PROPERTY OUTLINE final

PROPERTY OUTLINE 2023
TABLE OF CONTENTS
Introduction______________________________________________________________________4
II. TRESPASS: THE RIGHT TO EXCLUDE AND RIGHTS OF ACCESS_____________________________4
Public Policy Limits on the Right to Exclude__________________________________________________5
State v. Shack (N.J. 1971)_______________________________________________________________________5
Commonwealth v. Magadini (Mass. 2016)__________________________________________________________6
Uston v. Resorts International Hotel, Inc. (N.J. 1982) [Limit right to exclude (outlier)]__________________6
Trespass Remedies______________________________________________________________________7
Glavin v. Eckman (Mass. App. Ct. 2008) [DETERENCE BY PUNITIVE DMG]________________________7
Jacque v. Steenberg Homes, Inc. (Wis. 1997) [DETERENCE BY PUNITIVE DMG]___________________7
Public Accommodation Statutes___________________________________________________________8

Civil Rights Act of 1964_________________________________________________________________________8
Civil Rights Act of 1866_________________________________________________________________________8
State Public Accommodation Statutes_____________________________________________________________9
McClure Management, LLC v. Taylor (W. Va. 2020) [Discrimination in Public Accommodation]____________9
Lloyd Corp. Ltd. V. Tanner (SCOTUS 1972) [FREE SPEECH RIGHTS OF ACCESS]_________________________10
BEACH ACCESS AND PUBLIC TRUST________________________________________________________10

Matthews v. Bay Head Improvement Ass’n (NJ 1984). [Public trust form of limit on right to exclude]_________10
THE PROBLEM OF HOMELESSNESS________________________________________________________11

Martin v. City of Boise_________________________________________________________________________11
III. NUISANCE: Resolving Conflicts Between Free Use and Quiet Enjoyment__________________11
Nuisance Remedies____________________________________________________________________13
Dobbs v. Wiggins (Ill. 2010) [Injunction]____________________________________________13
Boomer v. Atlantic Cement Co. (NY.2d 1970) [Permanent damages]______________________________14
Johnson v. Paynesville Farmers (Minn. 2012)______________________________________________________14
LIGHT & AIR__________________________________________________________________________15

Fontainebleau Hotel Corp. v. Forty-Five (FL 1959) [No right to light/air]___________________________15
Prah v. Maretti (Wis. 1982) [No winner, but different legal doctrine]____________________________15
SURFACE WATER______________________________________________________________________15
Armstrong v. Francis Corp. (NJ 1956) [Shift to reasonable use test]______________________________16
SUPPORT RIGHTS______________________________________________________________________16
Noone v. Price (W. Va. 1982) [Lateral Support]____________________________________________17
Friendswood Development Co. v. Smith [Subjacent support rights]_____________________________17
IV. PRESCRIPTION________________________________________________________________17
Relativity of Title______________________________________________________________________17
Armory v. Delamirie (England 1722)_____________________________________________________________18
Wilcox v. Stroup (4th Cir. 2006) [Possession creates presumption]_________________________________18
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ADVERSE POSSESSION_____________________________________________________________19
ELEMENTS OF ADVERSE POSSESSION______________________________________________________19
Claim of title v. Color of title_____________________________________________________________19
Color of title -- having the appearance of a title that is valid when there is no title_________________19
Brown v. Gobble (W. Va. 1996) [Tacking Fence / Claim of Title]___________________________________20
Paine v. Sexton (Mass. Appeals Court 2015) [Land in natural state / color of title]__________________20
Nome 2000 v. Fagerstrom (AK 1990)_____________________________________________________________21
Hoffman v. Bob Law, Inc. [Relative Hardship Doctrine]_____________________________________21
Ward v. Ward (W. Va. 2016) [Betterment]_______________________________________________22
O’Keeffe v. Snyder (SC of NJ 1980) [Discovery rule in favor of P]_________________________________22
V. Servitudes____________________________________________________________________23
USE rather than POSSESSION_______________________________________________________23
Affirmative v. Negative Servitudes_______________________________________________________________25
Prescriptive Easements_________________________________________________________________25
Frech v. Piontkowski (Conn. SC. 2010) [Prescriptive easement of recreational water]________________26
Express Easements_____________________________________________________________________26
Creation by Express Agreement_________________________________________________________________27
Green v. Lupo [Motorcycle trailer park]___________________________________________________27
Cox v. Glenbrook (Nevada 1962) [Road widening]______________________________________________28
Implied Easements_____________________________________________________________________28
Definitions / elements of 4 easements_____________________________________________________29
What's the difference between express & implied easements?________________________________________30
Easement by Estoppel__________________________________________________________________30
Lobato v. Taylor______________________________________________________________________________30
Granite Properties Limited Partnership v. Manns____________________________________________________31
8 important circumstances from which the inference of intention [to create or reserve an easement] may be
drawn:_________________________________________________________________________________31
Finn v. Williams______________________________________________________________________________32
COVENANTS_____________________________________________________________________32
REAL COVENANT THEORY TRADITIONAL REQUIREMENTS______________________________________33
Equitable servitude requirements_________________________________________________________35
Cases________________________________________________________________________________36
Neponsit Property Owner’s Association v. Emigrant Industrial Savings Bank______________________________36
Davidson Brothers, Inc. v. D. Katz & Sons, Inc.______________________________________________________37
Nahrstedt v. Lakeside Village Condominium________________________________________________________37
Shelley v. Kraemer____________________________________________________________________________38
Modifying and Terminating Covenants_____________________________________________________39
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El Di, Inc. v. Town of Bethany Beach; Changed conditions / brownbagging case____________________________39
Present Estates and Future Interests_________________________________________________41

Fee Simple Estates_____________________________________________________________________41
Wood v. Board of County Commissioners of Freemont County_________________________________________44
Edwards v. Bradley – (VA, 1984) (Fee Simple v. Life Estate)____________________________________________45
McIntyre v. Scarbrough -- Waste_________________________________________________________________45
RULES AGAINST PERPETUITY________________________________________________________45

Four steps:______________________________________________________________________46
COMMON OWNERSHIP AND RESIDENTIAL PROPERTY___________________________________47
Sharing Rights and Responsibilities between Co-Owners_________________________________50
Cases________________________________________________________________________________51
Carr v. Deking_______________________________________________________________________________51
Tenhet v. Boswell____________________________________________________________________________51
Sawada v. Endo______________________________________________________________________________51
Landlord-Tenant Relations_________________________________________________________52
Conflicts About Occupancy and Rent______________________________________________________52
Landlord's Remedies When Tenant Fails to Pay Rent__________________________________________55
Sommer v. Kridel_____________________________________________________________________________56
Landlord Remedies_____________________________________________________________________56
Landlord Duties and Tenant Remedies_____________________________________________________57
Minjak Co. v. Randolph – Constructive eviction_____________________________________________________60
Javins v. First National Realty Corp.______________________________________________________________60
Property and Sovereignty__________________________________________________________61

Regulatory Takings_____________________________________________________________________61
Types of Takings_______________________________________________________________________62
Pennsylvania Coal Company v. Mahon____________________________________________________________63
Denominator test______________________________________________________________________64
Murr v. Wisconsin Within economic impact factor there is the 3 extra factors (overall analysis that will go into
Penn Central analysis). Use if multiple plots and need denom._____________________________________64
Ad hoc test___________________________________________________________________________64
Penn. Central Trans. Co. v. NYC__________________________________________________________________64
PER SE EXCEPTIONS_______________________________________________________________65
A. Physical occupation authorized by government____________________________________________65
Pruneyard Shopping Center v. Robbins. PRUNEYARD = PUBLIC = NO TAKING______________________________65
Cedar Point Nursery v. Hassid STRAWB. LABOR CASE. CITE IF PHYSICAL OCCUP.___________________________66
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B. Deprivation of economically viable use__________________________________________________67

Lucas v. SC Coastal Comm.PER SE – TOTAL DEPRIVATION OF ECONOMIC USE – beach front parcels___________67
Tahoe-Sierra USES LUCAS RULE, NEED 100% DEPRIVATION IN VALUE TO CONSTITUE A TAKING_______________67
Palazzolo v. Rhode Island BACKGROUND PRINCIPLE DEFENSE USED. LAW ON THE BOOKS BEFORE THE “TAKING”
HAPPENED.______________________________________________________________________________68
C. Deprivation of an individual specific property right (taking away a stick)_______________________68

Babbitt v. Youpee TAKING AWAY STICK (THE RIGHT TO ALIENATE)______________________________________68
Judicial Takings__________________________________________________________________69
Stop the Beach Renourishment__________________________________________________________________69
Exactions_______________________________________________________________________69
Nollan FOUNDATION FOR DOLAN. INTRODUCES ESSENTIAL NEXUS_____________________________________69
Dolan ESSENTIAL NEXUS + ROUGH PROPORTIONALITY TEST.__________________________________________70
Public Use_______________________________________________________________________70
Kelo v. City of New London_____________________________________________________________________70
Initial Acquisition_________________________________________________________________71
Sovereignty___________________________________________________________________________71
Johnson v. M’Intosh__________________________________________________________________________71
PROPERTY LAW
Introduction
 Title: Evidence of ownership of property. A recognition on part of the government that
you have a superior right to the property and the government will defend that right.
o Property rights give the individual power to call on the aid of the state to help
them exercise control.
 Bundle of sticks
o The right to use
o The right to exclude
o The right to sell/alienate
o The right to bequeath (leave in one's will)
o Immunity from damage
o Immunity from expropriation without compensation
II. TRESPASS: THE RIGHT TO EXCLUDE AND RIGHTS OF ACCESS

Trespass both defines and protects owner’s right to exclude
 Under common law: An unprivileged intentional entry on property possessed by another.
o May occur above or below the surface.
o Not limited to owners, must be in possession of the property.
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o Seen as one of the most important property rights, because none of your other
rights are worth much without it. (Would right to sell/use matter if you can’t
exclude?)
 INTENT REQ:
o Defendant must be engaged in a voluntary act. Not necessary that trespasser
intended to violate the owner’s legal rights. Someone being carried not voluntary.
 An entry is privileged, and thus not wrongful, if…
o The entry is done with the consent of the owner, or
o The entry is justified by the necessity to prevent a more serious harm to persons
or property, or
o The entry is otherwise encouraged by public policy.
 You must show damages when suing for civil trespass.
 REMEDIES
o Injunctions available where the trespass is continual in nature.
 Where someone is personally present on the land of another or where they
leave some object on the land. Could also be very repetitious.
 Rigid Rules vs. Flexible Standards (property law cycles back and forth)
o Rules: clarify who has power and control so they are better for certainty and
predictability, promote transactions due to increased clarification of who has the
power to sell; often bring unanticipated and substantial injustice
o Standards: create flexibility (like reasonableness doctrine); may lead to
transactions and court cases being more drawn out and costly due to being
unclear/uncertain/unpredictable.
Public Policy Limits on the Right to Exclude
State v. Shack (N.J. 1971) [Limit right to exclude]

 Applies NJ common law
 Tedesco permitted the migrant farm workers to stay on his land, so despite his interests in
his property, he is not entitled to refuse access to individuals seeking to aid those
workers.
 Two prior court cases mentioned by the defense
o Marsh v. Alabama (1946): free speech protected to a company-owned town which
was open to the public generally and indistinguishable from other towns
o Amalgamated Food Employees Union Local 590 v. Logan Valley (1968): 1st
Amendment right to picket peacefully in private-owned shopping center, found to
be equivalent to a business district in the company-owned town in Marsh
 Holding: The owner of real property does not bar access the right to gain access to
governmental assistance to those who are residents of the property. You cannot use your
rights as a property owner to control the destiny of those who live on your property.
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 Right to exclude is not simple or absolute (involves balance between public goals and the
owner's liberty to private property)
Commonwealth v. Magadini (Mass. 2016) [Necessity]

 Common law defense of necessity: exonerates one who commits a crime under the
'pressure of circumstances' if the harm that would have resulted from compliance with the
law exceeds the harm actually resulting from the defendant's violation of the law.
 A defendant who asserts the defense must show that:
1. a clear and imminent danger existed,
2. there was a reasonable expectation that the defendant’s criminal act would
abate the harm,
3. there were no legal alternatives available, (this case hinges heavily on this
prompt)
a. You don’t have to show that the defendant has exhausted ALL
conceivable alternatives. The alternatives must be able to present
themselves AT the time of the unlawful conduct. Must be likely to be
considered by a reasonable person in that moment would choose.
4. the state legislature has not prohibited the defense.
Uston v. Resorts International Hotel, Inc. (N.J. 1982) [Limit right to exclude (outlier)]
 Facts: Casino kicked out Uston because they thought he was cheating (wasn’t).
 When property owners open their premises to the general public in the pursuit of their
own property interests, they have no right to exclude people unreasonably . . . they have a
duty not to act in an arbitrary or discriminatory manner towards persons who come on
their premises.
o This duty applies not only to common carriers, innkeepers, owners of gasoline
service stations, or to private hospitals, but to all property owners who open their
premises to the public.
 Property owners have no legitimate interest in unreasonably excluding particular
members of the public when they open their premises for public use.
o "Unreasonableness" is objective (not subjective) because the ct. informs us
through common law and recognition of a community standard
o Common law principles allow for the barring of persons who are disorderly,
intoxicated, and repetitive petty offenders
 There is no indication that Uston has violated and Commission rule on the playing of
blackjack, so he possesses the usual rights of reasonable access
o Uston is an outlier, most modern courts have affirmed the rights of casino owners
to exclude others from their commercial property for any reason not specifically
prohibited by, for example, civil rights laws.
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Trespass Remedies
Glavin v. Eckman (Mass. App. Ct. 2008) [DETERENCE BY PUNITIVE DMG]

 Facts: Δ hired a company to cut down trees on π's property (Δ knew π wanted to
maintain his trees and was unable to pay him off prior to the chopping, π was out of town
when company came); trees had been cultivated for a decade and were set to provide
shade for a pond π planned to create (π had created similar ponds in the past)
 Rights are not worth much without remedies
 The trees represented a decade of growth, they had special value to π (not easy to
replicate and, therefore, not easy to replace)
o Market value is not a universal test because of sentimental value
o Δ would have been willing and uncaring to pay the market value
o Jury considered the π's lost emotional investment and awarded π $30,000 (which
judge trebled); appellate court upheld the trebling of the damage award because
punitive damages were deserved due to the bad faith of the Δ
 If someone is a willful trespasser, like the Glavins, they can be slapped w/ hefty punitive
damages and the damage calculation with the higher sum if applicable.
Jacque v. Steenberg Homes, Inc. (Wis. 1997) [DETERENCE BY PUNITIVE DMG]

 Facts: Δ delivered a home across π's land after π refused permission; trial ct. awarded $1
nominal damages and $100,000 punitive damages; appellate ct. set aside punitive
damages bc there were no compensatory damages.
 In order to efficiently deter bad-faith conduct, punitive damages must be in excess of
profit created by misconduct so Δ recognizes a loss
o WI Sup. Ct. overturned appellate ct.'s ruling and deemed $100,000 in punitive
damages to be allowable and not excessive
 Under ordinary circumstances, private property owners don't need a good reason to
withhold access (can be unreasonable) and can withhold access for any reason (if their
property isn't open to the public).
 Society has an interest in preserving the integrity of the legal system
o Landowners will be less inclined to resort to "self-help" remedies (keeps peace)
o Right is hollow if not enforced/protected
o The law recognizes that actual harm occurs in every trespass, whether or not
compensatory damages are awarded.
 The plaintiff's were in little danger of losing any of their property rights by letting the
defendant cross their land. Even though they're wrong about the law, they have the right
to exclude and don't need to have reasons to do so.
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Public Accommodation Statutes [Statutory limits on the right to exclude]
Civil Rights Act of 1964

 NO discrimination on the basis of: race, color, religion, national origin
o Does not cover: sex, age, disability, or sexual orientation
o All persons are entitled to the full and equal enjoyment of goods, services,
facilities, privileges, advantages, and accommodations of any place of "public
accommodation"
1. Place of public accommodation – if operations affect commerce or it is
supported by state action
a. Inns, motels, or other lodging establishments (unless it contains 5
rooms or less and the owner lives in the house as well… B&B doesn’t
count)
b. Restaurants, cafeterias, or other facilities principally involved in
"selling food for consumption on the premises" – including but not
limited to food sold on retail premises and gas stations
c. Theaters, concert halls, sports arenas – any place of entertainment even
if located in an inn with less than 5 rooms
2. Note – “place” does not need to be attached to a fixed parcel of real estate
(BOY SCOUTS case)
 Act does not create a private right of action – you cannot sue an establishment, have to
file a complaint with a governmental agency
 EXCEPTIONS to this Act
o Private establishments – provision does not apply to private clubs or
establishments not open to the public except to the extent that they are made
available to the public
o Courts look at two factors to determine "privateness"
1. Selective – if the org. is selective in who they accept
2. Limits – if there are limits to the number of members
3. Ex. A group limited to men, but has no other selection criteria and is unlimited in
size is likely to be held to be a public accommodation that is violating the law
rather than a selective private club.
Civil Rights Act of 1866

 Regulated race discrimination only
 Public – private distinction
o Thought of only to relate to state conduct, prohibiting for example state statutes
that deprived black citizens of the ability to enter binding contracts.
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o In 1968 & 1976 (100 years later), the SCOTUS held that this act applied to
private conduct as well as to state legislation. (Became much broader than
CRA1964).
 Equal Rights under the law – All persons within US shall have the same right in every
state to make and enforce contracts, to sue, be parties, give evidence, and to the full and
equal benefit of all laws.
 Make and Enforce Contract Defined – Includes making, performance, modification, and
termination of contracts, and the enjoyment of all benefits privileges, terms and
conditions of the contractual relationship.
o 42 USC 1982 – Property Rights of Citizens – All citizens shall enjoy the same
rights as white citizens to inherit, purchase, lease, sell, hold, and convey real and
personal property
 What is the relationship between having the right to make a contract and being provided
access?
o Without access (1964), you cant contract (1866).
o Think about being a guest at a hotel.
 You have to get INTO the hotel to be able to get into a contract to rent a
room.
State Public Accommodation Statutes

o Each state has its own public accommodations statutes
o When these are deemed to be ambiguous (no determinative language), look to
 Legislative history
 Circumstances surrounding the enactment
 The purpose that the statute is supposed to serve
o Supremacy clause -- federal public accommodations statutes trump any contrary state
accommodation law (although state law may extend further if it’s not inconsistent with
federal law).
McClure Management, LLC v. Taylor (W. Va. 2020) [Discrimination in Public Accommodation]
 Facts: Plaintiffs presented ample evidence from which the jury could have concluded that
they were denied long-term apartment rooms for a period of their stay on the basis of
their race.
 Plaintiffs were provided with "sleeper rooms" upon arrival and eventually did obtain the
apartment room, but this does not mean there’s no prima facie claim. The WVHRA has
plain language. The statute does not restrict unlawful discrimination practices to only
situations where there has been a complete withholding of accommodations.
 Rudeness is not legally sufficient to make out a violation of public accommodation
claims. In this case, the factual record is so expansive and the rudeness is part of the
larger story.
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Lloyd Corp. Ltd. V. Tanner (SCOTUS 1972) [FREE SPEECH RIGHTS OF ACCESS]
 Facts: Tanner distributed handbills about Vietnam War inside a privately owned mall.
 Holding: The owner of a private shopping center can constitutionally prevent individuals
from distributing handbills. The mall is not the functional equivalent of a municipal
building because its services are not so broad to simulate the function of a city
government. Since the mall is not a state actor, Lloyd is entitled to exclude handbillers
from its private property.
 1st & 14th amendment safeguard the rights of free speech and assembly by limitations on
state action, NOT on action by the owner of private property used non discriminatorily.
 Precedent cases of Marsh & Logan DO NOT apply here
o NO GOV FUNCTIONS: Lower courts used Marsh v. Alabama (company town
where the shopping district and town are accessible to and freely used by the
public and nothing to distinguish them from any other town/shopping center), but
the court says that in Marsh the owner of the company town was performing the
full spectrum of municipal powers and stood in the shoes of the state. In this case
of the mall, there is no comparable assumption or exercise of municipal functions
or power. ALSO, there was nowhere else for the Jehovah Witness in that case to
go. Limited to its facts because the entire town is owned by the company.
o HANDBILLS UNRELATED: Lower courts also used Amalgated Food v. Logan
Valley Plaza, which found that union members have the right to picket a store in a
privately owned shopping center. The goal of Logan is to be the center of the
community. Limited to its facts because really this case was allowing the speech
because it was directed towards the business itself.
 Property doesn’t lose its private character merely because the public is generally invited
to use it for designated purposes.
BEACH ACCESS AND PUBLIC TRUST
 The State (in a trust for the people) has ownership, dominion, and sovereignty over land
flowed by tidal waters, which extends to the mean high mark – extends to the municipally
owned sand beach that reaches vegetation line/sidewalk
 Gives the public the right to use and enjoy tidal areas → to be able to enjoy these areas
the public requires proper access to the tidal areas and the use of the dry sand area
 Uses under Public Trust Doctrine:
o Navigation, Recreational, Fishing, sandy beach land to the line of vegetation
Matthews v. Bay Head Improvement Ass’n (NJ 1984). [Public trust form of limit on right to exclude]
 Facts: Plaintiff wants access to beachfront. D acts as quasi-public body (cleans, polices,
etc.) that owns the sand for the beach. Only ass’n members were allowed to use portions
[sand] owned by D during the day in the summer. They only allowed Bay Head residents
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to be members. As a result, nonresidents were generally not allowed to use said portions
during the summer.
 Issue: Can D restrict its membership to Bay Head residents and thereby preclude public
use of the dry sand area?
 To have a recognizable recreational right to the water, you must also have a right to the
sand.
 Holding: The public trust doctrine extends to dry beach area above the foreshore owned
by a quasi-public entity. For public trust doctrine to really have meaning, it must extend
into privately owned property. Membership in the association must be open to the public
at large.
THE PROBLEM OF HOMELESSNESS

Martin v. City of Boise (9th Cir. 2019)
 Each plaintiff allege that they were cited by Boise police for violating one or both of two
city ordinances.
 City ordinance 1 makes it a misdemeanor to use any of the streets, sidewalks,
parks, or public places as a camping place at any time.
 City ordinance 2 bans occupying lodging or sleeping in any building, structure, or
public place, whether public or private without the permission of the owner.
 An ordinance violates the 8th amendment insofar as it imposes criminal sanctions against
homeless individuals for sleeping outdoors, on public property, when no alternative
shelter is available to them.
III. NUISANCE: Resolving Conflicts Between Free Use and Quiet Enjoyment
A substantial and unreasonable interference with the enjoyment of land
 Nuisance law protects owners and occupiers of land from intentional conduct from other
property owners that is unreasonable from the perspective of social utility and causes
substantial harm to the use and enjoyment of real property.
 Restatement of Torts: "It is an obvious truth that each individual in a community must put
up with a certain amount of annoyance, inconvenience and interference and must take a
certain amount of risk in order that may get on together."
 Typical nuisance cases involve activities that are offensive, physically, to the senses and
which by such offensiveness makes life uncomfortable such as noise, odor, smoke, dust,
or even flies.
 INTENT REQ:
o To call a nuisance "intentional" doesn’t mean that the actor intended to cause the
harm; it means that the actor began or continued the activity knowing that the
harm was occurring or was substantially certain to occur.
o Most nuisance cases focus on the impact of the conduct rather than defendant’s
subjective intentions.
 Differs from trespass
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o Trespass is a physical intrusion on your land and nuisance is a non-trespassory

interest where the way one person uses land harms the property interest of
another.
 Differs from negligence
o Negligence focuses more on the conduct and the motives behind the unreasonable
conduct; nuisance looks at the result of the conduct.
 Nuisance per se
o A nuisance per se is an activity that is so disfavored that it "of itself is a nuisance,
and hence is not permissible or excusable under any circumstance," regardless of
the reasonableness of the defendant's conduct and the degree of harm.
o An activity may be a nuisance per se either bc the legislature has expressly
declared it, or because it is so injurious that it is a nuisance "at all times and all
conditions".
o Ex. Toxic fumes
 Nuisances per accidens: "nuisances in fact". Depends on context; basically a right thing
in a wrong place.
 Public nuisances: An unreasonable interference with a right common to the public.
o The ROT provides that any member of the public affected by the activity should
be able to bring a lawsuit.
 Factors courts consider in finding nuisance
1. The extent of the harm.
2. The character of the harm.
3. The economic and social value of the conflicting activities.
4. The suitability of the activities for the location.
5. The ability of either party to avoid the conflict and the practicability and fairness
of making the party do so.
 How should the law adjudicate disputes like this?
a. Look at who was there first? Reward temporal priority.
i. Does it make sense for this rule to be applied always?
1. Problem w/this: If Nuisance Law said whoever is first gets the right of free
interference. Not good because they could freeze everything around them at a
particular state in development.
ii. Priority in time is something to take into account but not always.
b. Look at and compare economic value.
c. Look at hypersensitivity. Is the use normal/abnormal?
i. Courts vary in deciding if something is normal/abnormal. May even
declare something to be privileged based on how normal it is.
d. Look at how harmful the activity is.
e. Look at how many people are affected.
f. Look at the character and intent of the nuisance.
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g. Look at priority of location.

Nuisance Remedies
o 4 basic remedies: case dismissed, damages, injunctions, purchased injunction
 Ex. (Homeowner is P / Factory is D)
1. P suffers -100 units of harm / D produces positive utility of +200 units
 What kind of remedy would be the most likely?
 Society has a net positive of +100.
 In this case you would order the factory to make the homeowner
whole, through damages for the harm, and the activity will
proceed.
 Profits to the factory are considered a net social benefit to society,
just as harms to the homeowner would be harm to society.
2. P suffers -100 units of harm / D produces positive utility of +50 units
 What kind of remedy?
 Society has a net negative of -50.
 The likely remedy would be injunction.
P suffers 0 / D produces +200 units of benefit
 What kind of remedy?
 Society has net positive of +200
 Dismissal
P suffers -100 / D produces +50.
 Assume that defendant was there FIRST. (priority location) What kind of
remedy?
 Society has net negative of -50
 Purchased injunction from homeowner to get factory to enjoin.
P suffers -100 / D produces +200
 Assume if you award plaintiff damages, the defendant will go out of
business. What kind of remedy?
 Society has +100 net benefit
 Dismissal would be proper because defendant cannot pay the
plaintiff without going out of business. We would lose society's net
+100 benefit.
Dobbs v. Wiggins (Ill. 2010) [Injunction]
 Facts: D had a bunch of dogs that barked and neighbors sued, seeking an injunction on
the grounds that D’s barking dogs constituted a nuisance. P claimed that the noise
prevented them from enjoying their land (open windows, yard work, sitting outside,
hosting people, sleeping) as they had before D moved in.
 Although the land was an appropriate area for a dog kennel, the harmful impact on P was
greater than the usefulness of the kennels.
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 To maintain a claim for private nuisance, a plaintiff must prove that the alleged invasion
of the plaintiff’s right to use or enjoy his or her property is substantial, intentional or
negligent, and unreasonable.
 Holding: Barking from the dogs on D’s property constituted a private nuisance; however,
limiting number of dogs to 6 is arbitrary and effectively ends his business.
Boomer v. Atlantic Cement Co. (NY.2d 1970) [Permanent damages]

 Facts: P seeking injunction against D’s large cement plant. Alleging injury to property
from dirt, smoke, and vibration emanating from the plant.
 Two options:
o Postpone injunction until cement plant finds new tech to reduce pollution
 Too uncertain and unfair to penalize only D bc pollution is widespread.
o Condition the injunction upon paying permanent damages that compensate for
past/future harm.
 Court likes this choice because it compensates property owners, keeps the
plant open, and saves jobs.
 Because there is no way to produce cement without pollution, enjoining the nuisance
would close the plant. Denying the injunction would allow for never-ending lawsuits.
 This case got rid of the “one size fits all rule” in NY. Shift from always an injunction
when harm, to damages & considering net social utility by comparing harm to
homeowner and benefit to defendant.
 Permanent damages, rather than an injunction, are appropriate when the damages
resulting from a nuisance are significantly less than the economic benefit derived from
the party causing the harm. (DMG < BENEFIT)
Johnson v. Paynesville Farmers (Minn. 2012)

 Facts: D sprayed pesticides onto the adjacent fields and wind caused some of the
pesticides to drift onto the Johnsons’ fields. As a result of this, the Johnsons stopped
selling their soybeans and alfalfa as organic for three years, because they thought they
were in violation of organic regulation. P claims that D's actions have prevented them
from using their land as an organic farm. They were ordered to destroy 10 acres due to
the pesticide by an agent.
 When the land is invaded by an intangible object, the landowner doesn’t have to share
possession with someone or something else, it may impact the land owner's rights to use
and enjoy the land, but it doesn't interfere with possessory rights, therefore it isn't a
trespass. May be actionable as a nuisance.
 P didn't say that they couldn't use their land, but they couldn’t use it for organic farming.
Also they read the regulation wrong so it wasn’t D’s fault they couldn’t use it for organic
farming.
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 While the district court properly dismissed the nuisance claim pursuant to a federal
regulation, the court did not analyze whether there was a genuine issue of material fact as
to the nuisance claim notwithstanding the regulation.
LIGHT & AIR
Fontainebleau Hotel Corp. v. Forty-Five (FL 1959) [No right to light/air]

 Facts: Forty-Five sued, seeking to stop Fontainebleau from building the tower that would
interfere with the light and air on Fort-Five hotel.
 Doctrine of Ancient Lights is a historic English common law negative prescriptive
easement doctrine and basically means that if you have two adjoining landowners and
you've been receiving light/air across the other property over a certain period of time
without interruption, after a certain amount of time there are rights to it. (Courts don’t use
this anymore)
 Sic utere tuo ut alienum non laeda
o Use your property so as not to harm the property of someone else.
 ONLY MATTERS when the harm affects someone's legal rights.
 Holding: Where a structure serves the useful and beneficial purpose it does not give right
to damages under the Latin Maxum, even though it causes injury to someone else, and
even though otherwise interferes with a view. As long as it serves its useful and
beneficial purpose, though partly used out of spite, will be allowed.
 NO LEGAL RIGHT TO LIGHT / AIR IN MOST JURISDICTIONS
Prah v. Maretti (Wis. 1982) [No winner, but different legal doctrine]
 Facts: P built house with solar energy (first in subdivision). D bought the lot next to it
and started building a house. P advised D that if the house was built there, it would
adversely affect his solar system and cause damage. Couldn't come to agreement so D
built it where he wanted anyways.
 Prah court is saying these reasons for viewing a light case as nuisance:
o Values of sunlight has been rethought (solar panels)
o Society is not solely interested in development anymore, more global view of
what development should be.
o Private nuisance law is flexible enough to protect both a landowner’s interest in
access to sunlight and an adjoining landowner’s right to build on his property
 Holding: Private nuisance law is applicable to this case. Light and air disputes are shifted
from the Fontainebleau rule (no right to light and air) to the nuisance rule.
 This case does not overrule Fontainebleau case (different jurisdictions) and this case is
the minority rule, while Fontainebleau is the majority rule.
 Same set of disputes can be seen and analyzed under different rule regimes.
SURFACE WATER
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 Diffuse surface water is drainage water from rain, melting snow, and springs that runs
over the surface of the earth, but does not amount to a stream.
 Most property owners want to get rid of surface water but diverting it may damage
neighboring land.
 Traditional rules:
o The common enemy or common law rule allows property owners absolute
freedom to develop their property without liability for damage to neighbors
caused by increased runoff of surface water.
o The natural flow or civil law doctrine grants the injured property owner
absolute security against injury from flooding caused by a neighboring property
owner's alteration of the natural drainage of water from her property.
Armstrong v. Francis Corp. (NJ 1956) [Shift to reasonable use test]

 Facts: Defendant Francis drained excess water from his property which caused severe
injury to Plaintiff's property. When courts applied common-enemy rule or civil law rule
they imposed so many qualifiers and limitations, that the results were close to the
reasonable-use rule.
 Reasonable use test: requires the decision maker to determine case by case whether the
defendant's conduct caused unreasonable interference with the neighbor's use of land
o Determination involves a balancing of the social benefits from development of
defendant's property, the availability of cost effective means to avoid or mitigate
harm, and the gravity of the harm to plaintiff's property
o Factors (not exhaustive) –
a. amount of harm caused;
b. foreseeability of the harm;
c. purpose or motive with which the possessor acted
 POLICY ARGUMENTS for reasonableness test
1. Rights: Freedom of action v. security – weighing the freedom of action with the
security of the party affected to enjoy their rights
2. Social Utility: Competition v. secure investment – want to encourage the free
market economy but no one would invest if property rights were not secure
3. Predictability v. justice in the individual case – flexible standards are best suited to
provide justice in individual cases but they cannot be mechanically applied (rules
v. standards)
SUPPORT RIGHTS
 Lateral Support: When the supported and supporting lands are divided by a vertical
plane. The withdrawal of lateral support may subject the landowner withdrawing the
support to strict liability or to liability for negligence.
 Lateral and Subjacent Support easements (Now):
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i. When you buy land, it comes with easements about support rights
ii. These easements are incidental when purchasing real property
iii. Excavate own land- SL liable for any damage done to others
iv. Only required to support land in its “natural state”
Noone v. Price (W. Va. 1982) [Lateral Support]

 Facts: Noones (P) bought a house above Price (D) on hill; there was a wall on D’s
property- P’s house started to slip-blamed it on lack of wall repair – sue for damages for
failure to provide lateral support (D’s house was there first).
 If you remove the lateral support and substitute with artificial support (a wall), the
obligation continues to run with the land – future owners has to take care of the support.
o Even though Price did not build the wall, he inherited it along with its obligations
to Noone property.
 Neighbor who removes support must do it in a non-negligent way; don't have to make
sure neighbor's house remains standing but can’t interfere with natural lack of support.
 D had the obligation as a successor to maintain the wall to support the plaintiffs' land in
its natural condition, but not required to strengthen the wall to the extent that it would
provide support for the weight of plaintiff's buildings.
 Strict liability: Retaining wall on D's property was built before P house built, and all
parties were aware of condition of the wall. No allegation D did anything to cause the
collapse of wall, just failed to repair. If P can recover, they must do so by proving
disrepair would have caused the subsidence of their land in its natural condition. If it
was because of weight of P's house, then no recovery.
Friendswood Development Co. v. Smith [Subjacent support rights]

 Facts: Friendswood (D) pumped from wells & knew that area was a potential problem –
P told them it would cause sinking and loss of elevation above mean sea level of their
property. Court found Friendswood not liable for the subsidence of the landowners’ land.
 Prospective ruling: negligence theory to subsidence cases.
o If a landowner is negligent in his withdrawal of water from beneath his property,
he is liable for harm that is the proximate cause of that negligence.
IV. PRESCRIPTION
Relativity of Title
 Relativity of Title: An individual's title is not absolute but relative; it may be good
against one person, but not against another who has a better claim.
 Title: the union of all elements (as ownership, possession, and custody) constituting the
legal right to control and dispose of property; the legal link between a person who owns
property and the property itself.
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 Who is entitled to keep found property depends on whether the conflict is with the
original owner or possessor of the property, a subsequent possessor, or the owner of the
land on which the property is found, and on whether the property is considered lost,
mislaid, or abandoned.
o Property is lost when owner accidentally misplaced it.
 Finders will lose against original owners.
 May be subsequently abandoned if owner intends to give up any claim to
the property.
o Property is mislaid when the owner intentionally left it somewhere --and then
forgets where they put it
 Finders will lose against original owners
o Property is abandoned when the owner forms an intent to relinquish all rights in
the property.
 Finders will win against original owners.
 Finders Win or Lose?
o Item found on private property- owner wins if F. trespasses
o If personal property is founded embedded in the soil- landowner wins
 Strength of your claim must rest on your own title to the property, not the defect of
someone else's.
Armory v. Delamirie (England 1722)
 Facts: A boy found a jewel took it to the D’s shop. D removed the jewels and only
wanted to return the socket.
 Rule: a finder is allowed to keep the lost property against all but the right owner and may
maintain trover.
a. Trover: action for damages for wrongful interference with personal property
b. Justify rule: Helps to protect F against others and encourages them to put it to
use that benefits society, rather than hoard property.
Wilcox v. Stroup (4th Cir. 2006) [Possession creates presumption]

 Facts: Willcox (P) found some Civil War documents in his late stepmother’s home that
came from great-great Uncle. P tried to sell, but D obtained temp. restraining order.
o Court rests on the presumption that because the documents have been in
possession of Willcox’s family for 140 years, he is the rightful owner.
 Rule: Actual possession is, prima facie, evidence of a legal title in the possessor.
o Presumption of ownership protects the private interests of longtime possessors
and increases social utility. Possession may create a presumption that the
possessor has legal title that will continue unless rebutted.
o The state's burden may not be met by challenging the sufficiency of the
possessor's title but only by proving the superior strength of its claim.
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ADVERSE POSSESSION
A process through which a person who uses property for a statutorily determined
period of time becomes the owner of the property and defeats all rights of the
person with legal or record title.
 When one possesses another's land in a manner that is exclusive, visible, continuous,
and without the owner's permission for a period defined by state statue, this action
transfers title form the true owner to the adverse possessor. Adverse possession doctrine
transforms trespassers into to owners.
 Adverse possession cases are VERY fact specific. Pay attention to the details of
possession and HOW the land was possessed.
 CLEAR and CONVINCING evidence standard. Adverse possession is very serious
because it requires transfer of title.
ELEMENTS OF ADVERSE POSSESSION (varies state by state) AOE-CAS

I. Actual possession
a. Engaging in significant activities on the land, such as building on the land and/or
living or conducting business there. Also farming, clearing, planting, etc.
II. Open and notorious
a. Possessory acts must be sufficiently visible and obvious to put a reasonable owner
on notice that her property is being occupied by a non-owner.
b. Don't need to prove that true owner observed or knew about the use of the
property, rather the true owner is charged with seeing what reasonable inspection
would enclose.
III. Exclusive
a. The use is of a type that would be expected of a true owner of the land in question
and that the adverse claimant's possession cannot be shared with the true owner.
b. We demand this because it shows that it is not something communal. Acting as an
owner would by restricting access.
IV. Continuous
a. Tacking doctrine
V. Adverse or hostile
a. The use is nonpermissive. Hostile to the rights of property owner.
VI. For statutory period
a. Varies by state. Most states 10-20 years.
VII. Most states agree with this list. Some states have shorter statute of limitations depending
on whether possessor has acted under “color of title” or has paid property taxes.
Claim of title v. Color of title

Color of title -- having the appearance of a title that is valid when there is no title
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 Adverse possessor is founding their claim upon some written document that purports
claim to title but it is defective for some reason (could be defectively executed, or not all
co-owners have signed on to property sale).
 In many states, if you can show color of title, statutory limitations can be shortened;
rather than getting title only to area adversely possessed, you can sometimes get area
described in the deed under color of title (except to the extent that some portion of the
land described is actually occupied by the original title owner).
Claim of title – intent of a person to claim a property on which he has been living on
 What Adverse Possession is (hostility/adverse)
Brown v. Gobble (W. Va. 1996) [Tacking Fence / Claim of Title]

 Facts: ∆ purchased property 9 ½ years ago and within the boundaries of their fence was 2
ft. of land later found to be property of P’s lot. P’s knew for five years about their land
being on the other side of the fence and did nothing until this action. Gobbles was under
impression that it was their property.
 Tacking: the attachment of periods of adverse possession by different adverse possessors
in order to fulfill the requirement of continuous possession for the period proscribed by
the statute.
 Result: Court allowed tacking of previous owner’s possession for ∆’s to claim 10 year
statutory limit. Here, the previous landowners thought the land was theirs for 30 years.
The court found that the previous owners held land adversely, visibly, exclusively,
continuously, and under claim of right/claim of title.
Paine v. Sexton (Mass. Appeals Court 2015) [Land in natural state / color of title]
 Facts: Paines (P) ran a campground on parcel of land for 50+ years. P wanted to register
for title of the campground lands based on some deeds (which included references to
assessors’ maps of the town) and adverse possession, then Sexton (D) appeared and
claimed ownership because P never fully enclosed or cultivated the parcel.
 Land in a natural state, typically involves fully enclosing or cultivating the land, but no
strict rule requires this.
o P running campground for 50+ years, made improvements, advertisement, all
sufficient to put record owner on notice even if not fully enclosed entire parcel.
 Doctrine of Color of Title: someone who appears to have title to a parcel of land can take
ownership of the entire parcel, as described in the defective title, by adversely possessing
some part of it.
o Court found the descriptions in the deeds to P (map references) are sufficient to
establish valid color of title.
 Holding: Land in a natural state can be adversely possessed without being fully enclosed
or cultivated, provided that it is used or occupied in a way that puts the lawful owner on
notice.
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Nome 2000 v. Fagerstrom (AK 1990)

 Facts: Fagerstroms used a parcel of land owned by Nome 2000 for various purposes from
1944 to 1987 but did not build a cabin on it until 1978. Nome argued that property only
became adverse when cabin was built, and not exclusive b/c others could use the area.
 Rule: Whether a claimant's physical acts upon the land are sufficiently continuous,
notorious and exclusive does not necessarily depend on the existence of significant
improvements, substantial activity or absolute exclusivity.
 Elements of AP:
o Continuous: because the parcel is suitable only for seasonal use, which is how
they used it.
o Exclusive: even though they allowed others on the land because such actions are
consistent with a reasonably hospitable landowner.
o Adverse: they did not have permission from Nome 2000.
o Open & notorious: even though they gave no actual notice of possession, a
simple visit to the parcel by Nome 2000 would have been enough for the owner to
be put on notice.
 Holding: No adverse possession to southern; yes adverse possession to northern parcel.
o In terms of the southern parcel, the Fagerstroms’ use of the trails and picking up
trash are not sufficient to provide a reasonable owner notice of their possession of
the parcel because any visitor or passerby would use the land in the same way.
Hoffman v. Bob Law, Inc. [Relative Hardship Doctrine]

 Facts: Bob Law (D) had two plots of land, bunch of improvements were made on wrong
one. His contractor lived on one of the lots until he defaulted. Hoffman (P) entered into
agreement to purchase Lot 3 from the bank, he was in a rush and did not survey the land.
Day after P closed, D contacted him and told him there was encroachment on Lot 4. D
proposed to move the septic system for $150k and sell P an easement for the septic tank
for $25,000. P didn't immediately accept and D threatened to dig out septic system.
Hoffman obtained a temporary restraining order, followed by a preliminary injunction, to
prevent D from removing the septic system. D counterclaimed for trespassing &
injunction.
 Rule: A property owner does not have an absolute right to an injunction ordering the
removal of an encroachment.
 The dominant approach in the encroachment cases is to balance the relative hardships and
equities and to grant or deny the injunction as the balance may seem to indicate. Factors:
1. whether the party who would be enjoined is responsible for the damage,
2. whether irreparable harm would result without the injunction,
3. whether the party to be enjoined has acted in bad faith, and
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4. a balancing of the hardships and equities. (encourages the denial of an

injunction if the harm that would result to the trespassing party outweighs the
benefit to be gained by the party seeking the injunction.) (carries most weight in
encroachment cases)
 Holding: The costs that Hoffman would incur in removing the septic system outweigh
the harm caused to Law by the septic system’s presence in Lot 4. But lower court focueds
entirely on the septic system, as opposed to the other encroachments, so a complete
balancing of hardships and equities has not yet taken place.
Ward v. Ward (W. Va. 2016) [Betterment]

 Facts: Gary Ward and his wife, Susan Ward (D) built a cabin on a tract of land owned by
Gary’s mother, Judith Ward (P). Gary & Susan paid for the $50k homebuilding kit. P
consented and helped pay for it. After Gary died, P served D with a notice to vacate the
log cabin. Court found that she could vacate, but the cabin was an improvement and P
had to pay the $50k.
 Rule: An occupant who makes improvements to the property is entitled to compensation
if:
1. the occupant believed himself or herself to have an ownership interest at the time
the improvements were made or
2. the improvements were made under circumstances that would give rise to fraud if
the occupant were deprived of compensation.
 Holding: An evicted claimant of land may be entitled to compensation for permanent
improvements the claimant made to the owner’s property. Susan reasonably believed
herself to have an ownership interest in the property, and should be entitled to an award
equal to the amount of improvement, and the $50k may not reflect the actual value of the
cabin.
O’Keeffe v. Snyder (SC of NJ 1980) [Discovery rule in favor of P]

 Facts: In 1946, Georgia O’Keeffe (plaintiff) noticed that three of her paintings were
missing from a gallery, but she did not report the pieces stolen until 1972. In 1975,
O’Keeffe learned that her paintings were in a gallery in New York, and in March 1976
she brought suit in replevin against purchaser Barry Snyder (defendant). Snyder
impleaded Ulrich Frank, who sold him the paintings. D argued statute of limitations had
run.
 Under the discovery rule, a cause of action will not accrue until the injured party
discovers, or should have discovered, facts that form the basis of a cause of action.
o Shifts emphasis from conduct of possessor to conduct of the owner and puts focus
on whether owner has acted with due diligence in pursuing her property.
 The nature of personal property makes it difficult to determine what constitutes the open
and hostile possession necessary to establish adverse possession. Thus, the statute-of-
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limitations rule works better than the doctrine of adverse possession if personal property
is involved.
V. Servitudes
USE rather than POSSESSION
Difference between use & possessory rights: Use must be limited to be meaningful, possession
is unlimited. Use implicates a right to prevent interference only so far as the interference is with
use. It is not a right to exclusivity like possession is.
a. Terms
 Easement: Non-possessory property right to use or to prevent another from using
property
 Limited to a specific use (not general possession)
 Non-permissive use right
 This presumption is because the person claiming the right did not ask for
permission to start use
 Dominant estate owns the easement
 Servient estate has their land used for purpose of the dominant estate.
 Acquiescence (under the theory of lost grant):
i. Subjectively, true owner never brought trespass claim
ii. Owner knew about use and passively allowed it to continue
iii. Reasonable owner should've known about us
 Profit: Right to extract from land
 License: Right to use that can be revoked
 Right of Way: Right to cross neighboring property
b. In Gross v. Appurtenant Easements
 Easement in Gross: Doesn’t run with the land. Benefit is not tied to any particular
parcel and the land is not benefitted.
 Not in connection with ownership of the land
 No dominant estate involved (held by individual)
 Does not pass with the land, but continues to be in the individual
 Unless assignable, ends at the holder’s (grantee’s) death
 Easement Appurtenant: Runs with the land. Whoever owns the land benefits.
 Rights attached to the estate itself, passes along with title when sold – not
severable
 Apportionable – by subdividing and selling parcels of the dominant state,
transfers the easement with each parcel each resulting parcel becomes a
dominant estate and the owner enjoys the easement over the servient estate so
long as the several dominant estate owners do not overburden the servient
estate
c. Unreasonable Additional Burden
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 Degree or intensity of use may constitute an undue burden

 When grantor's intent is ambiguous, cts. must balance:
 Interests of the easement owner (freedom to develop property)
 Interests of the servient estate owner (security from having their property
overly burdened in ways they should not have to anticipate)
d. Divisibility and Apportionability
 The question of divisibility of "appurtenant easements" generally arises when the
owner of the dom. estate subdivides the property and attempts to transfer to new
owners rights to use the easement to obtain access to their property
 Most cts. hold that "the bens. of an app. easement move to each portion of the
dom. parcel upon its subdivision and transfer of the various pieces"
 Division is so common that it is foreseeable that division may occur
 With "easements in gross", the question of divisibility of the easement is referred to
as the issue of apportionability
 Restatement (Third) provides that easements in gross can be divided unless:
 This is contrary to the intent of the parties that created the easement, -OR-
 Unless the division unreasonably increases the burden on the servient estate
 When easement is "nonexclusive" ("both grantor and grantee can use it"), the
easement is generally held to be nonapportionable ("not divisible")
 When easement is "exclusive" ("only grantee can use it"), the easement is generally
held to be apportionable ("divisible")
e. Changing Location of an Easement
 Traditional rule prevents the owner of the servient estate from changing the location
of the easement (owner of servient estate must obtain consent from dominant estate
holder in order to relocate)
 ROT allows owner of the servient estate reasonable changes in the location or
dimensions of an easement, at his/her expense, to permit normal use/development of
servient estate, but only if the changes do not:
 Significantly lessen the utility of the easement
 Increase the burdens on the owner of the easement in its use and enjoyment
 Frustrate the purpose for which the easement was created
f. Extension of use
 Most jurisdictions prohibit an easement holder from using an easement to obtain
access from dominant estate to a subsequently acquired lot on the other side of the
dominant estate; this:
 Sets an outer limit on the potential increase in use of the easement brought
about by normal development or the dominant estate, and
 Avoids otherwise difficult litigation over the question whether increased use
unreasonably increases the burden on the servient estate.
Affirmative v. Negative Servitudes

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 Affirmative Easement – Right to do something on someone else’s property (right of

way to walk; sewers)
o May be acquired by prescription
 Negative Servitudes (aka “Covenants” or “Negative Easements”) – Right to prevent
someone else from using his/her own property in some way
o Light, air, lateral support, or flowing water
o Law is hostile to these because the title holder cannot be on notice until action is
taken (harder to protect oneself from)
Prescriptive Easements
Limited to a narrow use of another’s land rather than general possession
Elements of Prescriptive Easements

1. Actual Use
i. Physical presence on the servient estate
2. Open and notorious
i. Use must be so open & visible that the landowner will or should notice
3. Hostile use (adverse use) (Claim of right)
i. Use of another’s property without permission
ii. Entry by defective deed -> Claim of right/title
iii. Permissive use can become adverse if the claimant acts beyond scope of permitted
use.
4. Continuous and uninterrupted use
i. Does not mean that the claimant uses the easement ALL the time; only that the
claimant’s use is consistent with that of a reasonable easement holder’s use.
5. Exclusive use (in many states)
i. Not a major factor but lends to credibility of claim
6. For the statutory prescriptive period
i. Generally same period as adverse possession.
 Difference between prescriptive easements & adverse possession
o Prescriptive easements different from adverse possession because in PE: original
owner still has title, does not require exclusivity like in AP, original owners rights
are not diminished
o Many jurisdictions hold that general use of the public won’t give individuals
prescriptive easements.
o Acquiescence is not necessary for title by adverse possession.
o Many states require the prescriptive easement claimant to prove
acquiescence by the true owner; commonly said that part of acquiescence
is notice to the true owner, coupled with the true owner’s failure to object
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to the adverse use owner knew about the use and passively allowed it to
continue without formally granting permission
 Permission: open and notorious use is presumed adverse; shifts burden to the D to show
that it was permissive.
Frech v. Piontkowski (Conn. SC. 2010) [Prescriptive easement of recreational water]

 Facts: Plaintiff abutting landowners filed an action defendant reservoir owner, claiming
they had acquired a prescriptive easement over the reservoir for recreational purposes.
The reservoir owners filed a quiet title counterclaim. The trial court found in favor of the
landowners on their claim and the counterclaim. The reservoir owners appealed, claiming
that the trial court improperly concluded as a matter of law that the abutting landowners
could acquire a prescriptive easement for recreational purposes with respect to a
nonnavigable, artificial body of water.
 D's two arguments for why no easement found:
1. The easement would create unreasonable burden because it would force D to maintain
body of water up to a certain standard.
a. Court's response is that the idea of "unreasonable burden" is used in regards
to the scope of an easement, not as to whether an easement be acquired in the
first place.
2. The recreational uses are too sporadic/intermittent and therefore failed to provide
sufficient notice.
a. Court says defendants had plenty of notice
 Holding: An abutting landowner can acquire a prescriptive easement for recreational use
of an unnavigable (recreational), artificial body of water. The use was open, visible,
continuous and uninterrupted. D had notice. D failed to take sufficient action to interrupt
this use and prevent the prescriptive easement from taking legal affect.
Express Easements
 Easements are interests in land and thus generally subject to the statute of frauds.
 An express easement can be created by grant or reservation.
o An express easement by grant is created when the grantor executes and delivers
to the grantee and instrument conveying the easement over the servient land.
o Granted easement to the grantee
o An express easement by reservation is created when the grantor executes and
delivers a deed conveying the servient land to a grantee, but he retains an
easement over the servient land in himself.
o Reserved easement for the grantor
 Elements for express easements to run with the land
1. It is in writing
2. For the burden to run, there was notice to the servient estate holder of the
easement;
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a. Actual notice: Notice of fact, people knew it existed, were informed

b. Constructive notice : Created by law -- Deed conveying easement,
recorded in registry, reasonable person could've found out/should've know
c. Inquiry: reasonable inquiry of land would give notice.
3. It was intended to run with that estate.
 Distinguishing between "Easements", "Leases", and "Licenses":
o Leases: Possessory rights to use a defined space for all uses not
explicitly/implicitly prohibited in the lease
o Easements are non-possessory; they give the holder only the right to use
the land for limited purposes, and the right need not be for a defined space
o Licenses: Limited rights to enter or use land that do not run with the land and are
usually revocable at will by the grantor
o Typically licenses are revocable at will of servient. Like going to movies
or restaurant. Easements are not, they can last forever.
o The modern trend is to focus on whether the parties intended to create a
temporary or permanent right and whether other policy considerations
support or forbid formal creation of the easement.
Creation by Express Agreement

• Writing (Statute of Frauds)
 Statutes require easements to be enforceable (because they are interests in land)
 S.O.F. has been adopted in all 50 states
 Requirements to satisfy the S.O.F.:
 In writing
 Signed by grantor
 Sufficiently describe the easement and the grantee
 Some states also require the writing to state the consideration for transfer of the
easement
Green v. Lupo [Motorcycle trailer park]

 Facts:
 P sold part of their land to D but had cabin in the North of the land; requested a deed
release to a small section of the N tract to build home; P said cool- just asked for
easement – D said ok.
 P developed land as trailer park- caused tension – ppl used easement on D property
for motorcycle use
 Interpreting the intent of the grantor – appurtenant v. in gross
 Ambiguous language because it was granted personally to the
individuals but also "for ingress and egress for road and utilities
purposes"
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 Suggests that it was to benefit the land, not a person

 Supports the conclusion that it was supposed to run with the land
 In Washington, strong presumption for appurtenant easements if language is
ambiguous
 Issue: Whether parol evidence is admissible to construe an easement as personal to the

grantees where the easement is agreed in writing to be for in/egress for road and utilities
purposes but the writing does not expressly characterize the easement?
 Holding: Parol evidence (oral) is allowed when an easement deed is ambiguous. Courts
prefer appurtenant easements, and therefore read the “ingress and egress” language to
hold that the benefit runs with the land. Servient estates have the right to impose
reasonable restraints on a right of way to avoid a greater burden on the estate than was
originally intended.
 Result: Even when the dominant estate is subdivided, the appurtenant easement allows
rights for tenants of the subdivisions. Because the state of WA prefers appurtenant
easements, the ambiguous deed was read to hold the benefits run with the land.
 Policy Note: Courts prefer appurtenant easements because new property owners would
be more aware of the easements. The counter argument is that easements in gross are
hostile to encumbrance on property.
Cox v. Glenbrook (Nevada 1962) [Road widening]

 Facts: Quill sold to Johnson- Cox/Detrick who divided land to 40-60 parcels (residence
and greenhouse); Quill Easement is the only in/egress; Issue is that the golf course is
exclusive has been there a long time – likes quietness – but Cox needs to widen the road
to have 2 way traffic. Nothing in grant that shows that widening the road is permissible.
 Rule: When a right-of-way granted by easement appurtenant is conveyed to a new
easement holder, the use of the easement must be of the kind contemplated by the grantor
and must not constitute an unreasonable burden on the servient estate that was not
contemplated by the grantor.
 Holding: Easement is appurtenant so it can be subdivided and each owner will have
access, so not restricted to single family and its guests. Owner of dominant estate can
make improvements to the road but can't increase the scope. Per se subdivison does not
constitute a burden.
Implied Easements
Courts have recognized at least four ways in which easements may be created without being
described in writing complying with the Statute of Frauds.
Definitions / elements of 4 easements
 Easements by estoppel:
 Elements:
1. Permission from owner
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2. Foreseeable and reasonable reliance on continuation of permission

3. Changed position of claimant (usually with significant expenditures made in
reliance)
4. Finding an easement is necessary to prevent injustice
 Found in three different kinds of circumstances:
1. Noncompliance with the Statute of Frauds
 Easement intended but parties failed to comply with requisite formalities
2. Reasonable reliance on the continuation of consent
 Can be express or implicit
 Majority view
3. Fraud or misrepresentation
 Minority cts. only find E.B.E. in cases of fraud/misrepresentation
 Easements by prescription: Created through adverse and open use of the land
continuously until the expiration of the statute of limitations for trespass.
 Easements Implied by Prior Use: (a.k.a. Quasi-easements/Easements by

Implication)
 Permit use to continue after severance of one parcel into two if prior use was
"apparent" before severance and reasonably necessary for enjoyment of severed
estate
 Elements:
1. Two parcels were previously owned by common grantor
2. One parcel was previously used for benefit of the other parcel in manner
that was apparent and continuous
3. The use of the serv. parcel is reasonably necessary/convenient for
enjoyment of dom. Estate
 Reasonably necessary use: reasonably convenient to the use of land
benefitted
 Question is often whether use is sufficiently apparent & significant to
enjoyment of property that parties likely believed it was part of their
bargain
 Easements by necessity: May arise when an estate is severed and upon severance one
part of the estate becomes landlocked, requiring right of way over the other part of the
severed estate to access a public road.
 Some states enact statutes empowering owner of a landlocked parcel to obtain
easement over neighbor's land to access road by application to public official &
payment of compensation to burdened landowner
 Policy reason is to effectuate the intent of the properties.
 Thus, no easement of necessity will be recognized if it is clear that the
grantor intended to sell and the grantee knew they were buying a
landlocked parcel.
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What's the difference between express & implied easements?

 They can both be orally or written.
 Oral contracts just as valid as written ones.
 In implied agreements, there isn't an express intent. Court has to decide what their intent
is (presumed intent). Also arise based on courts social utility determinations. May find
an easement for best use of land, even if it wasn't agreed upon explicitly.
Is there a statute of fraud problems w/implied easements?

 If there's no writing, the conveyance is not recognized legally under statute of frauds.
 By definition, there is no problem. There is no writing that expressly governs the
finding of an easement to exist.
Easement by Estoppel
Lobato v. Taylor (Colorado SC 2002) (en banc)

 Facts: Land from 1844 Mexican land grant “Sangre de Cristo” was given to Beaubien
who then sold to Gilpin who then sold to Taylor; under Beaubien, in 1850s- he
established a system of “vara strips” that was allotted to families, and areas not open for
cultivation were available for common use (grazing, recreation, timber, firewood, fish,
and game)
 Although Taylor’s deed recognized the people- he denied them access
 Ps said they needed the land to survive and relied heavily on this
 Holding:
 Est Prescriptive Easement:
 A continuous use under intended but ineffective grant is adverse.
 Est Easement by Estoppel:
 Permission granted by Δ's predecessors for πs' predecessors to use land
for profit à prendre (to be used for firewood, timber for houses, fishing)
and for access (e.g. grazing, recreation, hunting)
 πs' predecessors had foreseeable reliance on continuation of permission
(it was their new home)
 πs' predecessors left their old home, (walking hundreds of miles) in
order to come to this land; on the reliance that the permission of use of
the easement
 It is unjust that Δ is denying access to land that πs and their predecessors
were promised and had used for >100 yrs
 Est. Easement from Prior Use: The court may imply an easement by estoppel if
the landowner induced users to rely to their detriment on continued access to the
land.
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 Land was originally under the common ownership ,

 Rights were exercised prior to the severance of the estate,
 Not temporary,
 Reasonably necessary to the enjoyment of the land,
 No contrary intention is expressed or implied
 Rights don’t extend to hunting, fishing, or recreation.
Granite Properties Limited Partnership v. Manns (Ill. 1987). [Elasticity of necessity req for implied easement]
 Facts: Case in which the P owned a property that had a grocery store and shopping
center on opposite sides of their piece of land. Sold middle part to Defendants. Granite
did not explicitly reserve the easement to con’t to use driveway. P’s needed to use
middle part to bring supplies into stores and for semi-trucks to turn around.
o Consequences for denying Granite access:
 Difficult for trucks to make deliveries – have to turn them away
 Could deliver to the front but would be very difficult $ expensive
i. Common ownership of the claimed dominant and servient parcels and
subsequent conveyance or separation  piece of land is split up
ii. Apparent and obvious, continuous, and permanent use of part of the united
parcel for the benefit of another parcel before it was split
iii. Easement is necessary and beneficial to the enjoyment of the parcel conveyed
or retained by the grantor
iv. NO existing requirement for necessity (very relaxed)
1. Necessary means "reasonably convenient"
2. Depends on context of the case
8 important circumstances from which the inference of intention [to create or reserve an
easement] may be drawn:
1. Whether claimant is conveyer or conveyee
2. Terms of conveyance
3. Consideration given for it
4. Whether the claim is made against a simultaneous conveyee
5. Extent of necessity of the easement to the claimant
6. Whether reciprocal benefits result to the conveyance and conveyee
7. The manner in which the land was used prior to its conveyance
8. The extent to which the manner of prior use was or might have been known to the parties.
Finn v. Williams (Ill. 1941)

 Facts: Defendant gave portion of land to someone who then sold it to Plaintiffs. Private
road through strangers land was closed so only route to public road was through D’s
property. P and D’s property was at one time a single piece of land.
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 Holding: Where an owner of land conveys a parcel thereof which has no outlet to a
highway except over the remaining lands of the grantor or over the land of strangers, a
way by necessity exists over the remaining lands of the grantor
 An easement by necessity may lie dormant through transfers of the benefitted
land but it passes with each transfer and may be exercised at any time.
 Notes:
 In order to get an easement by necessity, you HAVE to show that it is necessary at time of
conveyance. If subsequent circumstances change, you can't claim an easement by necessity.
 Courts have been relaxing necessity requirement. Ex. If its very expensive to use another
route and not completely landlocked, courts might find necessity of use.
 Joint ownership extinguishes easements in general. In this case, if that were the case, then
there would be no dormant easement.
COVENANTS
A promise by one person to do something or to refrain from doing something by which promise
the conventee may enforce against the conventor.
 General problem of real covenants and equitable servitudes:
o What happens when these promises involve things that you are refrain from doing
on land and then the land is sold.
o Contract law will govern the relationships between the parties to the promise.
 Covenants benefit land and burden land. When you analyze a problem of real covenants,
you must look at whether the burden and/or benefit runs.
o More stringent requirements for burden to run (for a promise they haven’t made)
o We want to protect the burdened party more.
 Historical background
 England had two courts (law & equity). Law courts gave harsher rules and equity
operated as corrective to law and had more flexible decisions. Law courts and equity
courts merged after 19th century.
 Real covenants emerge in the law courts.
 Equitable servitudes emerge in the equity courts.
I. Types of covenants
a. Affirmative covenants – binds the covenantee or holder of the estate to do some
affirmative act
b. Negative covenants – prohibits the holder of the servient tenement from doing something
with respect to the land
c. Covenants held in gross – technically just a contract; not enforceable once the grantee
sells the benefited parcel
REAL COVENANT THEORY TRADITIONAL REQUIREMENTS

Both burden and benefit must run for parties to be bound by original covenant.
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Real covenants run with the land at law, which means that subsequent owners of the land may
enforce or be burdened by the covenant. To run with the land, however, the benefit and burden of
the covenant must be analyzed separately to determine whether they meet the requirements for
running.
a. Does the burden run? (so that the promisor's assignee is bound)
If all requirements are met for the burden to run, the successor in interest to the burdened
estate will be bound by the arrangement entered into by her predecessor as effectively as if
she had herself expressly agreed to be bound.
i. Form of the covenant
i. Covenant in writing and enforceable between original parties
ii. Most real covenants are in writing usually in a lease or deed, usually not a
problem.
ii. Intent that the burden run
i. can be ascertained by dead. “Heirs and assigns” language, as well as words “run
with land” or “appurtenant” signal the intent is to run with the land
ii. Back then, courts would look for specific magic language.
iii. Now courts are less formulistic. If covenant benefits and burdens land, courts
will say it is presumptively intended to run. If appurtenant then intended, in
gross then not intended (hostility to in gross covenants). You can have cases
where benefit is intended to run and the burden is not / vice versa.
iii. Touch and concern/reasonableness
i. An obligation touches and concerns the burdened land if it relates to the use of
the land and the obligation is intended to benefit current and future owners of
the dominant estate.
ii. Assume a covenant requires renter to hang a portrait of the landlord. This would
not touch and concern the land.
iii. Modern interpretation: does it make the land more or less valuable?
iv. Horizontal Privity: horizontal privity requires that, at the time the promisor entered
into the covenant with the promisee, the two shared some interest in the land
independent of the covenant.
i. Mutual Privity – When two owners have a mutual overlapping interest in the
same parcel of land (e.g. landlord-tenant)
1. Mutual privity is missing when one owners sells land to another and
the grantor retains no interest in the land being sold
ii. Instantaneous Privity – A covenant intended to burden one parcel for the
benefit of another can become attached to both parcels if it is created at the
moment the owner of one parcel sells the other parcel. More common today.
1. IF covenant contained in a deed of sale, lease, or mortgage.
2. Does not include agreement between neighbors that are not part of
a simultaneous conveyance of another property right.
3. Does not include agreements between grantors and grantees that
are not made at the same time as the conveyance of the property
interest burdened by the covenant.
v. Strict vertical privity: To be bound, the successor in interest to the covenanting party
must hold the entire durational interest held by the covenantor at the time she made the
covenant.
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i. Entire interest has to transfer (A-C-E)

ii. Strict vertical privity between a predecessor and successor is found only if the
predecessor retains no interest in the land. A landlord-tenant relationship fails
this test, because the landlord retains an interest when he or she leases to a
tenant.
vi. Notice
i. Actual/inquiry/constructive
b. Does the benefit run? If all requirements for the benefit to run are met, the successor in
interest to the promisee will be allowed to enjoy the benefit (i.e., enforce the covenant).
i. Form of the covenant
ii. Intent that the benefit run
a. The covenanting parties must have intended that the successors in interest
to the covenantee be able to enforce the covenant. Surrounding evidence
of intent, as well as language in the instrument of conveyance, is
admissible.
iii. Touch and concern
a. For the benefit of a covenant to touch and concern the land, the promised
performance must benefit the covenantee and her successors in their use
and enjoyment of the benefited land.
iv. Relaxed vertical privity
a. The benefit of a covenant runs to the assignees of the original estate or of
any lesser estate (e.g., a life estate). The owner of any succeeding
possessory estate can enforce the benefit at law. In the majority of states
today, horizontal privity is not required for the benefit to run. As a
consequence, if horizontal privity is missing, the benefit may run to the
successor in interest to the covenantee even though the burden is not
enforceable against the successor in interest of the covenantor.
Covenant example:
Promise is to only have single family residential home use
A promises B / B promises A
A sells to C / B sells to D
 C wants to build an apartment building on the property, in violation of the promise. Can
D sue for damages?
 Look at does benefit and burden run?
 Burden:
 Yes writing
 Yes intent
 Yes touch and concerns the land
 NO Horizontal privity
o Neither mutual nor instantaneous privity.
 Why not mutual: not overlapping
 Why not instantaneous: neighbors already own their land.
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Equitable servitude requirements

An equitable servitude is a covenant that, regardless of whether it runs with the land at law,
equity will enforce against the successors of the burdened land unless the successor is a bona fide
purchaser (meaning, a subsequent purchaser for value without notice of the covenant).
I. Requirements for Burden to run for Equitable Servitudes
i. Form of covenant
i. Satisfies the statute of frauds
ii. Intent that the burden run
i. The covenanting parties must have intended that the servitude be
enforceable by and against assignees. No technical words are required to
express this intent. In fact, the intent may be ascertained from the purpose
of the covenant and the surrounding circumstances.
iii. Touch and Concern
iv. Notice - Must have notice that they are buying a burdened property.
i. Notice replaces vertical privity.
 Can be actual, inquiry, or constructive
II. Requirements for Benefit to run for Equitable Servitudes
i. Form of covenant
ii. Intent that the benefit run
iii. Touch and Concern
Which Theory to Use:
[Horizontal Privity (not for injunction)]
↓
Promisor------------------------------------------Promisee
(burdened) (benefitted)
| |
| Writing Writing |
| Intent Intent |
| Touch & Concern Touch & Concern |
| Notice |
| |
| ← [Vertical Privity (not for injunction)] → |
↓ ↓
Successor Successor
(burdened) (benefitted)
Real Covenants Equitable Servitudes Restatement (Third)

(Damages) (Injunctive/Declaratory
Relief)
1. Writing complying with 1. Writing complying with the 1. Writing complying with the
the Statute of Frauds Statute of Frauds Statute of Frauds
2. Intent to run (presumed 2. Intent to run (presumed 2. Intent to run (presumed

appurtenant) appurtenant) appurtenant)
3. Privity, including both: 3. Actual, inquiry, or constructive 3. Actual, inquiry, or
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* Horizontal privity: notice to owner of serv. estate; constructive notice to owner

Covenant was created enforcer must be intended of serv. estate; enforcer must
during transfer of burdened beneficiary of covenant. be intended beneficiary of
and benefitted land; or covenant.
parties are in lessor/lessee * For affirmative
relationship or own mutual obligations (e.g. obligation to
easements. pay HOA fees, obligation to
* Vertical privity: maintain lawn) burden will
Current owners obtained only run to tenant if it makes
land by legal transfer by more sense for tenant to
original covenantors. perform it, but benefit can be
enforced by either tenant or
landowner.
4. "Touch and concern": 4. "Touch and concern": Direct 4. Enforceable unless
Direct effect on use or value effect on use or value of land. Both "unreasonable": Covenant is
of land. Both burdened and burdened and benefitted must not arbitrary, spiteful,
benefitted must touch and touch and concern some land. capricious, does not
concern some land. * Benefits in gross will not run unreasonably burden
* Benefits in gross will against owners of serv. estates constitutional right, restrain
not run against owners of unless held by govts. or nonprofits. alienation or restrain trade,
serv. estates unless held by and does not otherwise violate
govts. or nonprofits. public policy.
* Benefits in gross can
run so long as benefit holder
has "legitimate interest" in
covenant and is identifiable.
Cases
Neponsit Property Owner’s Association v. Emigrant Industrial Savings Bank
a. Facts: Neponsit owned land- sold to Deyer who was not able to pay so the bank took
their house; company assigned it rights to enforce covenant
b. Issue: Whether the payment for maintenance of property qualifies as touch or concern
the land?
c. Court held a covenant to pay an annual charge to a property owner’s association does
touch and concern the land
a. Reasoning:
i. Neponsit Realty clearly intended that the C run with the land and be
enforceable by the property owner’s association
ii. The sum of money affects public spaces, beaches, parks, and
improvements. These public spaces must be maintained, and the burden of
maintenance should rest on the land benefited by the improvements.
Davidson Brothers, Inc. v. D. Katz & Sons, Inc.

a. Facts: P owned two supermarkets near each other. Deciding that the two stores were taking
business away from each other, ∆ sold one of the stores to P with a 40 covenant that
explicitly stated the covenant ran with the land. The city state that the closing of the store
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did not benefit the residents, and the city purchased the property (with knowledge of the
covenant) and agreed to lease it to a supermarket chain
b. Holding: A noncompetition covenant will be enforced against a subsequent purchaser with
actual notice, IF the covenant is reasonable
i. Under real covenant t- Davidson should be able to enjoin C-town but because it is
a violation of public policy- can’t
c. Results: A touch and concern test is only one factor of a covenant’s reasonableness. A shift
to the reasonableness standard, while absorbing the touch and concern rule, will serve as a
better mechanism for balancing the legitimate concerns of the grantor, the successor, and
the public. Remanded for trial court to apply reasonableness test. Damages may be
appropriate if court finds covenant reasonable, but adverse to the public
Case is a presumption against covenants on the grounds that it is unreasonable. Court was not
sympathetic to having the non-compete enforced, circumstances have changed and there is a
food desert.
d. Reasonableness Test:
i. The intention of the parties when the covenant was executed
ii. Whether the covenant had an impact on the considerations exchanged when
the covenant was executed
iii. Whether the covenant clearly and expressly set forth restrictions
iv. Whether the covenant was in writing or gave actual notice
v. Whether it was reasonable concerning area/duration in time
vi. Whether it imposes unreasonable restraint on trade or secures a monopoly.
vii. Whether the covenant interferes with public interest
viii. Whether, even if the covenant was reasonable at the time, “changed
circumstances” now make the covenant unreasonable.
Nahrstedt v. Lakeside Village Condominium
a. Facts: D's project declaration recorded by the condo developer contained a restriction
against allowing owners to have cats, dogs, and other animals; P sued D to prevent the
homeowners' association from enforcing the restriction.
b. Issue: Whether a pet restriction that is contained in the recorded declaration of a
condominium complex is enforceable against the challenge of the homeowner?
c. Rule
a. If the use restriction is contained in the declaration or master deed of the
condominium project, the restriction should be enforced unless it violates public
policy or some fundamental constitutional right.
b. If the use restriction is a rule promulgated by the governing board of the
homeowners association or the association's interpretation of a rule, the restriction
should be enforced if it meets a reasonableness test.
d. Holding: In determining whether a restriction is unreasonable/unenforceable, the focus is
on the restriction's effect on the project as a whole, not on the individual homeowner.
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a. When it is in the common interest of the public

b. Recorded with the county recorder
i. WILL BE ASSUMED TO BE REASONABLE
a. It is rationally related to health, sanitation and noise concerns by
residents
e. Reasoning:
Recorded use restrictions are a primary means of ensuring this stability and predictability.
 Thus, these restrictions are afforded a presumption of validity; challengers must

demonstrate the restriction's unreasonableness.
 Under this standard, enforcement of the restriction does not depend on the
conduct of a particular condo owner.
 Rather, the restriction must be enforced unless the owner can show that the
burdens it imposes on affected properties so substantially outweigh the
benefits of the restriction that it should not be enforced against any owner.
 Restrictions (like equitable servitudes) should not be enforced if they are arbitrary or
violate fundamental public policy or impose a burden on the use of land that far
outweighs any benefit.
Shelley v. Kraemer
a. Facts: Black family bought house on R.R.C. land- family claimed they did not know
about the covenant because they saw black people living in the neighborhood. Missouri
SC upheld covenant.
b. Issue: Are racially based restrictive covenants legal under the 14th Amendment and can
they be enforced by the court of law?
a. Issue with RRC is not that it is between 2 properties, it is when people outside of
the contract is trying to force 2 parties to uphold the agreement
c. SCOTUS: said the restrictive agreement alone was not a violation as long as there is
voluntary agreement (because that would be a reasonable K- ppl agreed to it)- they may
NOT SEEK JUDICIAL ENFORCEMENT because by doing so, that would constitute
state action
a) Thus- since state action would necessarily be discriminatory, the
enforcement of RRC in a state court would violate the Equal Protection
Clause so RRC is not enforceable
Modifying and Terminating Covenants

Interpretation of Ambiguous Covenants; Changed Conditions; Undue Hardships;
Statutory Regulations
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Ways to terminate covenants

a. T & C test- is it reasonable?
b. Language in instrument
c. Merger
d. Release
e. Prescription
f. Relative hardship
 If you can show a considerable magnitude of difference in proportion between the
benefits and the harm, you may be able to defeat an enforcement action.
El Di, Inc. v. Town of Bethany Beach; Changed conditions / brownbagging case

a. Facts: Town of Bethany Beach (P) was incorporated as a family town. It had restrictive
covenants on many parts of land banning sale of alcohol, as well as commercial
development. The ∆ owned a restaurant and applied for a liquor license. The town had a
“brown bag” policy, allowing residents to bring liquor into restaurants. Alcohol was
readily available outside city limits, about half mile away. The town had grown into a
much larger and more populated town, and zoning ordinances designated a commercial
district
b. Holding: A court will NOT enforce a restrictive covenant where a fundamental change
has occurred in the intended character of a neighborhood that renders the benefits
underlying imposition of the restriction incapable of enjoyment
c. Facts: Results: A court will not enforce covenant if the enforcement of the covenant
will not be able to benefit the land due to a change in character.
Here, the purpose of the covenant was to allow the town to remain quiet and
residential.
Time has changed and the town has developed into a seaside resort. The purpose
of the covenant is no longer attainable, and therefore unreasonable.
Changed Condition Doctrine

 The point of the change condition doctrine is that the dominant estate can no long derive
benefit from the covenant.
o Not just a fundamental change, but the covenant is no longer capable of being
enjoyed!
 Lots on the edge CANNOT use changes outside of the neighborhood to get out of
covenant – It will have the effect of eating away at the covenant. You would need to
show that the lots in the middle of the perimeter couldn’t possibly receive benefit from
the covenant.
Other Equitable Defenses to Covenants:

 Acquiescence – If P has tolerated previous violations of the covenant by the owner of
the servient estate.
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 Abandonment – If P has tolerated violations of the covenant by owners of other

restricted parcels in the neighborhood covered by covenant.
 Unclean Hands – If P has violated covenant himself.
 Estoppel – If owner of dominant estate orally represents to the owner of the servient
estate that she will not enforce, then the dominant estate may be stopped from asserting
her interest in enforcing the covenant if the owner of the servient estate changes his
position in reliance on the oral statement.
 Laches – If covenant has been ignored or breached for a substantial period of time—but
less than the time needed to establish prescriptive rights—the court may find the
unexcused delay of enforcing the covenant prompted investment in the reliance on the
failure to object to the violation and that enforcement of the covenant would be
unconscionable.
 Marketable Title Acts – Terminate restrictive covenants if they are not re-recorded
after a specific amount of time.
 Language – Time period in writing
 Merger – If the burdened and benefitted land is owned by same person
 Release – If parties agree in writing to terminating contract
 Prescription – Open and notorious violation of the covenant without permission for a
statutory period.
Massachusetts General Law – For a covenant to be enforceable it must:

 Be of a benefit to the dominant estate. There is an assumption that restrictions are not
benefits except in cases of gifts or devises for public or religion purposes, if any part of
the servient land is within a city or town with a population greater than 100k unless:
1. General presumption against restriction will not apply: (1) hardship, (2)
restrictions are part of common scheme, (3) restrictions are in favor of
contiguous land of the grantor
 Restrictions should not be enforced if:
(1) Change in character, (2) conduct of person supposed to enforce renders it inequitable to
enforce the covenant, (3) Failure of common scheme, (4) impedes reasonable use of land for
purposes most suitable/impairs grown of community, (5) against public interest.
Present Estates and Future Interests

Present estates and future interests may be created by sale, lease, will, or trust. A seller may
create a future interest in a deed.
Fee Simple Estates
 A fee simple is a present estate that could potentially last forever.
 Doesn't mean you can own property after your death, but that the interest does not
necessarily end because of lapse of time or death.
 It is the right to determine who owns it in the future, whether by sale, gift, inheritance, or
devise.
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 Four fee simple estates:

1. Fee simple absolute: Property ownership without an associated future interest.
Owner of fee simple interest has the right to possess and use the property, to sell or
give it away, and the right to devise it by will and leave to heirs. (Potentially infinite
duration)
i. O to A
ii. O to A and her heirs (“to A” = words of purchase, “and her heirs = words of
limitation)
iii. O to A in fee simple
2. Fee simple determinable – “so long as,” “during,” “while,” “until”
i. When the future interest reverts automatically to the grantor on the happening
of the stated event, the present interest is called a fee simple determinable.
And the future interest is called a possibility of reverter.
ii. Created by describing the present interest with words of duration (e.g., so long
as, during, while until).
iii. Grant need not state the possibility of reverter.
iv. "O to A so long as used for residential purposes"
3. Fee simple subject to a condition subsequent – “but if”
i. O can decide whether or not to take back property if condition is violated. O’s
future interest is called a right to reentry or power of termination.
ii. Generally created using words of condition
iii. It generally must explicitly state the right of entry, but some courts will
interpret grants made "on express condition" as implying the right of entry.
iv. "O to A on condition that the property is used for residential purposes; in the
event it is not so used, O shall have a right of entry"
4. Fee simple subject to executory limitation – “to A, but if __, then to B.”
i. Like fee simple determinable, except that the ownership automatically shifts
to a third party on the occurrence of the contingent event.
ii. If the same language used to create a fee simple determinable or a fee simple
subject to a condition subsequent is used, but the grant creates the future
interest in favor of a third party rather than the grantor, the estate is a fee
simple subject to an executory interest. The third party has an executory
interest.
iii. Springing Executory Interest – Ownership passes from grantee to the
grantor and then, after a lapse of time, to the second grantee.
iv. Remainder – What the beneficiary of the executory limitation gets.
v. Executory Interests are always contingent and can never become vested,
because when it vests whether as a future or present interest, it ceases to
be an executory interest.
vi. A contingent remainder cannot follow a fee simple interest of any kind.
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Fee Tail
 Allows the owner of the land to ensure that the property remains with family
indefinitely. Now abolished.
 “To B and the heirs of his body.”
Life Estates
 Freehold estates where the duration is measured by the life or lives of one or more
beings. (last until death of the grantee)
 Are defeasible, but only so long as the person with the life estate is alive. “per autre
vie.”
 A life estate pur autre vie is a life estate measured by the life of someone other than
the life tenant. Such an estate can be created directly by the grantor, e.g., “to A for the
life of B.” A’s estate ends when B dies. It can also be created indirectly, as where the
grantor conveys “to B for life,” and B later conveys his interest to A. A owns an
estate measured by B’s life; it ends when B dies.
o Has duties to maintain and not waste the property.
o O’s interest is called a reversion
Remainders
 A remainder is a future interest created in a transferee that is capable of becoming a
present interest upon the natural termination of the preceding estates created in the same
disposition.
 A remainder must be expressly created in the instrument creating the intermediate
possessory estate.
 Remainders always follow life estates.
 Only contingent remainders are subject to the Rule Against Perpetuities.
 Vested vs Contingent Remainders
 Vested Remainder:
 Absolutely vested (not subject to change),
 O to A for life, then to B
 Vested subject to complete defeasance
 to A for life, then to B, but if B leaves the legal profession, then
to C."
 Vested subject to open (a class gift).
 To A for life, then to the children of B.
 Contingent Remainder: Remainders are contingent if they are in unborn or
unascertained persons or if they are subject to a condition precedent.
 A for life, then to B if B is married at the time of ___.
F.I. IN THIRD
INTEREST WORDS TO CREATE F.I. IN GRANTOR
PARTY
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“to A”
Fee simple absolute “to A and her heirs” “to A None None
in fee simple absolute”
Words of duration:
Fee simple Possibility of
Executory Interest
determinable “as long as” “during” reverter
“until” “while” etc.
Words of condition:
Right of entry (aka
Fee simple subject to
power of Executory interest
condition subsequent “provided that” “but if” “on
termination)
condition” etc.
Words of
duration/condition:
Fee simple subject to
Right of entry Executory interest
executory limitation
“until/unless..., then to...”
“but if..., then to”
Remainder (vested or
Life estate “for life” Reversion
contingent)
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Cases
Wood v. Board of County Commissioners of Freemont County
a. Holding: A grant of fee simple determinable must clearly state that the estate will
terminate if not used in accordance to the grant
b. Facts: Wood gave a parcel of land to ∆. The transfer stated that the purpose of the grant
was that it be used for a hospital, but did not express what would happen to the estate if it
were not so used. The ∆ operated a hospital for 40 years before putting it up for sale. The
P then brought suit, claiming a right to a reversion in the grant which became effective
when the land ceased to be used as a hospital
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c. Results: A fee simple determinable is characterized by its expiration upon the happening
of an uncertain event. However, the grant must clearly state that the estate will expire
automatically upon the happening of the event.
i. Here, the grant from P clearly stated the condition, but failed to state the grant
would not continue to be valid if the condition were not met. It is not a fee simple
subject to condition subsequent, also, because the grant made no clear provisions
for termination
d. Notes
i. Courts likely to see it is a fee simple absolute because there is a general rule
against presuming a forfeiture of property.
ii. Although a grantor’s intent, if realized, typically prevails, ambiguous grants give rise
to public policy considerations—in the case above, the free alienability of property
Edwards v. Bradley – (VA, 1984) (Fee Simple v. Life Estate)

a. Holding: A conditional limitation imposed on a life estate is valid
b. Facts: A mother died leaving her farm to her daughter, Ms. Edwards, on the basis that she
not sell the property. In such case, her interest would be forfeited. Edwards sought to have
her children and their spouses sign an agreement to consent to her selling the farm. The P
declined and her mother, the ∆, died, leaving her $1. The P filed a complaint against the
executors and her siblings seeking to enjoin the sale of the farm
c. Results: The draftsman clearly did not use the words “fee simple,” however, such words
are not necessary in order to create a fee simple estate where real estate is devised without
words of limitation, unless a contrary intent appears in the will. Here, the testatrix clearly
intended to create a life estate in Edwards and a fee simple remainder in her children
d. The presumption against forfeitures would suggest that the fee simple should've been
chosen over the life estate, the restraint held void, and the property left with a fee simple
absolute. Court didn’t adopt this approach, and instead focused on the fact that the grantor
intended to create a valid restraint on alienation and the only way to achieve that result was
to interpret the conveyance as creating a life estate.
McIntyre v. Scarbrough -- Waste

 Life tenant has a duty to protect and preserve the life estate property. May not
permanently injure the remainder interest.
 Responsible for maintenance
 Avoid damaging things
 Pay property taxes
RULES AGAINST PERPETUITY

 Under the rule, future interests are invalid unless the future owners become clear (i.e.,
the future interest "vests) or fails to vest) within 21 years after the death of someone who
is alive ("in being") at the creation of the interest.
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 John Chipman Gray formulation: No interest is good unless it must vest, if at

all, no later than 21 years after the death of some life in being at the
creation of the interest.
 Benefits
o Rule is designed to prevent remoteness of vesting and thereby leave control of the
wealth of the world more in the hands of the living than in the hands of the dead.
o Promotes alienability and productive use of land.
o It’s clear who has future interest in the land, so present and future interest holders
can bargain to remove the future interest.
Applying this Rule:
a. Determine what future interest has been created
1. RAP only applies to nonvested interests
2. Does not apply if there is a possibility of reverter, right to entry, reversion, or
vested remainder.
3. Applies ONLY to:
a. EXECUTORY INTERESTS
b. CONTINGENT REMAINDERS
c. VESTED REMAINDERS SUBJECT TO OPEN
b. Define the time when perpetuity’s period begins:
1. For grants, the clock begins immediately
2. For wills, the clock begins with the death of the testator
c. If there is any possibility that the interest can vest more than 21 years after the death of
EVERYONE alive at the creation of the interest, it is invalid
d. If the future interest is deemed invalid, determine what interest remain by striking out the
invalid interest and seeing what is left
Four steps:
1. Identify the future interests created by the grant
i. If the interest is in the grantor, it is not subject to the rule.
ii. Options to purchase and preemptive rights may be subject to the rule without
regard to whether they are held by the person that originally granted the land.
o Option to purchase: The right to buy property for a stated price at some
point in the future.
o Preemptive rights: (AKA rights of first refusal) Allow the holder to
purchase property for its fair market value whenever the current owner
decides to sell.
2. Identify what has to happen for the interest to fully vest
i. Meaning that any conditions will have occurred, and no more people can be added
to the class of recipients.
ii. A property interests vests when its ownership is certain.
iii. The question is NOT when the future interest becomes possessory, but rather
when who will have the right to possess the property in the future is clear.
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iv. To fully vest, all future interest holders must be certain and any contingencies for
their ownership must be removed. (we know exactly who is going to get the
interest, that they are going to get it, and what fraction of the interest they are
going to get.)
v. Ex. O to A for life, and then to A's children
o For the interest to vest in anybody, A needs to have children. Once they're
born, they have a right to at least some portion of the remainder.
o For it to fully vest for the purposes of the rule, A needs to die.
o Because A might have another child before he dies, until that happens the
remainder is vested subject to open, and we know that the existing
children are entitled to something, but we don’t know whether any other
children will share the remainder.
3. Identify all the "lives in being", the people alive at the creation of the interest who can
have something to do with it vesting
i. "Creation of the interest"
 An interest is created at the moment it becomes irrevocable.
 Ex. Created by conveyance at moment of conveyance, created in a will the
moment the testator dies.
"Life in being"
 A person alive (or in utero) at the creation of the interest who may have
something to do with it vesting.
 Includes both people mentioned in the conveyance and people not
mentioned who are alive and may affect vesting.
 Only includes humans.
Example
o O to A for life, and then to A's children (part of a will)
a. The interest is created when O dies
b. The lives in being include both A and any of A's children alive
when O dies.
4. See if you can imagine any way, however unlikely, in which the future interest will vest
more than 21 years after the death of all of the people identified in step 3.
i. If you can, the future interest is invalid.
COMMON OWNERSHIP AND RESIDENTIAL PROPERTY

A. Tenancy in Common
 May be created explicitly, by conveying property to more than one party.
 Usually the default form of concurrent tenancy in face of ambiguity. Most common.
 If property conveyed to multiple ppl, the law will presume they are tenants in
common.
 Attributes
 Unity of possession – each cotenant has equal rights to possess the entire
property or parcel that is unrelated to the fractional share of the interest in the
land (no cotenant can point to certain acreage he owns outright) – has unity of
interest in a life estate and a fee simple
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 No right of survivorship – goes to whomever the person designates the land to

 Creation
 Any conveyance to 2+ married people ("to A and B") presumed to create a
tenancy in common (absent clear language expressing an intent to create a joint
tenancy)
 When someone dies intestate with multiple heirs
 When severance ends a joint tenancy
 When divorce ends a tenancy by the entirety
 Language used – a conveyance "to A and B" creates tenancy in common, but
draftsman often insert "as tenants in common" for safety
 Also, O conveys Blackacre to A and B as tenants in common
 O conveys Blackacre to A, B, and C, as tenants in common with ¼
A, ¼ B, and ½ C
 In cases on ambiguous language, presumption is that the language
creates a tenancy in common unless the language creates a joint
tenancy or trust
 Transferability
 Each tenant in common has right to alienate all or part of interest without
consent of the other tenants
 Transfers do not end the tenancy in common
 Right to sell, mortgage, lease, or otherwise transfer all or part of interest without
consent of other tenants does not end the tenancy in common
 No right of survivorship, so cotenant may devise interest or allow it to descend
by intestate succession
B. Joint Tenancy
 The main difference between joint tenancy and tenancy in common is the right of
survivorship.
 When a joint tenant dies, her property interest is immediately transferred to the
remaining joint tenants in equal shares.
 The right of survivorship consolidates property among parties, simplifying use and
ownership.
 Needs SPECIFIC language to create (because of preference of tenancy in common)
 Joint tenancy with right of survivorship is sometimes called the "poor man's will."
 Traditionally, joint tenancies could only be created if they shared the four unities of
time, title, interest, and possession.
 Time: The interest of each joint tenant must be created at the same moment in
time
 Title: All joint tenants must acquire title by the same instrument or title.
 Interest: All joint tenants must possess equal fractional undivided interests in
the property and their interest must last the same amount of time.
 Possession: All joint tenants must have the right to possess the entire parcel.
 SEVERANCE would convert it to tenancy in common.
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 A, B, C. A sells to X and it would go to X’s heirs. If B dies, it would go to C

 Transferability
 Virtually inalienable because alienation severs the tenancy, and cannot be devised or
descend by intestate succession
 May be unilaterally severed into TICs
 Any inter vivos conveyance will break the unities and sever the joint tenancy (Grantee
receives a tenancy in common interest)
 Authorities split as to whether a lease, mortgage, or other transfer of a lesser interest
will sever the joint tenancy (see Tenhet v. Boswell; conveys a life estate per autre vie)
 Joint tenancy v. dual life estates with alternative contingent remainders: possible to
create indestructible right of survivorship (O to A and B as life tenants, with a
remainder in A if A survives B, and a remainder in B if B survives A)
 JT are free to encumber their interests during their lives (renting, pledge them
as security for a debt) but when this person dies- property goes to other JT
without any encumbrances
 Many states will deem a joint tenancy to be a TIC if married co-tenants divorce
 Bank Accounts – are JT with rights of survivorship (p 665)
 R of Survivorship is often provided by the bank’s signature form
 The 4 unities are rarely required
 Tenants are usually entitled only to the right to withdraw funds according to
their contributions to the account
C. Tenancy by the Entirety

 Tenancies by the entirety are available only to legally married couples.
 Includes a right of survivorship. Much more stable than in joint tenancy, because
absent agreement of both parties, the tenancy by the entirety is only severed on divorce
or death.
 In most states, spouses cannot encumber their interest in property held by the entirety
without each other's consent, and creditors cannot attach property held through
tenancy by the entirety to satisfy debts of one of the spouses.
 Only could be partitioned by divorce or death
 Interest cannot be sold, transferred, or encumbered by a mortgage without consent of
spouse
 Creditors cannot attach property held through tenancy to satisfy debts of one
spouse (Sawada v. Endo case: Hawaii couple in car accident; spouse wants to
pay off debts; fraudulent conveyance)
 Married Women's Property Acts
 Adopted in all common law marital property states and eliminated husband's
right of exclusive control
 Under the statutes, either spouse has the power to manage and control marital
property, including property held in tenancy by the entirety
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Sharing Rights and Responsibilities between Co-Owners

 Unless they agree otherwise by contract, cotenants are entitled to share the benefits of
the property and obligated to share its burdens.
o If there is a dispute regarding these, a tenant can seek a judicial accounting,
either during co-ownership or in determining division of proceeds in a partition
action or voluntary sale.
A. Possession
 In almost all states, tenants only have a duty to pay rent to their co-owners if they have
committed ouster, an explicit act excluding other co-owners from the jointly owned
property.
 The shared right to possess the entire parcel gives rise to several legal issues
I. Unilateral transfer
i. Can tenants transfer their right to possess to third parties without the
consent of their cotenants?
II. Ouster: an explicit act by which one co-tenant wrongfully excludes the other in
the jointly owned property.
i. Most courts require an affirmative act by a tenant in possession
indicating that they are excluding their cotenants.
 Some courts will find a constructive ouster where the property
cannot feasibly be possessed by all cotenants.
 Others will find a rebuttable presumption of ouster when one
cotenant occupies the property for decades without
acknowledging the rights of the other cotenants.
III. Adverse possession
i. Without ouster, cotenants in possession cannot claim adverse
possession against other cotenants.
ii. Most courts have a high burden to find that sole possession amounts to
adverse possession.
B. Profits
 If you are co-tenant in sole possession, you do not owe rent to other co-tenants unless
you have ousted them.
 If the property is rented out, co-tenants have a right to a fair share of the rent if they
have consented to the lease.
 Basic expenses on the property have to be shared between co-tenants
 In most jurisdictions, a co-tenant with exclusive possession must pay expenses if the
value of occupation EXCEEDS the cost of expenses.
C. Burdens
 Co-owners generally have a duty to share basic expenses needed to keep the property,
including mortgage payments, property taxes and other assessments, and property
insurance, in accordance with their respective shares.
 Generally share a duty to share basic maintenance and necessary repairs
 Co owners have no duty to share the costs of improvements to the property unless they
agree to do so.
o Improving tenants may only claim the amount by which the improvement
increases the value of the property at partition or sale.
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 In most states, a co-owner who exclusively possesses the premises must bear the entire
burden of expenses if the value of her occupation of the premises exceeds those
payments.
Cases
Carr v. Deking
a. Holding: A cotenant may lawfully lease his own interest in the common property to another
without the consent of the other tenant and without joining the lease.
b. Facts: Father and son owned land together as tenants in common. They leased land to ∆ in year-to-
year oral agreement for payment of one-third of crops. The landlords agreed to pay one-third of
fertilizer. The Ps demanded the ∆ start paying with cash, and the ∆ refused. Shortly after, the ∆
obtained a 10 year written lease from the father of P, allowing him to continue to pay in crops. The
P sued in an action for ejectment, claiming that the lease was not valid and that the ∆ had no right
to farm
c. Results: Each tenant in common of real property may use, benefit, and possess the entire property
subject only to the rights of the cotenant. Thus it is lawful that a cotenant leases his own interest
without the consent of another. The lessee has rights to the property only in as much as the tenant
he is leasing from has, meaning that he “steps into the shoes” of the leasing cotenant and becomes
a tenant in common with the other owners for the duration of the lease. Here, partitioning may be
proper, but until that is worked out, the ∆ has the right to farm
1. Remedy: Some courts- co-owner has the right to choose to participate in the lease and get
a piece; other courts entitled to benefit until partition
Tenhet v. Boswell
a. Facts: Johnson and Tenhet (P) owned a parcel of property as joint tenants. Without P’s knowledge
or consent, Johnson leased the property to ∆ for a period of 10 years. Johnson died shortly after and
P sought to establish her sole right to possession of the property as the surviving joint tenant
b. Holding: (1) A lease entered into by a joint tenant does not sever the joint tenancy. (2) A lease
entered into by joint tenant expires upon the death of that tenant
c. Results: The lease is not valid. (1) Partial alienation of one of the joint tenants creates a life estate
per autre vie. (2) A joint tenancy must be expressly declared by a written instrument or a tenancy in
common results. Likewise, severing a joint tenancy requires a demonstration of a clear and
unambiguous intent to terminate the estate. Here, nothing was done to sever the joint tenancy.
Sawada v. Endo
a. Facts: ∆ struck Ps while driving his car. After P filed suit, ∆ and his wife, as tenants by the entirety,
jointly conveyed some real property to their sons. P then filed suit for the car accident. ∆ was then
served (after conveyance). Both obtained judgments against ∆. P brought suit to set aside the
conveyance to ∆’s sons to get judgment
b. Issue: Whether the interest of one spouse in real property, held by tenancy by the entireties, is
subject to levy and execution by his or her individual creditors?
c. Holding: The interest of one spouse in real property, held in tenancy by the entirety, is not subject
to levy and execution by his or her creditors absent consent of both spouses
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d. Results: The court examined the different types of rules states use for deciding how creditors can
attack property held in tenancy in entirety. The court selected group 3, where neither spouse may
alienate. This means that the interest of a husband or wife in an estate by the entireties is NOT
subject to the claims of his or her individual creditors during the joint lives of the spouses
e. Policy: The court believes the family unit, the home, is more important to protect than the claims of
individual creditors. By allowing lien of property, the court would effectively be transferring a
tenancy by the entirety agreement into a joint tenancy or tenancy in common
f. Dissenting: Marriage Woman’s Protection Act, as interpreted, does not elevate a woman’s rights to
where a man’s is, it lower’s the husband’s rights to where the wife’s were. The better interpretation
is to allow the woman to alienate her interest separate from the man
Landlord-Tenant Relations
Conflicts About Occupancy and Rent
 In a lease, the landlord agrees to transfer possession of the property for a specified
period to the tenant in return for the tenant's promise to make a periodic rental payment.
When tenancy is over, possession ordinarily reverts to the landlord unless she has sold
the property, conveying her interest to someone else.
 A lease is both a conveyance of an important property interest, akin in may ways to
other estates such as the life estate, as well as a contract between the landlord and the
tenant.
 A tenant is one who holds a possessory estate in land for a determinative period or at
will by permission of the landlord who holds the estate in a larger duration.
o A leasehold is a non-freehold interest, meaning the tenant has no ownership
interest in the real property and only has the right to use the property as
established in the terms of the lease or rental agreement.
 Distinguish leasehold from other kinds of interest in land
o Leaseholds convey possessory rights, others (licenses, profits, easements)
convey use rights.
o Jurisdictions limit how landlords can act in evicting, etc. Hotels have more
leeway.
o Occupancy tends to be shorter; leases tend to be longer. Different services
provided. Whether owner holds out place to public for travelers, etc.
 Difference btwn a regular lease and one that has housing incidental to their work.
o Housing incidental to employment does not generally have all the same rights as
tenants, unless you are a tenant before you enter the period of employment.
o Remember in State v. Shack, the lanadlord tenant argument was rejected.
o Huge possibility for exploitation because not the same protections as regular
tenants.
 Landlord Rights
o Right to receive the agreed upon rent, AND
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o The right to have the premises intact and not damage (tenant's duty not to
commit waste)
o Landlord reversion or right to regain possession at end of lease term
 Structure of LL-T Litigation (most claims are by LL against T)
o LL seeking payment of back rent
o Eviction
o Damages resulting from T's breach of lease
o Tenant may raise defenses to LL’s claims:
1. Deny breach
2. Raise an affirmative defense (explain why no rent)
o T can also make counterclaims if the jurisdiction allows it
 Include claims for damages
 Courts can order Rent Abatement
o Can petition for injunction relief (ordering LL to fix apartment)
Categories of Tenancies
I. Term of years
 Lasts for a specified period of time determined by the parties. Period can be of any
length.
 The death of either party does not terminate the tenancy
 The landlord is not entitled to evict the tenant before the end of the term; the only
exception occurs when the tenant is breaching a material term of the lease
II. Periodic Tenancy
 Renew automatically at specified periods unless either the landlord or the tenant
chooses to end the relationship.
 Month-to-month is a form of periodic tenancy
 Death of either does not terminate the tenancy
 The landlord can evict the tenant only by providing the requisite notice that the
tenancy will not be renewed.
III. Tenancy at will
 Similar to a periodic tenancy except that it can be ended with no notice by either
party
 Many states have effectively abolished by requiring notice.
 Death of either landlord or tenant terminates the tenancy at will
IV. Tenancy at sufferance (holdover tenant)
 A tenant rightfully in possession who wrongfully stays after the lease has
terminated is called a tenant at sufferance, or a holdover tenant.
Tenant Duties and Landlord Remedies
 Tenant's duty to repair (Doctrine of Waste) – tenant cannot damage (a.k.a. commit
waste on) the leased premises.
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i. Types of waste
1. Voluntary (affirmative) waste – tenant is liable to the landlord for voluntary
waste; results when the tenant intentionally or negligently damages the
premises.
2. Permissive waste – T has no duty to the LL to make substantial repairs; T has
duty to make ordinary repairs to keep the property in the same condition as at
the commencement of the lease
3. Ameliorative waste – T under obligation to return the premises in the same
nature and character as received; T cannot make substantial alterations to leased
structures
ii. Destruction of the Premises Without Fault – when leased premises are destroyed
(like by fire) without the fault of either the LL or the T, no waste is involved
1. T can terminate lease (majority)
 Duty not to use for illegal purposes
i. If the T uses the premises for an illegal purpose, and the LL is not a party to the
illegal use, the LL may terminate the lease or obtain damages and injunctive relief
1. LL Remedies
a. LL may terminate the lease and recover damages if the illegal conduct is
continuous
 Duty to pay rent – leases usually contain a provision making the rent payable monthly
or in some other type of arrangement
i. Common law: covenants were independent, so even a breach by LL of most of his
duties did NOT entitle T to stop paying
1. Modern Law: modified the rule so that a material breach by the LL of his
implied or express obligations at least temporarily to relieve the T of paying his
rent
ii. Termination of the lease by the T – the fact that the T has abandoned the premises
will not relieve him from duty to pay rent
1. If LL has violated express or implied duty to keep up property, may entitle T to
abandon and terminate based on constructive eviction
iii. When rent accrues – rent is not apportionable; it does not accrue from day to day
but rather accrues all at once at the end of the term. If the leasehold terminates before
the term originally agreed upon, the tenant must pay a proportionate amount of the
agreed rent.
iv. Rent deposits – LLs often require a deposit from the T at the outset of the lease,
which is considered a security deposit.
v. Termination of rent liability/Surrender – if a T effectively conveys back rent
(surrenders) his leasehold to the LL, the T's liability for future rent ends.
 Duty to remove at end of lease
 Right to affix
Commercial and Residential Tenancies
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 Parties in commercial are assumed to operate at arm's length. Courts interfere much less
with commercial leases than residential leases. Courts want to protect parties in
residential leases because there is much more different levels of sophistication and
bargaining level.
Landlord's Remedies When Tenant Fails to Pay Rent
 Tenant on premises but fails to pay rent – evict or sue for rent
o A breach by either the LL or T does not give rise to a right to terminate the lease;
most leases grant the non-breaching party the right to terminate
 Most states have an unlawful detainer statute – permits the landlord to
evict a defaulting tenant
 The holdover tenant and the renewal of the tenancy
o Landlord can choose to accept the new tenancy relationship.
o Most states will deem the tenancy that emerges to be a periodic tenancy.
o Landlord can view tenant as tenant at sufferance and sue for possession.
 Self-help
o Statutorily prohibited now.
 What happens when tenant breaches the lease and leaves?
o Landlord's options:
1. Tenant has made implied offer to terminate/surrender the lease, so
landlord can choose to accept it. Can be explicitly or implicitly and you
have to look at the surrounding acts.
 Courts look to see what the replacement lease is.
 If landlord accepts the surrender, the breaching tenant is NOT
freed from all liability. Still liable for the difference between the
rent charge from the replacement tenant and the rent that the tenant
was supposed to pay.
 Damages: Back rent and/or damages for breach of contract.
Agreed upon rental price minus the fair market price.
2. Landlord can refuse to accept surrender, and after due notice, relet the
apartment on the tenant's account. When a new tenant is found, the
landlord may sue the old tenant for the difference.
1. Damages: May sue the former tenant for the difference between
the old rental price and the new rent received from the new lessee,
if the new rent is lower than the original rent. (new rent must be
reasonable, cant rent to a friend for $5.)
3. Or do nothing.
Tenant's right to transfer
 Tenant can generally transfer all or a portion of her possessory interest unless the lease
specifically limits this right.
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 Sublease: transfer by a tenant of a portion of its possessory rights under the lease. Tenant
retains some future interest or the right to control the property in the future.
o Covenants Does not run with the land
 Assignment: transfer of the tenant's entire possessory rights. No retaining future rights to
enter the property.
o Covenants Runs with the land
Sommer v. Kridel
 Facts: ∆ entered into lease with P. Paid him one month rent and security, but before
taking possession of apartment sent letter to P stating that he was unable to pay rent and
would not be able to continue with the lease. The P never responded to the letter, and
over the next 18 months did not show the apartment (even though there were interested
parties). After the 18 months the landlord sued for back rent. The ∆ answered the
complaint alleging P breached the contract and failed to mitigate damages.
 Rule: If a tenant breaches, you cannot nothing and wait to sue for back rent. As a
landlord, you have an affirmative duty to mitigate damages. If the landlord has other
vacant apartments besides the one which the tenant has abandoned, the landlord's duty to
mitigate consists of making reasonable efforts to re-let the apartment. In such cases he
must treat the apartment in question as if it was one of his vacant stock.
 Policy reasoning: People want housing now, not just land. In contract law, you have a
duty to mitigate damages, leases are a kind of a marriage between property and contract
law.
Landlord Remedies
i. Tenant on premises but fails to pay rent – evict or sue for rent
1. A breach by either the LL or T does not give rise to a right to terminate the
lease; most leases grant the non-breaching party the right to terminate
a. Most states have an unlawful detainer statute – permits the landlord to
evict a defaulting tenant
ii. T abandons – do nothing or repossess (if the T unjustifiably abandons the
property, the LL has these two options)
1. LL does nothing – T remains liable: LL may let the premises lie idle and
collect the rent from the abandoning T, unless the T tenders an acceptable
substituting T.
BUT…
2. Majority view requires the LL to make reasonable efforts to mitigate his
damages by re-letting to a new tenant. If LL could have mitigated but does not
attempt to relet, his recovery against the T will be reduced.
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3. If LL leaves the premises vacant, LL can recover only the difference between
the market rent and the contract rent provided for in the rental agreement with
the original tenant + cost of finding a replacement T
4. LL Repossesses – T's Liability depends on surrender: If the LL repossess
and/or relets on the premises, the T's liability will depend on whether the LL has
accepted a surrender of the premises. If surrender not found, T remains liable
for the difference between the promised rent and the fair rental value of the
property.
a. Acts that constitute acceptance of surrender – if LL resumes
possession of the demised premises for himself, this conduct usually
constitutes acceptance of the surrender, and the tenant will be relieved of
any further liability.
b. Acts that do not constitute acceptance of surrender – Even if the LL
enters the premises after abandonment to make repairs, receive back the
keys, or offers to attempt to relet the premises on the T's behalf, these acts
do not by themselves constitute an acceptance of surrender.
iii. Holdovers – if tenant wrongfully holds over at the end of the lease and the LL
accepts a new rent check, a new relationship has emerged (Mention Block v. Hirsh
 possible taking)
1. Some jurisdictions say this is merely periodic
2. Others say a whole new term of years has emerged
3. In most jurisdictions, self help has been statutorily prevented
a. Self help is when a landlord takes matters into his own hands
b. LL must evict tenant through court proceedings so that it is peaceable
rather than forcible (changing locks without warning is violation)
Landlord Duties and Tenant Remedies
 LL has no duty to repair or maintain the premises but leases commonly prescribe LL
liability to the tenant in several ways. Even if a lease does not expressly prescribe the LL
duties, some duties will be implied.
 Duty to deliver possession of premises

i. LL Duty – must deliver actual possession: most states require the LL to put the T in
actual possession of the premises at the beginning of the leasehold term; minority of
states hold that the LL's obligation is merely to give the T the legal right to
possession
ii. T remedy – Damages: T is entitled to damages against a LL in breach of the duty to
deliver possession
 Quiet Enjoyment – implied in every lease a covenant that neither the LL nor someone
with paramount title (prior mortgagee of the LL who forecloses) will interfere with the
T's quiet enjoyment and possession of the premises.
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i. Covenant of Quiet Enjoyment may be breached in three ways: actual eviction,

partial actual eviction, or constructive eviction. Can be both a covenant and a
warranty (covenant is a promise to do something in the future, warranty testifies to
the current state of affairs. (Blackett v. Olanoff – LL put a club next to an apartment,
Ts quiet enjoyment violated by lounge, breach of covenant because of the nuisance
created by LL)
ii. Actual eviction – when the LL or paramount title holder excludes the T from the
entire leased premises. Terminates the tenant's obligation to pay rent.
a. If LL puts lock on the door- can sue for damages for trespass and may
seek an injunction ordering the LL to reconvey possession of the
premises to the T
iii. Partial Actual Eviction – occurs when the T is physically excluded from only part
of the leased premises. T's remedies for breach will differ depending on the
circumstances. (Minjak Co. v. Randolph dusty loft apartment case; T withheld
payments due to uninhabitable conditions; LL sued for nonpayment and tenant
counterclaimed for breach of warranty of habitability. T was allowed to assert
defense of constructive eviction for the nonpayment of rent even though he was still
living in a portion of the apartment.)
1. Partial eviction by LL – entire rent obligation relieved
2. Partial eviction by 3rd person – rent apportioned
iv. Constructive eviction (Defense)– if the LL does an act or fails to provide service
that he has a legal duty to provide, and thereby makes the property uninhabitable, T
may terminate the lease and may also seek damages. (property could be too small
not accommodate everyone)
a. Conditions:
i. Acts that cause the injury must be by the LL or by persons
acting for him
ii. Resulting conditions must be uninhabitable (flooding, no heat
in winter, etc.)
iii. T must move out and show that the premises with
uninhabitable; if T does not vacate within a reasonable time, he
waives his right to do so
 Right to receive the agreed-upon rent

 LL's right to regain possession at the end of the lease
 Implied Warranty of Habitability–DEFENSE for T- most states adopted by court

decision or statute the implied warranty of habitability for residential tenancies. Standards
more favorable to Ts than in constructive eviction, and range of remedies is broad.
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i. Standard – reasonably suitable for human residence. Standard applied is the local
housing code if one exists. If there is none, the court asks whether the conditions are
reasonably suitable for human residence.
ii. Not violated until the LL has been notified of the problem and has a reasonable
opportunity to fix it
iii. Tenant Remedies – adopted by various courts for violation of the implied warranty.
(p 878)
1. Recission - T may terminate the lease and move out (like constructive eviction)
2. Rent withholding – may raise violation of warranty as a defense – LL cant
evict T
3. Repair and deduct - T may make repairs directly and offset the cost against
future rent obligations
4. Rent abatement - T may reduce rent to an amount equal to the fair rental value
in view of the defects in the property (Minjak)
5. Injunctive relief or speech performance – ordering LL to comply with
housing code
6. Criminal Penalties – fines and imprisonment for LL who fail to fix dangerous
unlawful conditions in their apartment buildings
7. Administrative remedies - T may remain in possession, pay full rent, and seek
damages against the LL
8. Compensatory damages – when a violation harms personal property (LL
negligence)
i. T may seek amount of $ that exceeds rent
9. Punitive damages- the moral culpability of the D – LL’s actions were
intentional and malicious
10. Trespass
Present obligation of LLs:
11. Broad – encompasses the housing code within it
a. Issue in Javins: do leases or urban dwelling units contain an implied
warranty of habitability, the breach of which gives rise to the usual
remedies for a breach of contract? YES.
12. Reasoning – common law recognizes the LL's obligation to keep the premise in
a habitable condition; district housing codes also require an implied warranty of
habitability
13. Tenant's obligation to pay is dependant on the LL's performance of his
obligations
14. Different ways jurisdictions have interpreted or picked up Javins: Warrant of

Habitability
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a. Group 1 – standard of warranty are the housing codes; failure to meet

them is a breach
b. Group 2 – standard of warranty are the housing codes but compliance is
sufficient so long as habitability is unaffected so only a substantial defect
will constitute a breach
c. Group 3 – housing code and violations are compelling but not conclusive
d. Group 4 – standards of habitability are completely different than housing
codes
15. Javins was the contractualization of the LL-T relationship to fix the inequality
in the system; made the LL-T relationship dependent, not independent
obligation of one to the other
Minjak Co. v. Randolph – Constructive eviction

 Facts: Landlord sued tenant for unpaid rent. Tenants answered and countersued claiming
they should be granted an abatement of 2/3 of the rent due to the landlord’s construction
making the proportion of the apartment unusable, and a further abatement of 1/3 for
landlord’s failure to provide basic service. The LL entered into a commercial lease, even
though most of the building was residential. The tenant’s upstairs neighbors operated a
health spa and water leaked downstairs. Sandblasters caused dust everywhere. Further
construction caused smoke to go into apartment, causing sickness
 The innovation in this case is the court recognizing that in order to claim constructive
eviction, you do not have to leave the premises, you can show that you were barred from
some part of the premises, even if you remained in possession (constructive eviction).
Court recognizes that asking people to leave would in fact deter them from complaining
or suspending rent.
Javins v. First National Realty Corp.

 Facts: ∆ and other tenants refused to pay rent due to housing code violations in the
building. The landlord brought suit to recover possession and past-due rent.
 Holding: Leases of urban dwelling units contain an implied warranty of habitability, and
breach of this warranty gives rise to the usual remedies for breach of contract
1. Have to look at:
 Whether the alleged violations existed during the period for which past
due rent is claimed
 What portion, if any at all, of the tenant’s obligation to pay rent was
suspended by the LL’s breach
 Results: (1) Urban leases should be treated as any other contract. It no longer makes
sense to use old, rural rules of lease-holding. Unlike leases, the land isn’t what the urban
renter is renting, it is the livability of the area. As such, the urban dweller rents a package
of goods and services which allows for a livable environment. (2) The old no-repair rule
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cannot coexist with the obligations imposed on the landlord by a typical modern housing
code, and must be abandoned in favor of an implied warranty of habitability. (3) Tenants
have a belief that the beginning quality of their apartment will be the quality of their
apartment throughout their residency. (4) Here, the tenant’s requirement to pay rent is
dependent on the landlord’s performance of his obligation
Property and Sovereignty

Regulatory Takings
i. 5th Amendment final clause (takings clause): “Nor shall private property be taken for
public use without just compensation.”
a. Initially, this only applied to the federal government.(changed after 14th)
ii. 14 Amendment: “States may not deprive persons of life, liberty, and property without
due process of the law.”
iii. In 1922, the Sup. Ct., for the first time, suggested limits on the principle that the states
may regulate under the police power w/o compensation
iv. Eminent Domain: Govt. can take property but must compensate
a. Citizens CANNOT oppose if there is just compensation
b. Only the sovereign can do this
c. There is an area of the law that deals w/ just compensation
v. Police Power: Govt. can take property but doesn't have to compensate
a. Regulate private activity to promote health, safety, & welfare
b. Original power of the government. If you deny governments this power, they will
cease to be governments.
vi. When does a regulation cross the line from police power to eminent domain power?"
a. Takings clause mediates between police power and eminent domain power by
defining when a purported exercise of the police power has gone too far in
infringing on private property rights without adequate public justification
constituting an exercise of eminent domain power needing compensation
vii. Elements of the Takings Clause
1. A taking
2. For public use
3. Without just compensation
viii. Regulatory takings deal with judicial interpretations of regulations. When the exercise
of police power is so burdensome that they are actually eminent domain power such that
they trigger the need for just compensation.
a. A regulatory taking is a situation where the government limits the legal use of
private property to the point that the owner essentially cannot use it.
ix. Denominator Question: How one defines the property being regulated
a. If the denominator is smaller, the property owner can claim a greater
Types of Takings
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i. Categorical Takings (aka per se takings)

a. Physical invasion or occupations by the authority of the government.
b. The government has NO defense for such an invasion.
c. Once a landowner shows that his property has been physically invaded or
occupied by a government body or a private party acting under government
authority, the landowner has a successful categorical takings claim.
d. Not always physically touching, for example air space can be per se taking.
e. See Cedar Point; Causby; Kaiser Aetna; but see Heart of Atlanta Motel; Yee.
(many of these are note cases)
ii. Total taking that render the property valueless
a. After Lucas, a prima facie taking occurs if a regulation renders property valueless
or prohibits all economically beneficial use.
b. To prevail, the landowner must prove the regulation prohibits ALL economically
beneficial use, NOT JUST the landowner’s intended use.
c. Two exceptions:
i. Laws and regulations that, under common law, controlled or abated
nuisance generally do not result in takings. This is because nuisance is a
traditional function of government to protect health, safety, and welfare of
the community. The Lucas opinion makes this regulatory power to abate
nuisances a defense when a regulation effects a “total taking”.
ii. When a regulation or restriction, even one that eliminates all economically
viable use, “inheres in the title itself in the restrictions that background
principles of the State’s law of property and nuisance already place upon
land ownership.”
iii. Deprivation of Individual/Specific property rights
a. If the extraordinary character of a regulation is such that it denies a landowner
certain fundamental property rights, such as the right to devise his land, that
regulation amounts to a taking of property without just compensation.
b. See Babbitt
iv. Conceptual severance
a. Applying an ad hoc test requires knowing what the property is that is claimed to
have been taken; thus, the court must know what the denominator is in a fraction
that represents the property taken divided into the whole parcel owned by P.
b. Fraction is computed in order to calculate whether the property has been occupied
physically, its owner denied all economically viable uses, or regulated too far.
v. Judicial takings
a. The takings clause does not address which branch of government may take
property, only that private property may not be taken without just compensation.
b. See Stop the Beach
vi. Exactions
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a. Conditions imposed by a municipality that a landowner/developer must meet

before the municipality will issue the landowner/developer a subdivision, building
or occupancy permit.
b. An exaction may be a dedication of land for public purposes, a restriction on the
development of land, or a required improvement.
c. To be constitutional, an exaction must further a legitimate state interest, and
cannot be a pretext to avoid the Takings Clause compensation requirement.
d. TWO PART TEST:
i. ESSENTIAL NEXUS (Nollan & Koontz)
 Relationship between the end to be achieved (legitimate state
interest) and the means chosen to achieve that end (the exaction)
must be close enough so that the exaction substantially advances
the legitimate state interest.
ii. ROUGH PROPORTIONALITY (Dollan)
 Demands the municipal agency make some sort of individualized
determination that the required dedication is related both in nature
and extent to the impact of the proposed development.
Pennsylvania Coal Company v. Mahon

 Facts: In 1878, Penn Coal conveyed the surface of a plot of land it owned to Mahon. In
this transfer, Penn Coal retained the right to mine underneath the property, and an explicit
provision in the deed stated that Mahon was taking the land subject to any risks
associated with mining beneath the land. In 1921, PA enacted the Kohler Act; preventing
coal mining that could possibly affect the integrity of any surface land. Mahon then sued
Penn Coal, arguing that the new state law barred Penn Coal from mining.
 Rule: While the use of property may be regulated, overregulation will be considered a
taking.
 Majority (Holmes)
o “Government could hardly go on if to some extent values incident to property
could not be diminished without paying for every such change in the general
law.” –Holmes
o “The general rule at least is, that while property may be regulated to a certain
extent, if the regulation goes too far it will be recognized as a taking.”
o Holmes thinks a more appropriate regulatory response would be to require the
coal company to give notice to the home owner. (Dissent response is that who is
Holmes to decide from D.C. what is the best response)
o Here, taking went too far because that statute took the coal company’s entire
estate. It essentially abolished a very valuable estate in land. The Court held that
to make it commercially impracticable to mine certain coal has the same effect
for constitutional purposes as appropriating or destroying it.
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 Dissent (Brandeis):
o “Coal in place is land, and the right of an owner to use his land is not absolute.”
o He argued that the restriction was imposed to protect the public health, safety, or
moral from dangers and was therefore not a taking.
o Brandeis argued that the extent of diminution has to be compared with the value
the whole property, rather than just viewing it as the pillars of coal as Holmes did.
o He says "so what" if it protects just a private home, this doesn't mean that the
public isn't interested in it. Just because the harm is concentrated on a private
actor doesn't mean that therefore legislation trying to abate that harm loses its
public character.
Denominator test
Murr v. Wisconsin Within economic impact factor there is the 3 extra factors (overall
analysis that will go into Penn Central analysis). Use if multiple plots and need denom.
 Facts: Murrs purchased two adjacent lots that comprised a total of .98 acres. 30 yrs later
the Murrs transferred lots to their children. Then the lots were merged pursuant to an
ordinance that prohibits individual development or sale of adjacent lots under common
ownership, unless an individual lot is at least one acre suitable for development.
Later, Murrs wanted to sell Lot E, but not lot F. The county refused to let them sell the
lots separately and also could not develop separately. Murrs challenged the 1 acre rule as
a regulatory taking. Question became “what is the denominator”?
 Holding: Denominator is the unified lots, not just the parcel that the claimants wanted to
sell. Establishes a balancing test.
 Rule: Three factor test to determine the denominator
1. TREATMENT of land under state and local law
 Taxes; merger
2. Physical CHARACTERISTICS of land
 Proximity; surveying; terrain suspect to regulations; along the river
3. VALUE of property under challenged regulation
 If one aggregated parcel raises the value of the other, it weighs against
taking; more privacy.
Ad hoc test
Penn. Central Trans. Co. v. NYC
 Facts: NYC’s Landmark Preservation Law prohibited Penn Central from building a fifty-
story office building on top of their historic terminal because the preservation
commission thought it was an aesthetic joke.
 Rule: In determining whether a state regulation constitutes a taking under the 5th and
14th amendments, courts should consider:
The economic impact of the regulation on the owner
 Is the owner left with an unreasonable number of uses for the property?
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 Must determine the denominator, and the diminution in value must be

great. The greater the diminution in value, the more likely the regulation
will be characterized as a taking.
 Here, Penn Central could still derive a reasonable return on its investment
by operating the terminal.
The extent to which the regulation has interfered with the owner’s reasonable
investment-backed expectations, and;
 Expectations depend upon whether (1) P was aware of problem that
produced the regulations, (2) P could reasonably foresee the enactment of
regulations, and (3) P knew that his use was highly regulated to begin
with.
 A regulation is more likely to be held a taking if a citizen has already
invested substantially in reasonable reliance on an existing statutory or
regulatory scheme.
 Penn Central will still have what they have before and after.
The character of the government action involved in the regulation.
 Is there an average reciprocity of advantage provided by the regulation?
 Misuse of the regulatory authority of the government?
 Uncertainty in the application of regulations so that an owner is unable
to plan for the use or development of the property?
 The importance of the government action (i.e., does the regulation
prevent a significant threat to the environment)?
PER SE EXCEPTIONS
A. Physical occupation authorized by government
Pruneyard Shopping Center v. Robbins. PRUNEYARD = PUBLIC = NO TAKING

 Facts: Students were ejected for giving out protest flyers in a shopping center. Begs the
question of whether the right to exclude is SO valuable to a shopping center’s economic
value that if the state were to limit this right, then it would be a taking.
 Holding: The answer is no. A state’s enforcement of individuals’ freedom of speech (1st
amendment) on private property OPEN TO THE PUBLIC does NOT amount to a taking.
o Important to note that it is private property open to the public.
o Reason why there is no taking is because the shopping center did not show that
the right to exclude others is so essential to the use or economic value of their
property.
o The owner’s right to exclude was not ENTIRELY taken because he could
enforce time, place, and manner restrictions.
 This is important to note because it basically shows that if there are other
options there is no full diminution of economic use. (Compare to Lucas)
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 Remember: more you open your property to public, the less rights you have!
 Different from per se liability, when it is private property that is not open to the public.
Cedar Point Nursery v. Hassid STRAWB. LABOR CASE. CITE IF PHYSICAL OCCUP.
 Facts: Cedar Point had a strawberry nursery. Agricultural Labor Relations Board enacted
an act that allowed union organizers access to agricultural employees at employer
worksites under (very) specific circumstances. Then organizers entered into Cedar Point
w/o prior wrirten notice to take access as required by regulation.
 Holding: YES Taking. Granting access to a third-party, even for a limited time,
constitutes a physical taking!
o Directly overrules Loretto! Changes the law because there is no more distinction
between permanent/temporary occupation.
 ANY GOVERNMENT OCCUPATION IS A PER SE TAKING.
 Dissent: The regulation does physically appropriate the property but simply regulates
their right to exclude others and should be analyzed under Penn Central. (AKA analyzing
under Penn Central would mean that it is NOT a per se taking.)
Note Case: United States v. Causby (1946) – Page 1213 – CHICKEN CASE
● Facts: military aircraft flew so low over P’s house so as to render their residence
uninhabitable and their chicken farm business inoperable because the noise caused the
chickens to die of fright.
● Rule: property is taken within the meaning of the Fifth Amendment by a direct and
immediate interference with the enjoyment and use of private land that renders it
uninhabitable.
● Notes....
○ If a landowner is to have “full enjoyment” of his land, “he must have exclusive
control of the immediate reaches of the enveloping atmosphere.”
○ Because the planes flew so low to the ground, this exceeded the scope of the
public servitude and thus the entry and passage of the planes constitutes a forced
taking of a public easement over P’s land.
○ An additional physical occupation case for your reference.
Note Case: Kaiser Aetna v. United States (1979) – Page 1213 – PRIVATE LAGOON
● Facts: the owner and lessee of a private lagoon invested substantial amounts of money in
developing the lagoon so as to connect it with navigable waters and create a private
marina. The federal government sought to force Kaiser Aetna to open the marina up to
the public under the navigational servitude doctrine.
● Notes...
○ An example of a physical invasion case as well as a stick removal case.
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○ The owners had invested in developing the marina and connecting the lagoon to
the ocean in the expectation that they would continue to be able to control access
and charge members fees
○ Forcing the marina to be open to the public under a doctrine that could not have
been applicable but for the π’s investment would cause the loss of “one of the
most essential sticks in the bundle of rights that are commonly characterized as
property—the right to exclude others”
○ This is both a physical invasion and a removing stick from the bundle per se
taking
○ Two per se takings: invasion from gov (cedar point), total and complete
deprivation of the rule under Babbitt.
B. Deprivation of economically viable use

Lucas v. SC Coastal Comm.PER SE – TOTAL DEPRIVATION OF ECONOMIC USE –
beach front parcels
 Facts: Lucas bought two beach front parcels of land. Two years later a regulation
prohibited development of habitable structures seaward from an erosion line (so basically
all of Lucas’s land can’t build homes on). His land was rendered essentially valueless.
 Rule: A regulation that completely deprives private property of all vits value constitutes
a taking under 5th & 14th amendments that require just compensation, UNLESS ..
o Exceptions (can function as defenses for gov.)
 Nuisance law
 Common law background principles
 Holding: YES TAKING! Scalia says that the justification for this is that denial of
economically viable use is essential akin to physical occupation by the government!
 Dissent: Justice Blackmun believes Lucas’s land hasn’t lost all its value bc they can still
exclude others, picnic, camp, and live on the property in a trailer. Wtf kind of argument is
that.
Tahoe-Sierra USES LUCAS RULE, NEED 100% DEPRIVATION IN VALUE TO
CONSTITUE A TAKING
 Facts: 36-month mortatoria on building around Lake Tahoe was put in place in order to
review how to best preserve the lake’s clarity (an injunction extended this to six years).
 Rule: A temporary moratorium on development imposed for the purpose of developing a
comprehensive land-use plan does NOT constitute a per se taking of property for public
use requiring the payment of just compensation under the 5th amendment
 Holding: A reasonable mortaorium on development is NOT A TAKING because, for the
Lucas rule to apply, a 100% deprivation in value must occur.
o Because ownership extends over time and space, a temporary moratorium, by
definition, does not result in a complete diminution of value.
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Palazzolo v. Rhode Island BACKGROUND PRINCIPLE DEFENSE USED. LAW ON THE

BOOKS BEFORE THE “TAKING” HAPPENED.
 Facts: P had a parcel of ocean front property but kept getting denied permission to
develop the wetland portion of the property. Only granted permission to develop 18 acres
of upland property. MOST of his property was not allowed to be developed.
o He tries to get the court to look at the wetlands and the upland part separately.
o However, court looks at parcel as a whole, and he still has the numerator of 18
acres compared to all of the denominator. They compare what’s being deprived to
the entire parcel. Still needs to be looked at under Penn Central
 Rule: A property owner. Obtaining property after a regulation on the property is passed
MAY STILL CHALLENEGE that regulation as a taking.
 This case is an example of a background principle because this law (regulation) was
already on the books before P claims the taking happened. This means this is a defense
that the government can use.
 REGULATIONS ENACTED BEFORE TITLE IS ACQUIRED DO NOT
IMMUNIZE THE STATE FROM TAKINGS CHALLENGES.
C. Deprivation of an individual specific property right (taking away a stick)

Babbitt v. Youpee TAKING AWAY STICK (THE RIGHT TO ALIENATE)
 Facts: Congress passed a law that prohibited the transfer of land to devisees who would
hold a very fractional interest in land.
 Rule: If a regulation denies a landowner certain fundamental property rights such as the
right to devise his land, the regulation amounts to a taking of property without just comp.
 Remember:
o All property rights are not considered equal. Some sticks are treated as less
important by the court, such as a limited interference w/right to use, or right to
bequeath.
o Take into account how serious the deprivation is and if there is a public use.
Note Case: Andrus v. Allard (1979) – Page 1220 – Eagle feathers case
● Facts: laws prohibited the sale of eagle feathers in order to protect endangered species;
this ban included the sale of feathers that were acquired before the laws went into effect.
Andrus sold Native American artifacts, some of which included eagle feathers.
● Rule: a prohibition on the sale of lawfully acquired property is not a taking for Fifth
Amendment purposes.
○ In contrast to Babbitt, the court held that the denial of an entire stick (at least
where the owner possesses an entire bundle of property rights) is not a taking
because the aggregate must be viewed in its entirety
○ Eagle feathers didn’t lose all their value – could still preserve or show to museum
68
Judicial Takings
Stop the Beach Renourishment
 Facts: P owned beach front property which includes land up to the high-water mark.
Along with the land comes the fact that as sand deposits or erodes, the property line
changes with it. If land that was previously submerged becomes part of the surface due to
water receding, it remains that of the state. As part of the beach renourishment project the
state wanted to deposit sand just seaward of the high-water mark, to repair erosions of
past hurricanes. Doing so would make the land the states, and any later deposits of sand
would not be added to P’s land. The plaintiffs said this was a violation of their property
rights and therefore a taking.
 Holding: No taking occurred because avulsion and accretion is part background
principles of law.
 Takeaway: This plurality opinion opens possibility of future judicial taking.
Exactions
 Exactions are conditions imposed by government that a landowner or developer must
meet before the government will issue the landowner a subdivision or building permit.
 To fall under Nollan/Dollan test, case must involve some kind of linkage with giving up a
right to the state and getting something in return. QUID PRO QUO.
Nollan FOUNDATION FOR DOLAN. INTRODUCES ESSENTIAL NEXUS

 Facts: California Coastal Commission granted an application from plaintiffs to demolish
their house and build a bungalow, but placed a condition on the approval. Condition was
that plaintiffs were required to grant to the public an easement across their property,
making it easier for people to get to the public beaches. CA argued that the bigger home
would cause a “psychological barrier” and restrict view of the beach. Wanted people to
know beach was there.
 Rule: Essential nexus test. The permit condition has to serve the same legitimate state
interest/purpose as the development ban. If it does not, then it is unconstitutional.
 Holding: Court found no essential nexus between the government’s interest in protecting
the public’s view of a beach and the beach access that would facilitate and a requirement
that breach front owners applying for a building permit provide a right of way for the
public to reach the beach.
Dolan ESSENTIAL NEXUS + ROUGH PROPORTIONALITY TEST.
 Facts: D developed a comprehensive land use plan which included provisions for
pedestirna and bike paths in order to cut down on auto traffic, as well as plans to reduce
potential flooding. P owned a plumbing supply store that covered 9k sq ft near a
floodplain. P applied to D for a permit to redevelop the site to double the size of the store.
D granted the application subject to certain conditions: (1) P had to dedicate part of the
69
property for storm draining improvement and (2) a strip of land adjacent to the floodplain
be used as a pedestrian bike pathway, requiring 10 percent of her property.
 Rule: A city may put conditions on the giving of a building permit when..
1. An “ESSENTIAL NEXUS” exists between the legitimate state interests
and the permit condition exacted by the city.
2. There is a “ROUGH PROPORTIONALITY” between the required
dedication and the impact of the proposed development.
 Holding: D passed essential nexus test but not rough proportionality. Did not show
required relationship between the impact of the new building and the specific conditions
imposed.
Public Use
 If the exercise of the eminent domain power is rationally related to a conceivable public
purpose, a compensated taking is not prohibited by the Public Use Clause.
 Gov does not need to show that they were successful, just needs to be rationally related to
conceivable public purpose. Tough for challenger bc they must prove its inconceivable.
Kelo v. City of New London

● Facts: The City of New London approved a development plan to revitalize its downtown
and waterfront areas. The development agent purchased property from willing sellers and
utilized eminent domain to acquire additional properties needed in exchange for just
compensation. The city believed this would stimulate the local economy by creating jobs
and tax revenue. The plaintiffs were resisting homeowners who alleged that their
property was not blighted and was only condemned because it was in the development
area and argued the taking violated the Public Use Clause.
● Holding: “Public use” is really “PUBLIC PURPOSE” Economic development has
always been said to be furthering public purpose. Success of the plan has nothing to do
with constitutionality. Needs to just be CONCEIVABLE!
○ *Economic development is a legitimate public purpose. (Public use exception also
applies to takings for business purposes.)
● Notes…
○ The city had a comprehensive plan how this was all supposed to be done and was
not simply taking from A and giving to B in a corrupt way.
○ This case is an expansive view of public use.
○ Remember: there does not need to be a guaranteed success. The government is not
required to show that its plan will actually fix the problem.
Initial Acquisition
Sovereignty
70
Johnson v. M’Intosh
● Facts: Title dispute between 2 parties both claiming that they have title to the same land.
One of the parties, Johnson, claims title through transfer through native American groups,
and the other party, M’Intosh claims title through transfer of title granted by the U.S.
● Issue: Whether the Indians had absolute title in the land they occupied.
○ For Indians to transfer property, they needed to have “absolute and complete title”
to it.
○ But the United States had, from the beginning, asserted its own absolute and
complete title to the land occupied by Indians by right of conquest, thereby
assuming “the exclusive right of extinguishing the title which occupancy gave to
them.”
● Holding: Discovery gives U.S. title and courts can only recognize this title.
● The court declined to challenge the validity of this title-by-conquest.
○ “It has never been doubted that the US had a clear title to all land within its
boundaries subject only to the Indian right of occupancy, and that the exclusive
power to diminish that right was vested in the government. The United States
holds and asserts the title by which it was acquired; that discovery gave the
exclusive right to extinguish an Indian title of occupancy.”
● Takeaway Conquest gives title which the courts of the conqueror cannot deny.
○ Our property rights really only mean anything bc we have the
state to enforce it.
○ Full circle moment for the course.
71

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PROPERTY OUTLINE 2023

Public Accommodation Statutes___________________________________________________________8

BEACH ACCESS AND PUBLIC TRUST________________________________________________________10

THE PROBLEM OF HOMELESSNESS________________________________________________________11

LIGHT & AIR__________________________________________________________________________15

Modifying and Terminating Covenants_____________________________________________________39

El Di, Inc. v. Town of Bethany Beach; Changed conditions / brownbagging case____________________________39

Present Estates and Future Interests_________________________________________________41

RULES AGAINST PERPETUITY________________________________________________________45

Property and Sovereignty__________________________________________________________61

B. Deprivation of economically viable use__________________________________________________67

C. Deprivation of an individual specific property right (taking away a stick)_______________________68

II. TRESPASS: THE RIGHT TO EXCLUDE AND RIGHTS OF ACCESS

Public Policy Limits on the Right to Exclude

State v. Shack (N.J. 1971) [Limit right to exclude]

Commonwealth v. Magadini (Mass. 2016) [Necessity]

Glavin v. Eckman (Mass. App. Ct. 2008) [DETERENCE BY PUNITIVE DMG]

Jacque v. Steenberg Homes, Inc. (Wis. 1997) [DETERENCE BY PUNITIVE DMG]

Public Accommodation Statutes [Statutory limits on the right to exclude]

Civil Rights Act of 1964

Civil Rights Act of 1866

State Public Accommodation Statutes

THE PROBLEM OF HOMELESSNESS

o Trespass is a physical intrusion on your land and nuisance is a non-trespassory

g. Look at priority of location.

Boomer v. Atlantic Cement Co. (NY.2d 1970) [Permanent damages]

Johnson v. Paynesville Farmers (Minn. 2012)

LIGHT & AIR

Fontainebleau Hotel Corp. v. Forty-Five (FL 1959) [No right to light/air]

Armstrong v. Francis Corp. (NJ 1956) [Shift to reasonable use test]

Noone v. Price (W. Va. 1982) [Lateral Support]

Friendswood Development Co. v. Smith [Subjacent support rights]

Wilcox v. Stroup (4th Cir. 2006) [Possession creates presumption]

ELEMENTS OF ADVERSE POSSESSION (varies state by state) AOE-CAS

Claim of title v. Color of title

Brown v. Gobble (W. Va. 1996) [Tacking Fence / Claim of Title]

Nome 2000 v. Fagerstrom (AK 1990)

Hoffman v. Bob Law, Inc. [Relative Hardship Doctrine]

4. a balancing of the hardships and equities. (encourages the denial of an

Ward v. Ward (W. Va. 2016) [Betterment]

O’Keeffe v. Snyder (SC of NJ 1980) [Discovery rule in favor of P]

 Degree or intensity of use may constitute an undue burden

Affirmative v. Negative Servitudes

 Affirmative Easement – Right to do something on someone else’s property (right of

Elements of Prescriptive Easements

Frech v. Piontkowski (Conn. SC. 2010) [Prescriptive easement of recreational water]

a. Actual notice: Notice of fact, people knew it existed, were informed

Creation by Express Agreement

Green v. Lupo [Motorcycle trailer park]

 Suggests that it was to benefit the land, not a person

 Issue: Whether parol evidence is admissible to construe an easement as personal to the

Cox v. Glenbrook (Nevada 1962) [Road widening]

2. Foreseeable and reasonable reliance on continuation of permission

 Easements Implied by Prior Use: (a.k.a. Quasi-easements/Easements by

What's the difference between express & implied easements?

Is there a statute of fraud problems w/implied easements?

Lobato v. Taylor (Colorado SC 2002) (en banc)

 Land was originally under the common ownership ,

Finn v. Williams (Ill. 1941)

REAL COVENANT THEORY TRADITIONAL REQUIREMENTS