Possession and the Initial Allocation of Property

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					Eamon Lorincz                                                                          Page 1/71

              I. Possession and the Initial Allocation of Property
   Introduction: Justificiations for allocating property Conflicting themes that run across
    our decisions:
        o Fairness/Justice—
                 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
                   incentivizing it.
                 Law should incentive socially useful conduct and disincentiveze socially
                   disuseful conduct (killing fox is useful in Pierson v Post)
        o Administrability—
                 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
Eamon Lorincz                                                                         Page 2/71

 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)
 Uniqueness

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
    (fair, administrable)

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]).
       o Rationales:
                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.
Eamon Lorincz                                                                             Page 4/71

   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 home
     Fungible: replacable
             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.
        o Court:
                  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
                         against trespassers.
                              1. Rationale
                                       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!
                    iii. Rationales:
                              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.
Eamon Lorincz                                                                            Page 6/71

                            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
                deliver it.
           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
                         wild deed.
Eamon Lorincz                                                                              Page 7/71

             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—
             a. Process
                       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
                           pop up
                     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
                 without notice.
                       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
Eamon Lorincz                                                                            Page 8/71

                          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
                     will win.
                 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
                                       for damages.
                 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
                    area do.
       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
Policy Rationales
        o Administrability: Apparent property lines become real property lines, so perception
             matches reality
                    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
                       intentional disposession)
        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

       Jural Opposites
Your ability to control Your responsibility to    Your ability to          If subject to state
conduct of others       others                    influence state          conduct influenced by
                                                  conduct                  others
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
          to republish.
      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
1. Elements
            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
                 privileged categories:
                       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
2. Remedies
            a. Damages
                       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
   there. Rationales:
   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
       visitors, etc…)
            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
           aren‘t disruptive.
       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
   meatpacking process
       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
           it rationally/reasonably)
                 But shouldn‘t be allowed to exclude arbitrarily because (patricia Williams):
                    dignity, association
       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
               allow exclusion.
            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.
            Affects whom?
                        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
                          terminate contracts
                        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 Analysis:
          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   Limitations
           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
               discriminatory animus
           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
Main Issue
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
           company-owned town.
                 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
           private property.
                 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
                        gov‘t owned:
                             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
Take-away Principles:
-functional test
-distributive justice

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
     public trust
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
                    of beachfront.‖
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.
                  Necessary resource?
                  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
         and enjoyment.
     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
                   iii. Pro-developer
                   iv. Fair: rewards investment & labor – all have same opportunity to put that
                        in (Locke)
                    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
           a. Theory
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
                      reciprocal harming.
                 iii. would say the Reasonable Use Rule‘s idea of cost-internalization is
         b. Critique
                   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
                               an outcome.
                           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
         c. Application
                   i. Doesn‘t like ―reasonableness‖ test
                           1. b/c leaves parties uncertain about their rights (risk raises
                               investment costs)
                           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
               bargaining fails.
                    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))
                                Radin value.
               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)

Applying Calabresi
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
                                public nuisance.
                            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.
                              4. Rationale:
                                       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.
                   iii. Damages?
                              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.
    Policy arguments:
          o Efficiency:
                   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.
          o Labor
          o Radin
          o Etc.
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.
 Affirmative servitudes—
        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
    three types:
        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
                      neighboring land
                  The right to prevent interference with the flow of an artificial stream such as
                      an aqueduct.
                  Modern Expansion
                           Conservation easements
                           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
            discriminatory reasons)
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
                              not adverse.
                          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
                              calls for.‖
                          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 –
                                     fighting friends).
        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
                   deprived party.
                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
                Not written
                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

Implied Easements
1. Introduction
           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
                        continuous way
                            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
                                benefited.‖ (Granite)
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
3. Necessity
           a. Elements
                    i. Grantor creates landlocked parcel
                   ii. Necessity
                            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
 Elements
       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   Open/Notorious
        o   Exclusivity not required
        o   Hostile
                  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
                      get easement.
       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

Express Easements
 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,
            solar, etc.
        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
                                        neighboring parcels
                                   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
         Continental Cablevision.
              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.
      o Apportionability
              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
                             televised competition.
         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
                         appurtenant easement.
                              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
                                 of road.
                                      o but didn‘t allow widening of the road – that was an
                                           undue burden.
                                      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
                                 undue burden.
                              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
                  statutory period.
      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
              Consider subdivisibility
      o In gross:
              Old rule: not assignable unless commercial.
              New rule: also assignable.
              Consider subdivisibility.
      o Apportionability / subdivisibility:
              Appurtenant are
              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.
 Terminated
      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
                     own land.
                      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
                         covenanting parties.
                             1. Parties need mutual privity (simultaneous interest in same parcel
                                 of land – lease or easement) or instantaneous privity (created
                                 when sold)
                                      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
                                        on notice)
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
                                         other‘s land.
                                         -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:
                        Homeowners associations
                        The government
       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.
 Advantages
       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
                  deeds, etc…
                        **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.
               Possibilities
               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
            good thing.
        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
            imply them.
        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.
      f. Abandoment—
                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.
     b. Estoppel
               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.
     c. Laches
               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
                  the covenant.
              ii. Unexcused delay in enforcing covenant led to investment in reliance on
                  failure to object to violation such that enforcement of covenant now would
                  be unconscionable.
     d. Acquiescence
               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.
     e. Abandonment
               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
                                   restrictive covenant.
                     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.
      h. Statutes:
              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
                          (suppring development)
                     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?
     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
                             property rights.
     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
                                 Ancestors: parents
                                 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.
            Justification:
                  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
                  Covenant
                  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
              prevent subletting.
           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.

Racial Restrictions
 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)
                             all failed.
Eamon Lorincz                                                                            Page 53/71

                            Argument that it was unreasonable restriction on alienability (like
                             Davidson) failed.
                         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.
                         Dissenters said:
                                  o Can‘t fulfill Bacon‘s intent anymore. No reason to let his
                                      intent control.
                                  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
    person. .
 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
                  (3) denied
                  (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.
       They include:
           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-
              deceased conveyor.
                      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.
Eamon Lorincz                                                                             Page 56/71

                                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
                of habitability.
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
               of action:
                       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
                              Retaliatory eviction
                       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
       rights include:
            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
                               withhold rent.
                           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
                          Southall Realty)
                      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
                               as is
                           (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
             reasonable purpose.
                   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.
                   Objectively uninhabitable,
                   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 Info

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
        back, etc.
    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)

Sample Regulations:
     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
     +Energy Conservation
     +Environmental Regs
     +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
                being served.
                        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) 
                             Burden shifting:
                                       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
                                 racial groups.
            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
Statutory issues
             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.
           o Exceptions
                      If something state could have done under old CL nuisance, then not
                      If deprivation is for a limited time Tahoe
           o Criticism
                      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
                Economic interests
                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
                        More considerations
                                 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.
       o Perspective
                Is gov‘t legitamitely preventing owner from harming others or illegitimately
                   requing owner to contribute a benefit?
 Some theory crap
       o Dillema
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
shopping center.
      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

Competing Theories
    First Theory
          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.
    More Stringent
          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
floodplain area.
     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
government benefit.
     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)
    What‘s fair?
          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.)
    What‘s administrable?
    Tension between formality and informality. (e.g., with Statute of Frauds)
    Does this limit alienation of land too much? (balance desire for alienability with
      grantor‘s intent)
    Distributive justice

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