isn‟t called tenancy at will
                       iv.Tenancy at Sufferance: Holdovers
                     1. Garner v Gerrish
                             - Garner is executor of LL‟s estate, Gerrish is T; original LL is
                - terms of original lease - Gerrish (T) has privilege of termination; lease is for a
                term of “quiet enjoyment”
                - Garner wants to get out of the lease - maybe not paying enough, maybe wants to
                give profits to LL‟s heirs
                             - if this is a tenancy at will, either LL or T can terminate the lease
                             - this is kind of a life-tenancy
                         - for as long as he pays rent; court said that it could be a life tenancy
                         without livery of seisin (like used to be required)
                - per the court - if we just looked at the paper, it looks like T was supposed to
                have the land for as long as he paid rent or until he died - this would be a
                determinable life estate
                     2. Hypos -
                             A. Lease to T for term of war
                                       - might say this is a tenancy for a term of years that is
determined by collateral events
             e. Tenancy at Sufferance
                     - problem of the holdover tenant - problems arise when another T wants to
move in
                     1. Crechale and Polles v Smith
                             - C and P are lessors, Smith is lessee; original term of lease is for 5
years paid per month
                             - S decides that he wants to leave and says that he‟s leaving by the end
of the term
                                       - but when the term is up, the new building he‟s moving into
isn‟t ready
                             - S writes to say that he is confirming (per conversation) that this is
month to month lease
                             - CP says he is holdover, but cash check for regular rent
                - CP doesn‟t cash “final payment” check; CP‟s lawyer sends letter saying S has
                re-rented for 5 years; CP then sent letter demanding payment or else he needs to
                vacate premises
                             - S hands over the keys
                             - trail court = awarded CP $2000 - just some rent and something for
                                       - court adopts position of D - it was a month to month lease
                                   - S shouldn‟t appeal - since he would spend more money than he might
                                   win, plus he already looks like a jerk, so this will hurt his chances
                                                - CP appeals - wanting more money
                                       - options that CP initially had -
                                                - can take tenant on for new term
                                                - can evict
                                                - can treat as trespasser/holdover - then get double rent
                        - initially, treated them as holdover, but when they cashed 1 st check - looked like
                        month to month lease - they should have sent them a letter demanding other half
                        of holdover rent - if they really wanted to cash the check
                        - taking the check and cashing it was implied acceptance of the month to month
                        lease and they waived their rights to treat S as a holdover T
                   f. Lease - considered both as a conveyance of property and a contract
                             - if conveyance of property - property law concepts bear on relationship -
       notion of status
                             - if contract - freedom to bargain, parties are bound to deal with each other in
       good faith
                   g. Selection of Tenants: Discrimination
                             - historically, in many cities, minorities were forbidden from purchasing rea l
       estate in parts of cities
                             - how it was accomplished -
                                       - restrictive covenants
                                       - redlining - private agreement among realtors - certain areas of city
       were off limits
                                       - discrimination in lending - harder to obtain loans to buy property
                                       - banks and insurance companies - don‟t issue loans in certain
- “Mrs Murphy” exception - Congress put exception in that it is find to refuse to rent to people based
                             on race - if you are renting in your private home - per 3604b
                        - although you can‟t advertise that you only want white people or people who
                        don‟t speak certain languages - this is a violation
                             - there is an exception for retirement communities in the statute
                             - ads that say they want a female roommate - this is violation, but is a
       reasonable, logical preference
                                i. FHA - fair housing act
                                ii.Soules v. US Dept of Housing & Urban Devel.
                                                - Soules is a single mother with a 12 year old kid and her
                                   - Downs (D) had home business that did property rental - she was
                                   contacted by Campises - who owned apartment and wanted someone quiet
                                   to rent to
                                                - when P called D to inquire about apartment, D asked how old
       kid was
                                                - P thinks D is discriminating against her
                                                - P contacts a non-profit group that sends testers to see if she is
                                                - testers -
                                                         - 1st tester - posing as childless, gets appt right away
                                            - 2nd tester - posed as having kid, D says she didn‟t know if this
                                            was right apt for them
                                                - she showed apartment to other people she knew with kids
                                                - single woman with no kids ended up getting apartment
                                                - burden shifting procedure -
                                   - all the P has to show is make a prima facie case that shows that
                                   you are a member of a protected class and housing wasn‟t
                                   available to you
                                                 - then D has to show that she had valid, non-
discriminatory reasons for denying
                                                 - then P has to show the D did have discriminatory
                                                          - P must show D‟s reason is pre-textual - that
she‟s making it up
                                        - P shows her prima facie case; D says that she didn‟t rent to P
because P had a „tude
                         - is it legit to ask about noisy kids? Administrative law judge says yes -
                         since there would likely be problems with staying there - old people would
                                        - judge whether D said “no kids” as an “ordinary listener”
would judge it -
                                                 - per court - this person is neither the most suspicious
nor the most sensitive
                                        - court said that this was a valid question
                                   - local zoning regulations; dangerous things for the kids - but here -
                                   there wasn‟t anything like this
                                        - is there anything to show that she wasn‟t discriminating
against noisy kids?
                                                 - showed apartment to family with kids
                                                 - if kids aren‟t noisy - they are fine (but what about
noisy adults?)
                                                 - she did ask if kids were noisy, not just whether it was
a kid
                                        - verdict is for the D - so P loses and doesn‟t get to believe that
anything was changed
                                        - D has to pay the lawyer - so she loses too
                              iii. Discrimination based on handicap
                                        1. Won‟t rent to gay couple for fear of AIDS
                                   - handicap = physical disease, and don‟t need to actually have
                                   impairment, but be regarded as having impairment
                                        2. Mental disability that results in seemingly threatening
                                                 - close case - since it‟s seemingly threatening - and isn‟t
                                        3. Disabled person relies on dog
                                                 - come under 3604f3b - have to make reasonable
                                                          - maybe take larger security deposit
                              iv. Other notes
                                        - there are state and local laws that prohibit/require certain
                                        - advertising - even if you can refuse to rent to certain people,
you can‟t advertise it
                         - attorney‟s fees - eventually, might lead to abuse or reliance on getting the
                         atty‟s fees to fund other cases
           h. Delivery of Possession
                      i. Hannan v. Dusch
                              - D (LL) failed to give P (Hanna, T) possession; D wouldn‟t oust
                - American rule - LL is only responsible for putting tenant in legal possession, it
                is T‟s responsibility to oust holdover
                                       - arguments -
                                                - it‟s not LL‟s fault holdover happened
                - English rule - LL is responsible for taking care of holdover, LL is responsible
                for putting T into physical possession - so LL needs to oust
                                       - arguments for this rule -
                                   - LL is in better position to deal with holdover - has more
                                   information, pre-existing relationship, lower transaction costs
                                       - arguments against Eng rule -
                                   - LL is going to take a real risk of tenancies are back to back - so to
                                   be safe, LL will have to eat rent in in between period
                                                - suppose holdover shows up and starts trespassing -
then it‟s T‟s problem
                                   - there is no question that T should have to deal with trespasser, so
                                   why make LL deal with trespasser on day 1?
                              - parties can negotiate around these rules - so what difference does Am
or Eng rule make?
                          - Eng rule is implied in lease; parties can contract around but this doesn‟t
                          mean that they have an obligation to
                              - who should pay costs of holdover? Depends on rule - ideally,
holdover himself will pay
                                       - but other costs are involved - atty‟s fees, pain and time for
                     - GA follows Eng rule
            i. Subleases and Assignments
                     - assignments - LL  T  T1
                              - LL has privity of K with T1
                              - LL has privity of estate with T1
                              - this is a transfer of all your interest in the property
                     - sub-lease - LL  T  T1
                              - LL has original privity of contract with T
                              - T also has privity of K with T1
                              - LL has privity of estate with T
                              - T has privity of estate with T1
                              - this is not a transfer of all your interest in the property
                       i. Ernst v. Conditt
                              - P LL leased land to T Rogers - who wants to sell his business to D
                - this is tenancy for term of years; original lease prohibits subleasing or assigning
                without prior written approval
                              - lease is renegotiated for a longer period of time
                                       - terms: Rogers will remain personally liable, LLs agree to
                              - sublease - not giving the whole lease away - so you are still liable for
                              - assignment - are giving away whole lease - so you are liable
                              - C stops paying rent - he was advised he wasn‟t liable, but he remains
in possession
                              - trial court says that he is liable for past rent
                              - Ernst‟s position - renegotiation created an assignment - so C is liable
for whole rent
                                       - says that L has privity of K with T; L has privity of estate
with t (sub-tenant)
                                      - since they have privity of estate, C is liable
                              - Conditt‟s position
                         - L has privity of K with T; T has privity of estate with t - so he wouldn‟t
                         be liable, since he is only liable to T
                              - why didn‟t E sue Rogers? If it‟s a sub- lease, he would be liable - but
don‟t know where R is
                - term sub- lease is in the contract - but court says that parties were stupid and
                didn‟t know what they were doing, so this isn‟t binding
                              - 2 approaches to figuring things out - per court
                                      - old rule - take language as it is
                                      - modern rule - look at language in context of what they were
trying to accomplish
                              - court says that here there is an assignment - since he didn‟t have a
right of re-entry
                                      - although the original lessee is always liable to the LL - since
he has privity of K
                      ii.Kendall v. Ernest Pestana
                         - issue is hanger space; city owns property and leases it to Perlitch - who
                         assign their interest to Pestana
                                      - Perlitch also sub- leases premises to Bixler
                                      - Kendalls want to buy the property
                                      - LL refuses the assignment - the lease says that he can refuse
if he wants to
                         - majority rule - LL can arbitrarily refuse the assignment and nothing can
                         be done about it
                         - growing minority rule - you need a commercially reasonable objection to
                         refusing consent
                                               - parties can get around this by agreeing to it in the
                                               - this doesn‟t apply to residential leases - only
commercial leases
                                               - this court adopts the minority rule
                                      - 2 aspects of LL/T relationship that compels this decision
                                  1. This is a restraint on alienation - that you would have this
                                  absolute bar on someone - you shouldn‟t have an absolute right to
                                               2. Viewing of the lease as a contract
                                           - contracts have implied notion of fair dealing - going to try
                                           to make it work
                                      - what isn‟t commercially reasonable?
                                               - denying consent solely on basis of personal taste,
convenience or sensibility
                                               - you can say that something is not commercially viable
                                      - reasoning behind majority rule
                                  1. Lessor should continue to have his personal choice - he
                                  shouldn‟t have to look at anyone beyond the original tenant
                                           - court rejects this reason - since minority view will let LL
                                           reject for commercially viable reasons
                                               2. An approval clause was freely negotiated and
unambiguous and should stand
                                                        - court doesn‟t think this is unambiguous
                                  3. Stare decisis - court says this is a case of first impression, so
                                  they aren‟t bound
                                             4. LL should be allowed to realize the increased value
in his property
                                         - court says this argument sucks, since purpose of K is to
                                         bet against the future
             j.   Tenant who Defaults
                       i. Tenant in Possession
                             (1) Berg v. Wiley
                                     - Wiley leased to Berg to make it a restaurant - dangling LL
                         - terms of lease: T pays for changes; can‟t make material alterations; have
                         to run restaurant in lawful manner
                         - Berg has problems with health code; LL sent letter saying she had 2
                         weeks to comply with health code
                         - T didn‟t do anything over course of 2 weeks, but on last day, put sign up
                         that says she is closed for remodeling; T contends she didn‟t abandon - but
                         she isn‟t remodeling
                                     - LL contends that it was abandonment and had right to change
the locks
                         - LL changes the locks while she‟s not there - per advice from counsel -
                         police go with him to change the locks
                                    - LL then relets the premises - he‟s mitigating damages and
wants rent
                                     - T sues, claiming wrongful eviction - he didn‟t have right to
change locks
                                     - court identifies 2 issues
                                 1. Did she abandon? Not going to dismiss based on this, since jury
                                 could find she didn‟t abandon
                                              2. To what extend does LL have right to resort to self-
                                                     - under common law - he could resort to self-
help if
                                                                 - his re-entry was peaceful
                                                             - here - seems to be peaceful, but court says
                                                             that it wasn‟t - because there was a history
                                                             of violence here
                                                     - the LL had a legal right to take possession - he had
                                                     this here because of clause in the lease
                                           - court would allow self- help if T says I‟m abandoning or
                                           voluntarily surrendering
                          - court says modern rule is that you can‟t resort to self- help when you have
                          a tenant in possession - have to go through the judicial process
                                       - there is a difference between commercial and residential
                                  - in residential - you have more of a chance of violent episode,
                                  since people are more closely connected to their residence
                                       - here, LL thought T had abandoned -
                                                - if he was right, self- help would be fine
                                                - if he was wrong, self- help was bad
                              (2) summary proceedings
                              (3) Landlord‟s remedies in addition to eviction
                       ii.Tenant who has Abandoned Possession
                              (1) Sommer v. Kridel
                                       - T has definitely abandoned - says he wants to be released
from terms of lease
                                     - 2 cases involved here -
                                         - Sommer - Kridel writes and says he wants to abandon
                                               - trial court says LL should have mitigated,
appeals reverses
                             - Riverview Realty v Perosio - T - Perosio - abandons, doesn‟t
                             write or pay rent; LL sues, T pleads lack of mitigation as an
                             affirmative defense
                                                 - LL wins in trial court and appeals court
                      - NJ applied no mitigation duty rule up to this point - leases were property
                      conveyances, so LL actually had no right to the property while the T was
                      in possession
                                 - modern trend is to make LL mitigate damages - treat leases
more like contracts
                                         - in contracts, there is the implied duty to act fairly and
                                 - court says that LL had a duty to mitigate here
                                 - court says that it‟s not ruling on commercial leases
                             - argument for mitigating commercial leases - it‟s fair and doesn‟t
                             impose any undue damages on P
                             - argument for not mitigating commercial leases - harder to get
                             replacement tenant, abandonment not as clear, commercial T better
                             able to bear costs
                                 - what does LL have to do to mitigate damages?
                                         - put apartment in their vacant stock, steps normally
taken to rent apartment
                                        - get broker and put out newspaper ad (more than once)
                                 - LL has duty of proving that he mitigated damages - since he
has access to info
                                 - lack of mitigation is a defense that T has to LL suing for back
                             - normally, D would have to prove this defense, but because of
                             access to information, burden is transferred to P
                                 - verdicts -
                             - reversed Sommer - since another T said they wanted apartment
                             and LL didn‟t show it
                                         - remanded Perosio for factual findings on LL‟s effort
to mitigate damages
                                  - GA law is no duty to mitigate
                          (2) Landlord‟s remedies and Security Devices
                                  - security deposits -
                              - LLs charge a set amount - usually 1 month‟s rent - to make sure
                              that went the premises are vacated, the LL has a fund to make
                              repairs with
                                          - if damages are more than security deposit, T is still
liable for this
                              - moral hazard - it‟s illegal for you to use your security deposit as
                              your last month‟s rent; also - moral hazard for LL - since what
                              happens if LL doesn‟t give you your money back?
                              - local statutes typically provide for terms about use and potential
                              interest of security deposit accounts
                          3. Obligations LL has to the T
                                  - LL has obligation not to re-enter premises, but to go to court
                                  - LL has duty to mitigate damages
                                  - what happens if premises aren‟t in good condition?
                              - moral hazard situation once again - LL can promise to fix and
                              then doesn‟t; T doesn‟t want to fix from her own pocket
            k. Duties, Rights, and Remedies- regarding the condition of the leased premises
                    i. Quiet Enjoyment and Constructive Eviction
                          1. Reste Realty v Cooper
                                  - deals with implied warranty of quiet enjoyment - constructive
                                   - D rents property to have meetings, etc - but whenever it rains,
the basement floods
                                   - LL knows about problem, tried to re-grade driveway - but
didn‟t work
                                   - LL dies 2 years after 2nd lease - before he dies, D renewed- on
promise to fix problem
                                   - crowning blow - 5 inches of water and had to move big
                       - D sends notice that she‟s vacating - this doesn‟t relieve her of her duties -
                       but maybe give reasons why she‟s vacating, maybe get P to start
                       mitigating damages
                                  - P acquires property after crowning blow and after D gave her
                       - D wins in trial court, loses on appeal - why? Was not a permanent
                       condition, not enough of an interference with her tenancy; because she
                       renewed the lease, she accepted the condition
                       - she could have stayed and sued for damages - since you don‟t have to
                       leave to get damages
                       - construe lease in terms most favorable to the T - since LL knew of
                       condition, and construe against the drafter
                       - these conditions were a latent defect - not reasonably apparent, not
                       something that you could have noticed by visual inspection and not readily
                                            - opposite of latent is patent
                       - all of this condition stuff had to do with the first lease - whether the
                       condition was disclosed, etc - but here, she signed a 2nd lease
                                - this doesn‟t count against her - since she signed with promise that
                                LL would fix the problems
                                     - NJ Sup Ct said that she could vacate the premises without
                               - LL breached express covenant of quiet enjoyment - this was
                               express here, but court finds that it is implied in every lease
                                   - what is quiet enjoyment? Anything that does not inhibit the
use of the property
                               - ie - bad odors, whorehouse next door, failure to supply heat,
                               failure to maintain common areas, fail to evade immoral conduct
                               - here - the flooding wasn‟t all the time, but still interfered with her
                               use of the property
                       - theory of constructive eviction - how you get out of the lease when
                       warranty of quiet enjoyment has been breached
                                            - it‟s as if I‟ve been evicted, so no longer responsible
for rent
                            2. Illegal lease
                                     - theory developed in DC courts - where there is yucky housing
                       - if premises were unsafe or unsanitary at time contract was entered into -
                       it is illegal and unenforceable - only protects people with conditions that
                       were bad at the start
                     ii.Implied Warranty of Habitability
                                     - advantages -
                                              - you can stay in the house that you are leasing, don‟t
have to leave to invoke it
                                              - can‟t waive it
                                - can argue that conditions have deteriorated (as opposed to illegal
                                lease - which just looks at conditions existing at time you made the
                                              - allows T to sue and not only get rent, but also
                                     - disadvantages -
                                              - rents might go up
                                - if you are wrong, you own T back rent - so, often a system of
                                paying money into the court
                                     - on the whole, this is a very pro-tenant doctrine
                            (1) Hilder v. St. Peter
                                     - P moved into house that really sucked and D did nothing
                                     - crowning blow = raw sewage
                        - H‟s theory of recovery - she wants rent (although she could have left and
                        said constructive eviction)
                                     - court discusses relative abilities of LL and T
                                              - at common law - if you rent a place, you were
expected to repair
                                                       - court rejects this - since avg T doesn‟t know
how to do this stuff
                                                                - court is talking about big stuff - like
sewer pipe
                                          - here, it doesn‟t look like the D is going to pay her back
                                          for repairs she does
                                              - in modern times, there will be an implied warranty of
                                                       - this applies to both latent and patent defects
                                     - how to establish breach of implied warranty of habitability
                                - there has to be a violation of the housing code that interferes with
                                health or safety levels (but doesn‟t apply to commercial leases)
                                          - where does the code come from? GA - done at state level
                                          with local supplementation; developed by private
                                          organizations (good - they know what they are talking
                                          about, bad - they are regulating themselves)
                                     - what does T have to do to invoke the W for habitability?
                                              1. Give LL notice
                                              2. Give LL a reasonable time to fix the problem
                                     - if T notifies LL, and LL does nothing - what are T‟s options?
                                - bring suit; move out (constructive eviction); continue to live there
                                and stop paying rent
                                     - if T wins, what is the measure of damages?
                                - get rent back (assumes place is worth nothing); damages for
                                discomfort and annoyance; could get punitive damages
                                     - result after this case -
                                              - many people - particularly LLs weren‟t happy
                                     - legis eventually codified the result in this case
                                                       - new statute - eliminates punitive damages;
                                allows winning T to collect atty‟s fees; put 30 day limit on when
                                LL should fix stuff; provisions that require T to pay the rent into
                                the court
                                    - legis says that the implied warranty of habitability can‟t be
                                    - who did this decision effect?
                                           - made rents go up - since LLs would have to pay for
                                              - small time LLs are going out of business
                             (2) Retaliatory Eviction
                                     - in many states, statutes forbid this
                                     - don‟t want LLs to be able to punish Ts
                             (3) Landlord‟s Tort liability
                        - LLs can be liable for Ts or T‟s guests for injuries if the condition existed
                        at the beginning of the lease period, if the defect was latent - not patent -
                        and was foreseeable
                     iii.Tenant‟s Duties; Landlord‟s Rights and Remedies
                                     - law of waste
                                     - T‟s duty to maintain and repair the premises
                                     - what happens if there is a fire -
                                 - old rule - what you leased was the land and the building was a
                                 perk, so if it still burns down, you still have land and are liable for
                                 - modern rule - if building burns, impossibility of performance
                                 doctrine is invoked and both parties are out of the lease
           l.   Problem of Affordable Housing
                     i. Chicago Board of Realtors v. City of Chicago

3. Transfers of Land
            m. Intro to buying and selling real estate
                    - steps -
                             1. Property gets listed with a broker - this person gets paid when deal
goes through
                             2. Parties enter into contract of sale - an enforceable contract
                         - enforceable through specific performance - either buyer or seller can sue
                         to make transaction happen
                             3. Inspection and title search, financing is arranged
                             4. Closing - lots of papers are signed and money changes hands
                         - some money put into escrow account - money put into hands of future
                         parties to offset future debts - ie promised future repairs
                    - mortgagor = the buyer
                    - mortgagee = bank
                    - advantages for having lawyers involved (usually in closing)
                             - the more the lawyers are involved, the more informed the people will
                             - less problems with the contract
                    - disadvantages for having lawyers involved
                             - brokers have experience, so can deal with this adequately
                             - lawyers are expensive
                             - if these are routine, repeated matters, lawyers aren‟t really adding
that much
                    - how lawyers could help
                - preliminary negotiations - tax consequences; what fixtures are involved; who
                has duty to insure post-contract but pre-closing
                             - lending - help obtain lending; determine if discrimination was
                              - title - drafting the deed; how people are going to take the property
                              - closing - check for newly recorded instruments, adverse possession
                - ethical obligations to the client - put client‟s interest above all others, in a better
                position to tell them to abandon the deal
                                        - brokers big concern is making the deal go through (since this
is when they get paid)
            n. Contract of Sale
                       i. Statute of Frauds
                - contracts for land have to be written down, leases for more than 3 years have to
                be written down
                              - exceptions to SoF - partial performance, estoppel
                              - to transfer land, you have to sign something every time
                              (1) Hickey v. Green
                                        - issue here is based on estoppel theory
                                        - G advertised her lot for sale and H agreed orally to buy the
                                        - G decided she didn‟t want to sell her house to G, but to
someone else for more $
                                        - H had given G a check for $500 - on the back it said it was a
deposit for the land
                                        - G didn‟t deposit it (if she had, there would be a contract and
                                        - why isn‟t this enough to make partial performance? It just
wasn‟t enough money
                                        - to invoke estoppel - what does H have to show?
                                                - they relied on her promise to their detriment
                                                - G knew that H relied on the promise
                                        - H sold their house and cashed the check - are they bound by
                                                - yes - since they signed and cashed the check, the
purchaser is also bound
                                        - what are the things H‟s lawyer could do?
                                                - after they‟ve just given G the check for $500
                                                         - tell them to wait and not sell their house so fast
                                                         - wait to see if she‟s cashed the check
                                                         - get a written contract - to satisfy SoF
                                                - after they‟ve sold their house and given G the check
                                                         - don‟t cash the check for their house
                                             - make a contract - says the selling of H‟s house is
                                             contingent on G selling to H
                                                         - inform the buyers of H‟s house what is going
                                        - was what H did reasonable reliance on G‟s promise?
                                   - not really - since it was just an oral promise and most people
                                   wouldn‟t rely so much on this why buying something as big as a
                                        - why does the court deem this as being reasonable?
                                                - H offered to give G the more money and she refused
                                                - so G‟s position isn‟t commercially reasonable
                                                - G knew and didn‟t say anything - the jerk factor
                       ii.Marketable Title
                                        - things that aren‟t recorded and don‟t make title unmarketable
                                - wetlands regulations, endangered species act, zoning regulations -
                                don‟t make title unmarketable unless there is a violation
                                           - why aren‟t these unmarketable?
                                                   - these are good for a lot of people
                                                   - these can just be disclosed and waived
                                                   - there would be tons of things that people
would have to research
                                                    - would have to allow recision more often
                                                    - probably isn‟t in your sense of what is in your
                                                    - everyone is presumed to know the law
                             (1) Lohmeyer v. Bower
                                    - terms of the sale - L would take the contract on as is - subject
to the title
                                            - this is the implied warranty of marketability
                                        - you can waive this warranty if the contract says that you
                                        take the property subject to anything that is recorded
                                    - problems with the property -
                               - violation of a covenant - a private contractual agreement - house
                               has to be 2 stories
                               - zoning violation - city issue - have to have 3 feet set back from
                               property line, here, only 18 inches from line
                       - L isn‟t arguing that the existence of the ordinance and covenant is what
                       makes the title unmarketable - he says that it‟s unmarketable because of
                       the current violations that are setting him up for future litigation
                       - implied in many contracts is a sense that the seller has to deliver the
                       marketable title at closing - shouldn‟t the seller be able to fix the
                                            - no - since this isn‟t what the buyer contracted for
                                        - especially since the construction will probably be crappy
                                        since they will rush to put the 2nd story on
                                    - what can sellers do next time?
                                            - try get neighborhood association to remove the
                                             - get rid of the house
                                 - have buyers waive the problems of the violations in the contract -
                                 since then you would be delivering marketable title
                             (2) Conklin v. Davi
                                     - buyers are counter-claiming for recision because the title is
                                    - contract said the sellers had to deliver marketable and
insurable title by closing
                                    - title here is based on adverse possession
                                             - show this by showing someone who is willing to
insure the title
                                            - AP is marketable
                       - when court talks about marketable title, doesn‟t mean title is free from
                       every doubt, but means that there might be some doubts - but it‟s good
                       - if the sale goes through and the record title owner shows up, this
                       judgment isn‟t binding on the record title owner - since they didn‟t get an
                       action to quiet title here
                                    - how would a lawyer help the buyers here?
                                            - make seller pay for insurance on the title
                                           - make sellers quiet title - but court says you can‟t force
someone to do this
                                           - put in contract that if record title owner comes back,
buyers get money back
                                           - could say seller is delivering record title - so if it turns
out that they don‟t
                                                have record title, can make seller quiet title
                              (3) Equitable Conversion
                                       - where does the risk of loss fall?
                       iii.Duty to Disclose Defects
                                       - statutes requiring disclosure of certain things
                                                - physical defects - can extend to noisy neighbors
                                                - no duty for zoning
                                   - no duty for disclosing hazardous waste is on the property - but
                                   fed government has incentives to disclose these things
                                                - don‟t have to disclose felon in neighborhood - since
this stuff is on internet
                                   - don‟t have to disclose - means of death of former occupants, prior
                                   occupants‟ diseases
                              (1) Stambovsky v. Ackley
                          - P from NYC and bought a house that had ghosts in it - this fact was well
                          known and had been published in Reader‟s Digest
                          - judge said that house is haunted as a matter of law - since D represented
                          this to other people (probably for financial gain - tourist attraction)

                                   - this is different from a material defect - since it‟s not physical
                                            - but could affect value of the house
                               - objectively, we might not see this as a defect - since D developed
                               reputation on purpose to make money
                                   - traditional rule in NY to disclose -
                                            - caveat emptor - buyer beware
                                            - exceptions -
                                                    - fiduciary relationship
                                                    - active concealment
                                                    - affirmative misrepresentation
                                   - why does buyer win here - since it isn‟t in any of these 3
                                           - fairness, equity - by a normal inspection, you can‟t
turn up ghosts
                      - what about the “as is” clause - only applies to physical defects, doesn‟t
                      apply to things that are especially in knowledge of seller
                                  - if seller disclosed there was a ghost, this would be fine
                              - but if he said it was friendly and it was really mean - might be a
                              misrepresentation problem
                         (2) Johnson v. Davis
                                  - contract to buy a house; seller knew roof leaked, but told
buyer problem was fixed
                                  - buyers made a deposit and then discovered that roof really
does leak
                                  - under caveat emptor - buyer would win - since seller made a
                                  - court says the obligation of seller to buyer is....
                                            - seller has duty to disclose all material facts whenever
you are aware of them
                                             - this doesn‟t impose an obligation on the seller to be
aware of the facts
                        - although this might not give the buyer better rights - since then the seller
                        might not inspect for problems
                             (3) Merger
                        - the contract of sale merges into the deed, so you can‟t enforce the duties
                        of the contract, but only the obligations of the deed
                        - this doctrine is eroding somewhat because courts are tending to find that
                        different duties are collateral to duties in the deed
                      iv.Implied Warranty of Quality
                             (1) Lempke v. Dagenais
                                     - first owner contracted to have a garage built by the Ds
                        - second owner - Ps - bought the property and discovered that the garage
                        had structural problems - a latent defect - roof separating from walls
                                     - the builder is at fault - since it‟s so soon after building that it‟s
messing up
                                            - builder is probably the best person to absorb the costs
                        - Ps have an uphill battle - since a decision 2 years before said that
                        subsequent buyers can‟t sue builders
                                   - court says privity of contract isn‟t necessary to sue the builder
for latent defects
                                             - says this is a matter of public policy
                                                     - to protect innocent buyers
                                                     - hold builder to industry standards
                                        - subsequent purchaser has little opportunity to inspect and
                                        little experience and knowledge about construction
                                                     - society is increasingly mobile and houses
change hands pretty fast
                                                     - builder is in better position to bear the costs
                                        - it‟s not logical to limit protection to the first buyer and not
                                        the second buyer - since the defect is still there
                                                     - limiting would encourage sham first buyers so
builder won‟t be liable
                                                     - latent defects tend to come out over long
period of time
                        - latent defect has to appear in reasonable amount of time - not 20 years -
                        but court doesn‟t say how long this is
                                     - to apply this doctrine
                                             - only applies to latent defects, not patent ones
                                             - has to be within reasonable amount of time
                                             - has to prove that it‟s due to builder‟s bad
                                    - this probably can‟t be waived - implied warranty of quality

             o. The Deed - 3 types
                   1. Warranty deed - also general warranty deed
                   2. Special warranty deed - warranty as to the grantor‟s own acts
                   3. Quit claim deed -
                           - giving over whatever rights the giver has to the property
                           - so - you could quitclaim to sell the brooklyn bridge
                           - doesn‟t have any warranties included in it
                           - use this when giving to strawman who is giving it back
                   - sample warranty deed - p612
                - says $10 and other good and valuable consideration - since it is public record,
                don‟t want everyone to know how much you paid for property
                              - place for notary to sign deed - although this isn‟t necessary
                    - warranties divided into 2 sets
                              1. Present
                                      A. Seisin - says I own this
                                      B. Right to convey - says I can convey it (you might own
things you can‟t convey)
                                      C. Against encumbrances - there aren‟t any encumbrances,
except as specified below
                              2. Future warranties
                                      A. General warranty - I will protect you against all lawful
                         B. Quiet enjoyment - similar to general warranty - no one will disturb you
                                  with a superior lawful claim
                         C. Further assurances - I will do whatever is necessary to put you in
                                  possession and ownership of this land
                              - present warranties are violated if at all on the day the warranty is
                              - future warranties run into the future
                         - if someone shows up with superior title, general warranty and quiet
                         enjoyment warranty will have been violated
                      i. Warranties of Title
                              (1) Brown v. Lober
                                      - original owner reserved a 2/3 interest in mineral rights when
they sell to Bosts
                                      - Bosts convey to Browns with no exceptions - sell them
everything, implying minerals
                         - Browns attempt to sell mineral rights to company - who realize that
                         Browns only own 1/3 of this and they re-negotiate and get less money
                                      - Brown sue executor of Bost estate
                         - theory is quiet enjoyment - future warranty - we are put out of possession
                         of what is ours
                         - to show quiet enjoyment - have to show constructive eviction - show
                         you‟ve been kicked out - this is hard to do when you are talking about
                         subsurface rights and are still on the land
                         - court says that breach of seisin covenant was really breached - since they
                         covenanted to own it and didn‟t - but statute of limitations had run on this
                                      - court says there was no constructive eviction
                         - why didn‟t Ps sue long time ago? Didn‟t look into title (idiots) - so court
                         isn‟t going to feel sorry for them
                                      - how to rig things to get them constructively evicted - if you
are the lawyer?
                                               - get someone to mine the coal and get busted
                                               - try to mine and assert adverse possession
                                               - Ps could attempt to purchase other 2/3
                                               - could mine the coal themselves
                                      - there is no good alternative here - just should have had a title
                              (2) Frimberger v. Anzellotti
                         - chain of title involved - D got it from her brother - who had split a lot
                         that he had and reclaimed one of the lots from the wetlands
                                               - brother conveys to D by quitclaim deed
                                          - Ps buy via warranty deed from D
                                   - when brother reclaimed wetlands, he didn‟t get the right
permits from state agency
                       - Ps want to fix problem with bulkhead (keeping wetlands at bay) and
                       engineers say they need these permits from state agency
                       - rather than applying for permit, P sues D - saying that this is an
                       encumbrance, and the deed said that it would be given free and clear of all
                       - P wins in trial court - damages for cost to correct violation and
                       diminution in value of property due to violation
                       - court‟s question - if you have latent violation of a land use statute that
                       existed the day the land was transferred, is this an encumbrance? Court
                       says no
                                    - why is violation of land use reg not an encumbrance?
                                - public policy argument - but title search won‟t disclose and
                                inspection won‟t disclose
                                    - what is an encumbrance?
                                             - presence of an un-disclosed easement, pre-existing
                                    - how do people protect themselves?
                                             - work something into contract of sale
                                             - work something into deed
                                             - court says need to negotiate an additional provision of
the contract
                            (3) Rockafellor v. Gray
                       - Doffing sold land to P (Rock) and there was mortgage outstanding on the
                       land - this was by Gray
                       - there is foreclosure proceeding on mortgage - Connelly buys mortgage in
                       a sheriff‟s deed; Connelley sells to Dixon using warranty deed; Dixon
                       sells to Hansen and Gregerson by special warranty deed
                                    - Rock brought suit to vacate sheriff‟s deed and cancel sale of
mortgage - no jxn
                                    - covenant of seisin has been violated by Connelly
                                    - this is really the case of Hansen and Gregerson v Connelly
                                             - since Connelly said that he owned it and had right to
convey it
                                - couldn‟t due Dixon - since he conveyed by special warranty deed,
                                and this protects only against stuff that Dixon had done
                                             - H&G are only suing for $4000 - since they are limited
to orig purchase price
                       - question - can H&G sue remote grantor? Yes - Iowa adopted Eng rule
                       that says covenant of seisin runs with the land
                                             - this covenant is broken when someone sells without
legal ownership of land
                                             - when covenant is broken - it‟s a chose in action that
runs with the land
                                             - statute of limitations still applies though
                                    - how does Connelly try to get around this rule?
                                - says that since he and Dixon weren‟t in possession of the land,
                                covenant doesn‟t run with it
                       - court rejects this argument - because they have simplified transfer, so
                       there was no need of actual possession
                                    - Connelly‟s defense as to how much H&G could recover
                                           - Dixon didn‟t really pay $4000 - phoney price was
                               - court says this doesn‟t matter - since can‟t admit parol evidence
                               between grantor and remote grantee
                               - if they executed under general warranty deed - they would
                               probably only be able to get $10 - since deed only has this amount
                               of money in it
                                        - although court might let in parol evidence about what is
                                        good and valuable consideration
                           (4) Estoppel by Deed
                      - if someone conveys property and doesn‟t own it - if they later own it,
                      title automatically goes to grantee
                      - many courts are now applying this doctrine to quitclaim deed - if the
                      person represents that they own the property
                                    - for a deed to be effective, you have to have delivery
                           (1) Sweeney, Administratrix v. Sweeney
                                    - P - Maurice - deeds to his brother - John - this deed was
                                   - John deeds it back to Maurice - this wasn‟t recorded - deed
burned up in lawyer‟s
                                   - someone just told the truth about the 2nd deed
                                   - why did Maurice do this? Wanted to keep it from estranged
                               - trying to leave the farm to John if M dies first, but if J dies first,
                               M wants it back - can‟t put it in a will, since if it‟s part of his
                               estate, wife will get 1/3
                                    - what other options to do if you were his lawyer?
                                            - divorce his wife
                                            - do a revokable trust or irrevokable trust
                                            - leave it to John and make sure J leaves it to M in his
                                                      - disadvantage - J could revoke this
                                              - do joint tenancy with J
                                                      - disadvantage - J could sue for partition
                                      - question becomes whether the 2nd deed was delivered
                                      - court says that it is delivered
                                      - problems with saying that it‟s delivered
                                 - physical possession of a deed isn‟t conclusive proof that it was
                                 legally delivered
                                 - M continued to occupy the land (although maybe he didn‟t intend
                                 a present delivery)
                                      - how could they have executed this transaction?
                                 - through a 3rd party - they didn‟t do this, since they waited a week
                                 before giving it to the 3rd party - need to do it immediately
                        - if the intent of M is clear, why is court relying on formalistic - possession
                        is conclusive proof - stuff?
                                              - court doesn‟t want to relax the standard
                                              - looking out for wife‟s interest
                                              - doesn‟t like it when property doesn‟t pass through a
                           (2) delivery without handing over
                           (3) Rosengrant v. Rosengrant
                                   - H and M own a farm and Jay is their favorite nephew
                                    - H takes out 2 CDs as joint tenants with Jay
                                    - H and M decide that they want Jay to have farm when they
kick the bucket
                        - H and J go to bank, deed is prepared, H and M sign deed, banker says
                        that H has to personally hand deed to Jay to “make it legal”
                        - deed in envelope that says that it‟s for either H or J (typed up for by
                        some random person - not under instruction of H or J)
                                    - H and J see atty - who says this looks fine, but maybe they
should make a will
                                    - when H and M die - court says that there was no delivery of
the deed - so J gets nada
                                    - why no delivery here?
                                           - look at the grantor‟s intent - his intent was to keep the
land until he died
                           - the writing on the envelope turned the case - showed that H could have
                           revoked the gift at any time and didn‟t really want to give it to Jay
             p. The Mortgage
                     - mortgagor = person who is borrowing the money
                     - mortgagee = person who is lending the money
                     - title theory = the mortgagee takes title and then gives it to mortgagor upon
repayment of loan
                     - lien theory = just a loan on the property
                     - now the differences between lien and title theories aren‟t all that important
                     - foreclosure = a judicial right that arises after a lawsuit
                 - there are statutes that allow people to buy back the property from the person
                 who bought in the foreclosure sale under a statute of limitations
                        i. Murphy v. Financial Development Corp.
                               - Murphys defaulted on their payments - house is foreclosed
                               - how did Ps get themselves into this mess?
                                        - in 1966, rates were a lot lower than they are now
                                        - in 1980, rates were way higher
                                        - so why in the hell did they refinance in 1980? We don‟t know
                               - then they decide to sell the house
                               - steps taken to sell the house -
                                        - notice of sale at post office and city hall
                                        - only person at sale is lender - and he buys the house
                 - lender succeeds in selling house for much more - bought for $27K (what Ps
                 owed) and sold 2 days later for $38K
                               - court says that mortgagee has a duty of good faith and due diligence
(fiduciary- like duties)
                                        - due diligence was breached here - failing to obtain a fair price
                                                - breached when not advertising or taking too low of a
                                        - good faith - relates to prior to sale or something fraudulent
                                                - breached when conspiring with someone to purchase
                               - purchaser at foreclosure sale is referred to as a “bonafide purchaser
for value” by trial judge
                                        - this means that the company may have some protections that
come out of sale
                               - mortgagee may have a duty to set an “upset price” - a minimum bid
                               - what are the things mortgagee should do to abide by their duty for
due diligence?
                                        - postpone at least once if no one else is there
                                    - set an upset price
                                    - do more advertising beforehand
                                    - treat foreclosure as if it‟s normal stock
                                    - don‟t have to get fair market value - just a fair price
                                             - (in LL/T context, you would have to mitigate damages
                         - aren‟t required to clean up the house or prepare it for sale - in fact, don‟t
                         have a right to do this
                                             - so fair market value might be effected by this
                      ii.Bean v. Walker
                                     - deals with rent-to-own agreements
                                             - these are frequently used to get around state financing
                                             - used when dealing with people who don‟t have a lot
of economic power
                                    - advantage from POV of renter
                                           - property can be re-possessed without going through
                                             - contract is structured so they can get it all back if they
don‟t make a payment
                                     - there are times when this seems unfair and mean to the court
                                - like when a poor person loses the property and all money they
                                have contributed thus far
                                     - contract law here is being supplanted by notions of property
                                    - court says that seller is legal owner - but renter is equitable
owner at some point

4. Title Assurance
    - title searches reveal only private interest in property
              q. The Recording System
                       i. Indexes
                              - 2 types of indexes
                                       1. Grantor/grantee index
                                                         - indicates every grantor and who he gave it too
                                                - grantee/grantor index - shows the flip of this
                                       2. Tract index
                                                - says everything that applies to a particular tract of
                              - to do a title search with grantor/grantee index -
                                       - start with current owner and go back to an unimpeachable
                                       - once you find the unimpeachable source - look in the grantor
                                   - then you will pick up mortgages, easements, etc and figure out if
                                   they are still around - trying to figure out every way a grantor has
                                   encumbered the property
                              - surveying -
                                       - system of government surveys -
                                                - relies on principle meridians (north south) and
baselines (east west)
                                       - townships are basic units of survey - 6 miles by 6 miles
                                       - grid surveys - aren‟t exactly reliable
                                       - meets and bounds descriptions
                                            - describe lines running places
                                            - have a priority of rules for what prevails over what in
                                            - natural monuments prevail over artificial monuments,
prevail over blah blah...
                                            - problems with rivers and bodies of water -
                                                    - distinction between accretion and avulsion
                                                    - water boundaries are difficult - since there is a
public interest in water
                             (1) Luthi v. Evans
                                    - Owens grants oil and gas interest to Int‟l Tours
                                            - clause that describes what her interest are - a catch-all
                                                    - called Mother Hubbard clause - anything I
own, I grant to you
                                            - this deed looks like a warranty deed
                                            - this gets recorded
                                    - Burris is our “B” (the 2nd person the same land gets conveyed
                                            - he did a title search, but didn‟t come up with transfer
to Tours
                                            - the tract he was interested in wasn‟t listed in Tours
                                    - why didn‟t he go and look at original deed? Process is long
and difficult
                       - in Kansas, index is considered part of the record - so if it‟s not indexed, it
                       doesn‟t put him on notice
                                  - deed between Tours and Owens is still valid - they may have
a remedy
                                    - we are concerned with - between Burris and Tours, who has
better title?
                                            - Burris - since he didn‟t have notice of Tours
                                            - if someone had told him of Tours transaction, might
be notice
                                            - if recording said Mother Hubbard clause - this might
be notice
                                     - how can Tours protect themselves?
                                            - sue Owens - for general warranty breach
                                 - not use Mother Hubbard clause - raises costs of describing, but
                                 less wishy-washy in future
                                            - court have filed affidavit that says Mother Hubbard
clause covers those tracts
                             (2) Orr v. Byers
                                    - Orr gets a judgement against conveyor, Elliott
                                            - Orr wants to record this so that he will have a lien on
any of E‟s property
                                            - so when property is sold, O will get portion of
proceeds or lien will continue
                                    - Elliott‟s name would be in grantor column - since he is being
forced to grant
                                    - law firm misspells his name - spell it 2 ways, both wrong
                                    - Elliott then conveys to Byers
                                     - Orr is suing Byers to get money to satisfy judgement or
recognize lien still attaches
                          - Byers say they weren‟t on notice - if this is true, they take free and clear
                          of encumbrance
                                        - argument that Orr‟s atty‟s make - that they did a fine job
                                                 - doctrine of idem sonans - if it sounds like a duck, it is
a duck
                                                          - duk = duck
                                                 - why set this doctrine? Names weren‟t permanent,
spelling imperfect
                                        - atty‟s don‟t win - practical difficulties of doing a title search
are more important
                                                 - cost is better put on person writing it down
                          - if Orr‟s name was misspelled - the lien would still attach, since they had
                          notice of it, just not who the judgement was for
                          - if you don‟t know how to spell their name - do it every possible way -
                          since this is the cheapest way of avoiding the problem
                       ii.Types of Recording Acts
                                        - 3 types of recording statutes
                                                 1. Race statute -
                                                          - whoever records their deed first, wins
                                                          - doesn‟t matter if you have notice
                                                 2. Notice statutes -
                                             - subsequent bonafide purchaser for value is protected
                                             against prior unrecorded deeds if he has no notice of them
                                             - doesn‟t require the purchaser to record - regardless of who
                                             records first, the subsequent purchaser will prevail
                                                          - make two columns - one with C (conveyance),
one with R (record)
                                                          - stepping into shoes of seller - shelter rule?
                                                 3. Race-notice jurisdiction
                                             - combines the elements - rewards prompt recording, but
                                             also provides some protections to subsequent bonafide
                                             - where O sells to A, then O sells to B - then A records first
                                             and then B records - A prevails because they recorded first
                                        - what is a bonafide purchaser?
                                                 - heirs or donees aren‟t bonafide purchasers
                                                 - to be a bonafide purchaser, the person can‟t be on
                                        - what does it mean to be on notice?
                                   - if the instrument is recorded, this is constructive notice - notifies
                                   everyone in the world
                                   - inquiry notice - if the purchaser knows a little bit - and maybe
                                   should look for more
                               (1) Messersmith v. Smith
                       iii.Chain of Title Problems
                               (1) Board of Education of Minn v. Hughes
                                        - 1906 - Hoerger sold lot to Hughes, but Hughes left grantee
space blank
                                                 - this deed was not recorded
                                        - 1909 - Hoerger sells the same lot to D&W - per quitclaim
                                        - 1909 - D&W convey lot to Bd of Ed - per warranty deed
                                              - Bd of Ed records
                                      - then Hoerger to Hughes gets recorded - and fills in the name
around this time
                                       - then Hoerger to D&W gets recorded
                                       - 1st question - is deed with blank grantee space valid?
                                       - normally, no - but court says that if there is authority given by
                                  grantor to do this, this is fine - it becomes valid when name is
                                  filled in
                                       - so Hughes suddenly becomes the subsequent purchaser when
he fills in his name late
                                      - Hughes ultimately prevails in court
                                      - Minn is a race- notice jxn - so why don‟t D&W win - since
they recorded first?
                                              - there is nothing to show that D&W had authority to
convey or owned it
                                                       - so there would be no notice to other parties
                                  - in race- notice jxn - you don‟t just have to be first, but have to be
                                  first to link up with the prior record owner
                              (2) Guillette v. Daly Dry Wall
                                       - Gilmore - developer - sells land to Walcotts in Aug 1967
                                                - makes reference to 1967 plan (calls for single- family
                                      - Gilmore sells to Guillettes in March 1968 - doesn‟t mention
single family restriction
                                      - Gilmore sells to Paraskiva in 1968, Daly in 1972
                                      - Dalys did a title search and found reference to 1968 plan - but
didn‟t find restriction
                                                - restriction was in Guillette deed and one other
                          - court says that Daly was supposed to go back and look at every grant by
                          Gilmore and look to make sure you aren‟t taking with an encumbrance
                                                - this is obviously a royal pain
                          - this is the rule in only about half of the jxns - other jxns say that the type
                          of grant that Gilmore gave wouldn‟t give notice
                                        - if you were in this jxn, how would you make sure everyone is
on notice?
                                              - put encumbrance in every form
                                              - put it in the plan - since all deeds refer to the plan
                                              - tell them - use actual notice
                                              - tract index - although need to know more about how
this would work
                                 - sell to straw person - who then conveys it back - then restriction
                                 would be bound up in the title
                       iv.Persons Protected by Recording Systems
                             (1) Daniels v. Anderson
                                     - D buys lot from Jacula and obtains right of 1st refusal that
doesn‟t get recorded
                          - Zografos contracts to buy the land and starts to pay for it - eventually D‟s
                          wife tells Z that they have right of first refusal
                                      - deed from D to J doesn‟t say anything about the right of first
                                      - so Z has a good claim - since he was a subsequent purchaser
without notice
                                      - but Z doesn‟t win - he got notice before he finished paying
for the property
                      - seems like Z forgot to make the argument that he had equitable title at
                      that time he got notice - this argument might have worked
                                  - trial court ordered D to get the deed and pay Z purchase price
plus taxes
                               - this is called the pro tanto rule - situation where someone made
                               partial payments
                                    - different ways the pro tanto rule can come out
                               1. Award land to holder of outstanding interest and award buyer
                               payments he made
                               2. Buyer gets a fraction of the interest in the land - reflecting
                               payments made in good faith until he got notice
                                             3. Z pays remaining amount to D and Z gets the land
                      - trial court adopted rule #1 - and standard of review is if the trial court
                      abused its discretion - and court here said it didn‟t
                           (2) Lewis v. Superior Court
                                    - feb 1992 - Lewis signs contract to buy home from Shipley
                                    - feb 24 - Fontana Films records a lis pendens
                                    - feb 25 - Lewis paid $350,000
                                    - feb 28 - Lewis closed on the house and records
                                    - feb 29 - lis pendens indexed
                                    - march - rest of money is paid to Shipley
                                    - FF is arguing that L took with notice
                                    - court says that lis pendens wasn‟t properly recorded until it
was indexed
                              - since it would be silly to require person to also go through “in
                              box” of stuff that hasn‟t been indexed yet
                      - what about the payment made after they were on notice? Court says that
                      it‟s unreasonable to expect them to continually check the index
                                   - court distinguishes this case from a case where there was
actual notice
                              - in actual notice - you are actually on notice because someone told
                              you and you proceed at your peril - here we have constructive
                                           - would be penalizing the innocent buyer
                              - we would punish them for paying cash - since if they did a
                              standard mortgage, the bank would pay everything at the beginning
                                   - court says that L doesn‟t take the property subject to the lis
                          (3) Alexander v. Andrews
                                 - someone is protected in this situation only up until the prior
deed is recorded
                     v.Inquiry Notice
                          (1) Harper v. Paradise
                                 - 1922 - Susan Harper conveys to Maude for life with
remainder to heirs
                                         - this deed is lost and never recorded
                                  - 1928 - after Susan dies, D‟s heirs give quitclaim to Maude in
fee simple
                                         - refer to 1922 deed in this one
                                  - 1933 - M conveys to Ella for mortgage of $50
                                  - 1955 - M defaults and Ella gets land through foreclosure sale
and sheriff‟s deed
                                  - Ella has chain of title to Paradises
                                  - 1957 - Susan to Maude for life deed found and recorded
                                    - 1972 - M dies
                                    - question is what deed is effective
                                            - if she has a life estate - remainder would go to her
                                            - if she has fee simple - Paradises would be valid
                        - court says Paradises were on inquiry notice - since the 1928 deed says
                        something about the 1922 deed
                                - they should have gone to Maude and asked her how Susan
                                deeded the property to her in 1922 - whether it was a life estate
                                with remainder or fee simple - you‟d only find out the truth if she‟s
                                honest, and she has no incentive to be honest
                            (2) Why have recording systems?
                            - one of the things that saps poor economies that don‟t have recording
                            systems is that people don‟t know who owns the land they live on - so
                            they can‟t leave their property to go to work, can‟t mortgage property
                            for loans
                                        - problems -
                                                - possession by AP doesn‟t get recorded
                                        - Torrens system

5. Land Use Controls
            r. Judicial land use controls: law of Nuisance
                   - considered a species of tort
                      i. Substantive Law
                              (1) Morgan v. High Penn Oil
                         - oil refinery emitting noxious gases; P owned 9 acres near refinery - have
                         house, trailers - Ps claimed gases made them sick and couldn‟t use their
                                      - Ps were there first
                                      - the refinery is a big industrial use in an otherwise residential
                                      - traditional approach to how nuisance works -
                                               - every person should use his own property so as not to
injure another
                         - this is the law of private nuisance - since it‟s bothering private parties
                         and crated by a private party
                                      - 2 categories of nuisance -
                                               1. Private - 2 types of private nuisance
                                           1. Intentional - knew about nuisance and kept nuisancing,
                                           not a defense that you are operating as carefully as possible
                                           2. Unintentional - something that is negligent, reckless or
                                           ultra- hazardous
                                               2. Public
                                      - Ds could be prosecuted for intentionally operating the oil
                                               - could satisfy mens rea requirement - knew he was
doing it and didn‟t stop
                                  - could say, even though it‟s legal to run refinery, not legal to do it
                                  the way he is running it
                         - court says that regardless of how careful you are, can be liable for
                         intentional nuisance - sounds like strict liability
                                      - although there is a sense that there should be some sort of test
                                           - once you reach the threshold, liability is strict - some
risk-utility test
                                   - Reese‟s Peanut Butter Cup problem (?)
                                          - why can‟t D say P is interfering with their use of the
                                         - P was there first; P wasn‟t doing anything that transferred
                                         onto D‟s land; something different between trailer park and
                                         emitting noxious gases
                       - it‟s important that the P was there first - since they have settled
                       expectations about what they are going to be able to do with their land; D
                       knew of P‟s existence before moving in
                            (2) General Nuisance stuff
                                     - restatement -
                                - if you have harm that is serious and the financial burden of
                                compensating for this is too big, then your conduct is reasonable
                                - have this to protect public uses where you can‟t compensate
                                everyone for burdens they incur - ie lighthouse
                                     - connection between nuisance and trespass -
                                              - courts are much less tolerant of trespass than of
                                       - trespass doesn‟t require substantial injury; doesn‟t depend
                                       on reasonableness of the conduct or whether they can pay
                                       people they‟ve harmed
                                                   - trespass protect possessory interest
                                                   - trespass usually has fewer Ps
                                   - nuisance has been traditionally used to protect against
                         - can be used for cockroach pie, billboard, attack houses where parolees
                         are placed (fear and increased apprehension - courts are divided on this
                                     - problems of light and air
                                 - doctrine of ancient lights - in some circumstances, putting up a
                                 building that interfered with light and air coming onto someone‟s
                                 land can be a nuisance
                                                      - Am jxns have rejected this doctrine
                                              - too much light
                                                      - amusement park v theater - drive- in‟s use of
land is overly sensitive
                                     - spite fence - where you build a fence just to get at your
                                              - courts are split whether this is a nuisance
                                     - if your objection is purely aesthetic, it‟s not a nuisance -
courts aren‟t arbiters of taste
                             (3) Lateral and Subjacent Support
                             (1) Estancias Dallas v. Schultz
                                     - old people live next to high rise apt with loud air conditioner
                                              - old people were there first
                                     - P‟s house was worth $25,000 - now worth $12,500 - due to
                                     - D‟s statistics -
                                              - saved $40,000 by putting A/C there; will cost
$150,000 to move A/C
                                     - without looking at what parties want -
                                  - if initial entitlement to be free of air conditioning is with Ps - then
                                  apartment complex would just try to buy them out - since it‟s
                                  cheaper than moving unit
                                  - if initial entitlement was with the D - Ps might go to D and offer
                                  $25,000 to move unit
                                       - but Ps want an injunction to get air conditioner stopped and
                                      - to give an injunction - court has to find -
                                               - balance where the public interest lies
                                           - there isn‟t a public interest in having the air conditioning -
                                           since we aren‟t in a housing shortage (although may be
                                           different if it was public housing)
                                      - court uses term of balancing the equities - look at what is fair
to both sides
                                  - look at fairness - factors like who was there first and other steps
                                  they undertook - did they try to work it out?
                                      - how does balancing equities differ from balancing harm?
                                               - harm - 2 old people vs. all the apartment residents
                                                       - this would be a more economic analysis
                                               - equities - use fairness
                                          - might not feel sorry for D - since he could have avoided
                                          the greater cost by putting the system in a different place
                                          the 1st time
                                                       - so increased cost for retro-fitting is sort of self-
                                      - benefits of getting the injunction instead of just damages
                                              - if it‟s just damages, the air conditioner problem would
go on
                                  - if they have an injunction, Ps get to sell their injunctive right - Ps
                                  sell on their own terms now
                              (2) Boomer v. Atlantic Cement Co.
                                       - nuisance in this case is a cement plant - air pollution, noise,
dirt, smoke, vibrations
                                      - court deems this a nuisance - problem is determining how
much P has suffered
                                      - statistics -
                                               - P has suffered $185,000; D put $45 million into plant
                                      - if we put the entitlement in the P - what happens?
                                  - get an injunction; P could get lots of money from Ds; although if
                                  there was more than one P - this would be a mess
                                      - court doesn‟t want to grant an injunction - even though this is
the general rule
                                              - fear it won‟t help Ps very much, but will drastically
hurt Ds
                                               - will put all the workers at the plant out of work
                                  - if you put an injunction on one cement plant, all other cement
                                  plants will be able to be enjoined - so this encourages research for
                                  better technology
                                       - what about an injunction that takes effect 18 months from
now - court doesn‟t like it
                                              - rate of research is beyond the control of the D
                                              - D would go back and ask for time extensions - this has
no limit
                                                 - Ps wouldn‟t be able to get any money for further
                                              - court would get sick of hearing about the case
                          - court says that courts aren‟t going to be used in the course of private
                          litigation to accomplish public ends
                                              - says the government is better suited to deal with these
                                       - what is the effect of this -
                                               - court rules that Ps get money damages and D doesn‟t
have an injunction
                                                 - Ds can continue operating as long as they pay off the
                                                       - this is the servitude on land part
                               (3) Spur Industries, Inc v. Del. E. Webb Dev.
                          - Spur is cattle feed lot that stinks; Del Webb is land owner who starts
                          retirement village near the lot
                          - feed lot and Spur were there first - although this argument isn‟t good
                          because there were out in the middle of nowhere
                                      - court classifies this as a public nuisance (although to Del
Webb it was private)
                                                 - there is an ordinance forbidding having a condition
that attracted flies
                                                 - residents of southern portion of Sun City are being
harmed by the flies
                                           - Del Webb has standing to sue for all these people because
                                           he had
                                                      economic injury
                          - court says there are no rigid rules in nuisance law - Spur has to move
                          because of the public interest - Spur gets enjoined
                                      - also decide that DW must indemnify Spur for the reasonable
costs of moving
                                                 - court decides about the bargain between the D and P -

                                  Liability - this is the rule that would apply in   Property - something that was your property,
                                  the normal tort case; court determines how much    and if you want to sell, you decide the price
                                  money you get

       Plaintiff wins             Boomer                                             Estancias - classic injunction
       Defendant wins             Spur - this is judicially determined      no liability and nuisance goes on -
                                  damages                                   where court said there was no
                       - flipside of Estancias would be telling old people they have to buy air
                  - flipside of Boomer - where D is getting damages
                           (1) Osborne v Power
                                  - O put up many Christmas lights
                                  - problem is that it's drawing way too many people - people
walking on neighbor's                                      property, hypothetical situation where
ambulance can't get through
                                  - court says that this is both a public and private nuisance
                                          - private = violation of bill of assurance
                                          - chancellor never says why it's both
                                  - court enters an injunction - terms
                                            1. lower level of the lights
                                            2. lower the noise
                                            3. try not to attract crowds
                                            - reduce size and extravagance of display; limit power
supply to customary                                                  usage; operate display at random
times, so people don't know event is going on
                                   - he files motion for stay of mandate - to say there is no
enforceable order
                                   - court denies this motion
                                            - he says that the court is violating his freedom of
religion - so Sup Ct has jxn -                                               court says this argument
is crap, since he admitted before that it wasn't part of                                         his
                                   - he takes a lot of lights away and does it again (lawyer informs
the media)
                                   - appellees file motion for sanctions
                                   - court issue a show cause order (he has to show why he isn't in
contempt of court)
                                   - court appoints a Special Master to take fact to determine
whether he lowered level of                                          lights and whether it still
attracted a large crowd
                                            - he says that they did reduce lights and traffic
                                   - court says that Special Master used wrong stick to measure
                                            - shouldn't compare to last year, but from basis of what
everyone else does
                                   - they hold Osborne in contempt - has to pay Master's fees and
appellee's attorney's                                        fees and has 10-day suspended sentence
                           5. Legislation has become necessary
                                   - courts weren't stepping in adequately to deal with nuisance
                                   - difficult to determine when something is or became a
                                   - risky behaviors are controlled by law - and these are
behaviors that could cause                                           harm, so we need to stop them
before they happen - called proactive regulation

            b. Private Land use controls: law of Servitudes
                   - allowing someone else to do something on your land or agreeing that you
will refrain from doing                     something on your land
                   - hard part arises when you sell your property to someone else - are they still
                      i. Easements
                            - competing interest of maintaining the fee simple and letting the
landowner do what they                               want to do with their land
                            - terms:
                                    - dominant tenement = person who has easement over someone
else's land
                                    - servient tenement = person upon whose land there is an
easement - it serves the                                            dominant tenement
                                    - appurtenant = if an easement is this, it attaches to the land
                                            - this can be transferred with the sale of the land
without the servient                                                tenemant's permission
                                    - in gross = if an easement is this, it's something that is
personal, something that is held                                              by a corporation or
something like this
                           - easement is an interest in land - usually, to create it, do it in writing
to satisfy the SoF
                                    - easement by express grant
                                    - easement by estoppel
                                    - easement by implication
                                    - easement by necessity
                                    - easement by prescription
                           - if the parcels are reunited, the easement goes away
                           - if the parcels are redivided, the easement doesn‟t necessarily come
back to life

                            (1) Creation of Easements
                                   (a) Willard v. First Church of Christ, Scientist
                                           - deals with easement by express grant
                                           - original owner - McG - had both lots 19 and 20 and
gives permission for                                                 church to park in lot 20
                                           - she later sells lot 19 to Peterson (this lot has a building
on it)
                                            - Peterson approaches McG about buying other lot (so
he can then sell to                                            Realtor Willard) - gets clause created to
preserve interest to park - says that                                                 the easement will
last for so long as church is being used for church purposes
                                            - Peterson buys with the easement, then P sells to W
                                            - Willard finds out about easement after purchase
                                            - is W subject to the easement?
                                                     - he wasn't on constructive notice
                                                     - court said that he did have actual notice
                                            - problem with clause about the easement
                                                     - common law rule says that you can't reserve an
interest in a 3rd party
                                            - ways they should have done the clause
                                                     - create an express grant to the church before
                                                     - McG sells to the church and church sells to P
subject to easement
                                            - it's unclear if easement is appurtenant or in gross
                                                     - if any church could use it - it's appurtenant
                                                     - if just this church could use - it's in gross
                                    (b) Licenses
                                            - permission to use someone's property that is revokable
at will
                                    (c) Holbrook v. Taylor
                                            - Holbrooks allowed a roadway for mining - they are
the servient tenement
                                            - Taylors bought property and are now using the road to
build their house
                                                     - the parcel is land- locked, Taylors didn't ask for
permission to use road
                                            - how did problem arise?
                                                     - Mrs Holbrook says that they don't want
roadway to be gotten by AP
                                                  - Mr Holbrook says that he doesn't want to be
liable if someone is hurt
                                                  - Taylors say there were asked to purchase strip
for $500 - this is a                                                       shake-down
                                          - sounds like Taylors had implied permission to use the
road prior to the                                          problems
                                          - the Taylor's right to use the property is an easement by
                                          - an easement is not typically revokable
                                          - what would you do if Holbrooks really didn't want an
                                                  - make sure that what was being created was a
revokable license
                                                  - stop them from day one
                                                  - get Taylors to pay for use of the road
                                                           - but this might favor the Taylors more -
lean towards estoppel
                                                  - send them a letter - saying they are using it
with H's permission and                                                   they can take the
permission away at any time
                                  (d) Shepard v. Purvine
                                         - you can't ask people to enter into a writing - since this
is essentially calling                                           your neighbor a liar
                                  (e) Henry v. Dalton
                                         - if you want to preserve the interest, you need to get
them in writing - or else                                        things can be messy and
                                  (f) Van Sandt v. Royster
                                         - deals with easement by implication
                                         - sewer running along 3 adjacent lots, pipe in middle lot
                              - Bailey, original owner, constructed this private sewer line across
                              the 3 lots (he lived on the far lot) to access the public street
                                           - Murphy builds a house and connects to the sewer and
then sells to one of Ds
                                                      - this is the middle lot
                              - trial court found that an easement exists - appurtenant and arose
                              by implication
                                            - how is this implied? 2 scenarios
                                       1. Easement by implication is being created by the grantor -
                                       so when Bailey sold these lots, she implicitly retained an
                                                      2. easement retained in the grantee
                                            - this would make a difference with regard to notice
                                       - if easement is created in the grantor, best way to do this is
                                       in deed itself
                                                 - this is the less sympathetic set of facts by which to
                                                 create an easement by implication - since grantor
                                                 can say whatever he wants
                                                      - if easement is created in favor of the grantee
                                                 - this is “quasi easement” - since grantee probably
                                                 not going to question the grantor and ask him if the
                                                 sewer line was over any property he retained
                                - why doesn‟t it come out in favor of the grantee - and the grantor
                                gets to use the sewer? - factors from the restatement
                                                   A. Whether the claimant is the conveyor or
                                                             - conveyee - more dubious of creation by
                                                     B. Terms of conveyance
                                                 - here - by general warranty deed - and one of the
                                                 warranties is the warranty against encumbrances
                                                     C. Consideration given for whole property
                                                             - would weigh against finding an
                                                     D. Whether the claim is made against a
simultaneous conveyee
                                                     E. Necessity of the easement
                                                            - in the context of easement by
implication - this is only a factor
                                                     F. Reciprocal benefits
                                                     G. Manner to which the land was used prior to
                                                      H. Was this known to the parties
                                                              - decide if it was a latent or patent defect
                                             - does easement by implication ever go away?
                                                      - no - have a strong case this way
                                        - classic case for easement by implication is when there are
                                        two different parcels that A owns and A sells the lot with
                                        the house and the road that seems to go to the house
- B has a right to the road that goes to the house - since this is what
                                                      they thought they were getting when they
bought the house
                                                     - the easement doesn‟t go away just because the
necessity goes away
                                    (g) Othen v. Rosier
                                                 - deals with easement by necessity
                                                 - big plot of land that the Hills own and they start to
convey the tracts
                                                 - Rosier gets 100 acres in 1896
                                                 - Othen gets 60 acres in 1897
                                        - 1899 - Hill conveys to other people, who convey lots to
                                    Rosiers and Othens
                                        - there is a road that Othens use that goes across Rosier‟s
                                    land to get to main road
                                        - Rosiers have been having problems with road and put up
                                    levee - makes road impassible for the Othens
                                                 - question is whether Othens have an easement by
                                                 - to have an easement by necessity - have to show -
                                             1. Unity of the ownership of the alleged dominant and
                                             servient estates - union of title
                                                                  - have this here, since Hills initially
had it all
                                                          2. Necessity exists - yes here
                                                          3. Necessity existed at the time of severance
of the 2 estates
                                                      - this isn‟t the case here, since Hills owned other
                                                      land that would let them get to the main road
                                                  - what about other theories for creating easements?
                                             - estoppel - maybe - need to know whether they relied
                                             to their detriment and if Rs did anything to cause this
                                                           - implication - difficult to do
                                             - prescription - court says no, needs to look more like
                                             AP - and here, everyone was using it
                                                  - court says no necessity - seems to show very strict
   level of necessity
                                                       - this is one end of the spectrum
                                               - Larsen‟s sparrow rule?
                                     (h) Easements by Necessity
                                               - Othen court requires strict necessity
                                               - other courts say reasonably necessary - although
   not just convenience
                                                 - once the necessity goes away, the easement goes
                                     (i) Easements by Prescription
                                     (j) Beach boundaries
                                         - ocean = all public interest
                                         - mean low-tide line = between this and mean high tide is
   wet sand
                                         - mean high-tide line = below this is subject to navigational
   servitude of the US,
                                                 also subject to admiralty jurisdiction
                                                 - both mean lines are legally distinct, but hard to
   prove practically
                                         - vegetation line = between mean high-tide and vegetation
   is dry sand
                                                 - above this is private property
                                         - upland = above the vegetation line - private houses, etc
                                         - below mean high water mark are subject to the navigable
   trust doctrine - this is
                                         the “common heritage of mankind”
                                         - some courts say that public interest goes up to dry sand
- some say that even though dry sand area can have private ownership, it is subject
                                           to public trust also - so people can rest after surfing
                                       (k) Matthews v. Bay Head Improvements Assoc.
                                           - association that owns several lots of dry sand and other
                                       areas leading to the beach - want to limit access to members of
                                       their association
                                                   - takes place on the dry sand area of the beach
                                           - problem is that it‟s a private org - so how does private
                                       property become subject to public trust
                                                   - court says that it‟s quasi- municipal
                                                   - public has an easement over the dry sand
                                (2) Assignability of Easements
                                       (a) Miller v. Lutheran Conference & Camp
                                                   - Lake Naomi case - lake created by an ice company
                                                   - Rufus dies and there‟s a camp that‟s allowing
    people to bathe in the lake
                                               - original camp was very small and they sold out to
                                               Lutherans - who want lots of people to come
                                        - Lutherans want to have Lutherland and use lake for bathing
                                        (yucky, since they make ice with the lake)
                                                   - rights to the lake - 3/4 to Frank who conveys 1/4
    to Rufus
                                                        - company gives Millers fishing and boating rights
                                              - courts says that the bathing rights came about by
                                         prescription - since people had done it for so long - openly and
                                         without express permission
                                              - this was an easement in gross - doesn‟t attach to the land,
                                         held by someone individually
                                                   - it was created in Rufus - boating and fishing by
                                                   express grant and bathing by prescription
                                              - court says that this easement is assignable - although this
                                         usually isn‟t the case
- the easement is treated as one stock and then divided between Frank and
                                              Rufus - so, by treating it this way, can‟t commercially use
                                         this - so Lutherans lose
                                              - Rufus‟ assignable interest would be overburdening the
                                         rights created in the parcel
                                (3) Scope of Easements
                                    - if it‟s an easement of way, you can‟t use it to install utilities
                                              - accommodate new technologies argument on other side
                                    - can install cable on utility easement - since it‟s the same purpose
                                    - moving the easement
                                              - servient tenement wants to move easement
                                                        - new approach - she can, so long as she pays for
                                                        - old approach - once easement is established, it
     can‟t be changed
                                              - dominant tenement wants to move easement
                                                        - can‟t move it - since the servient is the one being
                                              - does servient have obligation to maintain the easement?
                                                        - no - it‟s dominant‟s job to keep it up
                                                                 - but his means have to be reasonable under
     the circumstances
                                         (a) Brown v. Voss
                                                        - deals with burdens that dominant tenement holder
     can place on servient
- right being asserted here - easement by the Browns (on lot B) crossing
                                                        over Voss‟ property (lot A) - this was an express
                                                   - Browns want to expand to build on lot C - build house
                                                   on border between lots B and C
                                                        - this would be an extension of the easement and a
     misuse of the easement
                                                        - black letter law is that if the Browns want to use
     their easement they had
                                                        better stop at the property line
                                                                 - so Browns can‟t use road to get to C - only
     to get to B
                                                        - why did common law come up with this rule?
                                         - there might be instances where there would be more
                                         of a burden if the person decides to try to use the
                                         easement for another parcel
                                                    - worried about prescription - if B and C are
in the same ownership,
                                          there is an argument that prescription doesn‟t start -
                                         since Voss expects Brown to use the road
                                             - how does the trial court handle this?
                                                      - look to see if it‟s creating a burden on the
servient tenement
                                                     - look at effects to both sides if there is an
                                                   - servient - not going to help them; dominant -
                                                   will cripple and make owner land-locked
                                         - look to see that the claim by the servient owner is
                                         coming out of spite
                                         - if there is an injunction, courts will be involved for
                                         awhile - and they don‟t want to be this involved
                                              - trial court gave damages of $1 on each side
                                              - other theories - easement by estoppel
                                                       - since Browns had sunk $11K into the
                                          - would depend on whether they acted equitably or not -
                                          and this is hard to determine
                          (4) Termination of Easements
                              - how to terminate an easement -
                                      - express grant
                                      - for one person to acquire both parcels
                                      - by prescription - barring right of way for statutory period
                                  (a) Presault v. US
                                              - land originally used for railroad in VT
                                              - Rails to Trails act - why preserve former RRs? It‟s
nice, national defense
                                             - in order to get rid of a railway -
                                         - 1 go to ICC and say they want to abandon - get
                                         permission to do one of two things...
                                                             1. If permission to abandon, land
goes back to orig owner
                                                   2. If permission to discontinue service, land
                                                   turns to nature trail
                                     - this is P v US - because US was one who took the interest
                                 and transferred it to VT
                                     - RR shut down service, pulled up tracks, left bridges and
                                 drainpipe - but didn‟t file for permission to abandon
                                              - railway line gets converted into nature trail - per
rails to trails
                                             - question becomes whether P‟s property has been
                                                     - theory - once it was abandoned, it reverts
back to original owner
                                             - what did RR acquire when it acquired a right of
                                                     - just an easement
                                                         - RR was given power of eminent domain to
get the easement
                                        - court goes back to what Barkers and Manwells thought
                                    they were getting when they got the easement
                                                       - this matters because if the use is drastically
                                                 - so these are easements
                                                 - next question - was it abandoned
                                                         - yes abandoned - stopped using RR and
pulled up tracks
                                             - no abandoned - didn‟t apply for abandonment, left
                                             some stuff behind, crossing fee (paid by owners -
                                             thought this was better than litigation), rail service
                                             continuing not too far from the easement
                                         - so this is a taking by the government - court makes the
                                     case turn on VT law - and seems very result-oriented
                            (5) Negative Easements
                                - rights that require someone to refrain from doing something on
their land
                                - doctrine of ancient lights -
                                        - have an implied easement over someone‟s land to prove
you with light and air
                                         - this has always been rejected in the US
                                - conservation easement
                                         - right over someone‟s land that they won‟t develop it
                                - most of the questions about this (appurtenant v in gross) are dealt
                            with in state statutes
                      ii.Covenants Running with the Land
                            (1) Historical
                                - 2 terms that attempt to capture similar sorts of agreements
                                         1. Real covenant
                                                  - enforceable at law and remedy was damages
                                         2. Equitable servitude
                                                  - enforceable in equity - and remedy was injunction
                                     (a) Covenants enforceable by law - real covenants
                                         - how to create a real covenant -
                                                  - traditional rules -
                                                           - intent - express intent that you are trying to
bind successors
                                                         - touch and concern the land
                                                         - privity of estate
                                        - different concepts of privity
                                                 - horizontal privity
                                            - mutual interest in land that existed at the time the real
                                            covenant was created - can be a portion of the land - not
                                            whole land
                                                         - court said doing this in a grant was
                                                         - in order to have the burden run, horizontal
privity is required
                                                         - horizontal privity was not required for the
benefit to run - why?
                                                                 - agreements will tie up the land
                                              - newcomers are relieved of the burden, but oldtimers
                                              are going to have burdened parcels
                                                  - vertical privity
                                                          - old rule - need vertical privity in order for
   these things to run
                                                          - modern restatement gets rid of this -
                                       (b) Covenants enforceable by equity: Equitable Servitudes
                                                  - these are an interest in property, not just a contract
                                                  - reasons for property right
                                              - makes a difference about whom you can sue (in
                                              contract, have to sue original convenantor)
                                              - there might be compensation that is required if the
                                              property is ultimately taken by the gov‟t
                                                          - don‟t need consideration - someone could
   do this as a favor
                                                  - enforceable by injunction
                                                  - requirements -
                                                          - intent for it to run
                                              - person acquiring the property must have actual or
                                              constructive notice
                                                          - agreement must touch and concern the land
                                                          - don‟t need horizontal privity of estate
                                                  - vertical privity was not required for burden to run
                                                          - traditionally, it was required for the benefit
   to run
                                                          - newcomer might be bound, but oldtimers
   might not be
                                                  - can be created by implication in appropriate
                                   - can something be a real covenant and not an equitable servitude?
                                   - can there be something that is an equitable servitude and not a
   real covenant? Yes
                                   - can something be both? Yes
                                   - 3rd restatement combines all these and calls them covenants
   attaching to the land
                                                 (i)Tulk v. Moxhay
- Tulk sells Leicester Square to Elms with covenants - don‟t build on
                                                    property, will maintain property, Tulk‟s Ts can use
    the property
                                                    - Moxhay gets it by diverse mesne conveyance and
    wants to build
                                                    - T sues in equity to stop this
                                                    - court holds for Tulk - reasoning
                                              - T probably reduced purchase price to accommodate
                                              the fact that the land was going to be burdened
                                              - seems like this is weird - since they can get out of the
                                              contract by selling
                                                    - why wasn‟t this an enforceable real covenant?
                                              - in America it would be - because selling would be
                                              necessary horizontal privity
                                                            - in Eng, they recognized privity as being
                               (2) Creation of Covenants
                                      (a) Sanborn v. McLean
                                          - D trying to put a gas station in middle of a residential area
                                  - everyone else‟s lease has a covenant saying only residences -
                               from orig owner who sold the lots
                                          - the lot D bought goes back to a deed without this
                                           - court says that D can‟t build a gas station - why?
                                                   - if it‟s in all the other deeds, he‟s arguably on
                                                   - we‟ve seen this before - Guillette v Daly Dry Wall
                                              - there is a notion that if an owner of two or more lots
                                              sells some lots with restriction, the retained land will
                                              have the same restriction
                                           - were these people on notice? Court says they were on
   inquiry notice
                                                      - due to the fact that there weren‟t any gas stations
- also - your obligation when you are doing a record search, you are supposed to
                                             look at the other deeds and see if there are restrictions
                                     - even if they weren‟t required to look at other deeds, they would
                                 probably still be on inquiry notice
                                             - what if they didn‟t have inquiry notice?
                                             - might be a notion of prescription - but you can‟t create
                                         these agreements by prescription
                                                      - might have a case against the common owner
                                                      - wouldn‟t be bound by the common agreement
                                             - if restriction isn‟t something that you would readily notice
     - like all houses have
                                             to be 2-stories or a satellite dish - then you wouldn‟t be on
     inquiry notice
- even if overall plan is to put a gas station there, under this rule, once the sub-
                                             division takes place, can‟t do this anymore
                                         (b) Neposit Property Owner‟s Assoc v. Emigrant Industrial
                                     - property owners wanted a payment made to keep things
                                 maintained - fee to property association
                                             - bank got land by foreclosure and has an institutional
     interest in being able to sell
                                             the land without any encumbrances - so they don‟t want
     payment to apply to them
                                             - no question about notice here - bank took with notice
                                             - bank‟s argument - $4 doesn‟t touch and concern the land
- court says that it does touch and concern the land - since payment is going
                                             towards something people have a right to use
                                             - privity argument - bank argues that association is separate
     from landowners
- if it was the Realty company that is asking for the money, this is no
                                                      problem - but because it is the homeowners assoc,
     bank argues no privity
- property association was formed so that when houses are sold, realty company
                                             can walk away and association will be ongoing entity
                                             - court says that association can collect
                                            - since they are acting as the agent of the realty
                                (c) Caulett v. Stanley Stilwell & Sons
                                    - action to quiet title
                                    - D sells to P and says he reserves the right to build on their
                                    - Ps are original purchasers - so it‟s weird that they are
trying to quiet title
                                    - Ps claim that covenant doesn‟t run with the land
                                     - court says it doesn‟t run with the land - since it doesn‟t
touch and concern
                                            - covenant is too vague
                                            - it doesn‟t exercise any control of the occupation or
use of the land
                                            - court says that this covenant doesn‟t affect the use
of the land
                                    - court also says that you can‟t have a burden running if it
is personal
                                    - and here, it‟s personal - since benefit is purely economic
                                and Ds aren‟t retaining any interest in the land
                                (d) Restatement
                                    - has gotten rid of the touch and concern crap - since it‟s
very malleable
                                    - replaced this with the rule on p 886 - general rule for
                                            - is it something that is illegal, unconstitutional, or
would violate public
                                - so - use 2 different tests - touch and concern test and validity
test from restatement
                         (3) Scope of Covenants
                                (a) Hill v. Community of Damien of Molokai
                                    - group - Ds - want to set up a group home for people with
                                    - terms of the covenant -
                                            - for single family residence - but doesn‟t define
single family
                                    - neighbors - Ps - object -
                                            - say it‟s because of increased traffic, but probably
just scared of AIDS
                                            - other neutral reasons they might be concerned:
decrease in property
                                            value, if they tolerate this violation, covenant might
go away
                                    - how is court going to interpret the covenant?
                                           - to have the least adverse impact as possible
                                           - read as least restrictively as possible
                                           - why? Trying to encumber as little as possible -
public policy concerns
                                            - if covenant is ambiguous, will read in favor of free
enjoyment of the land
                                    - is covenant ambiguous?
                                            - on first read, doesn‟t seem ambiguous
                                            - but need to read it in light of public policy
                                                          - here there is strong public policy in
   allowing handicapped people
                                                              as normal a life as possible
                                                     - looked at city zoning code to define family - says
                                                 no more than 5 unrelated people
- this covenant is a violation of FHA if the covenant has discriminatory intent,
                                            disparate impact or covenant refuses to accommodate
                                                     - court finds no discriminatory intent, but maybe
     disparate impact
                                        (b) Shelley v. Kraemer
                                            - this is the last version of racially restricted covenants -
     property limited to white
                                            people - and not people of negro or mongolian race
                                            - court held that city can‟t accomplish racial zoning through
     gov‟t zoning
                                            - problem here is that it‟s racism through private agreement
                                            - arguments made for people buying the house
                                                     - doesn‟t touch and concern the land - although
     every court said it did
                                                     - not on notice - not realistic in 1948
                                                     - they‟re not black - but testimony said they were
                                                     - 14th amend doesn‟t ban private discrimination,
     only bans state disc
                                                              - if the court enforces one of these
     agreements, it is being racist
                                                              - this is a good argument - although
     potentially explosive
                                            - racially restrictive covenants are sometimes still in the
                                        records, but can‟t be privately enforced
                                (4) Termination of Covenants
                                        (a) Western Land Co. v. Truskolaski
                                            - original agreement here was that it would be a single-
     family dwelling
                                            - time passes and things become more commercial
                                            - they are trying to get the covenant declared void for part
     of the sub-division
                                    - court says that P hasn‟t identified sufficient reasons to show the
                                changing of the land - so not going to declare covenant inapplicable
                                            - Restatements would affect the outcome
                                                     - since p 923 seems to be a cost-benefit analysis
                                                     - and since under p 917 - everyone says they want it
     to stay residential
- what could P do? Try to buy them out; might be able to get landowners to agree
                                            to apartments, townhomes or something
                                        (b) Rick v. West
                                            - Rick owns land, sells to West with covenant that West
     will build single- family
                                            residence - all the lots have this covenant
                                            - West is only one who buys - so now Rick wants to put
     hospital here
                                            - court allows West to stand on her rights to enforce the
                                                     - since she was there first
                                            - ways of getting her out
                                             - buy her out; get government to condemn her;
some sort of remedial
                                             device - make Rick pay her damages
                                     - does Restatement change any of this?
                                             - maybe - where it says that the servient estate is no
longer usable for
                                              services of the servitude
                                 (c) Pocono Springs Civic Association v. MacKenzie
                                     - this is the only case we have where the land is worthless
                                     - MacK bought lot, didn‟t develop it and tried to sell it
                                              - covenant requires annual dues to association
                                     - sale fell through because land wasn‟t suitable for sewer
system - and sale was
                                     conditional on this
                                     - they try to sell it back to Ps; try to give it back to Ps - not
accepted either time
                                     - stop paying taxes on the land - then it‟s attempted to be
sold at tax sale a few
                                     times - with no buyers
                                     - then signed notorized statement saying they abandon
                                     - they don‟t accept mail at the place, don‟t visit
                                     - court doesn‟t let them out of their covenant - because real
property with good
                                     title can‟t be abandoned, even if title owners attempt to
                                     - do Macs have an action against orig seller?
                                            - probably not - there are other uses for the land
                                            - reasonable inspection would have turned up
                                             - statute of limitations has probably expired
                                             - if they had a warranty deed, they would have a
better action - but
                                             probably wouldn‟t win - since there are other uses
for the land
                              - Restatement doesn‟t help them - since it doesn‟t apply to
                          common interest communities
                                  (d) RST 3rd, Servitudes § 7.12
                          (5) Common Interest Communities
                                  (a) Nahrstedt v. Lakeside Village Condos
                                      - cat lady case - covenant saying no cats
                                      - original covenant - no animals - meaning no cats or dogs
                                               - health concerns, value of property might go down
(crap on property, can
                                             be desctructive), might be an annoyance, noisy
                                     - although it‟s debatable that the restriction accomplished
these ends - since they
                                     allowed rabbits, birds, aquarium, etc
                                     - this restriction does touch and concern the land - affects
the property value
                                     - in CA, have a statute that says restrictions are enforceable
unless unreasonable
                                     - trial court said covenants were fine
                              - appeals court said that they want a case by case inquiry to allow
                          N to prove that her cats don‟t bother anyone
                                   - CA Sup Ct says they will review the covenant with a
presumption of validity
                                   - why isn‟t this unreasonable on it‟s face? There are
rational reasons for it
                                           - also - because of deferential standard court is
going to use, not much is
                                           considered unreasonable - (racial discrimination is
only unreasonable one)
                                   - N is arguing that it‟s unreasonable as applied
                                           - how is court going to judge this? Focus is not on
the individual home
                                           owner, but on the land as a whole
                                           - only look at whether it‟s reasonable on it‟s face -
not as applied
                                                   - since it would be burdensome on the courts
not to do this
                                                   - it would be burdensome on the
homeowners‟ association - per
                                                     legal fees, knowing their rule will be upheld
                                                     - courts don‟t want to hear these things
                                   - if the restriction is enacted by homeowner‟s board (rather
than in original deed)
                                   then there would be a higher standard to prove
reasonableness of covenant
                                   - if board allowed other animals but not N‟s - would be
arbitrary and not ok
                                   - what if there are some underground cat-keepers
                                           - restriction wouldn‟t automatically go away - needs
to be open and
                                           obvious, public
                                           - but then would have a problem if they selectively
                                (b) Common interest communities
                                    - on one hand, can be quite discriminatory
                                            - one extreme - N is an idiot for moving in - since
they are voluntary
                                           - other extreme - any attempt to enforce these rules
are state actions
                                   - condo -
                                          - where each person owns his or her own unit in fee
                                           - common grounds owned by everyone as tenant in
                                          - mortgage, taxes assessed individually
                                   - co-operative
                                          - all residents share in corporation who owns the
building and then lease to
                                           the people
                                           - if one person defaults, all of the people are on the
hook to pay that
                                           person‟s rent
        6. Zoning
            - we might be suspect of these - since they are done by local zoning
                    - and can easily be bought out by developers, not staffed by the best people
                    - other times, it‟s just who tends to get involved in these decisions - developers have
        more interest than
                    random single- family residences
                    - Public Choice Theory = developer has low transaction costs and high interest to go
        to city council
                             - families and neighborhoods have high transaction costs
            - zoning involves 3 things
                    1. Local government law
                    2. Administrative law
                    3. Takings
            - reason cities can zone is based on nuisance law
            1. Euclid v Ambler Realty Co
                    - city of Euclid comes up with 3 types of zoning restrictions - referred to as Euclidean
                             - U = use, H = height, A = area
                             - scheme is cumulative - a use that is acceptable in U-1 is good anywhere
                                      - a use in U-3 can only be done in U-3,4,5,6
                    - Ambler owns land zoned U-2,3,6
                    - they say that this is depriving them of their property without due process of law and
        is unconstitutional
                    - argument - their land is perfectly situated for development, so, because of the
                 zoning, their land has decreased in value
                    - Sup Ct says that it‟s not unconstitutional
                             1. In interpreting the Const, we have to look at what modern times tell us
                             2. This is an attempt to regulate under police powers - nuisance law is our
        starting point
                                      - so need to find out if things being regulated are nuisances
                                      - hard to tell, since land is undeveloped
                    - court says that city needs to have a reasonable margin to ensure effectiveness of this
                    - sometimes apartment buildings can be nuisances - since they are a lot of people
                 crammed into a little space
                    - one of Ambler‟s arguments is that if you allow city to zone like this, will create
        decision that market
                    wouldn‟t have made and put land in a straight-jacket
                             - court says that the city chooses to give away wealth and majority has spoken
                             - also might be uses that city has to allow for
                    - so long as reasons are sufficiently cogent to show that the law isn‟t arbitrary, courts
        will uphold the zoning
            2. Effect and mechanics of zoning
- Euclidean zoning - tends to say that single family houses are most important and should be protected
use of
                    the land
                             - tends to promote sprawl - since it promotes open space
                             - also tends to separate where people work and where they live
                    - mechanics of zoning
                             - comprehensive planning
                                      - general idea is that any change in zoning has to be consistent with
        comprehensive plan
                                      - courts are inconsistent about what this means
                               - zoning has possibility of being corrupted - bought out by businesses
             3. PA Northwestern Distributors v Zoning Hearing Board
                     - P is an adult bookstore - operating legally
                     - when store opens, zoning board amends zoning ordinance to make the use illegal
                               - new ordinance requires that any now-existing violator has to get out within
        90 days
                                        - refers to this as an amortization period - have a certain period of time
        to come into
                                        compliance, period of time to wind everything up
                     - court says that it‟s not fair to require them to move - since they were there first
                     - PA Appeals Ct applies the Sullivan test
                               - so long as the benefits to the communities would outweigh the negative
        impact on the land owner,
                               the ordinance would stand
                               - you need to have a reasonable amortization period (and this one probably
        isn‟t reasonable)
                                        - this is probably constitutional on a fed level - but amortization period
        needs to be reasonable
                     - Sup Ct of PA rejects this
                               - on basis of PA constitution
                               - the operation doesn‟t violate any law - so it‟s not a nuisance
                                        - if it was a nuisance, could say they have to close immediately
                     - how can a pre-existing non-conforming use go away?
                               - eminent domain - pay them for it
                               - wait until store closes down and don‟t allow a new one to open in its place
                                        - need to determine how much giving up of selling nudies is
- say that it‟s a vested property right in the owner and only extinguishes upon eminent domain,
                               nuisance, or abandonment
                                        - selling probably won‟t extinguish the right
                     - concurrence -
                               - agreed amortization was invalid - but would be valid if a longer period of
                               - rejects blanket rule that all amortization is a deprivation of property rights
             4. Changes to non-conforming uses
                     - cannot completely change the use (go from rock quarry to scuba diving)
                     - can expand as economic needs dictate (install more machines)
                     - can expand reasonably, but can‟t change
             5. Commons v Westwood Zoning Board of Adjustment
                     - this is our variance case - this is an area variance
                     - neighborhood where Commons wants to build - residential neighborhood with
        certain requirements - space
                     between houses, square footage, amount of frontage
                     - lot is just too small to accommodate the requirements
                     - not all of the houses meet zoning requirements - ordinance here is “aspirational”
                     - P plans to build house that will attempt to satisfy requirements - although it won‟t
                     - P tries to buy more frontage property from neighbors - but won‟t let him
                     - zoning board refuses to grant a variance - says this would impair the intent and
        purpose of zoning plan
                     - requirements for getting a variance -
                               - positive criteria - developer has to show that denying variance would
        produce exceptional and
                               undue hardship
                                        - if variance isn‟t granted, property will have no effective use
                   - negative criteria - developer has to show that the public won‟t suffer if
variance is granted
            - in judging positive criteria -
                    - court looks at how the hardship came to be, whether it was created by
property owner
                             - here - tried to correct it - since he attempted to buy more land
                             - hardship has to be economic, not physical (so no sun porch)
                             - also can‟t be personal (no chapel)
            - in judging negative criteria -
                    - can landowner prove that this won‟t disrupt the general character of the
                    - this is hard, since not all houses conform
                    - evidence to look at - size and appearance of other houses, economic impact,
aesthetic impact
            - court balances positive and negative criteria
                    - take into account interest of landowner, neighbors, community
            - court has a problem with zoning board‟s opinions
                    - there is a hardship here - although board didn‟t find any
                    - board said that this variance would substantially impair purpose of zoning
                             - but zoning plan is public safety - so unless house is overly occupied,
it doesn‟t go to public
            - zoning board doesn‟t have to grant variance - get more evidence about hardships,
economic consequences

   6. Cope v Inhabitants of Town of Brunswick
            - deals with a use variance - has to show a lot more hardship than in area variance
            - P wants to build 8 6-unit apartment buildings, but area is zoned suburban residential
                     - apartments are permitted here with a special exception
            - zoning board denies P‟s request for exception
            - to get an exception - have to show
                     - meet other requirements
                     - use not adverse
                     - comport to purpose of ordinance
                     - can‟t devaluate surrounding property
            - board said that this use was adverse and did devaluate
            - Maine Sup Ct says that this is an unconstitutional delegation of power to zoning
board - too much discretion
   7. How to reconcile Commons and Cope
            - different states have different rights
            - difference between variance and special exception
                     - variance - seeking permission to do something that is flatly prohibited
                     - special exception - town said that this use is acceptable, but you have to get
permission first
            - in Cope - legis has already decided that this use is fine, so for zoning board to take
back this use is an abuse of power and unconstitutional
            - why distinguish variances from special exceptions?
                     - each serves some purposes
                              - special exceptions - good for events that are more predictable
                 - variances - more limited in application, give board a little too much power - but
                 you need variances, since you can‟t predict what will happen in the future
   8. State v City of Rochester
            - issue of spot zoning here -
                    - developers want land (just over 1 acre) to be re- zoned from single- family to zone
        that allows condos
                    - neighbors not happy about this - will change character of the neighborhood
                    - city does re- zone area - since it‟s near other apartment buildings and hospital
                    - neighbor‟s challenges
                             - quasi-judicial act - and this requires more rigorous review
                                      - if judicial act - little deference given
                                      - if legislative act - lots of deference given
                    - court doesn‟t care about argument that council is corrupt - since they are elected and
                 have institutional competence
                             - zoning was arbitrary and capricious and doesn‟t conform to comprehensive
        plan - court says this
                             wasn‟t good enough
                             - this is invalid spot zoning - court says that it‟s not spot zoning, but re-zoning
            9. State ex rel Stoyanoff v Berkeley
                    - B is building commissioner of city of Ladue
                    - S wants to build a house - boat house
                    - city has a building code that says what acceptable house styles are - but what does
        modern mean?
- board of architects get plans submitted to them and then recommend whether commissioner should
issue a
                    building permit
                             - if board doesn‟t approve, commissioner has to deny the permit
                    - who are the architects? Some say old, uninventive people
                    - can Ladue do this? Can they come up with an aesthetic regulation?
                             - looking at zoning authority given to city by the state, court rejects S‟s
                    - S‟s arguments
                             - exceeds authority
                             - arbitrary
                             - unlawful delegation to architectural board
                    - court finds a statute that says the city can create a regulation to protect property
                    - court says this isn‟t arbitrary - trying to preserve property values in neighborhood
                    - court says it‟s not an unlawful delegation of authority - since can appeal to city
        council and these are
                    professional architects
            10. Anderson v City of Issaquah
                    - zoning ordinance spells out what kinds of things city is looking for
- developer puts up a strip mall and city rejects proposals, saying they want it to look nicer, but don‟t
                    any direction or instructions as to how it should look
                    - P changes it many times, with commissioners rejecting it every time
                             - D says that P needs to look at other buildings on the street, etc
                    - P can‟t get a clear view of what the commission wants
                    - city council denies approval - I‟m thinking of a number
                    - P says that the ordinance is unconstitutional since it‟s not specific enough
                 - what this case stands for - a city cannot be arbitrary in the way it comes up with aesthetic zoning
        11. City of Ladue v Gilleo
                 - P puts up a sign that says no war in Iraq; city says to take it down, no signs
                 - she puts a piece of paper in her window
up Ct says that at some point, there is a 1 st amend and putting up signs is part of classic political speech -
                 which is a core value that is protected
                 - court says that P isn‟t saying that all signs are banned - since you can have a for sale sign - so they are
                 banning other forms of speech
                 - because this discriminates on the basis of content, Sup Ct says that this is too restrictive and
                          - court have generally held that if there is a reasonable time limit on the amount of time you can
                          display a sign, this is fine
        12. Village of Belle Terre v Boraas
                 - P is near SUNY-Stoneybrook - so students want to live in a house together
                          - P doesn‟t want people to live together
                 - P come up with ordinance that says for areas zoned single- family residence, only family can live there
                          - family = one or more persons, related by blood, adoption or marriage - living and cooking
                                   - or 2 unrelated people living and cooking
                 - 6 students living together sue saying it‟s unconstitutional
                 - Sup Ct says that the ordinance is fine (dist court said fine, appeals said not fine)
                          - standard for the rule - reasonable and not arbitrary, does it bear reasonable relationship to rational
                          state objective
                 - court says that the zoning ordinance is trying to promote quiet places, wide yards, few people, few cars
                          - court says that this is a reasonable basis for the ordinance
                          - but on it‟s face, the ordinance doesn‟t really do this - could be a loud family with lots of cars
                                   - court‟s reasoning here is really lame
                 - Marshall‟s dissent -
                          - this touches on constitutional rights
                          - says that if this view prevails, you will have all sorts of crazy restraints - like no elderly parents
                          moving in, no kids back from college, etc
                 - majority says that these are rights inherent in the constitution - right to privacy - choosing who you want to
                 live near you
        13. Moore v City of East Cleveland
                 - ordinance prevents grandmother from living with two grandsons
                 - court says this is unconstitutional - impinging on central value of constitution
        14. City of Edmund v Oxford House
                 - P is experiencing growth and tries to limit character of neighborhood
                 - D is group devoted to opening group homes for recovering druggies and alcoholics
                 - P‟s ordinance says that family means group less than 5 people or related people - this is constitutional
                 - D says their operation needs 8-12 people - for economic and therapeutic reasons
                          - P sues - saying they need to be in a commercial, multi- family area
                 - P‟s defense - provision in FHA - says restriction regarding max number of occupants who can occupy a
            dwelling is exempt from FHA
                 - court says that you need to read this exemption narrowly
                 - court distinguishes between max occupancy restriction and zoning ordinances to create a neighborhood
                          - ordinance = family composition
                          - max occupancy = deals with square footage issue
                 - court says this ordinance is a family composition - since it doesn‟t talk about limit of number
                 - how to accomplish limits legally - square footage, limit number of cars, limit amount of garbage people
                     out, up rates for garbage, water, noise ordinances

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