Eamon Lorincz Page 1/71
I. Possession and the Initial Allocation of Property
Introduction: Justificiations for allocating property Conflicting themes that run across
Labor: fair to get it if you put your labor in. Everyone has equal chance to put
in labor. (Locke). Pierson v Post. Labor sends signal to the world that you
intend to own.
long use, custom (dissent in Pierson v Post, assuming only 1 rule and
community is homogeneous), transfers of wealth, etc.
o Efficiency/Social Utility—
Law only rewards productive labor. Encourage productive labor by
Law should incentive socially useful conduct and disincentiveze socially
disuseful conduct (killing fox is useful in Pierson v Post)
Need rules to be clear, increase certainty, decrease litigation and transaction
o Protect personhood—
Radin: property should be allocated to a person when it is a part of their
unique identity, bound up with their personhood.
How do we assign or establish a property right over something?
o Possession intention + control (Pierson—or is it?)
o Labor (Locke)
―Whatsoever then [a person] removes out of the state that nature has
provided…he has mixed his labor with, and joined it to something that is his
own, and thereby makes it his property.‖
Mixing our labor with something makes it become our property because it
Sends a signal to the world
Everyone has an equal opportunity to put their labor in
Want to encourage productive uses of labor
o Long Use or Custom
o Discovery, Conquest, Positivism
Tension does this stem from rewarding physical force ―victor goes spoils‖
or because ―sovereign sets rules and can change them‖
What results from the allocation of property?
o A ―thing‖ or ―bundle of things‖ one possesses?
o An expectation? (Elliff)
o A right derived from and governed by social relations?
o A right derived from and governed by legal system?
Legally significant acts Justifications Results
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Possession (Pierson Fairness/Justice Own something (Pierson)
majority) Social utility/efficiency Expectation or opportunity
Labor (Locke) (Pierson dissent – protect (Elliff), see Bentham
Custom/social fox hunters from Relative title (Tapscott)
practice/long usage interference) Constituted by social
(Pierson dissent – let Administrability relations (Elliff)
hunting practices govern) Protect personhood Personal v. fungible
(Popov v Hayashi) (Radin) property (Radin)
Conquest or Discovery Distributive Justice: how it Bundle of Rights (Mosk‘s
(labor + possession = USA) will come out ex post dissent in Moore v
Creation (Moore – creating Regents)
something that didn‘t exist) Constituted by law (Holmes
Regulation (Moore v & Bentham)
Obtaining Property: Capture
Traditional Rule – The general ―law of capture‖ says that someone who lawfully comes
into possession of a thing through their own effort becomes the owner of that thing
o Tension Does this rule reward possession or labor? Regarding labor, what if one
person worked harder than another, but the other‘s work was more fruitful?
Pierson Rule: See Pierson v. Post: Post worked very hard to catch fox but Pierson was a
saucy intruder. Saucy intruder keeps fox to establish property right over an unowned
object in nature, one must (1) manifest unequivocal intention of appropriating (deprive
him of natural liberty, etc.)+ (2) bring thing within certain control (close to corporal
o Exception: if you own the land, you have the right to what‘s on it (duck/decoy case)
o Exception: mortally wounding the animal (?)
o Rationale: utility - want to encourage killing of foxes.
o Court rejects actual corporal possession rule (requiring you to actually possess the
body of the animal)
Ellif Rule: Under traditional law of capture, minerals belong exclusively to the one that
produces them (utility: encourages socially useful behavior)
o Problem: doesn‘t DISincentive drilling negligently.
o Solution: TX rule: whatever is under your land is your but must be considered
according to the law of capture with caveats: (1) can’t be negligent, and (2) you
have to comply with all well laws. No property right until you produce, but you
have a cause of action if your neighbor drills negligently.
Ellif v. Texon Drilling Co., landowners sitting on common pool of oil have
right to extract gas, but cannot drill negligently
Ellifs owns an expectation which they can capitalize on, and the other party
can‘t undermine that.
Ellifs own an interest constituted by social relationships (what they own
depends on what others get/do)
Maybe D never got actual possession of oil burned off? Maybe D didn‘t
―lawfully‖ come into possession?
Popov v Hayashi: example of uses of rules. Popov had baseball but run over by hooligans.
Popov says Pierson rule controls (close enough was okay per fairness/justice). Hayashi (got it
Eamon Lorincz Page 3/71
afterwards) says traditional law of capture (total corporal possession) controls, per custom
Obtaining Property: Conquest/Discovery
Old Theory: All land titles in the United States trace back to a European sovereign, the King
of England/Spain/France. The land then passed to the colonies and the United States after the
o See Johnson v. McIntosh, sovereign acquired absolute title by conquest/discovery
(finding something unknown/uncharted and settling/occupying it). Party who
derived via sovereign has title, one who derived via NAs out of luck.
this title in sovereign is absolute (can‘t have 2 sovereigns), but subject to
Indian right of occupancy (right to stay but not to sell)
o Sovereign can establish possession via conquest or discovery (roughly, Christian +
discover + settle [according to European style]).
Positivism Property rights derived from sovereign. Under this view,
formal requirements of ―doctrine of discovery‖ kind of a farce. All that
matters is fact that sovereign declares legitimacy and retains control.
Of course, everyone else under sovereign can only get land vis-à-vis
laws of sovereign (other justifications come in) – and title potentially
revocable by sovereign at any time.
Decision ―positivist‖ b/c doesn‘t incorporate morality or policy but
just applies applicable law.
o At least in terms of nat‘l sovreignty, sometimes ―that‘s the
way things are.‖
Labor English worked the land in the ―right‖ way, NAs didn‘t put down
Efficiency/utility: want to encourage the right kind of labor, want
people to rely on their land titles to productively use their land.
Justice/Fairness: Marshall doesn‘t think this is just/fair. But might be just
NOT to kick McIntosh off his land.
Possession NAs didn‘t have intent to possess
Administrability: it‘s legislature‘s job, not the courts (positivism).
Want to reduce litigation and ensure land titles.
(Non-Legal Policy) – Just didn‘t want to rock the boat
Legacy of McIntosh: no property rights unless the US gov‘t grants them to you.
o Tee-Hit-Ton Indians v. US, court ruled that Indian tribe only had right of occupancy
(which could be extinguished by gov‘t w/o compensation) not title, even though there
was never a formal discovery or conquest!
NAs only have property rights if Congress by treaty recognizes them
if treaty, they are protected.
If no treaty, Johnson v McIntosh operates (conquest/purchase)
If we think Mc‘Intosh actually erected a formal requirement, this overruled
Mc‘Intosh. But through legal positivist view, sovereign retained control and
can do what it wanted.
Criticism Even if sovereign had title, could argue Indians still had
property interest in occupancy (either via grant of sovereign or
adverse possession). But gov‘t could argue occupancy came from
consent, revocable at any time.
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Modern Version: Today this same approach could apply to gov‘t decisions over land use.
Gov‘t set up system which restricts gov‘t decisions on land vis-à-vis the takings clause.
Could argue to the extent gov‘t decision doesn‘t run afoul of that self-imposed limit, it can
define and redefine property rights however it wishes.
Commodification and Personhood
Issue: Are there some things so personal as to trump our “legally significant acts”
Margaret Jane Radin: No universal commodification. Two types of property: personal and
fungible (not replaceable). The more closely-connected to the person the property is (the
more labor invested into it), the stronger a person‘s entitlement is as well.
Personal: tied to self, not easily replaced
o If Moore‘s cells are fungible has a conversion claim & all rights
The more personal the property is (the more we care about it), the less we should be able
to commodify it (fewer property rights over it)
She does recognize a ―continuum‖ between personal and fungible, however, and notes
there is no set formula for decision that a moral judgment is required in each case.
Would oppose majority in Moore v Regents.
Moore v Regents (p45) Moore didn‘t have claim for conversion or right of publicity when
docs created stem cell line from his cells w/out his permission.
Labor: doctors put in labor to make product valuable.
Regulation: CA law restricts what can be done with extracted body parts
(what‘s left after regulation isn‘t property).
Uniqueness: Moore‘s cells aren‘t unique, they occur in nature.
Efficiency/Utility: if Moore wins, would disincentivize research. If Moore
wins, would incentive commodification of body parts (we don‘t want this).
Radin also would not want his body to be commodifed.
o Mosk (dissent):
Regulation: Property is a bundle of rights. Doesn‘t matter if some of the
rights are regulated; it‘s still property.
Commodification: can make Moore have a right to recover without giving
him a right to commodify/sell his body.
o Compare to Brotherton v Cleveland, p52. Corneas are more personal/unique than
random cells (Radin). Risk of commodificaiton is less because the market for corneas
would be less.
Compare Radin with Positivism:
o Note: free marketers / utilitarians would say can put a value on anything.
o Bentham: Positivism.
Property is only what law says is property. Property simply as expectation
granted by sovereign (or ―society‖) which sovereign can take away.
This doesn‘t necessarily conflict with Radin‘s belief. Radin accepts that
society may not allow ―fetishization‖ of property (society considers person,
you want to sell). Positivist might say this is just society defining rights (as
fungible or personal) and argue society could redefine them at any time.
But Radin most likely would believe some of these are, or should be,
Eamon Lorincz Page 5/71
II. Initial Allocation and Transfers
Relativity of Title
1. Relativity of title—Property rights involve relationships between people. The question in
court is never, ―Who has claim to the land?‖ It is, ―Which of the claimants has a better
a. True owner (TO) > (prior) peaceful possessor (PP) > trespasser (T)
i. Peaceful Possessor—when two claimants both claim title based on
possession, the peaceful possessor gets to keep their right of possession
a. Order—this keeps things peaceful and safe; there is no
scramble for land.
b. Efficiency—we want land to be inhabited and used.
b. But how do you determine peaceful possessor?
i. In Tapscott v. Lessee of Cobbs (p97) Lewis lived on land til died, Cobbs
(heir) never came to live there. Tapscott entered and took possession.
Here unclear if Lewis ever actually got title. Cobbs tries to eject
trespasser Tapscott (who applied for land patent but was rejected).
1. Old rule: a party must establish the validity of its own title in
order to maintain ejectment action.
2. Court puts forth new rule: Peaceful possessor (Cobbs) can
maintain an action against trespasser (Tapscott) but not against
True Owner if they show up.
ii. Notice that PP is relative – for the TO, PP is trespasser!
1. efficiency/utility: want to incentive Peaceful Possessor (Cobbs)
to be on land doing stuff (even though here he wasn‘t)
2. Administrability: first person to get in won‘t be dispossessed.
3. expectations: protect expectation of Lewis that can pass land on.
iv. Note: the more time passes, the more Tapscott (trespasser) looks like a
peaceful possessor and not a thief.
2. Property only in relation to some
a. In INS v. AP (p32) court held AP had relative title to news over competitors but
not over public
i. Traditional common la wrule: when you publish something not
copyrighted, anyone can copy it (see Holmes‘ dissent). Default rule is
that intellectual productions can be copied.
ii. Property rights are constituted by law. AP has a property right against
anyone who‘s not a competitor. AP has no right against others like the
public. AP got right to actual wording of story. As to facts, no property
right relative to public (common good), but INS prevented from
publishing for reasonable time.
1. Distinction between literary aspect of news (article/wording) and
the news itself (the story):
a. Literary aspect: there‘s a property right in it
b. News itself: there is NO property right in this.
2. So INS can‘t copy the words but they can copy the ―event.‖
iii. Rationale: balance fear of ownership of important resource with fear of
eliminating incentive to publish news.
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1. Concern about monopolies
2. Efficiency/utility: news is valuable, want it to be distributed
a. We want competition, accuracy, fairness in news.
b. News is a public good, can be consumed w/out
diminishing everyone‘s right to consume.
3. ―Distributive justice‖: allocating property titles in a fair manner.
iv. Holmes dissent: argued majority placed expectation of property before
the law (positivist view – they shouldn‘t expect to profit until sovereign
1. Holmes said INS should have credited AP.
2. To the extent decision protected AP‘s expectation in and of
itself, Homes is right. But if may decision really maximizes
efficiency, does the criticism even matter?
v. Brandeis: moral reason for why INS has to credit AP.
1. says legislature would have to expand the law (of copyrights),
not the courts.
a. Rationale: Administrability/judicial role. Courts don‘t
have the EXPERTISE to make a new property right.
i. Compare to Johnson v McIntosh where Marshall
said courts didn‘t have the POWER to do this.
vi. Another EXPECTATION interests case:
1. Bentham: property is an expectation of deriving a certain
advantage. Property and law are born and die together. Property
is a creation of the law.
b. NBA v. Motorola established strict modern rules before courts will recognize
even relative ownership (quasi-ownership)
i. P gathers info at cost, info is time sensitive, Ds use constitutes free-
riding, D in direct competition w/ P, AND
ii. Ability to free ride would so reduce incentive to produce info that its
existance or quality would be substantially threatned
Formal Requirements to Title, p780
1. In order to transfer title (―legal‖ ownership), you must
a. Create a deed containing essential elements
i. the parties; - name the seller and buyer
ii. must be in writing
iii. a description of the property being given;
iv. the stated intent of the grantor to convey the property interest in question;
- indicate a present intent to convey
v. the grantor‘s signature.
b. Deliver the deed to the grantee—the purpose of the delivery requirement is to
ensure that the grantor intended to part with it. Possession of the deed or
recording the deed may give ride to a presumption that the owner intended to
c. Purpose of a recording system is to:
i. Allow you to see if the person selling you property actually owns it
ii. Allow you to see what debt/mortage/home equity loan the ‗seller‘ has on
it (because it will pass to you, the buyer)
iii. Allows you to ignore wild deeds. – see p792, problem 4 for example of a
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d. Benefits of a recording act:
i. Incentivizes buying/selling land more easily
ii. Is efficient and fair – can buy property with certainty that seller owns it,
2. Conducting a title search—
i. Trace back based on grantee, then trace forward based on grantor
1. If grantor back in the chain granted it to someone besides the
people in your chain, need to deal with this.
2. Make sure no holes or extras
3. can trace back to King of England
3. Battles over title winner depends on statute. 3 kinds of recording acts:
a. Race statutes—Between two successive purchasers of the same property,
whoever records their deed first prevails. Whoever records first wins.
b. Notice statutes—Subsequent (second) purchaser without valid notice of prior
sales is the valid purchaser even if they have not recorded the deed yet.
i. If they had notice but did not record, out of luck
ii. Can get screwed you can record but then subsequent purchaser can
iii. Whoever buys without notice wins.
c. Race-notice statutes—A subsequent purchaser prevails over a prior, unrecorded
purchaser if (1) had no notice of the prior conveyance at the time of sale and (2)
records before the prior instrument is recorded. Whoever records first and buys
i. Rationale – creates incentive to record (b/c if you don‘t someone who
buys after you could), gives security once you record, and requires
―innocence‖ of second purchaser (b/c lack of notice)
1. BUT if you record too late, out of luck even if no notice
(whether first or second)
4. What constitutes notice? (operating at moment of purchase)
a. Actual notice—if you know that there is a problem with the title; Directly told.
b. Constructive notice—if a title search would have informed you there was a
problem with the title;. Imputed to you by law. If deed could be found in registry
in your chain of title.
c. Inquiry notice—if something about the property itself should have warned you
that there was a problem with the title (i.e., someone else was living there, etc.).
Reasonable buyer in your position would investigate and investigation would
give you notice.
i. Brown v Gobble: they could see the fence when they bought the
property, had reason to inquire
5. under all 3 systems, if you buy first without notice and you record first, you win. So first
thing buyer should do is RECORD.
1. Three types of ―abandoned‖ property
a. Abandoned property Property only abandoned when an owner forms an
intent to relinquish all rights in the property.
i. See Charrier v. Bell, Indian artifacts not ―abandoned‖ b/c Indians did not
intend for others to ever claim possession (and thus not to relinquish all
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1. Didn‘t ―put it into public domain‖
2. Can view abandonment in light of custom
b. Lost property property accidentally misplaced by the owner.
c. Mislaid property property specifically placed by the owner, but in a forgotten
2. Common conflicts
a. Conflicts between original owner and finder—The finder of lost or mislaid
property does not acquire title to that property against the true owner. Only the
finder of abandoned property does.
b. Conflicts between the finder and third parties—The finder of lost, mislaid or
abandoned property generally prevails over all other parties besides the owner.
c. Conflicts between the finder and the owner of premises where property was
i. If the finder was trespassing when he found the object, the landowner
ii. If non-tresspasser (licensee or invitee)
1. Landowner gets item if in house
2. Finder sometimes gets item found on land
a. unless embedded in land, in which case considered part
of ―real property‖ of the land
i. except if ―treasure trove‖
iii. Abby‘s outline said rules are different if ―mislaid‖ property (landowner
always gets it) check Singer 801-804 if needed
1. This doesn‘t make sense. Unless we hear from TO, how can we
figure out if ―mislaid‖ or ―lost‖
d. Conflicts between owner and third party
i. True owner trumps over even innocent third party unless
1. third party legally obtained property held by one with ―voidable
a. i.e. TO lets jerk borrow item, jerk sells to TP. TP > TO
2. Bona fide purchaser buys something from merchant of good,
BFP > TO if merchant didn‘t have title
a. Rationale consumer protection, TO can sue merchant
ii. Constructive abandonment Perhaps TO loses in these exceptions b/c
he didn‘t act ―like a good property owner should‖
1. Harder to constructively abandon real property than personal
property b/c registry, less reason to trust thief (notice), harder to
make owner whole
Adverse Possession (depends on aspects of constructive abandonment), p179 add in stuff from
singer p191 on
*Note – all six basic elements of adverse possesion get at ―how would an actual owner use
this property‖ (and at how an actual owner would protect property from tresspasser)
Adverse possession transforms trespassers into owners
Elements of adverse possession all six required: exclusive, visible (adverse/hostile),
continuous, w/out owner‘s permission, for a period defined by statute
o Possession must be hostile or adverse—use must be non-permissive (showing TO
gave permission defeats claim)
Most courts .assume presumption that possession of another‘s land is
Eamon Lorincz Page 9/71
Hypo – what if landowner gave permission years and years ago… can
consent revert to non-permission upon transfer of ownership?
o Possession must be actual—Possession must be similar to how an actual owner
would possess it.
o Possession must be open and notorious—The possessory acts must be sufficiently
open and clear as to put a reasonable owner on notice that his property is being
occupied by a non-owner with the intent of claiming possessory rights.
Sufficient acts include enclosing land with a fence or wall, building a
structure, laying down a driveway, or planting and harvesting crops.
o Possession must be exclusive—This does not mean that no one but the true owner
can use the property, but simply that the use must be of the type a true owner, and not
just a member of the public, would enjoy.
See Nome 2000 v. Fagerstrom, recognized adverse possession in Alaska
even though seasonal use and allowed others on land used local standards
to measure what a ―typical owner‖ would do.
o Possession must be continuous—This standard is also only what would be expected
of a true owner of that type of property. The use can even be seasonal if it is a
summer cabin, for example.
Nome 2000 v Fagerstrom, p187: P‘s use of land was seasonal. Court says
that is okay because of a local standard / custom: that‘s what people in this
o Possession must be for the statutory period—Different states require different
statutory periods to pass before title is transferred.
As long as there is privity of title (i.e. parties purport to convey land, but
recheck this below), you can add adverse possession up over the years.
Tacking: Brown v Gobble: p179
Rationale for tacking: validates expectations of original adverse
Some states take other factors into account. These are:
o Color of title: validation of fraud property.—Have a deed to the title and the deed
is defective in some formality.
Some states relax the statutory period required to establish adverse
possession. Statute of limitations shortened for color of title.
Rationale: Expectation: we like the AP‘s claim when they have color
of title because they have an even more valid expectation. Fairness:
the person who conveyed also wanted to convey the land, so no
Some states use the description of the land in the defective title as proof of
the parcel of land being adversely possessed, essentially using it as a fence.
Result Could get whole plot even if you only adversely possessed
part of plot (―Constructive possession‖ of whole plot)…
See Romeo v. Garcia, p185, deed faulty because it didn‘t describe the
property well enough. But Court says that with extrinsic measuring
evidence, it can be made clear.
But note exception:
If A gets a faulty deed and only uses half the land, and B is using the
other half, A can only get the half she‘s using through adverse
o Don‘t get constructive possession if someone is living on
half the land.
Eamon Lorincz Page 10/71
o Rationale: Can‘t adversely possess someone on land they
are actually on. Also, no notice.
Adverse possessor’s state of mind—There are four different approaches to considering this
factor, each of which is used by some states.
o Objective test (maj) and all that matters to establish adverse nature of possession
is that the possessor lacked permission from the true owner. We don‘t care whether
the AP knows they are possessing or not.
o Claim of right—Some courts hold that adverse possessors must allege a ―claim of
right‖ … this usually just means that the owner acted towards the land as an actual
owner would act.
Not really a requirement….
o Intent: Intentional dispossession—Under this standard, the adverse possessor must
be aware that he is occupying someone else‘s land, and must intend to oust the true
o Subjective / Good faith—Under this standard, the exact opposite is required. The
adverse possessor must be mistakenly, not knowingly, occupying the land of another
to prevail. Require AP to have made a mistake/to not have known.
o Note that if party realizes error after statutory period, strong argument good
faith obligation no longer applies b/c land already aversely possessed.
Exception for government:
Adverse possession claims against the government usually lose.
Rationale: government has so much property that it can‘t possible patrol it
o Administrability: Apparent property lines become real property lines, so perception
i.e. imagine you found out in that 400 years ago the line was different…
o Labor: Reward party who makes ―best use‖ of land
CRITICISM maybe worked better in settler times, but nowadays are we (1)
so gung ho to promote development (2) so lawless (particularly w/ respect to
o Force actual owners to protect property and bring claims right away
o Assumption that after 10 years, you have constructively abandonded
Hofeldian Terminology, p199
A way of thinking about property law and the bundle of rights.
Must know: who is involved (who wants to act), and what specific acts are being talked about?
Shows that property rights are relative and are imbedded in relationships.
o 4 entitlements:
o Right: claim enforceable by state power, that others acat in a certain manner in relation to
o Privilege: permission to act in a certain manner w/out being liable for damages to others
and w/out others being able to summon state power to prevent those acts.
o Power: state-enforced ability to change legal entitlement held by self or others
o Immunities: security from having one‘s own entitlements changed by others
o 4 negations/opposites:
o No-right: doesn‘t have power to summon aid of state to alter or control behavior of others
o Duties: absence of permission to act in a certain manner
o Disabilities: absence of power to alter legal entitlements
o Liabilities: absence of immunity form having one‘s own entitlements change dby others.
Eamon Lorincz Page 11/71
Your ability to control Your responsibility to Your ability to If subject to state
conduct of others others influence state conduct influenced by
RIGHT PRIVILEGE POWER IMMUNITY
NO RIGHT DUTY DISABILITY LIABILITY
Jural Correlatives (If A has X, B has Y)
RIGHT NO RIGHT POWER IMMUNITY
DUTY PRIVILEGE LIABILITY DISABILITY
AP has right to stop INS from republishing facts. INS has duty not to republish.
AP has no right to stop competitor from republishing facts. Noncompetitor has privilege
AP has a right to public (ability to get their acts constrained in court)
Competitor has a duty (constrained against republishing)
Pierson has a privilege to take fox. Post (chasing fox) loses in court.
Texon has a duty to people like Ellifs not to drill negligently. Under pure law of capture,
Texon has a privilege.
Dr. Golde (Moore v Regents) has a privilege. Harm against Moore is ok, not
Eamon Lorincz Page 12/71
III. Rights of Access and Exclusion
(*Note – make checklist on this!!!!)
Tresspass and the Right to Exclude
*the more an owner has opened up her property to the public, the more likely it is that the court
will find public rights of access to the property.
Defining Trespass—A trespass is an unprivileged intentional intrusion on the property of
a. Intent—only requires an intentional act, like walking on property
i. Not necessary to show that the trespasser intended to violate the legal
rights of the owner, so mistaken identity of land is not sufficient to
escape liability for trespass.
b. Privilege—a trespass is unprivileged unless it falls into one of the three
i. Consent—the entry is done with consent of the owner.
ii. Necessity—the entry is necessary to prevent a more serious harm to
persons or property.
iii. Public Policy otherwise encourages entry
c. Intrusion can include launching an on object or missle
i. Nominal (if no harm)
ii. Compensatory (if harm done to property)
iii. Punitive (to punish outrageous behavior)
b. Injunction against trespassing
c. Declaratory Judgment
When does the right of access (privilege) trump right of exclusion (enforcing tresspass)
Public Policy Issues In State v. Shack (p104), state law held trespass doesn‘t preclude local
gov‘t workers (health/legal) from coming onto farmers‘ land to talk to migrant workers living
o Migrant workers have at least some possessory interest implied by law
o Reliance on previous implicit promises of owners (that allowed limited access for
o So maybe if owner was more explicit about rules, this wouldn‘t be allowed?
o Maybe, maybe not. Reliance perhaps sprung up from the long term relationship
o Human rights concerns
o Both general moral arguments and fact that gov‘t passes statute giving assistance to
farmworkers – evidence that entry furthered this public policy?
o Tedesco (farm owner) has right to exclude anyone from his home, most people from his
office, but has less of a right to exclude from migrant workers‘ workplace/homes because
he has already invited the migrant farmworkers in.
Fradulently Induced Consent
o Case examples
o Privilege Restaurant critic, seducer (who lies about stuff), false friends as dinner
guests, paying counterfeit money to a prostitute (fraudulent sex)
o Duty (tort) Someone pretending to be doctor, false meter reader entering home,
competitor hoping to steal trade secrets (bc competitor is like a thief)
Eamon Lorincz Page 13/71
o In Desnick v ABC p108, undercover investigation of medical clinic not trespass b/c surgeons
invited public in, only showed part of office open to public. Court tells doctor that his right to
exclude doesn‘t include these people.
o Purpose of trespass is for doctor to protect himself from thieves, nonpatients, bad
people. So ABC can‘t show up and be disruptive; they can‘t be excluded if they
o Posner suggests looking at interest protected by upholding trespass:
Privacy? But this is office open to public, not store
Security? But ABC caused no trouble
Efficiency? But office consults with many people who do not elect
procedure; many may have had little or no intention to proceed at all.
o Promotes company accountability, deter fraudsters
o But See Food Lion, fake employee didn‘t trespass by entering store but did when videotaping
o Court held initial entry was not trespass b/c consent (employee didn‘t explain all
motivations, but did function as reasonable employee)… but that videotaping
―exceeded scope of invitation‖
o Perhaps b/c employees have a greater duty to employers?
o Perhaps b/c meatpacking area more private?
o Greater interest to protect b/c don‘t want competitors to see process, don‘t want to
expose employees that typically don’t interact with public to nat‘l limelight
CL exceptions or Statutory Trumps
o Common law: rule of reasonable access for common carrier and innkeepers - can only
exclude for reasonable reason.
o Rationale likely to be monopolies, provide essential services (protect from
inclement weather, etc…)
o Uston: this rule applied to all businesses.
o Statute NJ statute extends this to any business open to the public.
o See Uston v. Resorts Int‘l, can‘t exclude card counter from casino b/c not cheating
and no other reasonable reason (―he‘s winning‖ not good enough). Uston (card
counter) has right of reasonable access. This means the casino has to be able to
explain its restrictions. Reasonable ones would be time, place, manner, dress code,
Before this case: businesses could exclude whoever they wanted. No right of
access to public. (common carrier, innkeeper exceptions)
Business owner says for EFFICIENCY/UTILITY and
ADMINISTRABILITY reasons they should have right to exclude whoever
they want (bc they aren‘t going ot abuse it, bc of business purposes) without
going ot court every time.
For states without the Uston rule, the decision to exclude is presumptively
o Rationale for letting businesses exclude ―arbitrarily‖/―unreasonably‖:
o Market will ensure that other business don‘t exclude people for arbitrary reasons.
(Walter Williams – should allow absolute right to exclude bc they will probably use
But shouldn‘t be allowed to exclude arbitrarily because (patricia Williams):
o Businesses want money, so will only exclude people they think are a threat. A
business just doesn‘t want to worry about going to court every time he excludes
Eamon Lorincz Page 14/71
o By opening their property to the public, business owners have implied waived their right to
exclude (rejected in most courts)
Possible Explanations for Denying Right to Exclude
1. Owner never had right?
a. Reasons not w/in interest protected, right w/in possession of another, public
policy (human rights), CL exception (common carrier, hotels), statutory trump
(NJ rule – only for reasonable reason)
b. Utilitarian approach would ask (1) whether there is an interest we might want to
protect and then (2) does our desire to protect this interest outweigh our desire to
promote the privilege argued for?
i. So Desnick might claim interest is to prevent videotaping exposes, but
then we would have to weigh that interest.
2. Owner has done something to lose right to exclude
a. Gave consent (express or implied), reliance developed, lesser expectation to right
b/c opened property to public (depends on state, etc…)
Theory and Exclusion Based on Race
Walter Williams (for)
―Bayesian‖ argument: it‘s reasonable to use race as a proxy for things you don‘t
know. Store owners have to make decisions every day based on limited info.
It‘s rationale to use the info you have to take guesses about info you don‘t have.
Patricia Williams (against)
Exclusion produces rage and anger – this is a cost imposed on society by laws that
Exclusion creates a power hierarchy where there shouldn‘t be one.
Exclusion denies equality.
Public Accommodations Law
Civil Rights Act of 1964 (p. 124)—This statute says that there cannot be discrimination based on
―race, color, religion, or national origin‖ that deprives anyone of full or equal enjoyment in a
place of ―public accommodation‖ that affects commerce or is supported by state action.
Places of public accommodation
Statue has a list, but alos requires that the facility (1) serves the public
and either (2a) affects commerce or (2b) is supported by state action
Some argue list is exhaustive and others that its illustrative
See p. 130 for great list of canonical arguments
Private establishments are exempt. (e.g., members-only clubs)
Must refer complaint to state agency before going to federal court.
Remedy under this law: only injunction, no damages.
Doesn‘t include sex discrimination
Elements to make out a claim – To violate the statute, you must:
Deny full and equal enjoyment
Of goods, services, etc.
On the ground of race, color, religion, or national origin (sex not included
Location must be a public accommodation (some on whether list is
Doesn‘t apply to private clubs
Must affect commerce or be supported by state action
Eamon Lorincz Page 15/71
must serve the public, its operations must affect commerce, it must
be w/in the list enumerated
Segregation does violate the statute.
Rental property may be included (more than 5 rooms)
Civil Rights Act of 1866 (§1981, p. 125)—Equal rights to ―make and enforce contracts‖ are
guaranteed to all citizens as those of white citizens. To give freed slaves the right to contract.
Excluding someone violates the statute by denying right to make and enforce contract.
Thought initially to only apply to state legislatures. Applied to private
conduct in 1968 and 1976 through Supreme Court decisions. Jones v.
Alfred Mayer Co. and Runyon v. McCrary.
Civil Rights Act of 1991 specifically amend §1981 to apply to
private conduct (though no provision for §1982).
Important b/c no exception for private clubs!
Only protects against racial discrimination, but can get damages.
What rights protected?
Contract rights protected (§ 1981): to make, perform, modify, and
Property rights (§ 1982): to inherit, purchase, lease, sell, hold, and convey
real and personal property
Courts are split on whether following minorities around in stores interferes
with these rights. Majority of courts say no (right to contract/purchase is
very narrow – just actual right to buy something)
Issue: Is this even a public accommodations law: (i.e. can it be used to sue people
who don‘t let people into public accommodations).
Depends how broadly you read (―same right to that specific contract or any
contract?‖ ―what about making it more difficult but allowing it‖)
Also, some say, ―if it were, then wouldn‘t Act of 1964 be redundant?‖ But
perhaps Act of 1964 closed some loopholes and impressed importance of
When to use which statute:
o Bring a §1981 claim and not a 1964 Act because:
o §1981 doesn‘t have an exclusion exemption for private clubs (so you can bring a
§1981 claim against a private club)
o §1981 allows for damages
o §1981 has broader coverage – just make and enforce contracts. No list of places.
o Bring a 1964 Act claim and not a §1981 claim:
o If you want an injunction
o Discrimination based on religion, national origin, etc. is under the 1964 Act.
Americans with Disabilities Act (p. 144)
o General Prohibits discrimination on basis of disability in employment and public
o Is the excluded person disabled as defined in the ADA?
Has a mental or physical impairment
that substantially limits
a major life activity (AIDS case Bragdon v. Abbott in supplement
decreased cell count as physical impairment
reproduction is major life activity substantially limited
Eamon Lorincz Page 16/71
but she‘s not discriminated against on the basis of this disability
Is regarded as having such an impairment
o Is facility a public accommodation
o Is this discrimination as defined?
Can‘t deny equal opportunity to participate, Can‘t let disabled people
participated only in an unequal way
Can‘t give ―different‖ or ―separate‖ benefit unless that‘s the only way to
let them use the public accommodation
As integrated a setting as possible
o Need not make accommodations if they will ―fundamentally alter nature of the
o PGA Tour v. Martin, letting disabled guy walk doesn‘t fundamentally alter
o Need not provide goods or services where an individual poses a ―direct threat to
the health and safety of others.‖
o Different rules for new, existing, and historical buildings
o Lots of wiggle room re: cost (see Abby outline, statute)
o Different from other access statutes because: doesn‘t require the entity to have
o Tensions between access & cost, fairness & efficiency, dignity & cost
How to interpret a statute:
Look to language of statute
Look to canons of statutory construction
But note Lewellyn (p. 130-1): for every canon, there‘s sort of an opposite cannon.
So need to argue as a lawyer why your construction is better than one based on
the opposite cannon.
Look to principles and policies behind laws – what legislature wanted to accomplish
As a judge – make sure not to go beyond judicial role
Assumes a positivist view of law, that law and morality are separate. Assumes that Congress
enacts a public policy and judges only discern what the Legislature wants. Like CJ Marshall
in Johnson v McIntosh.
Statutory Exclusion Analysis:
1. Has there been a denial of access to a space within the category?
2. Is it a place within the list of public accommodations?
3. Is it a private club and thus exempt?
State Laws against Discrimination
o Dale v. Boy Scouts (gay scoutmaster kicked out) p132
o NJ said dismissal violated state law that outlaws discrimination based on sexual
orientation (among other things) in places of public accommodations
o NJ Law Against Discrimination (p132-3)
―Place‖ doesn‘t need to be physical
Public accommodation b/c (1)broad public solicitation and (2) maintains
close ties with gov‘t bodies and other recognized public accomodations
Doesn‘t fall under ―distinctly private‖ exception b/c unselective, doesn‘t
limit total number of members
o NJ Supreme Court said the statute applied to them & they violated it.
o Supreme Court: reversed, b/c violated Boy Scouts right to expressive association
Eamon Lorincz Page 17/71
Reasoning: Dale‘s presence would significantly burden the BSA‘s desire to
not promote homosexual conduct as a legitimate form of behavior.
Distinguished from cases in which courts told groups they couldn‘t exclude
women: there, clubs weren‘t engaging in expressive activity by excluding
Dissent: Stevens. Right to expressive association may exist but Boy Scouts
didn‘t have clear enough public position on homosexuality. It wasn‘t in their
handbook or anything.
Take-Away: Non-gov‘t public accommodations can discriminate if it‘s part
of their core message – but must have a unitary core message, it seems.
Free Speech and Access
o In general, free speech guarantees do not apply to private actors (private actor doesn‘t have to
permit free speech), BUT ―public‖ does not necessarily only refer to gov‘t
o Sometimes private actors can willingly take on a public role to the extent that some
or all of the free speech restrictions normally imposed on gov‘t actors are imposed on
o What can cause a private actor‘s facilities to lose their private character?
Opening or Consent (can be implied)
Functionality Private actor performs some or all gov‘t functions for
Necessity Private actor so dominant (so related with public life of
community) no other way to reasonably protect people‘s rights
Dedication (more ―express‖ than consent)
o Application of Doctrine on Fed Level
o Applied to company-owned town in Marsh v. Alabama b/c took over municipal
facilities. So it was gov’t property. This is still good law but limited to the facts of a
Seems clear case of both functionality and necessity, if not dedication
State v Shack looked like this and cited to this.
o Rejected for large shopping mall in Lloyd Corp v Tanner illustrates that fed
protection incredibly limited. Vietnam war protestors case. Court says this is
Distinguishes case from Marsh v. Alabama b/c shopping mall is not
performing all municipal functions (not like a company town)
Distinguishes from Logan Valley (protested mall itself) b/c message of
protesters is not related to the shopping mall.
Here, there was no dedication of Lloyd‘s property to the public use, so no
implied CONSENT that others can use your property.
Issues If we consider interest protected, perhaps we would want to protect
Logan Valley mall even more strongly b/c it would greater damage their
profitability (major interest)
But maybe issue is whether people will think mall wants protestors
(if they recognize its private characters), and that‘s obviously not
case in Logan
o Logan Valley reasoning rested on necessity (no other way to
reasonably reach people) but isn‘t that true about any
issue, not just mall one?
*Note – Logan Valley now overruled
Eamon Lorincz Page 18/71
The difference between government owned and private property is that in
People own gov‘t (and thus the property) through taxes.
Distributive justice: we don‘t like concentration of power in property
owners and the gov‘t owns a lot of property.
Function: gov‘t property serves a public function in public space.
o Exception for labor groups
Under certain circumstances (balancing test), it may constitute an unfair
labor practice under the National Labor Relations Act for an employer to
deny a right of access to property for the purposes of picketing that owner.
See Lechmere v. NLRB shopping center won b/c union organizers
had other ways of communicating besides inside center
Application on State Level
In NJ Coalition Against War v. JMB Realty (p158), court allowed leafletting in mall (b/c
―functional equivalent of public space‖ and b/c speech interest > property interest in this
instance). It‘s essentially gov‘t space.
o Court considered
o (1) the normal use of property (2) extent and nature of public‘s invitation to use that
property (3) purpose of expressional activity
o Balanced interests of speech and property
o Limitations Can still institute ―time, place, and manner regulations‖ – so this can
make protesters much less disturbing.
o Basic test is whether protesters interfered with normal use of property.
o Would think would Court would have cited Uston here re reasonable access. But
that‘s not relevant here because Uston‘s entrance was related to the purpose of the
casino, and here this entrance wasn‘t.
o Court took judicial notice here of fact that large mals have replaced gov‘t-owned
downtown districts, hence why free speech extends to malls.
Hypo – Maybe KKK always interfereing and disturbing b/c customers really pissed off. But
then are we picking and choosing which speech we are willing to protect?
Issue: But does not allowing exlusion interfere with property garuntees of 5th and
14th amends??? (due process and just compensation)
In Pruneyard, Scotus says no cost protected rights wre violated (see takings
Issue: Could this interfere with mall’s right to freedom of association
We would have to use the Scotus Dale test and doesn‘t appear there is a
Public Trust Doctrine
o Public trust is an ACCESS doctrine: whether to give someone a privilege of access.
Public Trust Doctrine governs the use of tidal waters, and says that the public retains an interest
in them despite control of them by the states.
Alienability States can convey ―public trust‖ property, but not in such a way that impairs this
Eamon Lorincz Page 19/71
o You can get title, but you get special title which limits how you can use land (can‘t
undermine public interest in lands and waters)
o See Illinois Central Railroad (supplement): Leg gave land city of Chicago (went to
RR) leg repeals. Court allows the legislature to take the land back: (unpaid)
revocation of submerged lands of Chicago harbor Scotus held RR never held title
b/c state granted land incorrectly (in such a way to inhibit public trust)
o can take it back because of public trust doctrine: public has to have rights to
navigation & fishing. Sovereign (original owner) can‘t grant the lands in a way that
impairs public trust.
o applies to navigable waters because of NECESSITY – it‘s a special land the public
needs access to (like public needing access to news in INS v AP)
o Dissent: contract wins.
o What uses does the public trust encompass?
o Some states only protect navigation and fishing (the trad‘l rights)
o Other states expanded doctrine to include recreation, leisure, swimming, etc…
Would argue that CL should be updated to correspond to modern usage
Counterargument is that navigation and fishing are more commercial
in nature (even though could include fishing for recreation)
protecting these interests > ―playing around‖
o Expansion of public trust doctrine: Reasonable access to privately-owned land: In
Matthews v. Bay Head (p164), NJ expanded doctrine further, requiring the opening up dry
sand to public where it‘s essential or reasonably necessary for ―reasonable enjoyment of
o This test balances needs of owners and needs of public, but could even include
requiring private owners to open up land (except that homeowners would later say it
doesn‘t apply to them because Bayhead org is quasi-public)
gov‘t land > quasi-gov‘t > private
Case-specific issues No public beach in Bayhead, organization in question
(Bayhead Association) was ―quasi-public entity‖(functioned as public entity,
collected dues, cleaned, hired lifeguards), before decision public could get
access via beaches on the side or area between high and low tide
Required Bayhead to open up both beach and membership to public
Rationales (1) can‘t really enjoy beach unless can sit in sand and (2) if
every town acted like town here, nobody else in state could enjoy public
o Other doctrines used to grant public access (not necessarily only to beachfront)
o Dedication—where a private owner gifts a piece of property to the public at large.
Some states say you can assume dedication if there‘s ―long-standing
acquiescence in the use by the public‖
o Prescriptive Easement—continuous use by the public that fulfills all of the
requirements for adverse possession.
o Custom—This is similar to a prescriptive easement, but it is less stringent in terms of
what factors must be present.
o It is more of a discretionary call by the judge, who can say, ―Hey, it‘s always
been this way, public policy says it should stay that way.‖
o Requires ―long-standing, uninterrupted, peaceable, reasonable, uniform use
Eamon Lorincz Page 20/71
Trespass to Chattels/computer trespass Under ―trespass to chattels‖ doctrine, you can
recover for international interference with the possession of personal property.
o E.g.: Ebay v Bidders‘ Edge, p44 Court found both intentional interference with possession
and ―damage‖ when defendant Bidder‘s Edge‘s aggregation site accessed Ebay through an
automated program (software robot) that sent tons of requests each day. Bidder‘s Edge‘s
activities ―diminished quality or value of eBay‘s computer systems.‖ Deprived eBay of the
ability to use that portion of its personal property for its own purposes. Ebay users had
pledged not to use such a software robot.
o Is it trespass?
Unprivileged – yes – might debate this (might want to encourage
Intentional – yes
Intrusion onto the – might debate this.
Property: would debate this.
o Desnick argument: what is the interest meant to be protected by the right to exclude?
o Public accommodations argument:
Reasonable access rule of Uston.
Public trust doctrine – valuable resource held in common.
Summary: 3 ways of arguing about access:
(1) trespass/public accommodations: ask if you are part of the group invited in.
a. opposite: prescriptive easement (if they aren‘t the class of people invited in)
(2) public trust: certain kinds of entitlements should be widely distributed and not
(3) Adverse possession
Adverse Possession Not a trespass/it’s a public Public Trust
Requirements: Requirements: Requirements:
longstanding hostile use No longstanding use Social value trumps right
private property; no required to exclude
general invitation Open to public Must be land that is
Certain values trump right somehow held for the
to exclude (or maybe public in trust
you didn‘t have right
to exclude in first
Result: ownership Result: access Result: access
Eamon Lorincz Page 21/71
IV. Conflicting Uses of Land
-one way of dealing with neighbor land problems. The other ways are: (1) agreement before the
harm (real covenant/equitable servitude) or (2) zoning order (public land use planning).
Nuisance (1) Unreasonable activity that causes (2) substantial harm to (3) use and enoyment
of land. A substantial and unreasonable interference with the use or enjoyment of land.
Distinguished from trespass
o Trespass requires a physical invasion of land and protects the interest in the land, not use
o Some courts will now find that tiny particles coming onto land = nuisance and trespass.
o Distinguished from negligence.
o Non-negligent conduct can still constitute a nuisance if the interference (not the
conduct itself) was unreasonable.
o Elements of Nuisance
o Unreasonable: factors to consider:
Is use customary to area?
Is there objectively observable harm?
Are there alternative methods of doing the activity?
Value of the activity to D?
Value of activity to society?
Prior use – who was there first?
o Substantial harm: factors to consider:
o Magnitudes of P‘s financial loss?
o Observable physical damage?
o Physical/mental harm?
o Cost for P to avoid harm? (Can P just move away?)
o Duration of harm?
o Possible Defenses (some repeat)
o Coming to the nuisance, utility to community, extremely sensitive
Legal Standards of Nuisance
Statutes—Much of nuisance doctrine has been codified in particular states, so many
nuisances may be a per se nuisance under a particular statute.
The ―substantial and unreasonable‖ test—CL test when not per se nuisance.
Substantial and unreasonable test: two types of analysis
Rights /fairness analysis whether one party‘s right to security should prevail over
another party‘s right to freedom.
Fairness considerations include:
The character of the harm—Aesthetic harms are less serious than
health and safety concerns;
Distributive considerations—Who should pay due to fairness?
Fault—Who seems like the bad actor?
Examples of doctrine under this analysis include:
Disfavored activities usu. activities that serve no other purpose
than being a nuisance (i.e. spite fences
Unusually sensitive uses
See Page County Appliance Center, remanding for
determining of whether appliance center was an
unusually sensitive use
Eamon Lorincz Page 22/71
Coming to the nuisance—If use was reasonable but now less so.
The idea is that the developers created the problem for
But could argue just b/c last owners consented to what could
have been a nuisance doesn‘t mean new owners must
relinquish property rights.
Social welfare analysis whether society in general would be better off if the
action is continued.
Welfare considerations include:
Costs and benefits—comparing costs/benefits for allowing or
prohibiting the conduct;
Incentives—What effect will liability or immunity have on the
society as a whole?
Lowest cost avoider—Which party can more cheaply avoid the cost?
Unique Category #1 Water Rights
1. Three rules for dealing with potential nuisances from surface water runoff
a. Common Enemy Rule Grants people rights to move water from their
property if they see fit. This is a privilege to do acts that may otherwise be
nuisances.= Damnum absque injuria
i. Rationale encourages development of land by reducing liability
ii. Allows Non-actionable privileged expulsion of waters from your tract
iv. Fair: rewards investment & labor – all have same opportunity to put that
v. Efficiency: incentivizes development of land
vi. Freedom of action
b. Natural Flow Rule/Civil Law/Sic Utere Rule strictly liable for any damage
caused by altered runoff
i. Focusing on protecting property rights of existing users (anti-
development or protecting security of investment?)
ii. Pro-existing uses of property
iii. Fair: to the Armstrongs/Klemps bc protects their labor & investment
iv. Efficient: incentivizes Armstrongs/Klemps to invest & own property in
the first place
v. Security from harm
c. Reasonable Use Rule (adopted in Armstrong v. Francis Corp, p232) similar
to nuisance law b/c allows reasonable discharge but not substantial harm
i. This is TORT: common enemy and civil law are PROPERTY rules
1. property is an off/off switch: either an entitlement or not
2. tort is imposing a reasonableness standard
ii. Brennan considers this ―standard tort rule‖ rather than extreme property
rule – makes sense, factors for reasonableness similar to those above
iii. Not exactly pure CB analysis b/c substantial harm is usually found
unreasonable even if value of D‘s conduct outweighs value of P‘s
iv. Rationale: imposing costs on neighbors should be internalized by
developers who profit from it (developer should take into account the
externalities he imposes on neighbors)
2. Exploring COASE through water rights
Eamon Lorincz Page 23/71
i. Assuming no transaction costs, allocation of property rights does not
affect efficiency of distribution.
1. Doesn‘t matter which party, b/c either way the party (or parties)
that value it most will pay more for it
2. transaction cost: everything until the moment of the deal. The
cost of getting to yes.
ii. Joint Costs Rejects moralistic idea that one party is ―harming‖
another. Rather, just considers two potential uses clashing: it‘s
iii. would say the Reasonable Use Rule‘s idea of cost-internalization is
i. Never transaction-cost-less
1. Free-rider, hold-out, cost of hiring lawyer, information costs.
ii. People often aren‘t rational…
1. Cooter‘s Hobbes theorem: people do not necessarily bargain to
2. In particular, often discrepancy between offer and asking price
a. Would only pay neighbor $1,000 not to block view of
ocean, but if owned view of ocean, wouldn‘t let
neighbor block view for less than $10,000
iii. Ignores distributive justice/wealth effects.
1. What people willing to pay may depend on initial allocations of
wealth, resulting in a bias for the wealthy.
a. Example If A values entitlement at 5000 and B values
it at $1000, but only has $100. B can‘t but it but
iv. Offer and asking price are never the same. Might be different because of
Radin‘s argument that something you own gets wrapped up in your
i. Doesn‘t like ―reasonableness‖ test
1. b/c leaves parties uncertain about their rights (risk raises
2. Legal system is a transaction cost allocating entitlements
unambiguously lowers these costs.
ii. If there are transaction costs, need to assign to party who values it
iii. If Coase had to pick between property rules (common enemy/civil law)
and tort rules:
1. if transaction costs are 0: he would pick the property rule
because they are clear-cut and assign the entitlement and that‘s
what he wants at the end of the day. The legal system should be
2. if transaction costs are high: would want a rule that assigns
entitlement to the person who values it most – fuzzier rule
3. More Notes on Cooter‘s critique
a. Can‘t assume people will reach a deal; under Hobbseain view of mankind,
perhaps likely they won‘t!
Eamon Lorincz Page 24/71
b. In that case, role if law should b minimize the inefficiency that results when
i. Since we don‘t know if people will want to cooperate, the ―coercive
threats of the government‖ must be used to encourage bargaining. (E.g.,
laws against bad faith in labor bargaining.)
Unique Category #2 Light and Air
o Option #1 No easement. You can impose harm on neighbors.
o In Fontainebleau v. Fort-Five Twenty-Five (p284), court rejected both English
doctrine of ancient lights and nuisance doctrine (except spite fence) and held no
easement for light or air. Fontainbleau wins & gets the entitlement assigned to them
(they get to keep building).
Ancient lights: English law – if you had light & air access for 20 years, you
get a prescriptive easement on it and you have a continued right.
Rejected in American courts because want to encourage
Coase would approve b/c clear. Seems to support development. Might make
more sense in urban environment, where we want to promote growth, than in
rural, where people buy to ―get away from it all‖
Harm does look reciprocal as Coase says.
But maybe Hobbes theorem is relevant here: the parties don‘t look
likely to bargain for an efficient outcome (looks like a spite fence –
malice on both sides). Per Cooter, the law should encourage
bargaining and force them to the table.
o Option #2 Nuisance Test applied to Light
o Court in Prah v. Maretti (p302) remands for nuisance test where neighbor going to
build and block other neighbor‘s access to solar panels. Reasonableness rule
This is a case of first impression because it‘s the first time solar panels have
been at issue – the old doctrine is now out of date
**Signifigance this seems to recognize at least some property interest in
light and air!!
Part of reasoning access to light/air has taken on new meaning –
not just aesthetic; also about energy
Locale may matter a lot here (think California ―million roofs‖)
Fairness/notice: Maretti on notice that legal rules like this are changing
Regulation: here, zoning not enough because they didn‘t think of this issue.
Super-sensitive user claim (that guy who wants panels is super-sensitive):
rejected. Dissent agrees.
Judicial role argument: should this be done by leg? Maj says no, dissent says
o See chart on p309 for common enemy v reasonablness v civil law rules.
Calabresi and the Four Types of Property Rights
1st: decide the form of relief – based on a property rule or a liability rule?
o Property rule – injunction. Assigns entitlement to 1 person.
Calabresi wants property as default to encourage private parties to
o Liability rule – damages. Court does more than just decide who owns it.
Reasons to pick Property Rules Reasons to pick Liability
Eamon Lorincz Page 25/71
Individuals decide how much entitlement is Rules
worth Less of a need for
Court shouldn‘t be setting value of collection action (won‘t
entitlement (judicial role) have a hold-out who
Protects Radin-type entitlements (person‘s stops whole thing from
subjective valuation of property) going through)
o Pick property rules if transaction costs are low (i.e., if parties are likely to
bargain, b/c then parties can just bargain); pick liability if transaction costs are
high (i.e., would have difficulty bargaining)
2nd: pick who gets the entitlement give the entitlement to the person who is not the
cheapest cost avoider (so that the CCA will do the work and avoid the harms) or person
who values entitlement most (if we can‘t figure out who non-CCA is)
o Depending on answers to above 2 questions, we end up in 1 of 4 boxes:
PROPERTY RULES LIABILITY RULES
P (neighbor) Rule 1: P has entitlement and Rule 2: P has entitlement. D
gets gets injunction (Prah – solar must pay damages to act
entitlement panels) (Armstrong (surface water) &
Problem: holdouts, collective Boomer (polluting factory; on
action problem, personal remand Rule 1))
D (actor) Rule 3: D has entitlement Rule 4: D has entitlement; P
gets (privilege to act without gets a ―purchased injunction‖ –
entitlement liability) P gets no injunction can get D to stop by paying
(Fontainbleau – hotel tower) damages (Spur)
1. Note that CL accepted categories 1, 2, and 3. Calabresi ―developed‖ (recognized the
existence of) category 4, and judges applied it.
2. Rule 2 Boomer v. Atlantic Cement (supplement)
a. 1st: given transaction costs, would pick a liability rule. Transaction costs high
b/c dealing with lots of neighbors, so liability rules.
b. 2nd: Boomer values it most. Small amount of nuisance versus shutting company
down. Company values entitlement more.
i. Might think factory CCA here b/c they have ―control.‖ But if no
technology and no other options, neighbors are CCAs by just ―shutting
up or putting up.‖ Ps are CCA because they are only harmed by 185K.
c. Under Calebresi, would think this means box 4. Court actually gave box 2
better than old CL rule, which mandated box 1 for any physical harm
i. Old rule seemed to support Coase (wanted parties to value stuff not
courts) but didn‘t recognize transaction costs issue
3. Rule 4 Spur v. Del Webb (supplement)
a. Spur feedlot owner opens feedlot first. Del Webb comes in and develops a
retirement community. They get closer together through expansion, and then Del
Webb sues Spur for nuisance.
i. Nuisance? Yes (not to Del Webb, but public)
1. public nuisance: affects everyone in the vicinity. – this is a
2. Private nuisance: affects particular individuals.
Eamon Lorincz Page 26/71
ii. Injunction? No, because of coming-to-the-nuisance doctrine. Spur came
to it knowingly; it was a foreseeable detriment.
1. For coming-to-the-nuisance doctrine: Spur must have been able
to foresee, and Del Webb must not have been able to foresee.
2. Coase wouldn‘t like coming-to-the-nuisance doctrine: he doesn‘t
care about history/causation.
3. first to show up (Spur) gets a property right like adverse
possession running to the property of all his neighbors.
a. Efficiency: gives incentives to develop bc you know
your property will be protected.
b. Fair: rewards useful labor.
c. Administrability: easy to see who came first.
1. Transaction Costs = high
2. Town values entitlement more
b. Under Calabresi, would think entitlement then to go to P, but it goes to D…
c. Del Webb gets an injunction, but has to compensate Spur for moving = Rule 4.
i. Del Webb MUST indemnify. The parties wouldn‘t‘ bargain around this
because Del Webb isn‘t the real injured party (homeowners are) – we
assume the homeowners didn‘t know / it wasn‘t foreseeable.
4. Moral When dealing with liability rule, Calabresi would give the option to purchase to the
party that values it most – the initial allocation goes to the party that would value it least.
Summary of Nuisance
It‘s a fuzzy doctrine. It illustrates relativity of title (ex: Spur: don‘t know what property
rights you have until you know who lives around you.)
Decide between trespass and nuisance, or both. Trespass preferable bc of no
reasonbleness stuff, it‘s strict liability. The remedy for trespass is an injunction, without
having to balance anything. Can then bargain around it.
Step 1: figure out if you‘re in a PER SE RULE (water/light) where nuisance doesn‘t
o Exceptions: reasonablessness test/standard adopted in some jurisdictions to cut
back on PER SE rule. See Armstrong, WI.
Step 2: if not in PER SE rule, apply the FACTORS.
o Supersensitive user
o Coming-to-the-nuisance doctrine.
Brennan in Armstrong: force cost-internalization.
Coase: reciprocal harming, figure out who values it most, transaction
costs. V Cooter (minimize costs of not bargaining bc people may not
Calabresi: remedies: if transaction costs are low, use property rules to
allocate entitlement. If transaction costs are high, use liability rule.
ADD CASE NOTES ABOVE
Eamon Lorincz Page 27/71
V. Private Land Use Planning
A. Licenses, Easements, & Covenants
Intro and Discussion of Licenses: Implied & Prescriptive Easements
Servitude—A servitude is a legal device which creates a right or an obligation that ―runs
with the land‖ or with an interest in land.
o ―runs with the land‖ means that it automatically passes to successive owners or
occupiers of the land.
o Easement: a type of servitude where the permission is intended to be permanent or
can include a right of way.
Where the obligation continues even if the owner sells, the BURDEN runs
with the burdened/servient estate.
Where the benefit should pass to future owners, the RIGHT runs with the
benefited/dominant estate and is an AFFIRMATIVE EASEMENT.
o Affirmative easements (or just easements)— When a property owner formally
grants a neighbor the right to do something on his land
Usually express and written, can be implied
―Positive easements‖ not allowed b/c can just do affirmative covenant (less
burdensome on alienability)
o Affirmative covenants—the obligation to do something for the benefit of other
landowners. The most common example would be a condominium owner being
required to pay condo fees.
Consider: what are the formal requirements to create a right/obligation that
runs with the land? How to interpret ambiguities? What are the substantive
requirements for validity of servitudes? How can servitudes be modified or
Negative servitudes—When a property owner makes a binding promise not to do something
with his land, that is a restrictive servitude. Because the courts traditionally limited
easements, they became contractual covenants (enforceable by damages); when these were
limited, they became equitable servitudes (enforceable by injunction).There are traditionally
o Negative easements
These have been historically limited by courts to three small categories:
The right to lateral support of one‘s building
The right to prevent light and air from being blocked by construction on
The right to prevent interference with the flow of an artificial stream such as
Historic preservation easements
Solar easements (to protect access to
o Restrictive covenants—all other restrictions on what a landowner can do on his own
land, usually fall into this category.
Restrictive covenants are easier to wipe out – through doctrines of changed
conditions and undue hardship, discussed below.
o Equitable servitudes
Eamon Lorincz Page 28/71
Licenses (NOT a servitude) an implied or express consent/permission to be on someone‘s
property, generally revocable at any time. (In writing, it‘s an easement & irrevocable)
o Where permission is informal and revocable at will by the owner of the land.
o don‘t run with land,
o doesn‘t need to be in writing,
o can be implied by the circumstances
o revocable when property owner wants to revoke (at will),
o not transferable,
o cannot be inherited or devised (in a will), etc…
o can conflict with public accommodations law (limit and owner‘s right to exclude for
o When can licenses become irrevocable?
o Power to revoke license is subject to the civil rights statute
o When the license is coupled with an interest: right to enter to remove property where
the property has been sold
o When the property owner promises to grant a license (theater example)
o Easement by estoppel An easement by implication. Makes license irrevocable.
When the property owner induces the licensee to act in reasonable reliance (an
objective, average/reasonable person standard) on the license / rely on a promised
license to their detriment, court may find an easement by estoppel
Requires license + reasonable reliance ($$$)
Person who owns the easement = dominant estate (Taylors in below case)
Person whose lot is burdened by the easement = servient estate (Holbrooks)
See Holbrook v. Taylor (p321) Taylors bought land behind Holbrook house
in part b/c Holbrooks said they could use road to get there.
Rationale Stricly applying SoF (which traditionally required
easements to be in writing) would actually promote fraud (people
might give consent in order to later revoke and price gouge).
o Also, case of high transaction costs (Coase), and Taylors
value entitlement most
o Taylors spent a lot of money relying on the use of the road
(built their house there)
o The use of the roadway by the Taylors, the general
improvement they made of the premises, and the
construction of their residence with the consent of the
Holbooks Holbooks can‘t revoke the license now.
Not a prescriptive easement case bc: the Taylors‘ use of the road was
This is like State v Shack: power imbalance between the parties. Had
the Taylors known in advance that permission would be withdrawn,
the Taylors wouldn‘t have built.
Result ―License will continue for so long a time as the nature of it
Issue about transferrability licenses aren‘t, generally, but
easements are… arg both ways. This is an irrevocable license /
easement by estoppel, so is it transferable or not?
Coase: parties will bargain around this; Taylors likely to buy the
easement if they want it, especially since they have relied. So Coase
would say no need for easement by estoppel.
Eamon Lorincz Page 29/71
o BUT Cooter/Hobbes: the state should step in and award the
entitlement where there are transaction costs (like here –
o Constructive Trust, p323
In order to prevent the unjust enrichment of one party at the expense of
another, court can construct a ―trust‖ where the unjustly enriched ―trustee‖,
though retaining ownership, must his property in a way to benefit the
To prevent against mistake, fraud, breaches of faith, etc. depriving you of
right to property. To prevent unjust enrichment.
Owner (settlor) transfer property to another person (trustee) with instructions
to manage the property for the benefit of a 3rd party (beneficiary)
Trustee has legal title to the property
Beneficiary has equitable/beneficial title
Differs from easement by estoppel b/c based more on equity than pure
property law. Court has more power to fashion the remedy as it seems fit
(i.e. regulate the trust).
In Rase v. Castle Mountain, p323, (new owner Ward tried to kick out cabin
owners, who had built cabins under semi-fake license agreements when the
land was owned by Tavenner) the cabin owners got either damages or to stay
on lang for 13 years.
Framed in more moralistic terms (requirement of ―mistake, fraud, or
some other breach of faith or confidence‖) but this seems flexible
Here there was mistake, breach, etc. bc the written agreement wasn‘t
the real agreement.
PER doesn‘t apply here bc the written agreement isn‘t clear (?);
Statute of frauds doesn‘t apply bc it has an exception for constructive
Concurrence: CUSTOM – here in Montana, written agreements are
never the real agreement and we all understand that. So this
constructive trust stuff instead of Statute of Frauds is what‘s
administrable here. And it‘s fair because everyone has an equal
chance to use the informal rules.
Doctrinal Battle – Statute of Fraud v. Implied Easements
Statute of Frauds trad‘l rule required conveyances of real property to be in writing,
wouldn‘t accept outside oral agreements, would favor strict interpretation over ―reading
in‖ things that aren‘t there
o An easement is in interest in property, so it has to be in writing.
o Arguments for
Fairness: Treats everyone equally. Everyone knows must play by same
rules. Prevents fraud, mistake. Makes it easier to transfer entitlements.
Administrability: If applied strictly, less litigation (b/c clear rule) and
easier to apply in court.
Administrability: Makes property ownership and transfer clear and easy.
Predictability and stability.
Efficiency/Utility: Create strong incentives to engage in socially useful
conduct (here, putting the act in writing)
o Exceptions: where a writing is not required to create an easement:
Eamon Lorincz Page 30/71
Oral easements: courts will grant an easement despite lack/inadequacy of
writing where grantor intended to grant an easement and grantee invests
substantially in reasonable reliance on this representation.
Irrevocable licenses: protecting interests of licensee in relying on
relationship with owner who granted continuing rights of access to
Why do this if it goes against the wishes of the grantor? Court is
choosing between implementing the grantor‘s intent and
protecting the grantee‘s interest in relying on access.
When owners open up property to others, they may create
reasonable expectations of continued access to the property.
Implying Easements (ignoring SoF)
o Arguments for allowing informal transfer of property rights (instead of requiring
compliance with statute of frauds)
Assuming high transaction costs, most efficient solution to resolve any
dispute is to give it to the party that values it most.
May also be most fair solution.
To prevent against friendship going bad
It‘s fair, efficient, and administrable where parties usually deal
informally in the community
Can reduce fraud/trickery
Particularly when talking about easements by estoppel or constructive
If people are likely to deal with each other informally anyways, might be
fairer / more efficient (adminstrable) to have doctrine mirror people‘s
a. Sometimes used to effectuate the intent of the parties, as manifested in their
conduct. Sometimes contradict the intent of the parties, but promote public
policy and be inferred anyway. Usually found to run with land
b. Five types of implied affirmative easements estoppel, constructive trust, prior
use, necessity, prescriptive
2. Prior Use
a. Usually recognized when an owner divides his property and sells one parcel,
retaining the other for himself, and intending to grant or retain an easement.
These are only implied if:
i. Common Owner
ii. One parcel was used for the benefit of the other in a visable and
1. Continuous means not casual
2. ―Visible‖ not read literally (think underground sewers). Instead,
apparent by reasonable inspection of property
iii. Easement is reasonable necessity
1. This is a pretty low threshold. In Granite, court said test fufilled
when ―[easement] is reasonably convenient to the use of the land
Eamon Lorincz Page 31/71
a. Here, big trucks would have to ―jockey around quite a
bit‖ in order to turn around, which would be impossible
if 4-5 were lined up, which often happened.
iv. Note: you can contract out of being bound by “prior use” easements.
1. Seems justificaiton is thus just effectuating parties intent, not any
public policy goals
i. Grantor creates landlocked parcel
1. Stricter requirement than the ―convenience based‖ necessity
required for an easement based on prior use.
2. Courts grant an easement by necessity when necessary for the
owner to use land like normal landowner would / to make
productive use of the land.
iii. Usually goes over remaining lands of grantor (although notes indicate
that if grantor‘s parcel left in the middle, he can get easement by
necessity over someone else‘s land)
b. Notes on the Doctrine
i. Person who needs easement must pay for road to be built/improved
ii. Person whose land must be crossed can determine (within reason)
placement of road
iii. Necessity determined at the time of conveyance.
1. If you had a legal right at time of conveyance but then lose it, no
2. However, if you had a way to get out but not a legal right (i.e.
another neighbor gave you consent), courts will find the
easement laid dormant
a. See Finn v. Williams (p. 339)
iv. Easement lasts only so long as necessity lasts
1. If a new legal right to access springs up, easement dissapears.
2. If physical means of access (but not a legal entitlement) springs
up, easement lays dormant
c. Justifications and Conflicts
i. Doctrine based both on effectuaing intent and on efficiency (productive
use of lands). Usually, both goals are in harmony.
1. Where they are not, grantor‘s intent trumps. If grantor intended
to sell, and seller knew she was buying, landlocked parcel, that
ii. Also, justification of efficiency must be balanced against fairness this
is why most courts will not allow easements by necessity over strangers
1. Some courts though might follow Calabresi‘s line of thinking
(give to party that values entitlement more) and will allow a
party to ―purchase‖ it by paying damages.
Prescriptive Easement similar to adverse possession
Burdened party didn‘t want it
o Adverse USE rather than adverse possession – prove by clear & convincing evidence
o Continuous – occasional or sporadic use violates this
Eamon Lorincz Page 32/71
o Exclusivity not required
Some states presume that use by a non-owner is presumptively non-
Other states say use by a non-owner is presumptively permissive
o Statutory Period
o NEW ELEMENT Acquiescence (see p. 211 for more info)
It MIGHT be required that the true owner have acquiesced (landowner had to
KNOW and DO NOTHING)
This seems to be contrary to adverse/hostile ―without permission‖
Compare to constructive trust, where permission is required.
Either knew or should have known about adverse use but did nothing
**Do not confuse ―acquiescence‖ with permission, which defeats hostile
Although could argue that silence was implying permission, not
Results in: right to continue the kind and amount of use.
o It‘s not a transfer of title as in adverse possession
A negative easement cannot be acquired by prescription in the US
Notes of the Doctrine
o Subtracts requirement of ―exclusivity‖ a community could get an implied
o However, while private actors use is presumed adverse / hostile, public use presumed
Rationale – don‘t want to punish people for being neighborly; many people
let public on land (so not necessarily something a ―normal owner‖ wouldn‘t
BUT If you open your business to public, and certain group uses it in a
specific way (that would exceed reasonable scope of invitation), they might
o Do not need to prove use with specificity, just general contours of use
In Community Feed Store (p207) party (small retail store whose delivery
trucks were backing up on part of the defendant‘s property) just needed to
prove often used area to turn trucks around (not outline exact lane used) –
extent of use didn‘t have to be proved with absolute precision, only the
general outlines consistent with the pattern of use throughout the prescriptive
Negative easement (ex: right to lateral support of land) historically seen to accompany the
Affirmative easements (ex: right of way) historically done by agreement between the parties.
Express easements—These are created by explicit agreement between the parties, and in
order to meet the statute of frauds, they must be in writing.
Formal requirements for an express easement include:
o The easement must be in writing to meet the statute of frauds.
Exception: prescriptive easements, easements by estoppel, implication,
necessity, constructive trusts
The easement must be created by a deed.
Easements are bought and sold like real property.
Eamon Lorincz Page 33/71
o The deed must be signed by the grantor and describe the easement.
o Traditional rule: no reserving of an easement in a 3rd party: if grantor sells property to
A, grantor can‘t reserve an easement over A‘s property in B – this is now changed by
many courts. (Restated - some states have a rule that a grantor, O, cannot sell a parcel
of property to A while reserving an easement over A‘s property for B, a third party.)
You can reserve an easement over the property for yourself, however. So
this rule can be drafted around by selling the property first to B, who then
sells it to A, keeping an easement for himself (see p. 391).
Many states just ignore this rule entirely
Limitations on easements:
o Easements by contract are limited to:
Right to lateral support of a building
Right ot prevent both light & air from being blocked by construction
Right ot prevent interference with flow of artificial stream
o In England, judges didn‘t want to create new easements bc England didn‘t have a
working recording system; so wanted to promote the alienability of land and protect
interests of buyers in relying on their ability to use the land they were purchasing.
o New negative easements created lately by US: conservation, historic preservation,
o No affirmative easements to act on one‘s own land: no creation of an affirmative
obligation to do something on someone‘s own land for the benefit of others.
Law of covenants: allowed for creation of enforceable affirmative obligations
that run with the land.
BURDEN TO RUN WITH THE LAND: For the burden in an express easement to run
with the land it must meet three requirements:
o Easements by implication, necessity, and estoppel run with the land if they were
intended to do so and are reasonably necessary for the enjoyment of the dominant
o Otherwise, they run with the land only if:
o WRITING: The easement must be in writing – in a deed.
Even if it is not in the deed to the current owner, if the easement is in the
chain of title, it counts.
o INTENT: The original grantor who created the easement must have intended for it to
run with the land.
Intent may be implied if the language in the deed is silent or ambiguous.
Look at circumstances of the easement: does it make more sense for it to
attach to the land or to the person?
Ex: railroad tracks through backyard: likely to be in gross.
Ex: next door neighbors getting to use driveway: likely to be
appurtenant. Wouldn‘t make sense if it were gross.
Look to language of writing and surrounding circumstances
There is a presumption that an easement is appurtenant, particuarly if the
easement is seen to be generally useful.
Rationale – seen as smaller burden or servient estate b/c
o They limit number of possible persons with easements to
o Easements in gross create uncertainty about rights b/c harder
to check with general public to find owners
**Note that a modernized registry could solve this problem
Eamon Lorincz Page 34/71
o NOTICE: Subsequent owners of the servient state must have notice of the easement
at the time of purchase of the servient estate.
Buyers can have either actual, constructive or inquiry notice of the easement,
each of which are discussed above.
Assignability (transfer) and Divisibility Appurtenant easements run with land, presumed
to be divisible.
BENEFIT TO RUN WITH THE LAND: Appurtenant v Easement in Gross
o APPURTENANT: benefit runs with the land (attached to that particular parcel of
land). See Green v Lupo. See Cox v Glenbrook.
Courts often prefer appurtenant over in gross easements.
Can‘t be severed from land.
By definition, they are transferable.
General rule: they are subdivisible. See Green v Lupo. If you divide the
dominant estate, the subsequent owners get the easement. See Cox v
o IN GROSS: benefit doesn‘t run with the land (no dominant estate; not attached to
any particular piece of land). Does not run with the ownership. See Henley v
The most common type of easement in gross currently are those owned by
utility companies to run power lines over land and service them.
Traditionally not transferable, but now they are if commercial (utility
easements). Might depend on how personal the situation was.
o To distinguish between appurtenant & easement in gross: look at INTENT of grantor.
When the use is non-ecxlusive usually nonapportionable
When the use is exclusive usually apportionable. If the rights granted are
exclusive of the servient owner‘s participation therein, divided utilizations of
rights granted is presumptively allowable.
(exclusive means exclusion of owner and possessor of servient estate from
participation in the rights granted. Exclusive means excluding the owner.)
See Henley v. Continental CableVision (p358) holding that
telephone co had exclusive interest (was an exclusive easement) and
thus could apportion part of easement to cable co. Here, it was
exclusive because the P (tenant) wasn‘t going to put up TV cables;
had no interest in the right granted.
o Exclusive Based on intent of grantor at time of conveyance
(no indication that wanted to reserve use.)
o Common sense test what‘s an extra wire on a pole? TV
cables don‘t increases the burden.
o Intent of P‘s predecessors important: they wanted to get
means of bringing electrical power and communication into
homes. Public interest upheld by allowing this to continue
efficiently/without laying another wire.
o Interpretation of express easements A few issues that arise:
o SCOPE OF USE: Is this the kind of use contemplated by the grantor?
If not specifically detailed (usually not), should we read broadly and allow
any reasonable use, or should we read narrowly?
Advantage of narrow if we consider easements as frustrating the
alienability of land, we would reduce these worries by interpreting narrowly
Eamon Lorincz Page 35/71
New owner might not want to trust broadly-read easement negotiated
by old owner, or that good faith between the groups would remain
o Easement holder could still purchase the right to expand the
easement if necessary.
Advantage of broad times change, need flexibility
Usually allowed ―reasonable ancilliary use‖
Hypo – easement to fish on lake. Can bring friends. Can‘t hold a
UNDUE BURDEN: Is the burden on the servient estate so large it wasn‘t
contemplated by the grantor?
o Depends on grantor‘s intent,
o Where ambiguous, balance interests of easement owner (freedom to develop
his property) against interests of servient estate owners (freedom from having
property burdened in an unforeseen way)
See Green v. Lupo (p. 350), Greens sold land to Lupos, Lupos
promised to grant Greens an easement. Greens now allowing mobile
home users/motorcycles there. Remanded for equitable
consideration. Court said it was APPURTENANT, not personal.
Appurtenant easements are subdivisible, so subsequent owners get
easement. Parol evidence properly used because the written
agreement was ambiguous as to whether it was personal or
General rule: where there‘s a dangerous nuisance, should
impose equitable restrictions on dominant owners‘ use, as
long as you don‘t interfere unreasonably with P‘s use.
Injunction gainst them using motorcycles unreasonably
interfered with dominant owners‘ use of the easement.
See Cox v. Glenbrook (p. 353), where easement allowed right of way
with full right of use over road. Quill owned farm next to Glenbrook,
Glenbrook gave Quill an easement, Quill‘s property was sold to Cox
who wants to subdivide and widen the road.
Court said appurtenant easement means the owners can
maintain, repair, and improve it in a way that promotes the
purposes for which it was created – this includes smoothing
o but didn‘t allow widening of the road – that was an
o If the width of road isn‘t specified in grant, it‘s
limited to width that existed at time of grant, OR the
intention of the parties at time of grant controls the
width here, they intended it to be a back road)
o Coase: after this, Cox will pay Glenbrook to be able
to widen the road. This was just the assigning of an
entitlement to be bargained around.
Owners of servient estate can‘t relocate it. – would still have
to have the same kind of access.
Owners of dominant estate (owners of easement) can‘t cause
Owners of dominant estate (subdivision owners on Cox‘s
development) can use the road – since it‘s appurtenant.
Eamon Lorincz Page 36/71
o APPORTIONABILITY: whether easement can be subdivided
appurtenant easement benefits the entire dominant estate and is
apportionable among subsequent owners if dominant estate is
subdivided (see Cox).
Easement in gross:
Non-exclusive (grantor has reserved for self the right to use
easement in conjunction with grantee): easement is
Exclusive (grantor has no right to use easement in
conjunction with grantee): easement is apportionable.
Modifying / Terminating an easement:
o Easements last forever until they are terminated.
o By agreement in writing: release – easement holder can release the easement.
o Own terms – might expire.
o Merger of servient & dominant estates.
o Abandonment: look at words/actions/course of conduct over time.
o Easement disappears if you do something inconsistent with it for long enough.
Adverse possession or prescription.
Servient owner does something inconsistent/interferes with easement for
o Frustration of purpose.
o Eminent domain: gov‘t takes your property.
o Might be subject to changed conditions (like a covenant)
o Might need to be re-recorded periodically to be binding on furutre purchasers, per
Marketable Title Acts.
Summary: Challenging Easements: if servient owner wants to defeat an easement:
Say the dominant owner doesn‘t own it because can‘t subdivide it, etc.
o Appurtenant are assignable if land is conveyed
o In gross:
Old rule: not assignable unless commercial.
New rule: also assignable.
o Apportionability / subdivisibility:
In gross: exclusive are apportionable; nonexclusive are nonapportionable.
Look at grantor‘s intent re exclusivity. See Henley.
Say dominant owner owns it but what they want to do is beyond the scope of the easement.
Beyond scope of grantor‘s intent. Look at grantor‘s intent at time of conveyance.
Say the dominant owner owns the easement & the use is in the scope, but it imposes an
Undue Burden on the servient estate. Look at grantor‘s intent at time of conveyance.
o See ―terminating servitudes‖ below
Real Covenants and Equitable Servitudes
Covenant: contract to get around limitations on negative easements.
o Benefits of contract rights assignable if they were somehow conceived as being
attached to an ownership interest in the land created by 2 parties who had
simultaneous rights in that land. = privity of estate = both benefit and burden could
run with the land.
Eamon Lorincz Page 37/71
o Covenant: more requirements (touch & concern, privity) bc you can do more than
you can with easements (with easements, can only do affirmative (right of way across
someone else‘s property) or 3 limited negative easement categories.
Equitable servitude – no privity req‘d. No cases on this, just use 1 sentence.
Why bother with covenants?
o You can‘t have an easement that makes you do something on your own land (―You
must maintain a gas station‖) or prohibits you from doing something on your own
land (except for the few traditional and modern exceptions, above).
That is, no negative easements, and no affirmative easements to act on your
so most negative restrictions are covenants!
o Covenants are better than contracts because:
Usually run with land (can hold in gross, more later). In contracts,
subsequent owner of servient estate is not required/bound.
Can get an injunction rather than just damages (the default in contracts).
Contract remedy is damages.
Transaction costs for contracting with all subsequent owners of servient
estate are high.
o For the dominant estate, it‘s security against harm. Increase the alienability of
dominant estate (make it more sell-able).
BUT consider that they also decrease the alienability of the servient estate
(see noncompete covenants, Davidson v. katz)
o Conflict between freedom of action v security from harm (as in Nuisance, water run
off, law of capture, mall/1st Amendment, adverse possession)
If you don‘t meet requirements for covenant, might still have an easement.
o Easements don‘t require privity or touch and concern
o But it can‘t be an easement if it makes you do something on your own land, or
prohibits you from doing something (besides the short list)
1. A Historical Introduction
a. The doctrine of real covenants and equitable servitudes arose separately in the
courts of law and equity in England
b. Some courts merged doctrine, others distinguish. For those that distinguish,
aspects of historical doctrine still apply.
i. Ps attempting to enforce a real covenant can obtain damages (or
ii. Ps trying to enforce an equitable servitude can only be granted an
2. Elements of an enforceable Real Covenant—There are five traditional requirements for a
covenant to be held enforceable. An affirmative covenant is binding on successor in interest
a. In writing
i. Sales literature and other documents do not count as writings, because
the restriction must be documented in the chain of title.
ii. Covenant is an interest in land, so it‘s subject to the statute of frauds.
b. NOTICE: The party to be bound had notice at the time of purchase
i. All three types of notice suffice.
ii. Notice to servient/burdened at time of conveyance to burdened party.
c. INTENT: Intended to run with the land (intended to be binding on future
Eamon Lorincz Page 38/71
i. Based on language if made to the grantee and ―their heirs and
assigns‖ or if it ―is intended to bind future owners‖ then the court‘s
decision is easy.
ii. Look at deed.
iii. Or, see if it seems like the type of thing that is supposed to run with the
1. Some courts will also presumptively assume that a covenant
benefiting a neighboring property is intended to run with the
d. TOUCH & CONCERN: It ―touches and concerns‖ both the burdened and
benefited land (p388)
i. Burden side Touches and concerns the burdened estate if it relates to
the use of the land and the obligation is intended to benefit current and
future owners of the dominant estates (makes the dominant estate more
1. purpose: ensure that the promise attached to the land is really
about the land and about making it more valuable and useful.
ii. Benefit side Touches and concerns the land if it improves enjoyment
of the land or increases its market value.
1. Including, for example, non-compete covenants
iii. In Davidson Bros v Katz & Sons (p367 - noncompete covenant), NJ
rejected ―touch and concern‖ and focused on reasonableness (p. 370,
listing factors). P wants burden to run with the land (so that all future
owners are prevented from operating a competing grocery store).
1. Privity: Horizontal, and Strict Vertical (between Authority) and
relaxed Vertical (Ctown)
2. Argued test was ―outmoded‖ test designed to limit
enbumbrances, and doesn‘t correspond today‘s business world.
3. Court said: shouldn‘t have to rigidly adhere to the touch &
concern test to determine enforceability of restrictive covenant.
Use reasonableness test instead. Consider these factors:
a. Intent of parties
b. Impact on considerations exchanged
c. If writing clearly & expressly sets for th the restrictions
d. Whether covenant was in writing, recorded, whether
subsequent grantee had actual notice
e. If covenant is reasonable re area, time, duration
f. Whether covenant imposes unreasonable restraint on
g. Whether covenant interferes with public interest
h. Whether changed circumstances since orginal passage
make it now unreasonable.
4. Concurring: noncompetition covenants should be treated as valid
if reasonable in scope and duration + no unreasonable restraint
on trade + not contrary to public policy. Should grant damages,
not injunction (injunction would be the more efficient remedy,
but don‘t know if parties will bargain around it). Says this is a
contract issue, not a property issue.
5. rationale for not enforcing noncompetition covenant:
a. want to be competition-forcing
b. distributive justice.
Eamon Lorincz Page 39/71
iv. See also Whitinsville Plaza v Kotseas (CVS case)
v. MAJOR ISSUE (see p. 388) Do the burdens and benefits exist
independently from ownership interest in the land?
e. PRIVITY: Privity of estate between the covenanting parties—This is the
most confusing element of the test, and it requires two kinds of privity. (p378 for
i. Compare to equitable servitude: need at least relaxed vertical privity, but
not horizontal privity.
ii. Horizontal privity Depends on relationship between original
1. Parties need mutual privity (simultaneous interest in same parcel
of land – lease or easement) or instantaneous privity (created
a. Some courts find mutual privity if one or both owners
have an easement in the other‘s property
b. For instantaneous privity, the promise has to be about
the land sold & the retained grantor‘s land
2. Easy to get around rule just sell and buy back.
3. Restatement suggests abolishing it. Also, could still get
injunction if court finds equitable servitude
iii. Vertical Privity Depends on relationship between original
covenanting party and subsequent owner (see p. 386)
1. Strict vertical privity requires grantor not retain any future
interest in the land
a. So if grantor leased land, you could sue grantor for
damages for violating the covenant, but not the lessor b/c
no privity. You could, however, get an injunction for
violation of equitable servitude.
2. Relaxed vertical privity any future possessor. Subsequent
owner (tenant of lease) has relaxed vertical privity if gets a 99
year lease, because is in possession ofa burdened estate.
a. Adverse possession is relaxed vertical privity (depending
3. Equitable Servitudes
a. Elements same except no privity requirement
b. Used in equity courts
c. Owner bound by covenant even though no privity of estate between original
covenanting parties becauses:
i. In writing
ii. Intended to run with the land
iii. Touched & concerned the land
iv. Current owner had purchased with notice of the restriction bound to
protect expectations of owner of dominant estate.
d. Traditionally allowed only injunction
i. Whereas covenants traditionally allowed damages.
e. Applications are broader b/c of lack of privity, but can only receive injunction.
i. Examples of broad application
Agreements between neighbors that are not a part of a simultaneous
property right and don‘t involve conveyance of land
Eamon Lorincz Page 40/71
Against Lessees of the Burdened Estate, in states where strict vertical
privity is required
See Whitinsville Plaza v. Kotseas (p376), Whitinsville could sue
for an injunction (to enforce covenant in deed whereby
Kotseas got land) against CVS (who was leasing from
Kotseas), even though it is not in strict vertical privity with
the burdened estate.
-benefit & burden run with the land; clearly stated in
-was in writing
-CVS had actual & constructive notice
-privity of estate between original parites under
MUTUAL PRIVITY bc both had easements in each
-touch & concern: noncompete covenants do touch &
concern burdened land bc they limit land use and touch
& concern the benefited land bc enhance its market
value. Reasonable noncompete covenants may run with
the land when they serve the purpose of facilitating
orderly & harmonious development for commercial use.
-BUT not enforceable if it‘s an unreasonable
restraint on trade.
Covenant in gross (for a certain person) vs. appurtenant (runs with the land)
Requirements for in gross: writing, intent, and notice. No touch and concern
(b/c there’s no benefited estate around)
Courts generally restrict holders of covenants in gross from enforcing against
subsequent owners (once parcel is sold). Three exceptions:
Affirmative obligations: Often not enforced, unless it‘s by a homeowner‘s association.
(see p. 389)
Court would otherwise usually not enforce a covenant that makes you trim
trees on your land
Implied Reciprocal Negative Servitudes (i.e. ―Residential Subdivisions‖)
Intro – General rule is that covenants restricting land in a subdivision are mutually
enforceable by and against all owners if the properties were all intended to be part of a
common plan or scheme.
o Where no privity of contract and no privity of estate, turn to 3rd party beneficiary
o Purpose of the Common Plan Doctrine is to allocate the risk:
Risk to buyer that something bad will come next door
Risk to developer that something will change.
o Gets past privity and intent problems
Can allow an earlier buyer to sue a later buyer
Old Doctrine Buyer one agrees to covenant, developer benefits,
passes down estates. That‘s OK. But when buyer 50 covenants with
developer, buyer one
Eamon Lorincz Page 41/71
o Has no horizontal privity with buyer 50‘s estate
o Has no evidence that buyer one is intented beneficiary!
o Court used ―third-party beneficiary doctrine‖ to say that
early buyers were intended beneficiaries of the covenants
made by later buyers if all their lots were part of a common
plan or scheme.
o Can reduce notice problem.
Statute and regulations in many states now require developers to file a
declaration prior to selling individual lots (to describe the area covered by the
common plan), so buyers are on constructive notice.
Some courts, such as that in Sanborn v McLean (p399 & Supplement), could
hold servitude against you even if it wasn‘t on your deed! Was on inquiry
notice – because all houses looked the same, you have to look at neighbors
**Note – it depends what ## buyer Sanborn was. Courts have also
held that a developer cannot retroactively place restrictions on
previous purchasers of land by imposing restrictions on subsequent
purchases, b/c there would be no notive to previous purchasers
Rationale might be that Court has a policy preference for
neighborhood development. Reliance justification as well (grantees
have relie on implicit property right they always thought they had.)
Other courts in Riley, are more strict about notice not bound unless deed
says so or bought home after declaration made. Court here refused to restrict
lot purchased with unrestricted deed and that had no reference to the
restrictions (no snow tunnel building) in their chain of title. Restrictions
must be in writing or referred to in the deed of the land sought to be
restricted or appear in the chain of title.
*Note there was some parol evidence that family actually knew about
restrictions before buying house because it was mentioned orally.
IRNE doctrine still applicable b/c gets around earlier buyer – later
buyer issue… but court
Importance of PER and statute of frauds – protect individuals from
fraudulent claims that oral promises were made by only enforcing
promises made in writing.
o Dissent: said there was actual notice & no one disputed that.
Elements necessary for an implied reciprocal negative ―easement‖
o Need to start with a common owner
o Intent evidence of a common plan.
presence of restriction in all or most deeds (uniform? How many)
Presence of restrictions in last deed
Recording plat (map) showing restrictions
All houses/lots look the same
o Declaration that covenants intended to be mutually enforceable
Language in the covenants
o Also requires the trad‘l elements of real covenants or equitable servitudes, just
loosened (as explained above)
Writing – relaxed and allows some to be implied
Eamon Lorincz Page 42/71
Notice – relaxed if follow Sanborn (McLeans wer on notice at the time of
their purchase – constructive or inquiry)
Notice issue is harder if you only want to restrict part of the land:
Evans v Pollock (p395): one set of restrictions for hilltop properties
and one set for nonhilltop. Court: you CAN imply restrictions that
only restrict part of the development.
Intended to run with land – usually swallowed in ―common plan‖
Sanborn: intent to burden the lot at time of conveyance because 21
lots were sold before that and were all restricted.
Touch and concern – still applied, invariably met
Privity – relaxed under ―third party beneficiary‖ doctrine
Issue: Scope of the general plan?
Sanborn held developer intended party to be bound even though no covenant in deed.
In Evans v. Pollock, court recognized that developer may want to restrict part of
a development, but not all!
Fact-specific inquiry that considers both intent of developer and
expectations of people who bought the lots (restricted and unrestricted).
Criticisms of Common Plan Doctrine:
o Fairness: unclear if there was notice or intent to burden the lot.
o Outcome: requires uniformity, and uniform suburban development might not be a
o Utility: covenants last a long time, and the more time passes, the less it‘s clear that
the informal property right continues to be useful.
Summary of Common Plan Doctrine:
o Go through formal covenant doctrine steps.
o On intent to benefit/burden and notice steps: Common Plan Doctrine allows you to
o To make the implied intent/notice argument:
How many lots are burdened?
The more burdened, the more it shows intent & notice. – Sanborn.
Uniformity of restrictions?
They should be uniform. But Evans.
Does neighborhood look like there‘s a common plan in place? Sanborn.
Terminating Covenants & Servitudes
1. Modes of terminating easements(this is also in EASEMENT section)
a. Own Terms—If the terms of the servitude itself specify how it expires, then it will
expire when that event occurs. Must be in writing (statute of frauds) and recorded and
all parties owning dominant estate must join.
b. Merger—When the holder of the servient estate becomes the holder of the dominant
estate, because you can‘t obligate someone to do something on their own land.
c. Release—When there is written agreement in writing.
d. Frustration of Purpose—If the purpose of the easement has become impossible to
accomplish (only applied by some courts).
e. Marketable title acts—Enacted by many states, they require easements and other
encumbrances (incl. covenants) to be re-recorded every so often. If the easement is
not re-recorded, it is terminated.
i. Must be unequivocable intent to abandon.
ii. Only need it at one point in time. (Unlike adverse possession).
Eamon Lorincz Page 43/71
g. Prescription—When the owner of the servient estate adversely possesses the
easement back. Covenant can be adversely possessed away.
h. NOT INDCLUDED changed conditions or undue hardship
i. Makes sense b/c easements are seen as more ―permanent‖ and more like
property interests parties should buy or sell as they please
ii. Restatement WOULD extend changed conditions to easements.
2. Modes of terminating covenants includes all of the above PLUS
a. Unclean hands
i. If the owner has violated the covenant himself, he may be barred from
enforcing the covenant.
i. An owner of a dominant estate who orally represents to the owner of a
servient estate that he will not enforce the covenant may be barred from
enforcing its terms.. Reliance on oral statement.
i. If the dominant owner has delayed unreasonably to enforce the covenant to
the detriment of the servient estate owner he may be barred from enforcing
ii. Unexcused delay in enforcing covenant led to investment in reliance on
failure to object to violation such that enforcement of covenant now would
i. If the owner of the dominant estate has tolerated previous violations of the
covenant by the owner of the servient estate, he may be barred from
enforcing the covenant.
i. If the owner of the dominant estate as tolerated violations of covnenats by
owners of OTHER restricted parcels.
f. Changed Conditions
i. Covenants will not be enforced if conditions have changed so drastically
inside the neighborhood restricted by the covenants that enforcement will be
of no substantial benefit to the dominant estates.
1. stringent: relief from covenant ONLY IF purpose of servitude can no
longer be accomplished.
2. court won‘t enforce a restrictive covenant where a fundamental
change has occurred in the intended character of the neighborhood
that renders the benefits underlying imposition of the restrictions
incapable of enjoyment.
3. See Eli Di v. Town of Bethany (p411), selling alcohol OK b/c town
no longer as quiet (there has already been commercial development)
and restaurants already ―brown bag‖ (alcohol is already being sold)
a. **Note – changed conditions doesn‘t refer to what happens
on the edges of the district but inside the district itself
(otherwise the applicable area will just be quickly chipped
b. This is a covenant in gross (can be enforced by a town,
gov‘t, charity, or homeowners association)
c. Change in zoning was also evidence of changed conditions
here, though not dispositive. Zoning is general guidelines,
can still contract around them.
Eamon Lorincz Page 44/71
d. Public policy: unreasonable & inequitable to enforce
4. Restatement argues for allowing modification of covenant if a
modification would allow the covenant to still serve its original
ii. Step 1: What was the purpose of the restrictions?
1. Lawyer trick: define purpose narrowly or broadly to make arguments
on each side…
iii. Step 2: Can that purpose still be enjoyed?
g. Relative Hardship—
i. Focus on the servient estate: compare burden on servient estate (if continued
enforcement) vs. benefit to dominant estate (if continued enforcement)
ii. Covenant will not be enforced if the harm caused by enforcement, that is the
hardship to the owner of the servient estate, will be greater by a
―considerable magnitude‖ than the benefit to the owner of the dominant
iii. Restatement treats this as a factor to be considered in determining remedy.
iv. See Blakeley v Gorin.
i. State statutes may regulate the enforceability of covenants and provide
doctrines allowing the covenants to be removed over time.
ii. Blakeley v. Gorin (p420, Mass Ritz Carlton) saying that economic loss of not
building hotel much greater than burden of losing light an air.
1. MA statute, p419: to be enforced, restriction has to be of actual &
substantial benefit to person claiming right of enforcement.
Presumption that no restrict is of actual & substantial benefit except
a. Trying to make covenants harder to enforce.
b. Trying to make covenants enforceable by damages & not
injunction (a liability rule, not a property rule) bc worried
that might not sell entitlement (Coase)
2. Ritz owner wants to expand but subject to Commonwealth
Restrictions – wants to build bridge across alley.
3. Court doesn‘t enforce restrictions (invalidate covenant) but gives
damages for loss of light & air. No enforcement bc:
a. Would impede reasonable use of the land.
b. Most suitable use of the property is this.
c. Enforcement wouldn‘t be equitable, not in public interests.
4. Party got damages, but not injunction (similar to box 4 of Calabresi)
a. Dissent wanted specific enforcement, not damages.
5. *Note – seemed also to consider nature of area, public policy
6. CRITICISM Why are courts valuing entitlements? Can‘t people
trade them amongst themselves?? It doesn‘t seem that transaction
costs were too high to prevent negotiation.
a. Maybe part of reason was that this was part of ―common
plan‖ laid out by Boston gov‘t after it filled in the land?
i. Eminent Domain—If the government takes property by eminent domain, the
underlying covenants are extinguished.
j. Restraint on alienation—If the covenant unduly restrains alienation, it will be
terminated as against public policy.
Eamon Lorincz Page 45/71
i. More on this later
Eamon Lorincz Page 46/71
V. Private Land Use Planning Contd…
B. Estates, Restraints on Alienation, Perpetuities, and Racial Restrictions
The Estates System – see p515 for SUMMARY
Conveyances and easements divide up properties at once
Concurrent interests in land created by:
o Owning property concurrently
o Divvying up ownership rights over time.
Future interests can be a direct or indirect attempt to control the future uses of real property.
Present & future interests can be created by sale, lease, will, or trust
Future interests create problem of dead hand and hierarchy (contcentration of ownership in
the hands of some)
Central question; whether the future interest is enforceable, and, if so, whether the condition
triggering the future interest has been violated/has occurred?
I. Introduction to FEE SIMPLE INTERESTS
Categories of present freehold interests (everything besides fee simple absolute)
b. Interests held for life.
c. Interests held until the happening of some stated event (besides present owner‘s
death) = Defeasible fees. Distinctions within:
Whether future interest is in the grantor or in a 3rd party
Whether future interest becomes possessory automatically (when stated
event occurs) or only if future interest hold chooses to assert his
Courts only recognize a discreet number of specific interests in property. Types include:
Fee Simple Absolute—Ownership without an associated future interest; an
owner of a fee simple interest in real property has all of the rights we commonly
associate with a property owner: the right to possess and use the property, to sell
it or give it away, to devise it by will or leave it to his heirs. Gives you the largest
bundle of rights.
Conveyance of a fee simple interest can be through language such as:
―O to A,‖
―O to A and her heirs‖ or
―O to A in fee simple.‖
Hierarchy of heirs:
Principal heirs: issue/children
Collaterals: brothers, cousins, etc.
Escheat: if no heirs, property goes to state.
There is a strong presumption in favor of fee simple interests so if
language is unclear, most courts assume that the owner intended to
convey all of his interests in the property (a fee simple interest). Also,
there is a presumption against forfeitures, which means that if it is
possible to interpret the language to avoid loss of the property by the
current owner, the courts will generally adopt this interpretation.
For application, see Wood v. Board of County Commissioners
or Freemont County (p. 516): fee simple determinable or fee
simple subject to condition subsequent? Court ruled that absent
specific language in the conveyance specifying the grantor‘s
intent to create a condition subsequent, it presumed a fee simple
Eamon Lorincz Page 47/71
interest in land granted to Freemont County ―for the purpose of
constructing and maintaining thereon a County Hospital in
memorial to the gallant men of the Armed Forces…‖ Since this
language did not, according to the court, ―state the special
circumstances that could trigger expiration‖, it did not create a
fee simple determinable.
d. Future interest belongs to the grantor:
Automatic Transfer: Fee Simple Determinable—When the future interest
automatically reverts to the grantor on the happening of a stated event, the
present interest is called a fee simple determinable.
The future interest belonging to the conveyor and his heirs or
devisees is called a possibility of reverter.
Conveyance of a fee simple determinable interest can be through
language such as:
―O to A so long as…‖,
―O to A while used for…‖,
―O to A during…‖,
―O to A unless used for…‖
For application, see Wood v. Board of County Commissioners
of Freemont County (p. 516) where the court ruled that absent
specific language in the conveyance specifying the grantor‘s
intent to create a condition subsequent, it presumed a fee simple
interest in land granted to Freemont County ―for the purpose of
constructing and maintaining thereon a County Hospital in
memorial to the gallant men of the Armed Forces…‖ Since this
language did not, according to the court, ―state the special
circumstances that could trigger expiration‖, it did not create a
fee simple determinable.
Transfer upon grantor‘s assertion of property rights: Fee Simple Subject to a
Condition Subsequent—When the conveyor retains for himself and his heirs the
right to decide, at the time of condition is violated, whether or not to retake the
property, the present interest is called a fee simple subject to a condition
The future interest belonging to the conveyor and his heirs or
devisees is called a right of entry.
Conveyance of a fee simple subject to a condition subsequent can
be through language similar to that for a fee simple determinable,
except also specifying a ―right of entry.‖ (see p. 570).
O to A on condition… if not so used, O has right of entry.
O to A but if… O shall have right of entry.
O to A provided used for… if violated, O has right of entry.
Cathedral of the Incarnation v Garden City Company. P518
e. Note: traditionally possibility of reverter and rights of entry were not transferable. Now, though,
most states hold that future interests are alienable, devisable, and inheritable.
f. Note: statute of limitations for adverse possession:
in fee simple determinable, possibility of reverter kicks in automatically. Statute of
limitations starts running immedlatey.
In fee simple subject to condition subsequent, statute of limitation is triggered only
when a right is asserted.
BUT doctrine of laches to keep holder of right of entry from delaying too much; or just
treat FSSCS as FSD and start clock immediately
Eamon Lorincz Page 48/71
g. Future Interest belongs to a 3rd party
Automatic Transfer: Fee simple subject to executory limitation—When the
future interest in a defeasible fee (a present interest that terminates at the
happening of a specified event) belongs to someone other than the grantor, it is a
fee simply subject to executory limitation.
The future interest belonging to a third party is called an executory
This is functionally identical to a fee simple determinable except
the future interest goes to a third party. The language conveying the
interest is therefore also similar, such as
―O to A so long as….then to B.‖
II. Introduction to LIFE ESTATES
a. Difference between life estate & fee simple: owner of a fee simple can choose
who will own the property after her death by either writing a will or using state
intestacy statute. BUT a life estate owner has no right to determine who owns the
property on her death since ownership automatically shifts to either reversioner
or remainder holder.
b. Why create one?
Keep property in the family make sure property makes it to grandkids
even if parents have debts.
To avoid inheritance taxes.
For control: to control your spouse or children.
Life Estate—When conveyor grants a ownership rights to an individual for the
remainder of his life, while retaining the future interest for himself or a third
party after the individual‘s death, that is a life estate.
If the future interest is in a third party it is called a remainder.
There are two kinds of remainders:
Contingent remainders—Remainders are contingent if either of
two conditions are met: (1) if the remainder will take effect only
upon the happening of an event that is not certain to happen; or
(2) if the remainder will go to a person who cannot be
ascertained at the time of the initial conveyance.
―O to A for life, then to B if B has graduated from law
―O to A for life, then to the children of B‖ (contingent
remainder in B‘s kids if B doesn‘t have any kids at time
of conveyance from O to A)
―O to A for life, then to the heirs of B‖ (contingent if B
is alive at the time of conveyance from O to A)
Now generally held to be indestructible. Traditional rule was that
contingent remainder destroyed if they didn‘t vest before the
preceding life estate ended, or by merger.
Vested remainders—These are all remainders that are not
contingent remainders, ie remainders to people who are
identifiable at time of conveyance (and no conditions precdent).
Vested remainders can either be
absolutely vested remainders which are remainders not
subject to change,
Eamon Lorincz Page 49/71
vested remainders subject to open, remainder can be
divided among person who will be born in the future.
(1) O to A for life, then to the children of B
(vested if B has any living children at the time
of conveyance from O to A) – any children
born after can also share.
(2) Rule of convenience: cloes the class when A
dies. Children of B born after A dies lose out.
vested remainders subject to divestment, remainder
which may be destroyed by an event that occurs after the
original conveyance. Creates a vested remainder in B (bc
we know who he is and there are no conditions to him
getting the property) but it will get divested (he loses his
right) if condition is met.
(1) O to A for life, then to B, but if B has flunked
out of law school, the property shall then
revert to O.
Comparing contingent & vested:
O to A for life, then to B if she survives A, otherwise to
C. = contingent.
O to A for life, then to B, but if B does not survive A,
then to C. = vested remainder subject to divestment.
If the future interest is in the conveyor it is called a reversion.
The future interest cannot be vested in the heirs of the conveyor
under the doctrine of worthier title which is followed by most states
to avoid tax fraud. Therefore, most courts read ―O to A for life, then to
O‘s heirs‖ as ―O to A for life, then to O.‖
The future interest cannot be vested in the heirs of the life estate
holder under the Rule in Shelley’s Case. The rule converts ―O to A
for life, remainder to A‘s heirs‖ to ―O to A‖ and a fee simple interest.
Conveyance of a life estate can be through language such as ―O to A
for life‖ or ―O to A for life, then to B.‖
For application, see Edwards v. Bradley (p. 521) where the
court chooses to find that the testatrix intended to convey a life
estate and not a fee simple to her daughter, since she was afraid
of the land being encumbered by her daughter‘s debt.
Life estate for the life of another (life estate per autre vie): when
life estate owner A sells her property to a buyer B. B gets just what A
had: an estate for the life of A. When A dies, property shifts to
reversioner or remainder holder. B‘s interests is a life estate for the
life of another (life estate per autre vie).
Fee Tail—This is an estate the purpose of which is to keep property in a family
dynasty, that essentially creates a series of life estates in A, A‘s lineal
descendants, their descendants, etc. All are followed by either a reversion or a
remainder to take effect when the blood line runs out.
States deal with fee tail conveyances in different ways. Because of
its effect on marketability, it is only recognized in four states—
Delaware, Maine, Massachusetts, and Rhode Island. Some states have
interpreted the fee tail to be simply a fee simple absolute, while others
Eamon Lorincz Page 50/71
see it as a life estate in the present owner with a fee simple interest in
the owner‘s issue (p. 513).
Language creating a fee tail usually reads ―O to A and the heirs of his
Trusts—When a grantor (settlor) conveys property to a trustee to be managed for
the benefit of third parties it is a trust, and the third parties are beneficiaries. The
trustee has a fiduciary duty to act in the best interest of the beneficiaries; trustee
has power to sell, reinvest, etc.
Trusts can be created in forms corresponding to any of the legal
estates described above.
Trusts are created using language such as ―X in trust for A for life‖
II. RESTRICTIONS on estates/future interests:
c. Where ambiguous: look at intent of grantor, and presumption against forfeitures.
Presumption against forfeitures: They interpret ambiguous conveyances in a way that
presumes against forfeiture of property by a current owner. This presumption against
forfeiture means that if it is possible to interpret the language to avoid loss of the property by
the current owner, the courts will generally adopt this interpretation.
Fairness: to present owner (County in Wood v County)
Efficiency: gives security in property title by requiring clear language
Administrability: requiring clear language means people will make language
BUT maybe it reduces alienability because requiring such specificity means
party (Woods) less likely to deed in first place.
For application, see Cathedral of the Incarnation v. Garden City Co. (p. 518)
where the court held that a conveyance of a piece of property to the Catholic
Church to be used only for religious purposes was a fee simple subject to condition
subsequent. Because the future interest was a right of reentry, which was not
assignable at the time of its original conveyance from the grantor in 1893, the court
ruled that any later assignment of the right of reentry would be null and void.
Basically, the court was stretching to accommodate the interests of the current
owner—the Church—and promote the most efficient use of the land.
Intent: grantors wanted Cathedral.
But condition doesn‘t make sense now.
This is an attempt to do relative hardship for conveyances (via statutes)
Order of preference (see notes on Wood v County)
Fee simple subject to condition subsequent
Fee simple determinable.
They interpret conveyances to charitable organizations using the Cy Pres doctrine,
which allows courts—upon determining that a grantor has a general charitable intent—to
modify the trust to achieve that intent if the grantor‘s original particular charitable purpose
becomes impractical or impossible to achieve. This serves dual policy goals of: (1)
effectuating the grantor‘s intent given changed circumstances; and (2) promoting charitable
uses of property.
Rule against creation of new estates: They limit the ways owners can divide property
interests by imposing the rule against creation of new estates, essentially only allowing
Eamon Lorincz Page 51/71
conveyors to create an interest that fits into a previously defined category. Have to fit the
form of an established category.
If doesn‘t fit a category, it is precatory. See Wood v County Commissioners of
Johnson v Whiton – court held that a conveyance of property leaving a future
interest to the heirs of Whiton ―on her father‘s side‖ did not fit into a recognizable
category and therefore was considered a fee simple conveyance.
They regulate the substance of future interests by preventing owners from creating
future interests that work against public policy goals, such as alienability of property. The
most common regulatory tactics under this category are the rule against perpetuities and the
rule against unreasonable restraints on alienation.
Rule against perpetuities: allows you to control the property for 2 generations. It‘s
in a weird form, because 500 year old cases from England. Has been modified a
lot: Uniform statutory rule against perpetutities.
Rule against unreasonable restraint on alienation: Modern property law views
restraints on alienation as subject to a general reasonable test. This test has been
applied to many doctrinal areas, including:
Direct restraints on transfer—These are considered per se unreasonable if they
are total restraints on alienability of fee simple interests. Some courts will uphold
partial restraints on alienation of fee simple interests if they either (1) do not
unduly limit the ability to transfer the property (by being limited in duration, scope
or both) or (2) they have a legitimate purpose that justifies the limit on alienability.
The rule of ―reasonable restraints‖ does not, however, apply to charitable trusts.
For application to charitable trusts, see Horsepond Fish & Game Club v.
Cormier (p. 512) where the court held that since the Game Club‘s property
was created through a charitable trust, it was not subject to the rule of
reasonable restraints, and therefore the clause requiring 100 percent member
approval to sell the land was valid.
Servitudes requiring the consent of the grantor/developer to transfer the
property—Grantor consent clauses are usually found to fail the rule of reasonable
restraints and are therefore unenforceable.
For application, see Northwest Real Estate Co. v. Serio (p. 515) where the
court held that a restrictive covenant in a deed granted by the developer to a
homeowner containing a clause requiring the grantor‘s consent to transfer the
land for five years was ―repugnant to the fee.‖ Since the presumptive title
passed is a fee simple interest, and this restraint directly conflicted with the
nature of a fee simple interest, the court found it was void on its face.
For application, see Riste v. Eastern Washington Bible Camp (p. 517) where
the court held that under the Washington Statute, a covenant requiring the
current owner to acquire permission from the grantor before selling the
property was repugnant to the fee and void on its face. Additionally, the
court held that a restriction preventing transfer of the property to those who
did not conform to the religious beliefs of the Bible Camp to also be invalid
under Washington‘s antidiscrimination statutes.
Servitudes requiring consent of the condominium association to transfer the
property—There is generally more leniency towards this type of restriction, since
condo owners have shared property interests with all unit owners. However, courts
still require that the consent clause be reasonable.
For application, see Aquarian Foundation, Inc. v. Sholom House, Inc. (p.
519) where the court held that an assocation‘s consent clause coupled with a
Eamon Lorincz Page 52/71
reverter clause that required the association to pay the seller fair market value
for their unit in the event it is sold without the association‘s consent was not
a reasonable restriction on alienation. Since there was no structure to
guarantee that the association would pay the seller within a reasonable
amount of time, it was not the functional equivalent of the acceptable
preemptive right (also known as the ―right of first refusal‖).
Rights of First Refusal (preemptive rights)—Courts generally recognize rights of
first refusal, though some courts require that they must be exercised in a way that is
reasonably related to the association‘s legitimate interests.
For application, see Wolinsky v. Kadison (p. 521) where the court held that
condo associations exercising the right of first refusal must do so in (1) a way
reasonably related to the association‘s legitimate interests; and (2) in a fair
and non-discriminatory manner. Since in the instant case the condo
association was allegedly failing to meet either of these two requirements,
the plaintiff was entitled to a trial on the merits.
Leasing restrictions—Most courts will uphold restraints on leaseholds that
Restraints designed to keep housing affordable—Because of public policy goals,
courts have found restrictions on alienability of housing preserved for low- and
moderate-income families reasonable.
Interpretive rule prohibiting ―waste‖ of the present estate—Not covered in class.
Racially restrictive covenant: limits the sale, lease, or occupancy of real property to
members of a particular race or excludes memberes of a particular race or races.
Potentially invalid in a number of ways. Violate federal statutes including the Fair Housing
Act, and also likely are void on public policy grounds under the common law. Enforcement
of such covenants by the state is also a violation of the equal protection clause of the 14th
o Violation of the equal protection clause of the 14th amendment—Enforcement of
racially restrictive covenants by state actors (such as courts or legislators) are often in
violation of the Constitution.
For application, see Shelley v. Kraemer (p. 433) where the Supreme Court
ruled that by enforcing private agreements between landowners to restrict
certain races from their neighborhood would qualify as ―state action‖ under
the 14th amendment, and would deprive minority citizens of equal protection
under the law. Because the landowner was willingly selling his property to
the Shelleys, a black family, but for the action of the state, there would not
have been any discriminatory effects.
But consider whether the sellers are really that willing – they bound
themselves to the covenants, after all.
Bentham/positivism: property is created by the State. If parties can
do something by private agreement but can‘t get it enforced in court,
they don‘t really have the power to do it.
Like Sanborn, this is about residential suburban development & use
of conditions to create certain covenants.
Argument that it was an invalid covenant (notice, touch & concern)
Eamon Lorincz Page 53/71
Argument that it was unreasonable restriction on alienability (like
Changed circumstances and relative hardship arguments failed.
For application, see Evans v. Abney (p. 439). Supreme Court considered
whether land explicitly bequeathed to the city of Macon for a whites only
park by Senator Bacon (―to city of Macon, in trust for white citizens of
macon; access is limited to whites only.‖) could be operated exclusively for
whites if the city removed itself as a trustee of the park. The Supreme Court
ruled that it was okay because the person doing the discriminating was
Bacon, not a state entity and the state isn‘t all that involved (executing future
interest is a mechanical thing), so not within holding of Shelley.
o Can‘t fulfill Bacon‘s intent anymore. No reason to let his
o There‘s been so much state involvement that the park is
public in nature.
o Discriminatory treatment on part of the state, because the
State of Georgia allowed him to make this trust in the first
The Georgia Supreme Court then ruled that the trust had failed since
its sole purpose (creating a whites only park) had been frustrated by
the Supreme Court decision, and that the land had automatically
reverted to the heirs of Senator Bacon. The Supreme Court upheld
this ruling, and did not find that the court was required to apply cy
pres doctrine to promote equal protection of the laws.
Note: would be nice if this was a covenant bc could invalidate it for
changed cirucmstnaces and relative hardship, but it‘s not a covenant
because Bacon is not a gov‘t entity so can‘t enforce covenant in
Fair Housing Law
Sometimes the condition imposed in Future interests & covenants can violate public policy.
Fair Housing Act, p817
o §3604a: Unlawful to refuse to sell or rent, refuse to negotiate, or otherwise make
unavailable or deny
o §3604b: to discriminate in terms, conditions, or privileges re sale/rental
o §3604c: make, print, publish anything indicating preference.
Racially restrictive covenants would violate this.
o §3607: exemption for religious organizations and private clubs
o §3613: civil action
o §3613c: relief: actual/punitive damages, permanent/temporary injunction, temporary
restraining order, etc. aggriever person can file lawsuit in fed court.
o Responds to segregated neighborhoods problem
o Deals with housing & not all property because of Radin: FHA is focing housing to be
on the market.
General: makes illegal any restriction that prohibits the sale or lease of dwellings to, or
occupancy by, persons on the basis of race, color, religion, sex, familial status, or national
origin. It also prohibits discriminatory advertising, and has special regulations for disabled
Disparate impact/disparate treatment—Plaintiffs can allege either a discriminatory
treatment or a discriminatory impact and win under the FHA.
Eamon Lorincz Page 54/71
o in case of advertising ―SWF loking fo rrommate‖: this doesn‘t directly violate the
statute because it‘s about the person looking, but could argue disparate impact.
o Note: no 14th amendment claims for disparate impact; only for disparate treatment.
For application of burden shifting in the Fair Housing Act litigation, see Asbury v.
Brougham (p. 822): discrimination by housing provider. Disparate Treatment case. Court
ruled that Asbury (black plaintiff turned away from the estate) made out a prima facie case
containing four required elements: (1) she was a member of a racial minority; (2) there were
apartments available and she was qualified to rent them; (3) she was denied the opportunity to
rent or view the apartments; and (4) the rental opportunity remained available. Once Asbury
made out her prima facie case, the burden shifted to Brougham to give ―legitimate, non-
discriminatory reasons.‖ The court determined that since he did not prove any such
legitimate reasons (and since P showed the D had made lots of exceptions), the case correctly
went to a jury, which could have reasonably decided that Brougham‘s acts were
o Burden-shifting framework:
o To establish a prima facia case of disparate treatment:
(1) member of class rptoected by the statute,
(2) applied and was qualified
(4) apt remained available.
o After establishes prima facia case, the burden shifts to the D to show another reason /
independent, non-discriminatory reason.
o After that, P has to prove that those reasons are pre-textual
o Purpose of burden-shifting framework: bc the evidence the P would need to prove
discrimination is in the hands of the D.
For application of Fair Housing Act to racial quotas, see United States v. Starrett City
Associates (p. 826) about project in Brooklyn that was supposed to be integrated per quotas
to prevent white flight. Disparate impact & disparate treatment case. Court held that Title
VIII and its proposed goal of racial integration did not allow appellants to use rigid racial
quotas of indefinite duration to maintain a fixed level of integration at Starrett City by
restricting minority access to scarce and desirable rental accommodations. This was in
violation of the FHA. Though D says they are upholding Congressional intent of integration
with the quotas, only access quotas are OK – ceiling quotas aren‘t.
Civil Rights Act of 1866 (42 U.S.C. §1982)—This act restricts both states and private actors
from depriving minorities of he opportunity to buy or lease property. Almost all cases
brought under the FHA also allege a violation of §1982, but for a claim to be successful it
must allege more than a symbolic injury. Passed pursuant to 13th Amendment: ―all citizens
shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof
to inherit, purchase, lease, sell, hold, and convey real & personal property.‖
For application, see City of Memphis v. Greene (p. 836) where the court ruled that the
requirement that one public street rather than another be used to access certain mostly
minority neighborhoods in a city—essentially cutting off paths through a white neighborhood
to a black neighborhood—was not an impairment of any property interest protected by
Violation of the common law—This is probably true today, as racial restrictions would
likely be considered per se unreasonable restraints on alienation.
The rule against unreasonable restraints on marriage—Pretty instinctual, but see p. 631-636
for materials not covered in class.
Eamon Lorincz Page 55/71
III. Why do courts place restrictions on estates?
Arguments against restricting future interests are mostly about personal freedom.
Freedom of contract should be upheld.
Free disposition of property should be upheld.
Arguments in favor of restricting future interests are more varied. They include:
Restricting future interests allows owners to act like owners in a traditional
sense that people recognize.
Presumptions against forfeiture allow for more stability for property owners,
and provides more reasonable incentives for current owners to change land use as
the market dictates, not with regard to a restriction placed on the land by a now-
For application, see Cathedral of the Incarnation v. Garden City Co.
(p. 518) where the court held that a conveyance of a piece of property
to the Catholic Church to be used only for religious purposes was a fee
simple subject to condition subsequent. Because the future interest
was a right of reentry, which was not assignable at the time of its
original conveyance from the grantor in 1893, the court ruled that any
later assignment of the right of reentry would be null in void.
Basically, the court was stretching to accommodate the interests of the
current owner—the Church—and promote the most efficient use of the
Owners should not be allowed to restrict their land in certain ways, like
those that are discriminatory, extortive, or appalling to the senses.
Alienability of property allows for more efficient use of land, prevents the
creation of large family estates, and promotes equal access to property.
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VI. Landlord-Tenant Law
I. Introduction to Leasehold Estates
Tenancies are a divided interest in land, like a future interest is.
Tenancies are divided into two categories based on the type of tenant and the use of the
property. These are:
Commercial tenancies—These involve any nonresidential use, such as operation of
a business or a non-profit.
Courts generally adopt fewer common law rules regulating the terms of
commercial leases, on the rationale that commercial entities are more
sophisticated players with more bargaining power, and they can
bargain for terms.
Residential tenancies—These involve renting property for the purpose of
establishing a home.
Courts are more likely to adopt common law rules regulating the terms
of residential leases, both to protect consumers with little bargaining
power and to protect the public policy goal of providing people with
Tenancies are divided into four categories based on their terms. They are:
Term of years—A term of years lasts for a specified period of time (not
necessarily even a single year) determined by the parties, and then automatically
terminates. The future interest (if in the landlord) is called a reversion, and if in a
third party is called a (remainder). The death of either party will not terminate
the tenancy. Breach of material terms leads to eviction.
Periodic Tenancy—Periodic tenancies renew automatically at specified periods
unless either the landlord or the tenants chooses to end the lease. Month-to-
month. By statute and common law, reasonable notice is required before
termination of a periodic tenancy. Notice is required to terminate – many require
one month‘s notice.
Tenancy at will—The tenancy at will is similar to a periodic tenancy except that
it can be ended with no notice by either party. Many states, however, have
abolished these through statutes requiring notice before termination.
Tenancy at sufferance—A tenant rightfully in possession who wrongfully stays
after the leasehold has terminated is a tenant at sufferance or a holdover tenant.
The term distinguishes between tenants who unlawfully stay past their lease and
trespassers, because legal procedures for ejecting trespassers are different than
those for evicting holdover tenants.
Requirements imposed on leaseholds are both statutory and derived from the common
law. Though they vary from state to state, the following types of regulations exist
Tenancies of more than one year must be in writing in most states according
to their statute of frauds. Most oral leases of one year or less, including month-
to-month leases and tenancies at will, are enforceable.
Procedural regulations impose formal requirements for the creation and
termination of a tenancy, as well as the eviction of a tenant. These differ from
state to state.
Substantive regulations define the parties‘ obligations to one another. For
example, housing codes or common law doctrines specifying implied warranties
Eamon Lorincz Page 57/71
II. The Landlord’s Rights and Remedies
Three main rights are reserved by the landlord in a tenancy. They are:
The right to receive the agreed upon rent—This is the most common reason a
landlord brings suit against a tenant.
The right to have the premises intact and not damaged—The property is
subject to normal wear and tear.
The landlord’s reversion—This is the right to regain possession at the end of
the lease term.
If the tenant breaches, the landlord has multiple remedies (for full explanations, see p.
758). They are separated into two categories:
If the tenant refuses to leave, then the landlord can take the following courses
The landlord may sue for possession and back rent. The tenant can
then offer five defenses in a summary proceeding:
The rent has been paid
The lease is not up
Partial constructive eviction
Warranty of habitability claim
The landlord can accept rent from the tenant at sufferance, and
create what would in most states be a month-to-month periodic
In a minority of states, the landlord may use self-help to evict the
tenant peacefully (usually by changing the locks).
The landlord may initiate summary proceedings, during which
historically limit the defenses that can be raised in the expedited
Allows landlord to retake possession quickly & based on only 2
(1) that rent was past due
(2) that lease has expired & tenant remains
2 defenses for tenant:
(1) that rent has been paid
(2) that the expiration of the lease hasn‘t happened yet.
Other defenses have to be raised in separate proceedings.
Average length of summary proceeding still long: 110 days.
Now tenants are sometimes allowed to raise additional defenses
in summary proceedings.
The landlord may initiate a long and cumbersome ejectment action,
which is rarely used.
If the tenant leaves after breaching (breaches lease for a term of years by
ceasing rent payments & moves out before the end of the lease term), then the
landlord can take the following courses of action:
Accept the tenant’s surrender—Tenant has made an implied offer to
landlod to end term of years. If the landlord chooses to do this, he can
still sue for (1) back rent; and (2) damages under the contract, which is
the value of the agreed upon rental price for the remainder of the lease
minus the fair market value (plus incidental damages of finding a new
tenant). Landlord essentially gets expectation damages.
Eamon Lorincz Page 58/71
Re-let on the tenant’s account—The landlord may choose to not
accept the tenant‘s surrender (usually by telling him explicitly), and
instead find a new tenant and re-let it on the tenant‘s account. At the
end of the lease term, he can sue the previous tenant for the difference
in the agreed upon rent and the rent collected.
Landlord has to be careful not to look like he‘s accepting
surrender; has to show he‘s NOT accepting surrender.
Wait and sue for the back rent at the end of the lease term—
Traditional rule is that the landlord may do nothing, wait for end of
lease term, then sue tenant for remaining unpaid back rent. Most states
will not allow this, because they will find that the landlord has a duty
to mitigate damages. Some states still do allow this, however, but
more states are rejecting it all of the time.
For application, see Sommer v. Kridel (p. 663) where a tenant
realized he wouldn‘t be able to afford the apartment, and so 15
days into his two year lease, he sent the landlord a letter saying
―Please let me out. I‘ll forfeit my first month‘s rent and security
deposit.‖ The landlord did not reply to the letter, kept the
apartment vacant without trying to rent it for a year, and
eventually rented it one year later and sued for all of the back
rent. The court adopted the then minority rule that the landlord
had a duty to mitigate, to promote efficient use of property.
Rationale: efficiency. Burden on landlord is probably
small (this assumes there‘s a vigorous market for rent,
assumes that landlord can fill up his apartments easily.)
III. Landlord’s Duties
The Landlord’s Duties to the tenant include the following:
Landlord’s duty to deliver possession—Most states follow the modern rule that
landlords have a duty to deliver actual possession of the leased property at the
beginning of a lease. A minority of states still follow the traditional rule that the
landlord only is required to deliver a right to possession.
Landlord’s warranty of habitability—See discussion below.
IV. Tenant’s Rights and Remedies
Tenant’s Rights vary depending on the state and the terms of the lease. Some possible
Right to transfer the leasehold (right to assign or sublet)—This practice is
commonly referred to as ―subletting.‖
When the lease is silent on the subject, a tenant is allowed to sublet
(rationale: promote alienability).
When the lease requires the landlord‘s consent, however, the law is
unsettled as to whether consent can be withheld unreasonably. See
Kendall v Ernest Pestana, p683
Assignment: conveys ALL the tenant‘s remaining property interests
without retaining any future rights to enter the property.
Assignee is directly liable to landlord for covenants made by
original tenant to landlord because of privity of estate. Landlord
can also still sue the original tenant for unpaid rent if assignee
Eamon Lorincz Page 59/71
fails to pay rent (strict contract). Covenant to pay rent runs with
land, so assignee can also be sued for unpaid rent.
Sublease: tenant retains some future interest or the right to control the
property in the future.
Subtenant cannot be held directly liable to landlord because lease
covenants don‘t run with the land.
Unclear whether landlord can sue subtenant for injunction
ordering him to comply with covenant to pay rent.
For application to commercial leases, see Kendall v. Ernest Pestana,
Inc. (p. 683). Reasonableness requirement read into requirement of
consent. Court held that a clause in a lease requiring consent of the
landlord for the lessee to sublease did not allow the landlord to refuse
consent unreasonably in a commercial lease. Mere desire to reap more
profits was not found to be a reasonable justification for withholding
consent. The court ruled that if the commercial entities wanted to
place in the lease saying they can withhold consent to sublease
arbitrarily they are free to do so (can contract around this default if
they want to.)
Reasonableness: must be a commercially reasonable
justification. Desire to get more rent isn‘t commercially
For application to residential leases, see Slavin v. Rent Control
Board of Brookline (p. 688). No reasonableness requirement re
withholding of consent. Refused to extend the reasonableness
requirement on landlord‘s withholding consent to sublease to
residential leases. The court ruled that in a rent control district, where
there is no incentive to withhold permission to generate higher rents,
the landlord should be able to withhold consent without it being
Residential landlord would say needs more control over this
because residential tenant doesn‘t have as strong an incentive to
replace self with someone who will act the same.
Right to quiet enjoyment—This is implied in almost every residential lease
now. Implied duties:
Short-term furnished: habitable – bc tenant is assuming
more landlord diligence in this situation.
Disclose latent defects
Maintain common areas – bc no individual tenant has
incentive to do this.
Promise to repair: non-negligently, if has assumed an
obligation to repair something.
No fraudulent representations about the state of the
premises – LL can say nothing at all, but can‘t lie.
Abate nuisances of other tenants?
Constructive Eviction, Implied Warranty of Habitability, & Retaliatory Eviction
Tenant’s Remedies vary depending on what actions the landlord has taken. The
following landlord actions provide tenants legal remedies:
1). Constructive Eviction—If a landlord substantially interferes with the tenant‘s
right to quiet enjoyment of the property, a tenant can allege constructive conviction.
Eamon Lorincz Page 60/71
Premises have to be objectively uninhabitable, and tenant has to move out within a
reasonable amt of time. The defense of constructive eviction allows the tenant to stop
paying rent during the lease term, under a theory that if the landlord allows the
conditions to become uninhabitable, it is equivalent to physically evicting the tenant.
Purpose: guard against moral hazard problem (landlord has little
inceitve to be attentive to repairs, especially at the beginning of the
Traditional rule: lessee beware. All risk of lease shifted to tenant. No
warranty unless explicit. If landlord had done anything, tenants
couldn‘t withhold rent.
To get around traditional rule, Court said: if landlord violates any of
the 6 rights in the covenant to quiet enjoyment (see above) and it rises
to the level of constructive eviction (equivalent to changing the locks),
then tenant can move out and not pay rent.
If it doesn‘t rise to the level of constructive eviction, they can‘t
Besides #1-6, also imply a generalized duty to keep premises
habitable (beyond these special duties)
The limitation here is that it doesn‘t force the landlord to
actually fix the problem.
Traditionally, the tenant must usually move out to assert a claim of
constructive eviction because otherwise through his actions he is
asserting that the apartment is habitable and therefore fails the standard
of constructive eviction. However, tenants in some states can make out
a claim of partial constructive eviction.
For application of partial constructive eviction, see Minjak
Co. v. Randolph (p. 701) where the court ruled that even though
the tenant didn‘t move out of the loft entirely, because
substantial interference by the landlord with their right to quiet
enjoyment made a portion of the loft uninhabitable and of no use
to them, they were entitled to withhold the portion of rent that
would cover that portion of the apartment. Only portion was
uninhabitable, the rest was habitable.
Rationale for not requiring such a tenant to move out:
Scarcity of housing
Will help actually bring premise up to standard (fix the
If tenant moves out and loses, he‘s still liable for rent.
Landlords can be liable for interferences with the right of quiet
enjoyment created by other tenants in some states, depending on the
language of the lease and whether they were aware of the nuisance and
had control over it.
For application, see Blackett v. Olanoff (p. 703) where the
court held that because the landlord was aware of the loud nature
of the jazz club and its proximity to residential apartments he
rented out, and because he was able to control the behavior of
the jazz club, he was liable for its actions in a constructive
eviction action. Tenant can make a constructive eviction claim
based on other tenants‘ activity.
Eamon Lorincz Page 61/71
2 theories: (1) Landlord had right/duty to control over
tenants (see the lease), or (2) foreseeability: landlod
created the situation.
2). Violation of implied warranty of habitability—If a landlord has allowed an
apartment to fall below the standards of habitability—defined by both the common
law and city and state housing codes—the tenant has several remedies.This is not
waivable (bc of unequal bargaining power; tenant who waives will impose
externalities on everyone.)
Traditional rule: tenant obligated to pay even if landlod wasn‘t violating his
Now: there‘s a duty to repair and independent covenants are repudiated.
Better than constructive eviction because constructive eviction requires that
place be objectively uninhabitable.
See Javins v. First Nat‘l Realty Corp (p. 709), applying doctrine where
numerous (1,500) violations of housing code
o Rationale – urban tenants are interested in housing for occuptation,
not land (old rules were about agriculture)
o Can‘t repair land (not jack of all trades)
o Landlord sells housing as a business and has much greater
opportunity and incentive to make repairs (consumer protection
o If you are in violation of code at the time the lease is signed, it‘s an
illegal lease and tenant is entitled to rent abatement (Brown v
o inequality of baragaining power
o Standard was ―serious failure to comply‖ to state or local housing
o Note other courts look at ―general community standards‖
The tenant may sue for rescission—This is the right to move out of
the apartment before the lease ends without liability for rent. Since the
landlord has violated his contractual promises, the contract has been
breached, and the tenant is no longer bound by it.
The tenant may withhold rent—If the tenant prefers not to move out,
then he can choose not to do so and instead withhold rent. If the
landlord later sues for back rent, and the tenant raises a warranty of
habitability defense, the court will decide how much rent the tenant
was allowed to withhold. Some states require withheld rent to be paid
into escrow accounts, however, to avoid fraud, and for tenants to notify
landlords of the defects before withholding rent.
The tenant may sue the landlord for rent abatement whicwould
return to him any portions of rents already paid that the court
determines were not owed due to defects.
2 ways to calculate:
(1) fair market value (of habitable unit) minus fair market value
(2) actual rent minus fair market value
The tenant may make repairs and deduct the reasonable cost of the
repairs from their rent.
The tenant may get an injunction in some states, which require
landlords to bring housing up to code.
Eamon Lorincz Page 62/71
Administrative and criminal remedies are also available in some
3). Retaliatory Eviction—Protects against the problem of insecurity of month-to-
month tenancies (often not in writing). If the landlord attempts to evict a tenant
who asserts that the landlord has breached the implied warranty of habitability or
another valid claim about the tenancy, the tenant is protected in the common law
and by statute against this type of retaliatory eviction. How long a tenant may
stay before a landlord can evict him is regulated in most states by statute.
For application, see Hillview Associates v. Bloomquist (p. 726).
Presumption of retaliation & burden shifting. Court held that a
landlord‘s eviction of several tenants who were present at a particularly
heated meeting over the physical condition of the rented properties
were retaliatory. Because the landlord bears the ultimate burden of
proving that an eviction was not retaliatory (in order to protect tenants
in vulnerable positions), the court found that the landlord did not meet
that burden. Allowed tenant to have presumption of retaliatory eviction
in summary process.
Provides a burden-shifting framework. Why? Retaliation turns
on landlord‘s motive, and that evidence is in landlord‘s
possession, so it‘s a way of forcing him to give up the evidence.
For application, see Imperial Colliery Co. v. Fout (p. 730) where the
court ruled that eviction of Fouts based on his participation in a
workers‘ union that organized against a company linked to the
company leasing him his property did not fall under the retaliatory
eviction doctrine, because it did not retaliate for actions related to the
tenancy. The right exercised has to be ―incidental‖ to the tenancy.
Court is pushing back against hyper-protection of tenants.
Court says they have the expertise to decide if it‘s incidental
(opposite of Brandeis in INS v AP). Court says this is just
another small step and Congress can overrule it (bc it‘s not a
constitutional question) if Congress wants to.
For application, see Robinson v. Diamond Housing Corp. (p. 733)
where the court held that an eviction of a tenant who had asserted a
successful warranty of habitability claim in order for the landlord to
take an apartment off of the market was still a retaliatory eviction,
unless the landlord could show that it was financially impossible for
him to make repairs or goes out of business entirely. Landlord has to
have a legitimate business reason for evicting.
Summary of Landlord-Tenant:
Summary process statute & 2 traditional defenses: (1) rent paid, or (2) lease not up.
Tenant in substandard housing has 4 options:
(1) wait til lease ends & move out.
(2) move out now.
o Landlord has duty to mitigate damages in residential leases.
o Tenant might not owe much (see calculation on rent abatement?)
o Landlord can say:
(1) accept surrender lease is over expectation damages.
(2) re-let on tenants‘ account
(3) find someone else & assign/sublease.
Eamon Lorincz Page 63/71
o If lease is silent, can always assign/sublease.
o Lease may prohibit it
o If lease requires landlord‘s consent, trend is that of requiring commercially
But landlord and tenant can contract around this.
(4) stay and withhold rent/
o Tenant must have a reason for doing this:
o (1) illegal lease. Brown v Southall: illegal if in violation of code. If it‘s illegal, you
probably have a month-to-month lease so would owe 1 month and move out.
o (2) implied warranty of habitability.
Might be co-terminous with housing code violation.
If win, get rent abatement.
If lose, evicted and owe rent (all the rent you‘ve been withholding)
o (3) constructive eviction.
Move out in reasonable time.
(5) retaliatory eviction: afterwards if landlord tries to evict you, you can bring a retaliatory
eviction claim per Hillview.
o Might have presumption of retaliatory for certain period of time.
o Might not be incidental to your tenancy. Imperial Colliery.
Eamon Lorincz Page 64/71
Public Land Use Planning (i.e. Zoning)
Background: To accomplish same purposes, could employ nuisance doctrine or covenants.
HWR, covenants are technically tricky and nuisance doctrine is a standard, so don‘t know what
going to get. In both cases, high transaction costs. Also, zoning allows for bigger picture.
Use zoning: municipality divided into districts and kinds of uses regulated
o Tend to be pyramidal.
Area zoning: regulates size of lots, heights of buildings, requirements to set structures
Planned unit developments: municipality establishes overall density requirements and
works directly w/ developers of a particular area to construct rational scheme that mixes
uses in a desirable way.
Contract or Conditional Zoning: contractor negotiates w/ city for zoning change
o Challenged as (1) unauthorized by zoning enabling act (2) inconsistent w/
comprehensive plan (3) illegal preferential ―spot zoning‖
o Can be bilateral promises or unilateral commitment
Unilateral sometimes called ―conditional‖ and more likely to be upheld bc
no promise that might constitute bargaining away of police power
Variance: permit to develop parcel in a way that otherwise violates zoning ordinance.
Granted in cases of special hardship
Special exceptions: permits to develop in ways that are conditionally authorized (but part
of plan vs individually negotiated)
Min. floor area (struck down, then required by 1954 Fed. Housing Act for urban renewal
Min Lot Size
Min Set Back (generally upheld – reduce danger of fire, etc.)
+Mobile Home Bans
+Growth Controls (for urban sprawl)
+ = at cutting edge of zoning. Some recent cases have struck them down – e.g. mobile home ban,
case in 1990 that struck down. No one really knows what limits are in these areas.
In case of special hardship, can get a variance
Can appeal to courts or attempt to persuade municipality to amend zoning ordinance
Can argue takings.
o Prior nonconforming use may be ok if have (1) good faith and (2) substantial
o Can argue ‗vested rights‖ – right to realize investment-backed expectations in
property derived from ―substantial investment‖
Differ from prior nonconforming use bc not actually have usage yet.
Issues with Zoning
Eamon Lorincz Page 65/71
Zoning originated at about the same time as covenants and planning doctrine, as areas
became more developed. Zoning, which restricts owners‘ property rights, has been
justified through two different doctrines:
Police Power—Courts have long recognized the state‘s power to promote public
health and welfare by restricting private property rights (Mugler v. Kansas, p.
The Mugler court held that laws cannot constitute unconstitional
takings as long as
(1) they are intented, in good faith, to protect the public from
harm of any kind
(2) they do not amount to an actual taking of title or deprive the
owner of possessory rights
Nuisance—Common law nuisance doctrine also provides background limits on
the property rights than individual owners have in the first place, such as the lack
of a right to unreasonably disturb your neighbors quiet enjoyment of land.
This is a contentious issue – some on the Scotus
Zoning Regulations can be considered unconstitutional however if they deprive a
property owner of a recognized right, even if the intention is to promote public welfare.
Courts tend to grant communities broad discretion, however, in the creation of
comprehensive zoning regulations. Zoning ordinances can be valid generally, but
unconstitutional as applied to a particular lot.
Deprived of recognized right See Buchanan v. Warley (p. 916), striking
down zoning by racial segregation b/c it infringed on right to sell property
Compare with Euclid right to sell (to a certain group) held valid but
right to, say, use for commercial or industrial usage not?
For application, see Pennsylvania Coal v. Mahon (p. 1049), where the court first
held that a statute prohibiting a coal company from digging for coal underneath a
house it had contractual rights to dig under was an unconstitutional taking,
because no public nuisance was being prevented and no legitimate public interest
Part of court‘s reasoning is that the damage was not public
For application to comprehensive zoning regulations, see Village of Euclid v.
Amber Realty (p. 1051 and supp 2) where the court declined to find a taking even
though a zoning plan led to a 75 percent decrease in the market value of the
petitioner‘s land by prohibiting industrial uses. The court held that a legitimate
public interest was being served and the action was within the police power, and
therefore not an unconstitutional taking. The court held that, in a sense, zoning
was nuisance law made predictable by declaring in advance what uses would be
harmful, so it wasn‘t that new or outside of the realm of police power.
Criticism this might be true re: industrial uses but does it really
apply to an apartment building or townhouse? Some courts seem to
think so, but that‘s a stretch from the balancing test of nuisance.
**Note – may be easier to make out claim against plan
―as applied‖ rather than on its face…
For application of invalid as applied zoning ordinances, see Nectow v. City of
Cambridge (p. 1053) where the court held that ordinance that basically restricted
any building upon plaintiffs lots was unconstitutional as applied to him, though
the entire scheme was not unconstitutional.
More Issues with Exclusionary Zoning
Eamon Lorincz Page 66/71
Exclusionary zoning (zoning that excludes, directly or indirectly, a particular group)
presents unique constitutional and legal problems.
A substantive due process claim—They can argue that they have been deprived
of a fundamental right or liberty under the due process clause of the constitution.
If the zoning ordinance infringes on a fundamental right (the right
to vote, travel, speak freely, etc.), then there is a strict scrutiny
standard applied by the court, that pushes the burden onto the state to
show a ―compelling state interest‖ in the legislation‘s objective.
For application, see Moore v. City of East Cleveland (p. 1017)
where the court found that restrictions on the right of a family to
live together interfered with a fundamental right, and failed the
strict scrutiny standard because there was no compelling state
interest served by the restriction.
If the zoning ordinance does not infringe on a fundamental right
then the test for whether a plaintiff‘s substantive due process rights
have been violated is: ―Is there a rationale relationship to a permissible
state objective?‖ This is a very favorable standard for the state.
For application, see Village of Belle Terre v. Borras (p. 1011)
where the court held that the right of students to live together in
non-familial units was not a fundamental right, and therefore
applied the more-permissive ―rational relationship‖ test to a
zoning ordinance restricting the number of non-related persons
that could live in a single-family home. The court ruled that
under he more-permissive standard, there was a rational
relationship to the town‘s goal of decreasing population density.
Marshall Dissent – violated freedom of association and
constitutional right to privacy
For a conflicting application of a state constitution, see
Charter Township of Delta v. Dinolfo (p. 1015) where the
Michigan Supreme Court says that under its state constitution,
similar restrictions on unrelated persons living in a single-family
house did not meet the standard of the ―rationale relationship‖
test, because it was capricious, arbitrary, and not suited to further
the state objective.
2) A complaint under the Fair Housing Act—If a zoning ordinance prohibits
members of certain races from access to housing a certain area, it can be illegal
under the FHA based on a ―disparate impact‖ analysis even if there is no
constitutional claim due to no discriminatory intent.
For application, see Huntington Branch NAACP v. Town of
Huntington (p. 997) where the court held that Huntington‘s refusal to
rezone a site that developers wished to place low-income housing had a
substantial adverse impact on minorities and violated the FHA. It
denied the opportunity of acquiring housing in a mostly-white area to
low-income, mostly-black families.
Disparate impact claims explained (see above)
Prima facie case: facially neutral practice that either:
(1) statistical evidence demonstrating that affects one
racial group disproportionately
(2) tends to perpetuate segregation
Eamon Lorincz Page 67/71
Courts have used class as proxy for race. Huntington.
Disparate Impact available under FHA FHA: §3604(a) – ―or otherwise
make unavailable or deny…because of race‖
At least two readings: (a) what the statute is doing is prohibiting
segregation even though not saying so explicitly (b) statute
requires that housing be made available in all parts of town to all
3) An Equal Protection claim—To assert a successful equal protection claim, the
plaintiff bears the burden of showing that there was a discriminatory intent in the
zoning ordinance that led to exclusion, which can be very difficult.
i. For application to state law, see Southern Burlington County NAACP v.
Township of Mt. Laurel (supp 2) where the court ruled that Mt. Laurel‘s
zoning ordinances—which basically only allowed families of at least
middle income to move in—were illegal under state law, because the
town had an obligation to ―presumptively make realistically possible an
appropriate variety and choice of housing‖ regardless of its desire to
raise the tax base. This is still a minority rule, and really only applies in
N.J. For details on the subsequent legislation, see p. 1040.
Zoning Money Exam Checksheet
a. Read the ordinance closely. What exactly is/isn‘t permitted?
i. Also, is the standard very vauge? May be improper delegation of power
b. Does the zoning ordinance comport with the zoning enabling act?
Federal Due Process (Substantive) Police Power and Nuisance issues
Does the statute ―bear a rational relationship to a permissible state objective‖ health,
safety, welfare, and morals?
Does it prevent a nuisance?
If it doesn‘t could argue a strict interpretation of zoning power might point
towards knocking it down (but that isn‘t law today)
Exlusionary Zoning Issues
Types – caps on unrelated people. Zoning that limits affordable housing (minimum size,
type of lot, minimum front footage)
Q Does the zoning infringe on a fundamental right?
If no (i.e. discrimination against ppl who aren‘t from same family) does the zoning
ordinance bear rationale resemblance to a legitimate state objective?
*Note – Belle Terre indicated that ―family values‖ and ―seclusion‖ can be state
If yes (i.e. family values, inc. extended family) higher standard (but Gilberts says less
than strict scrutiny
Q Does the zoning violate the Equal Protection Clause?
Must show discriminatory intent – hard
Q Does the zoning violate the Fair Housing Act?
Many categories, but partciularly look at Handicapped and race
Can make out disparate impact claim
Q Are there substantive due process and (other) equal protection concerns? (i.e. Fair Share
Unique test, see Mount Laurel
Eamon Lorincz Page 68/71
Introduction to Takings SEE MONEY CHART ON P. 406
5th Amendment: ―nor shall private property be (1) taken for (2) public use, without (3) just
14th Amendment: ―nor shall any state deprive any person of life, liberty, or property, without due
process of law‖
First Is a taking permissible? When can the gov’t take property?
Eminent domain: state can take any property it wants if it is for a public purpose
(w/in police power) and pays just compensation. E.g. Johnson v. M’Intosh.
(Government grants all land, can take it back.)
o Public use
Narrow view public has right to use condemned property (i.e. park)
Wide view use must ―benefit the public
Sometimes not so clear whether something is a taking
o Police power
state has power to legislate private conduct if relevant to health, safety,
But when does regulation b/c some onerous it‘s a taking?
o Physical interference: title still with individual, but government has physically
intruded or totally deprived of use.
Same issue arises
Second When does a gov’t regulation cross a line and become a taking
Bounded by these concepts, question is about regulatory takings. So long as ―public use‖ test is
met, government entities are constitutionally empowered to take private property – just need to
provide compensation. When does a regulation constitute a taking?
Question about public use is when does a purported exercise of police power go too far
in infringing on private property rights w/o adequate public justification?
Like with zoning regulations, can challenge facially or ―as applied.‖
Facial challenge most likely to succeed when (a) impose permanent physical invasion
(b) completely extinguishes a core property right and maybe (c) if it does not
substantially advance legitimate state interests.
One Possibility ―Per Se‖ Issues (note – never really per se, there are always hoops you have
to jump through!)
Permanent physical invasion is a per se taking. Loretto.
o Factors to consider
Look to degree of permanence
Who owns (installation of cable box vs regulation of mailbox)
Private party owns cable box, owner owns mailbox
Does it look like traditional police power?
Open to public? Invitation? Power to exclude?
o But see, Pruneyard (free speech rights in shopping center)
Maybe its not ―permanent‖ b/c people only come and go temporarily?
However, could argue it‘s a ―permanent‖ taking of someone‘s
right to exclude
Eamon Lorincz Page 69/71
But we already permit that, see NJ changing its law, Public
Accomodations law, Marshall dissent (state can revise common
law of tresspass)
When did normal test, didn‘t overly interfere with exepctations
o But see, Yee v. City of Escondito
Rent control not a taking b/c landowner could pull house from market.
Seems fair, but couldn‘t Loretto do the same?
Denial of all economically viable use is a per se taking. Lucas.
If something state could have done under old CL nuisance, then not
If deprivation is for a limited time Tahoe
In Lucas, not ALL use violated!! Could still hike, fish, etc…
o Theory Could consider infringment on, say, 2% of coal as not extinguishing
one‘s right to mine coal. Or could say it was a 100% taking of those 27 million
tons of coal Keystone
Second Possibility The More Tricky Ad Hoc Test
o Expanded in Penn Central Balancing Test: unable to make any set formula; use
justice and fairness
Test Does fairness and justice require us to conclude that the public, rather
than a single owner, must bear burden of the exercise of state power OR
should this be properly treated as a burden of common citizenship.
o Factors SEE P. 970 of Singer for some money lists of factors
Extent to which it interfered with investment backed expectation
Difference between past reliance and loss of future exepcted $$$
matters (see Penn Central, also considered that Penn could sell air
rights or transfer them to other properties to build other buildings
where it normally counldnt)
Character of gov‘t action
i.e. Does this arise from some program designed to facilitate
distributive justice (adjust burdens and benefits of econokmic life to
promote the common good)
o Then that might showing importance of the gov‘t goal
o Whole property
o Diminution (not a taking)
o Vested rights (what have you already invested)
o Average reciprocity of advantage. PA Coal. If just
allocation of benefits/burdens more likely to be upheld – gov
can‘t pay for everything.
When must make unavoidable choice, not taking.
Is gov‘t legitamitely preventing owner from harming others or illegitimately
requing owner to contribute a benefit?
Some theory crap
Eamon Lorincz Page 70/71
People must have some right to rely on existing law
Legislature must have some power to change law to govern, and paying
everyone everytime the law is changed is too much!
o Utilitarian args
Cost of frustration v. Cost of administration
Takings Cases for Reference
Penn Central Transportation Co. v. City of New York: Landmarks Law restricting development
of Grand Central Station does not constitute takings even though diminution of property value.
Cannot divide parcel (e.g. airspace). No sole burden & does not interfere w/ expectations of Penn
Central. Also, mitigation of harm since provided for transfer of rights.
Pruneyard Shopping Center v. Robins: Free speech right forcing shopping center to admit
students not takings just because right to exclude taken away. Does not overly interfere with
expectations – no reason to think that will unreasonably impair value or use of property as
Dissent: property owner should not be made to support speech he disagrees with.
Yee v. City of Escondido: Rent control ordinance & statute limiting ability to terminate not a
taking. Government has not compelled physical invasion of property – voluntarily rented out
Loretto v. Teleprompter Manhattan CATV: law requiring landlords to permit cable TV companies
to install cables and equipment on their buildings is a permanent forced physical invasion and a
per se taking.
Kaiser Aetna: attempt to force owners of private lagoon to open to public a taking because
interfered w/ expectation that investment meant that could control access. Property only became
part of navigable waters due to investment.
Seawall Associates: Ordinance requiring owners of SRO properties to rehabilitate vacant units
and offer them for rent held to be a taking. (1) denied owners economically viable use of
property (2) did not substantially advance state interests (no proof that reduced homelessness).
Miller v. Schoene: Law forcing that trees with cedar rust must be cut down found not to be a
takings because harm would otherwise befall apple trees – whether or not state acts is a choice to
harm or benefit some party. Unavoidable choice made in pursuit of public policy cannot be a
may be broader than Lucas. Can regulate if necessary to prevent substantial public harm.
Lucas v. South Carolina Coastal Council: Beachfront management act renders value of two
residential lots valueless (according to the trial court). It is w/in police power to make this
regulation hwr, must pay. When regulation deprives all economically beneficial uses of land, is a
per se taking. Exception is that can still do anything that could have done under CL nuisance
(since owner know always subject to that).
Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency: Temporary moratoria
on development found not to be a taking. No physical occupation of land. Cannot claim
conceptual severance by time – must look at whole property geographically and temporally.
Once moratoria lifted, will have value again – different from Lucas which is permanent.
Note: was a facial challenge. Had asked court to declare per se rule on moratoria.
Third Possibility Exactions and Linkage
Another variation on the regulatory takings question. Here, however, because the state is creating
and redistributing property rights, fear is that the state will create requirements in order to give
them back – a special form of government extortion.
Eamon Lorincz Page 71/71
o Condition must be logically relatd to the specific public need or burden that the
owner‘s building creates or to which it contributes Essential nexus. Nollan.
o In addition to the nexus test, the conditions imposed must bear a ―rough
proporitionality‖ to the negative impact of the development of the property -
Rough proportionality. Extent and nature. Dolan.
More individualized assessment. (question of level of proof).
Issue – Impact Fees?
Note: Some cases have held that exactions in return for benefits (rather than established property
right) are not takings. Ruckelshaus v. Monsanto Co. How to draw the line?
Nollan v. California Coastal Commission: granting of permit application subject to condition that
public be allowed an easement to pass constitutes a taking. If just required an easement, clearly a
taking. Permanent physical occupation. Not clear what relationship was between legitimate
public purpose and the requested easement – no essential nexus. Could/should have used eminent
Dolan v. City of Tigard: Requirement that shopkeeper create bicycle path and dedicate floodplain
area in order to double store met essential nexus but not rough proportionality test for linkages.
Not clear that development will generate enough bicycles to require path or why need public
Dissent: judicial micromanagement of things that should be left to the legislature‘s
Dissent (Souter): burden should not be on government.
Ruckelshaus v. Monsanto: Federal law requiring that businesses applying for government
permission to use an insecticide disclose trade secrets to the government and consent to
government use and disclosure of trade secrets is not a takings bc is conferring a valuable
Dissent (Brennan): this is no different from Nollan. If anything, Monsanto has stronger
claim under Lockean theory of labor.
General Policy Issues to Consider (beginning of list)
o Distributive justice – giving everyone an equal chance
What‘s efficient? (Coasian terms – what policy will leave person who values entitlement
most with entitlement? Remember to consider transaction costs.)
Tension between formality and informality. (e.g., with Statute of Frauds)
Does this limit alienation of land too much? (balance desire for alienability with