Property Law Outline

Possession, Ownership, and Transfer


Exclusion commonly thought to be the most important factor in property ownership. Inclusion is the right to access that which you own.

• Jacques v. Steenberg. 1997. Steenberg delivered a mobile home and tracked across Jacques’ land, intentionally trespassing; no actual damage to land (nominal damages of $1 awarded), but punitive damages of 100,000 upheld. Society has a strong interest in deterring intentional trespassers.

• State v. Shack. 1971. Trespassing charges brought against aid workers who sought to provide aid pursuant to federal laws (the EOA) to migrant workers overruled by court. The power to exclude is not an absolute right. A landowner does not have the right to exclude people from receiving government services to which they have a right. One should use his property so as not to injure the rights of others.

Acquisition by Capture. First in time rule. He who grabs it gets it.

Pierson v. Post. 1805. Post chased a fox on unowned land, and Pierson caught it and killed it. Court found that ownership must be defined by actual physical possession; a rule of ownership at first sight would lead to chaotic results. Caveat to the rule hints that had Post mortally wounded that beast during the pursuit, he would have gained ownership rights. Dissent thinks that the ruling will deter the socially beneficial activity of fox-hunting.

Possession and Escape of Fugitive Resources

• Ratione soli; “The reason of the soil.” A kind of Constructive Possession. While wildlife (ferae naturae) is on the land, wildlife belongs to the owner of the land.

• Ghen v. Rich. 1881. The tagged whale case. The role of maritime custom applies. Whales were harpooned and were tagged by harpooner, denoting ownership. Once tagged, the whale became property; ownership is vested in the harpooner. If the custom were not recognized here, the industry would cease. Court recognizes custom.

• Keeble v. Hickeringill. England 1707. The duck-shooting pond case. D intentionally disrupted P’s enterprise by coming onto P’s land and chasing away the ducks. By scaring off the ducks, P is being deprived of the right to profit from his property. This ability to make a living is a kind of property right in itself. There would have been no problem if D had just set up his own duck-shooting pond next door; that would be in the public interest because it would have furthered the market economy and the gain of property as a whole.

• The rule of increase. If you own the mare, you own the baby.

Physical Discovery and Conquest

Johnson v. M’Intosh. 1823. Ownership here defined by grabbing, getting, and keeping rule, rather than straight first in time rule. The fiction of property ownership has to start somewhere; the Court as a tool of colonialism, not of justice. Indians only had a right to occupancy; because they hadn’t worked the land, and had been driven from the land they did not own the land; because they did not own the land, they could not sell the land. “Discovery” by European nations, compounded by conquest of the land, gives Euros right to sell or buy the land. U.S. government power over property is absolute; property rights have been inherited through Euro discovery and perfected through American conquest and tilling of the soil. Note the Lockean ideal playing into this rule – the Indians did not “work the land;” they did not gain ownership rights. Note also that Indians’ occupancy here is not enough to vest ownership.

Acquisition by Creation

Lockean ideal. Labor at something, and improvement of something, may vest ownership rights. Work the land, own the land.

International News Service v. Associated Press. 1918. Quasi-property and the relativism of title. The relationship is borne out of the competitive business relationship between these two parties. This material is “owned” only in the context of this relationship. Within this relationship, INS’s actions have interfered with AP’s quasi-property; ie, their ability to profit from the selling of newspapers. The news itself, as a reflection of the history of the day, belongs to no one; the ability to publish it for profit is a kind of property. By copying news and reselling it, INS is attempting to reap what it has not sown. Another decision to protect fair competition and the market, like Keeble v. Hickeringill. A nod to industry.

Cheney v. Silk. 1929. Cheney makes silk patterns, they make too many to patent each one; Silk copies these patterns and sells them, undercutting Cheney’s pricing. Holds that INS is too specific to be applied here. Imitation is necessary to reduce the prices and prevent monopoly. To exclude others from the enjoyment of chattels is one thing. To prevent any imitation of it, to set up a monopoly in the plan of its structure, gives the author a power…which the congress allows only the Constitution to create. Another decision based on policy to shape the market for what is perceived to be the public benefit. A nod to lower prices.

Smith v. Chanel. 1968. Follows Cheney. Strong public interest in allowing Smith to sell knock-off Chanel because it creates a fair price and competition.

Patents, Copyrights, Trademarks. At bottom, the idea behind patents, copyrights, and trademarks is to grant a limited monopoly over the protected material – monopoly to promote creative activity, but limited in order to advance competition.”

• Patents. Granted for useful and novel products and processes. Patents last 20 years from the date of their application.

• Copyrights. Protects the expression of ideas (not the ideas themselves). Last from the moment they are set down until 70 years past the death of author.

• Trademarks. Words and symbols indicating the source of a product or service; owners are protected against use of similar marks when such use would result in confusion. Trademarks last until they are abandoned.

VW v. Virtual Works, Inc. Virtual Works grabbed a website name that VW would want, and intended to profit from selling the name to VW. Legislature had enacted a cybersquatting law to protect fair competition. Bad faith admitted on part of Virtual Works made application of statutory law easy here.

Property in One’s Own Person Property Law Outline

The right to privacy/the right to publicity. Aside from everyday privacy concerns of regular people, recognized as a kind of property right, celebrities now have a recognized property right in their name, likeness, and other aspects of their identity, which have a marketable value. Right to privacy is rooted in the right to exclude, and provides a guard against another person appropriating another’s self or devaluing it somehow.

 Moore v. Regents of the University of California. 1990. Moore sued for conversion on his cell-line, which doctors mined for research and patents. The rights in one’s person are not absolute. Conversion claims require (1) ownership by P and (2) wrongful use of that property by D. Court refuses to find for P, fearing a slippery slope of litigation that would hinder research; a finding for P here would not be in the public good.

Inalienability of organs. Gifts are allowed, sale is not.

Problems of the Commons

Tension between common property & the rule of capture. Whoever takes property first in a legal manner has ownership rights; property is no longer common. The rule of capture can lead to overconsumption of fugitive resources (like ferae naturae), such as oil, gas, water. This tension is recognized in part as the tragedy of the commons.

Lone Star Gas. Gas processed and injected back into the ground by LoneStar into reservoir which was partially beneath Murchison’s land. Murchison drained the gas. Lone Star brought conversion suit, court granted P relief. Once possession as property has been taken, the title remains vested in the possessor, whether or not it is injected back into the ground. Because of concern with misuse and waste of natural resources, it is important to protect the rights of the first in time (the company that has processed the gas).

Tragedy of the Commons.

• Utilitarianism. The dominant view in legal theory; the primary function of property is to promote the efficient use of resources.

• Privatization of property leads to greater efficiency (Demsetz article. Less waste b/c of greater incentives; less waste b/c of less transaction costs.

• Counter-arguments against privatization. The privatization of property can lead to externalization of problems that are harmful to other property owners. Example: pollution from an industry; industry would not internalize costs of preventing pollution without fines from State.


Acquisition by Find. Property rights are gained through means other than the first in time rule. Rights are relative to order in which the thing is found and possessed. O=>F1=>F2. The burden toward regaining the property found is placed upon the relative owner, because rule of acquisition by finding is an all or nothing system of compensation – there is no system of a finder’s fee.

• NB. Title to lost and mislaid property not relinquished by owner; title to abandoned property is relinquished by owner.

• Lost. Property is lost when the owner has accidentally and involuntarily parted with possession.

• Mislaid. Property is mislaid when it appears from the location that it was intentionally placed there and thereafter forgotten.

• Abandoned. Property is abandoned when the owner has voluntarily and intentionally relinquished ownership (without reference to any particular person or purpose).

 Armory v. Delarmie. An action in trover (for $ damages award for converted property), brought by chimney sweep who found a jewel against a jewelry store owner who kept the jewel. The court found that the chimney sweep, by finding the jewel, gained a property right to keep the jewel over everyone but the rightful owner.

Hannah v. Peel. England 1945. Hannah was staying at Peel’s place during the war and found a broach that Peel did not know about. The court found for Hannah. A finder of personal property prevails over an owner of “real” property if owner of “real” property is not in prior possession of the personal property.

McAvoy v. Medina. P found some money on the table of D’s barber shop. Court finds for D. Distinction between lost & forgotten property. Although it is well-settled that the finder of lost property is its owner regardless of where it is found, this case is different b/c the property was not “lost” but “forgotten;” its being found by P in D’s shop gives P no property rights.

Adverse Possession

General PFC for adverse possession

• Actual physical entry and exclusive possession that is • Open and notorious

• Adverse and under a claim of right**

• Conn. Doctrine (majority): the intent of the adverse possessor is irrelevant

• Maine Doctrine (minority): aggressive intent is necessary to gaining title

• Continuous for the statutory period

1. Running of the Statute of Limitations

a. Title by adverse possession results from the running of the statute of limitations for bringing claims for trespass to real property.

b. The statute of limitations begins to run when the adverse possessor enters and gains possession (i.e. when owner first could bring suit).

c. The statutory period varies among states from 5 to 21 years. The trend is toward shortening the statutory period.

2. Actual Entry and Exclusive Possession

a. Sufficient to put owner on notice of the fact and extent of the adverse possession.

b. Of a type that a true owner would typically make of a parcel. c. Title is gained only as to land actually occupied and controlled, if adverse possessor enters with no "color of title" (a written instrument). But partial occupation may give rise to constructive adverse possession of the whole tract where possessor acts under "color of title" (i.e. holds a written instrument identifying the whole tract)

d. "Exclusive" means no sharing with the owner.

3. Open and Notorious Possession

a. Sufficiently apparent to put owner on notice that a trespass is occurring

b. Some states have specific statutory requirements for showing adverse possession (e.g. the New York statute in Van Valkenburgh v. Lutz)

4. Adverse (or "Hostile") and under a Claim of Right (or "Claim of Title")

a. Lacking owner's permission

b. Relevance of state of mind and knowledge of the parties: (1) Objective test: The Connecticut Doctrine. The majority view is that an adverse possessor's state of mind is not important (mistake, good faith, or hostile intent). The possessor's actions and statements must simply look like a claim of right to the property.

(2). Subjective test: Some states say that the adverse possessor must have a good faith belief that she has title. A squatter or aggressive trespasser (knowing she lacks title) cannot be an adverse possessor under this test.

(3). The "Maine doctrine" for boundary disputes: a minority of jurisdictions hold that a possessor who is mistaken about the boundary line of his property but did not intend to claim title to adjoining property may not obtain title by adverse possession because adversity is missing.

(4) The New Jersey rule: New Jersey follows the majority rule now (the objective test), but when intrusion on a small area is not readily apparent without a survey, the possession is not sufficiently "open and notorious," if the owner has no actual knowledge of the encroachment. [Mannillo v. Gorski]

(5) Courts sometimes resolve boundary issues by finding or implying the existence of an agreement between the parties about the location of the boundary line. The doctrines of "agreed boundaries," "acquiescence" and "estoppel" as applied to boundary lines do not rely on a finding of adverse possession.

b. Most states do not require that the adverse possessor also act under "color of title" (relying on a written instrument). But the minority view is that "color of title" is required for adverse possession.

5. Continuous (uninterrupted) possession

a. Degree of occupancy and use that the average owner would make of the property. Intermittent occupancy may qualify as continuous possession if typical occupancy by a true owner would be intermittent

b. "Tacking" of periods of adverse possession

(1) In U.S. law, an adverse possessor may "tack" onto her own period of adverse possession other periods of adverse possession by preceding possessors if there is "privity of estate" among the adverse possessors (involving the voluntary transfer (written or oral) of an estate in land or possession of land).

(2) There is no privity of estate between two possessors if one ousts the other.

(3) In English law, privity is not required for tacking

c. "Tacking" of ownership periods: Once adverse possession begins to run against the owner, it continues to run against all of the owner's successors in interest. [Howard v. Kunto] d. Continuity (and the running of the statute of limitations) may be broken by:

(1) Abandonment: If the adverse possessor intentionally relinquishes possession without the intent to return, for any period of time, continuity is lost.

(2) Interruption by the true owner: Interruption of the adverse possession by the true owner who reenters the land stops the statute of limitations from running.

6. Property Law Outline Disabilities of Owner

a. If the owner is under a disability at the time the adverse possession begins (i.e. when the cause of action first accrues), legislation typically provides that the statute of limitations is tolled until the disability ends. Usually such laws say that only the initial disability at the time of entry by the adverse possessor tolls the statute. (I.e., no "tacking" of disabilities to toll the statute of limitations.)

b. What counts as a "disability" that tolls the statute of limitations depends on the specific language of the applicable legislation.

7. Governmental land is usually exempt from adverse possession (although exceptions may be created by statutes).

Van Walkenbrugh v. Lutz. 1952. Lutz built his house on his land, and had a garden on part of the lots that the VW’s later bought and moved into. Court found that Lutz could not satisfy elements of adverse possession claim, b/c his garden did not satisfy the requirements that (1) the land be cultivated/improved by the adverse possessor, and (2) the actual occupancy was not adverse and under a claim of right.

Mannillo v. Gorski. 1969. D improved their house, and unknowingly encroached upon P’s lot by 15 inches. Court refuses to apply the Maine Doctrine. Aggressively hostile intent not necessary to establish adverse possession; however, the encroachment must be clear and self-evidently apparent to true owner to establish adverse possession. Note that this is a more objective standard than the Maine standard. NJ rule is more like the Conn. Doctrine.

Howard v. Kunto. 1970. Summer houses along a canal; everybody has been holding the deed to the wrong piece of land, basically all shifted down one spot. It’s been this way for 38 years, although D has only lived there for a year. P, upon becoming aware of the problem, bought the actual deed to his property, and proceeded to sue D to kick him off the property to which he mistakenly believed he had title. D has basically had the rug sold out from under him. Court finds for D. Where, as here, several successive purchasers received record title to tract A under the mistaken belief that they were acquiring tract B immediately contiguous thereto [i.e., the mistaken belief was reasonable], and where possession of tract B is transferred and occupied in a continuous manner for more than 10 years by successive occupants…there is sufficient privity of estate to permit tacking and thus establish adverse possession as a matter of law.”

Adverse possession of personal property. Note that “open and notorious” requirement is much harder to judge here; personal property is much more easily concealed.

• O’Keefe v. Snyder. 1980. SC of NJ. The case of the allegedly stolen painting. P brings replevin action seeking return of the property. Discovery Rule: Court places the burden on P to show that she had exercised due diligence in trying to recover her painting. When P knew or should have known where painting was, the SOL will begin being tolled against her. Note that this puts the good faith buyer at risk of losing title. Note also that NY refuses to follow this rule b/c it places undue burden on rightful owner.

• Uniform Commercial Code. A national standard aimed at free flowing commerce of transactions enacted in good faith. Aims at clearing up title on goods hitting the market. Protects the bona fide buyer by giving them good title once they have purchased something from an established market.


Transfer of goods with manifest intent of making a “gift” of the goods. If a gift can be handed over, it must be handed over; otherwise there are transfers of deeds and transfer by will, which are not gifts.

Inter vivos gifts irrevocable. During life.

Causa mortis gifts revocable if giver lives. Because of death.

PFC for a “Gift”.

• Intent. No consideration allowed (nothing in return). • Delivery • Actual • Constructive • Symbolic • Acceptance by recipient

Gruen v. Gruen. 1986. The painting was an example of an inter vivos gift. Father sent three letters to son declaring intent to give paintings to son, but also father’s wish to retain possession of the paintings while he lived. Court found that the letters were effective evidence of a gift. As to intent, as long as the evidence establishes intent to transfer some present interest, the gift is effective immediately; as to delivery, the letters were constructive instruments of delivery; as to acceptance, both the value of the paintings and the P’s bragging to friends established acceptance.

Estates in Land, Forms in Ownership and the Right to Transfer

4 types of estate in land: Fee Simple; Fee Tail; Life Estate; Leasehold

The Fee Simple

The Fee Simple Absolute. The largest estate permitted by law. Alienable, divisible, devisable, inheritable (even if owner dies intestate, heirs will inherit it). Indefinite and potentially infinite duration. Common law, largely abolished by statutory provisions, required that instrument creating a fee simple contain the phrase “to A and his heirs.” Presumption is for fee simples unless it appears that a lesser estate was intended – fee simple absolutes are easier to deal with.

Defeasible Estates. Of potentially infinite duration that can be terminated by the happening of a specific event.

Fee Simple Determinable. Estate that automatically terminates on the happening of a specified event. “For so long as,” “while,” “during,” “until.” If the estate is terminated, ownership reverts automatically back to O.

• Possibility of reverter. No need to specifically state the possibility of reverter, it is assumed in the creation of a fee simple determinable.

Transferrability of possibility of reverter. In the old days, attempted transfer of this interest was invalid; it would pass on to O’s heirs. Today, in most jurisdictions, the possibility of reverter is transferable inter vivos (alienable) and by will.

Correlative Interest in a 3d party. A possibility of reverter exists only in the grantor, not in a third party. If a comparable interest is created in a third party, it is an executory interest, a whole other kind of defeasible estate.

Fee Simple Subject to Conditions Subsequent. Upon the happening of the event stated in the conveyance, the estate of the grantee continues until grantor excercises her power of termination (right of entry). “Upon condition that,” “provided that,” “but if,” “if it happens that.”

• Rights of Entry. It must be expressly reserved. The right of entry may be waived by the grantor, but the passage of time is not considered a waiver of the rights of entry.

 Transferrability of rights of entry. Most often these are inalienable, and in some cases an attempt to alienate them will destroy them. The rights are devisable in most cases and will pass to grantor’s heirs.

Correlative Interest in 3d parties. Rights of entry can only be created in grantor and his heirs. If interest is created in a third party, it is an executory interest.

• Mahrenholz v. County Board of School Trustees. 1981. Land was conveyed to School Board “to be used for school purposes only.” Eventually the District was using the building just for storing school supplies. Heir to grantor conveyed all of his interest to P’s, who claim that language was fee simple determinative and brought suit to exercise reverter rights. School Board claims that the language was instead a fee simple condition subsequent, and that the heir forfeited his rights of entry. Court finds that the language created a fee simple determinable, and remands to lower court to interpret what “for school purposes” means.

• Mountain Brow Lodge 82 Order of Odd Fellows. Can a grantor assign property conditioned upon complete inalienability? The grant contains the clause that the land is to be used only by the Lodge and a clause that “in the event of sale or transfer by the [Lodge] of all or any part of said lot, the same is to revert to the [grantors], their successors, heirs, or assigns.” Court rules that clause regarding complete inalienablity is void; however, the clause regarding usage is valid. Note that the usage clause essentially renders the property inalienable nonetheless.

• Ink Park v. City of Canton. The relationship between public/private ownership. Ink gives city parkland to be used for park purposes, with reverter to his heirs. The state takes the parkland from the city per eminent domain to build a highway across it. Issue: who should get the money – the heirs or the city? Money for the remaining land will go into the city’s trust fund for upkeeping the parkland; money for the land now the highway will go to the grantor’s heirs.

• Boston Waterfront. 1978. The Lewis Wharf Statutes. Fight over land at the low water mark, land along waterfront was granted by city to private owners, fee simple conditioned subsequent upon the private owner’s not blocking public access to the water, and the private owner’s not blocking the channel itself. Court holds that structures built upon the low water mark are built upon condition subsequent of public use. Leaves it to the Commonwealth to determine what the modern day “public use” should be. DNR then used relicensing of each wharf to garner easements through the privately owned wharfs for the public enjoyment. Policy question: how much government supervision of “public use” doe we want in such property owned subsequent to conditions of public use. Typical of what is happening along the coastline.

 Fee Simple Subject to Executory Interest. Where the estate, upon happening of a specific event, is automatically divested in favor of a third person rather than the grantor. Subject to the Rule Against Perpetuities, which are rules to protect against the Dead Hand controlling an estate too far into the future. NB: charity to charity okay.

Fee tail. “to B and the heirs of his body.” Limiting inheritance to lineal descendants. Most jurisdictions have abolished the fee tail, and treat any attempt at one as the creation of a fee simple. More fear of the Dead Hand.

Life Estate. An estate that last for the life of the grantee. Life estates may also be determinable, conditioned subsequent, or subject to an executory interest. The grantee is called the “life tenant.” A life estate is alienable; life tenant A may sell her life estate to B, who will have possessory rights until A dies.

• White v. Brown. 1977. Will with vague language as to whether a life estate has been conveyed or whether a fee simple has been conveyed. In finding that a fee simple has been created, in the absence of a clear intent to place a restriction upon the property, the language and the resriction are not clear enough to overcome the law’s strong presumption that a fee simple was created.

• Baker v. Weedom. 1972. Widow is a life tenant in the house that has been left to estranged children of her dead husband. The kids, the remaindermen, want to sell the property, but want to wait to get more value. Widow wants the sale to go through right away to create a trust she can live off of. Court grants the relief that widow wants, pursuant to the economic waste theory; that by not selling the land, the land is not being used to its full market value. Land will be sold enough to create a trust for Widow to live off of, this ruling is also consistent with the intent of her husband, who would not have wanted her to suffer.

Leasehold. See Landlord/Tenant; supra.

Concurrent Ownership

More than one person in charge of property at the same time.

• Tenancy in Entirety. • Joint tenancy AND marriage. • Joint Tenancy. • Survivorship rights** • Each has total rights to the total thing owned • Joint tenants are considered one owner • Very fragile – one person can break the arrangement and dissolve a joint tenancy into a tenancy in common. Disagreements can also lead to partition actions.

4 considerations to create joint tenancy

Time. The interest of each tenant must vest at the same time.

Title. Tenants must acquire interest through same instrument.

Interest. All must have equal undivided shares and identical interests measured by duration.

Possession. Each must have a right to possession of the whole.

• Avoidance of probate • Easier transactions • Less competing interests • Tragedy of Fragmentation. Where poor families who own land in joint tenancy are divided and conquered by a wealthy developer.

• Tenancy in Common.

• Like joint tenancy, except that there are no survivorship rights; when one person dies, his interest can be conveyed by will or deed onto a third party.

• Separate but undivided interests in the property.

• There is a presumption against joint tenancies and presumption for tenancies in common.

Riddle v. Harmon. 1980. Husband and wife in joint tenancy; wife Riddle conveyed her property to herself, destroying the joint tenancy so she could will away her interests in the property. The mere act of conveyance was sufficient to destroy joint tenancy and create a tenancy in common m/o survivorship rights.

Harms v. Sprague. A and B jointly own property. B takes out a mortgage to help C buy a separate piece of property. Is the mortgage a conveyance that would break up joint tenancy? The court held that the mortgage was not a conveyance, and that the mortgage was a life estate which ended upon B’s death. Note that in the majority opinion, unlike that expressed here, a mortgage would be considered an action which would sever the joint tenancy.

Delfino v. Vealencis. 1980. A and B jointly owned property. An action for partition. A want to sell its land for subdivision development; B the junkyard owner doesn’t want the sale to go through. Partition can be pursued either by selling the land or by physically dividing the land. Court held that partition by sale was not appropriate b/c the best interests of the junkyard owner were not considered; remands for lower court of equity to figure out how to divide the land physically. Lower court follows instructions, but divides land so that B gets screwed anyway. Highlights the inherent difficulty with valuating interests in shared land.

Spiller v. Mackereth. 1976. A and B are tenants in common. A moves into space that B wants to rent. B wants to charge A rent, but tenants in common cannot charge each other rent without an agreement to pay rent or an ouster. An ouster could have been proven had B demanded that A let her share the space and A had denied B the right to equal enjoyment of the land.

Swartzbaugh v. Sampson. Husband and wife jointly own the land. Hubby leases some land on the orange grove for a boxing arena, which the wife doesn’t want to happen. Strange reasoning in the opinion. In finding that the lease is valid, the court holds that the disputed lease does not break the joint tenancy; only a formal declaration requesting the breakup or partition of the joint tenancy will suffice. However, the act of one joint tenant without express or implied authority or consent from his co-tenant cannot bind or prejudicially affect the rights of the latter. Thus, the wife cannot be prevented from her enjoyment of the leased land by the leaseholder, or he will have to pay her rent.



Servitudes: Easements and Covenants Running with the Land

Easements – Appurtenant and In Gross. Easements are enforceable either in equity or for damages.

• Appurtenant. One that travels with the land through different ownerships. Presumption is for appurtenant easement. • Assignabilty of appurtenant easements.

Benefits are transferable with ownership of dominant estate

Burdens are transferable with ownership of servient estate, provided that acquiring owner has notice of the easement.

Notice of the burden.

• Actual knowledge • Notice from the appearance of the easement on the land • Notice from the document recording the easement • In Gross. Runs with the party to whom the easement is granted. Not clear. • i.e., the public in the public trust doctrine. ???

Assignability of in gross. Generally assignable; especially in business interests

 Not divisible

Similar to profits of old times

 If they were divisible it would be an invitation for a tragedy of the commons. Everybody would have the right to fish all they wanted.

• Miller v. Lutheran Conference Camp Assoc. 1938. There is a privately held lake owned by two bros. The camp gains an easement in gross through proscription to bathe and fish in the lake. This easement in gross is to be held as “one stock,” indivisible, because of the potential danger of the tragedy of the commons here…

Express easements are written down and recorded.

• Brown v. Voss. 1986. Where one guy wanted to extend his express easement to reach a piece of property further back that he also owned. The court applied the bright line rule that the easement is written as it is and cannot be extended. There has been a misuse of the easement where it has been extended to a lot to which the easement was not attached, or appurtenant. Note that had the court found that the easement had been misused, it could have granted a complete injunction against the dominant estate owner from using that easement at all any more. 

• Or if the deal is so conspicuous that the writing may as well exist

• Estoppel is another exception; where the owner is found to have acquiesced to the usage, and the other has reasonably depended upon that acquiescence.

• Holbrook v. Taylor. 1976. Court finds an easement by estoppel to use an old haul road across another’s property based on the improvements that were being made; the servient estate’s acquiescence; the inconvenience to the person who understood the usage to be okay; and the dependence on that usage was borne out of a reasonable necessity. Note that estoppel is easier to get than proscription.

By Reservation. Where the grantor writes a retaining of rights into the conveyance.

• Willard v. First Church of Scientists. Church has an easement to park on Willard’s land. He bought it from someone who had bought it from someone who had written the easement into the deed, but the deed that Willard had did not have the easement language written into it. The old old rule says that you cannot reserve third party easements, but the court does not apply this rule, holding that land can be conveyed with a third party easement attached in special considerations. “We must balance the injustice which would result from refusing to give effect to the grantor’s intent against the injustice, if any, which might result by failing to give effect to reliance on the old rule and the policy against disturbing settled titles.”

By Implication.

• Existing use.

• land must have been in one ownership at time that existing use began. • Apparent and continuous. • Intended to exist and continue upon splitting up of the ownership. • Reasonably necessary.

Van Sandt v. Royster. 1938. The sewer link-up was flooding dude’s basement; he wants an injunction against the other houses connected to the line to keep them from using. His lot and the others were created at the same time from the same original property, and the pipe was already there. Was the sewer link-up usage (1) apparent, (2) continuous, (3) reasonably necessary? Haggling is largely over apparent; the court finds that there was an implied easement, and that dude was on notice upon buying the property; he should have done a careful inspection.

• By necessity.

• Same requirements as those for existing use, except: • If the easement was not apparent. • Is it strictly necessary; i.e., for one person to get to the only public road, the person must go through someone else’s public property.

Othen v. Rozier. 1950. Dude wants an easement by necessity through his neighbor’s property, which he has been using for a while. As to easement by necessity, the court holds that the key issue is whether the necessity existed at time of original ownership and conveyance. Court finds that no easement by necessity exists here b/c at the time of the conveyance other roads out existed.

By proscription.

• By adverse use • Open and notorious • Under a claim of right

NB that this is different than an easement by estoppel, where the user can gain an easement by the acquiescence of the owner.

• Continuous • Uninterrupted  Owner must take affirmative steps to interrupt or stop use

Exclusivity not necessary

• Passage of statutory time

By public easement.

• Beach access. In most states the state holds in public trust the beachland from the highwater mark to the water.

• Public trust doctrine. An easement across private property for the enjoyment of public land. Fishing, fowling, navigation.

• Matthews v. Bay Head Improvement Assoc. Issue of whether public has right to gain access through and to use the dry sand (upward of high tide marker) area not owned by municipality but by quasi-municipality (the BHIA). As to beach access, public trust doctrine indicates that this is necessary and as to right to use dry sand, public use may be subject to some accommodation to private owners’ interest. The public must be afforded reasonable access to the foreshore as well as a suitable area for recreation on the dry sand. As to BHIA membership, court holds that BHIA may not membership may not be restrictive.

• Boston Waterfront (again). See case illustration under defeasible estates; infra.

Negative Easements. A deal to not do something, which runs with the land. Generally courts are reluctant to find a negative easement; covenants (supra) sprang in part out of this reluctance.

• Old common law. Don’t block my light, air, water, and don’t undermine the support structure of my building. • Statutory. • Conservation restrictions. You can have this property but you cant cut down the trees on it. • Preservation Acts. Government enforced.


A real covenant, normally found in deeds, is a written promise to something on the land or a promise not to do something on the land. Real covenants run with the land at law, which means that subsequent owners may enforce or be burdened by the covenant. Enforceable for damages not for injunctive relief; if one wants to enforce a covenant through equity, one must assert that the covenant was an equitable servitude.

Real Covenants.

Requirements for the Burden to Run. 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.

• Intent. There must be intent between the covenanting parties that successors in interest would be bound by the terms of the covenant. Intent may be inferred from the circumstances surrounding the creation of the covenant or from the language of the covenant. “This covenant runs with the land;” “grantee covenants for herself, her heirs, successors, and assigns.”

• Notice. For a purchaser to be bound by a covenant, notice must be written into the deed; she is not bound by covenants of which she had no actual or constructive notice.

• Horizontal Privity. This requirement rests on the relationship between the original covenanting parties. At the time the promisor entered into the covenant with the promisee, the two shared some interest in the land independent of the covenant (e.g., grantor-grantee, landlord-tenant, mortgagor-mortgagee). Note that often in the problems we have seen and discussed the covenant is written into the conveyance that splits apart a single tract of land; i.e., where lot A becomes lots B & C.

• 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. So someone who gets a life estate won’t be bound by the covenant made by a covenantor with a fee simple.

• Touch and Concern. The promise has to do with the land, usually to make it more valuable or useful somehow. As a general matter, for the burden of a covenant to run, performance of the burden must diminish the landowner’s right, privileges, and powers in connection with her enjoyment of the land.

• Negative Covenants. For the burden of a negative covenant to touch and concern the land, the covenant must restrict the holder of the servient estate in his use of that parcel of land.

• Affirmative Covenants. For the burden of an affirmative covenant to touch and concern the land, the covenant must require the holder of the servient estate to do something, increasing her obligations in connection with enjoyment of the land. Note that annual payments for upkeep of common areas in a subdivision and the like fit right here.

Requirements for the Benefit to Run. If all requirements for the benefit to run, the successor in interest to the promisee will be allowed to enjoy the benefits.

• Intent. 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.

• Vertical Privity. The benefit of a covenant runs to the assignees of the origninal estate or of any lesser estate (such as a life estate). The owner of any succeeding possessory estate can enforce the benefit at law. NB re benefits running. In the majority of states today, horizontal privity is not required for any benefit to run. As a consequence, if horizontal privity is missing, the benefit may run to the successor in interest to the covanentee even though the burden is not enforceable against the successor in interest to the covenantor.

• Touch and Concern. 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.

Common Interest Communities.

Common interest properties can charge money for the maintenance of the common property and amenities, these fees will be recognized by most courts as a kind of covenant. In common interest communities, any requirement of horizontal or vertical privity is met because the original purchasers were all in privity with the developer and subsequent purchasers were all in privity with the original purchasers. Any requirement that the covenant touch and concern the land is usually satisfied. 

• Condos. Condo fees and the like, along with a number of servitudes written into the deed itself.

• Co-ops. There are so many of these in NYC, and they are treated as corporations/business investments. As such, co-op boards are given more leeway to screen potential buyers than would be allowable otherwise, since if one owner defaults on a payment, the others have to make it up. The owners share a blanket mortgage over the building instead of for each unit.

• Neponsit v. Emigrant Bank. Case where a lien was placed on the house of the man who sold the house to Emigrant bank. Lien was for community maintenance fees that previous owner had not paid, an affirmative covenant of payment. In finding that the bank has come into the burden of making the payments, the court finds (1) intent that the covenant run with the land; (2) that the payments for maintenance touch and concern the land; (3) that there was privity between the parties in suit. The court needs to stretch the definition of privity in recognition of the need to keep down transaction costs. To recreate privity, everyone in the community would have to assign their property to a strawman. In stretching the definition of touch and concern to include payments for maintenance, the court is also recognizing the benefit of having private maintenance of public land.

• Nahrstedt v. Lakeside Village Condo Assoc. The lady needs her cat, even though she entered into a condo association where no pets are allowed. The court finds that the restrictive covenant is valid under the reasonableness test. California Legislature…has required that courts enforce the covenants, conditions, and restrictions contained in the recorded declaration of a common interest development “unless unreasonable.” The presumption is that anything written into the recorded declaration is going to be reasonable, unless it can be shown to not comport with the Cal. Code, which is basically the Restatement Third (see below; unenforceability). So get your cat out of here.


• Of servitudes, generally. The Restatement Third claims that servitudes are valid unless it is illegal or unconstitutional or violates public policy.

• Examples of invalid servitudes b/c of public policy.  A servitude that is aribitrary, spiteful, or capricious.

That unreasonably burdens a fundamental constitutional right.

 That imposes an unreasonable restraint on alienation.

That imposes an unreasonable restraint on trade or competition.

That is unconscionable.

• Restrictive Covenants. Courts have begun to approach restrictive covenants as something that can be worked around in a less formalistic manner if there are public policy goals to be achieved.

• Racially restrictive covenants are unenforceable; they would violate the Equal Protection Clause of the 14th Amendment.

• The Fair Housing Act. Another means to strike down restrictive covenants with discriminatory intent. Discriminatory intent + Disparate Impact; once disparate impact is established, and the FHA controls the covenant, the next step of the analysis is to see whether there is a Reasonable Accommodation.

• Shelley v. Kramer. A covenant provided that no homeowner in the neighborhood could be non-white. When a black family bought a house in the neighborhood, the neighborhood sought enforcement of their covenant, to kick the Shelleys out. When the Supreme Court of Missouri granted the requested relief, enforcement of the private agreement became a State action, which the SC of the US could reach with Constitutional analysis. We hold that in granting judicial enforcement of the restrictive agreement in these cases, the States have denied petitioners the equal protection of the laws and that, therefore, the action of the state courts cannot stand.

• Hill v. Community of Damien of Molokai. House of AIDS patients living in a group home in a neighborhood subject to a restrictive covenant that all houses be single family residentials. Court interprets the issue to show how a group home is, in effect, a single-family home, and thereby not subject to restrictive covenant. If language of a restrictive covenant is unclear or ambiguous, we will resolve the restrictive covenant in favor of the free enjoyment of the property and against restrictions. The court notes that even if it had not construed family like this, the FHA would have overridden the restrictive covenant anyway.

Termination of Covenant. As with all other nonpossessory estates, a real covenant may be terminated by a release in writing, merger (fee simple title to both the benefited and burdened land comes into the hands of one title holder); and condemnation of the burdened property.

• Pocono Springs Civic Assoc. v. MacKenzie. Where the property owners tried to state they had abandoned a lot they owned to get out of having to pay association fees. The Court found that their defense was invalid as a matter of law. Even though they had left the property, stopped taking care of it, and had tried to give it away to the Association, they still held the title at the end of it all, which was fatal to their abandonment defense. In the present case, [defendants] have not relinquished their rights, title, claim, and possession of their lot. They remain owners of real property in fee simple, with a recorded deed and “perfect” title. Absent proof to the contrary, possession is presumed to be in the party who has record title.

• Rick v. West. Attempted application of the changed conditions argument. Where one lady owns a half-acre of property, which she bought with a restriction upon the surrounding property stating that the surrounding property would be used for residential only. When the owner of the surrounding property tries to sell it to a industrial developer, and gets the area rezoned for non-residential use, the lady wont release him from the restrictive covenant. The court, rejecting the changed conditions argument, states that the defendant relied upon the restrictions and has a right to continue to rely on those restrictions. It is not a question of balancing equities or equating the advantages of a hospital on this site with the effect it would have on the lady. As to relief, the court refuses to invalidate the restriction in equity by awarding monetary relief to the lady.

• Western Land Co. v. Truskolaski. Attempted application of the changed conditions defense. Subdivision homeowners brought action in equity to stop a company from building a shopping center within the subdivision. The subdivision was created with restrictions against any kind of stores or multiple family dwellings. The Company states that the restrictions should no longer apply because the subdivision has changed so radically that the purpose of the covenant has been nullified. The Court rejects this defense, and enforces the covenant, holding that “the restrictive covenants remain of substantial value to the homeowners in the subdivision, and that the changes that have occurred since 1941 are not so great as to make it inequitable or oppressive to restrict the property to single family residential use.”

Equitable servitudes. Enforceable at equity. A covenant that equity will enforce against the assignees of the burdened land who have notice of the covenant. Normally these are written into the deed, but there is an exception: NB. Negative equitable servitudes may be implied from a common scheme for development of a residential subdivision; they don’t always have to be written to be created, unlike a covenant.

• Implied from common scheme.

• Common Scheme. Restrictive negative covenants will be implied only if at the time that sales of parcels in the subdivision began, the developer had a plan that all parcels in the subdivision be developed within the terms of the negative covenant. The developer’s common scheme may be evidenced by a recorded plat, by a general pattern of prior restrictions, or by oral representations, typically in the form of statements to early buyers that all parcels in the development will be restricted by the same covenants that appear in their deeds.

• Notice. The requisite notice may be acquired from actual notice (direct knowledge); inquiry notice (how the neighborhood looks); and record notice (if the prior deeds are in the grantee’s chain of title).

• Requirements for Burden to Run.

Intent. No technical words required to express the intent that the servitude run.

Notice. A subsequent purchaser of land burdened by a covenant is not bound by it in equity unless she had actual or constructive notice of it when she acquired the land.

Touch and Concern. Same standard as for real covenants.

• Requirements for Benefit to Run. The benefit of the equitable servitude will run with the land (and thus to successors in interest of the original parties) if the original parties so intended and the servitude touches and concerns the benefited property.

• Privity Not Required.


A acquires title to Blackacre by adverse possession. Even though he is not in privity of estate with the original owner, he is subject to the equitable servitude in an interest in the land.

A and B are neighboring landowners, neither having any rights in the other’s land. A promises B, “for herself, her heirs, successors, and assigns,” that A’s parcel “will never be used for other than residential purposes.” B records the agreement. A sells Blackacre to C. The burden created by this promise would not run at law as a negative covenant because horizontal privity is missing. However, under an equitable servitude theory, the burden will run, and an injunction will issue against other than residential uses.

Same as above, but A transfers only a life estate to C. Again, the burden would not run at law because of the absence of vertical privity. The burden would, however, be enforceable as an equitable servitude.

• Implied Beneficiaries – General Scheme. If a covenant in a subdivision deed is silent as to who holds its benefit, any neighbor in the subdivision will be entitled to enforce the covenant if a general scheme or plan is found to have existed at the time he purchased his lot.

• Equitable Defenses to Enforcement. A court in equity is not bound to enforce a servitude if it cannot in good conscience do so.

Unclean hands. Where the person seeking enforcement has themselves violated a similar restriction on his own land.

Acquiescence. If a benefited party acquiesces in a violation of the servitude by one burdened party, he may be deemed to have abandoned the servitude as to other burdened parties. (Equitable servitudes, like easements, may be abandoned). Note that this defense will not apply if the prior violation occurred in a location so distant from the complainant that it did not really affect his property.

Estoppel. If the benefited party has acted in such a way that a reasonable person would believe that the covenant was abandoned, and the burdened party acts in reliance thereon, the benefited party will be estopped to enforce the covenant. Similarly, if the benefited party fails to bring suit within a reasonable time, the action may be barred by laches.

Changed Neighborhood Conditions. If the neighborhood has changed significantly since the time the servitude was created, with the result that it would be inequitable to enforce the restriction, injunctive relief will be withheld. (Many courts will allow the holder of the benefit to bring an action at law for damages).

• Termination. Like other nonpossessory estates in land, an equitable servitude may be terminated by a written release from the benefit holder, merger of the benefited and burdened estates, or condemnation of the burdened property.

• Sanborn v. McLean. 1925. A negative implied equitable servitude. The subdivision was planned strictly for residential purposes. A dude buys some property in the subdivision and wants to build a gas station. The deed has no written down restriction on its face, yet the court finds that there is an implied restriction/covenant, and grants the injunction against the gas station being built. (1) Intent: All of the other lot owners had adhered to an unspoken restriction – mutual benefits and burdens are shared in the emerging pattern (general scheme) of an unspoken understood plan. (2) Notice should have come from looking around and seeing what the rest of the community looked like. Predecessor to zoning; played out in the private sphere.


Leaseholds. A lease is very contractual in nature (if you don’t fix the sink, I wont pay the rent. As opposed to easements or non-possessory property rights; a lease is a right to possess; it gives a right to exclude 3rd parties. It is considered an estate in land. There are three major types of leasehold estates: tenancies for years; periodic tenancies; and tenancies at will, and an additional one called tenancies in sufferance.

Tenancies for Years. 

• Ends at a definite time; of a fixed duration. • It could be “until the end of the war,” it could be “until September 30, 2005.” • Lease ends automatically on the termination date.  Periodic Tenancies.

• Successive • Automatic renewal absent action to the contrary • “Month-to-month”; “year to year”, etc. • These can be created by the court (by an operation of law) where it finds that an at-will tenancy is actually a periodic month-to-month lease • Notice is required to terminate the lease. • 6 mos for year to year • 30 days for month to month; 3 mos for 3 month to 3 month; etc

Tenancies at Will.

• Terminable at the will of either the landlord or the tenant. • No fixed duration • No automatic renewal • Note that if at-will tenancy is not expressly established, the court will construe the lease as periodic. • No notice required, only a reasonable period to quit the premises  Tenancies in Sufferance.

• Created when lease ends and tenant wrongfully stays there • Courts do not like this in-limbo status; will normally convert it to something else • Landlord may either evict a holdover tenant or create a periodic tenancy, to which he may change the terms from the previous lease and hold the tenant to them • Double rent jeopardy • Statutes forbid forcible entry by landlord

Assignment and Subletting

• Assignment. Classic rule: if entire lease is conveyed, with no reversionary interest to first lessee, then it is an assignment and the assignee is directly liable to landlord. • Sublease. Classic rule: if only part of lease is conveyed, then it is a sublease; first lessee is still liable to landlord, and sublessee is not liable to landlord but is liable to first lessee.

• Ernst v. Conditt. With permission of P’s Rogers sells his fair business and gains an extension of the lease, to be sublet or assigned to D. Extension provides that Rogers will still be liable for terms of sublease/assignment. When D failed to pay rent as agreed, P’s demanded that D pay back-rent, charging that it was an assignment and so D is directly liable. D counters that it was a sublease and so Rogers is liable. The court held that it was an assignment and D was liable, although the language indicated that there was a reversionary interest to Rogers and that this was a sublease, the INTENT of the parties was to create an assignment.

Mutual Obligations and remedies for breach.

• Tenant’s Duty to Repair (Doctrine of Waste). A tenant cannot damage – commit waste on – the leased premises. The rules governing waste in the leasehold context are very much like those governing waste in the context of the life estate.

• Voluntary (Affirmative) Waste. A tenant is liable to the landlord where the tenant intentionally or negligently damages the premises. Mining the property fits in here too.

• Permissive Waste. The tenant has a duty to make ordinary repairs to keep the property in the same condition as at the commencement of the lease term, excluding ordinary wear and tear.

• Ameliorative Waste. A tenant is not permitted to make substantial changes to leased structures even if the alteration increases the value of the property.

• Tenant’s Duty to Not Use the Premises for Illegal Purposes.

• Occasional illegal usage does not constitute breach. • Landlord may terminate lease and recover damages.

• Tenant’s Duty to Pay Rent. 

• Landlord Remedies. 

• Evict; Sue for the Rent; or Repossess. • Landlord Duty to Deliver Possession of Premises. 

• Landlord’s Duty to Mitigate Damages. IF the tenant is going to be liable for some breach, the landlord has a duty in turn to keep those damages as low as reasonably possible. 

• Quiet Enjoyment. Implied in every lease a covenant that neither the landlord nor someone with paramount title will interfere with the tenant’s quiet enjoyment and possession of the premises. The covenant of quiet enjoyment may be breached in 3 ways: actual eviction; partial actual eviction; and constructive eviction.

• Tenant does not have to pay rent if any of the 3 are found, and may collect damages if constructive eviction is found. 

• Constructive eviction. It the landlord does an act or fails to provide some service that he has a legal duty to provide, and thereby makes the property uninhabitable.

Landlord must act in such a way that causes injury to tenant

The premises must be rendered uninhabitable  The tenant must move out • The implied warranty of habitability. • Note that abandonment is not required to show a breach of this covenant.

• Crechale v. Smith. Landlord and tenant dispute over when the tenancy is supposed to run out. The landlord wanted the tenant out originally, and the tenant didn’t want to go. Perhaps out of retribution, the landlord let the notice slide on the periodic tenancy termination, and the periodic tenancy triggered automatically another 5 year lease. But courts don’t like holdovers (the automatically triggering new lease), so it goes out of its way to construe the facts in a way that would not trigger the renewal.

• Berg v. Wiley. Tenant may have violated the lease agreement, and landlord uses self-help to change the locks. Old common law rule was that landlord could retake possession of the property if he were legally entitled to and if the landlord’s taking was peaceful. Court notes that tenant may have violated the lease agreement, but the lock-out was not peaceful; additionally, the Court lays down the new rule that the landlord cannot use self-help but must first use judicial avenues. 

• Reste Realty v. Cooper. Constructive Eviction case. The basement kept flooding out the lady’s office. Because the landlords had failed to fix the problem, the place was no longer liveable, tenant was constructively discharged, and was not liable for rent accrued after she abandoned the property.

• Hilder v. St. Peter. Implied Warranty of Habitability Case. The landlord knew that the house was in disrepair and never fixed anything. It was dangerous and disgusting. Court laid down a rule that in the rental of any residential dwelling unit an implied warranty exists in the lease, whether oral or written, that the landlord will deliver over and maintain, throughout the period of the tenancy, premises that are safe, clean, and fit for human habitation. To bring a cause of action for breach of implied warranty of habitability, the tenant must first show that he or she notified the landlord of the deficiency or defect not known to the landlord and allowed a reasonable time for its correction.

Land Use Controls

Nuisances Part torts and part property • Guiding principle. One should use one’s own property in such a way as not to injure the property of another.

• “An interference with the use and enjoyment of land, in order to give rise to liability, must be substantial; it must also be either intentional and unreasonable, or the unintentional result of negligent, reckless, or abnormally dangerous activity.”

Compare to trespass. Nuisance creates less liability than trespass where there is intent; liability between the two is roughly equal where there is no intent. No physical touching is necessary to establish nuisance; contaminated water (trespass), noxious gases (nuisance).

Pollution. Pollution is often about the intangibles; nuisance often applies.  (Un)reasonableness.


• Unreasonableness informs the level of interference with the land

• Unreasonableness must be informed by cost-benefit analysis

• The harm outweighs the benefit

• Will punishment (monetary damage award) force company out of business – this consideration is controversial, aimed at checking overdeterrence.

Abnormally Dangerous Activity.

 Unintentional/Negligent. • Traditional application of tort “reasonable” standard. • Remedies. • Injunction.

Morgan & Estancias. Balancing the equities Plaintiff’s interest v. public interest Is it necessary that nuisance continue? • If so then no injunction, only damages • Monetary Damages.

Boomer. D may continue activity if he pays money damages to to P • Deny all relief. • Grant injunction if P pays damages to D.

Spur. • Private. Protects rights in the use and enjoyment of land. • Only owners of the harmed property may bring action. Fear of what might happen is not usually enough; courts have gone either way as to actual loss of property value Fear and Loathing. Where property value could be negatively affected b/c of fear created by another; courts have gone either way.

Light and Air. Generally no liability, except where malice is motive.  Spite. Courts commonly find nuisance liability in instances where a landowner builds a structure (such as a “spite fence”) of no use whatsoever other than to vex a neighbor.

Plain Old Ugly. Courts generally will not assess nuisance liability for aesthetic basis.

Lateral and Subjacent Support. Strict liability; negligence need not be shown, although it is unclear to me how this fits into a nuisance analysis.

• Public. An unreasonable interference with a right common to the general public.

• Protects the public rights/health concerns • Any member of the public who can show some injury may bring suit • This is usually where the Atty Gen’l or Gov’t would come in; many times these public nuisances run parallel with criminal charges

Morgan v. High Penn Oil Co. Morgan owns a house and inn next to the Oil Refinery, which emits noxious gases. P put D on notice, but D failed to cure the pollution. P seeks injunction enjoining D from continuing the nuisance, which he claims substantially impairs his ability to enjoy his land. Court finds that there is a nuisance and grants the injunction. A private nuisance exists in a legal sense when one makes an improper use of his own property and in that way injures the land or some incorporeal right of one’s neighbor. The court also notes that injunction is proper relief because there is ample evidence that Oil Refinery intended to operate its factory in such a way as to emit the fumes, and that left unenjoined, it would continue to do so.

Estancias Dallas Corp. v. Schultz. The loud air-conditioner case. Issue presented: Once a jury finds that there is a nuisance, when should the court grant a permanent injunction, as opposed to monetary damages? D argues that lower court erred in granting the injunction b/c it failed to balance the equities in its favor. In upholding the injunction, the court notes that “there is not evidence before us to indicate that the “necessity of others…compels the injured party to seek relief by way of an action at law rather than by a suit in equity to abate the nuisance.” There should be a balancing of equities in order to determine if an injunction should be granted. The equities to be balanced are the injury to the P if the injunction is not granted vs the injuries to the D (and society at large – the public interest) if the injunction is to be granted. To permit a nuisance to continue has more to do with necessity. If the court finds that an injunction cannot be granted, then the relief should be for damages.

Boomer v. Atlantic Cement. Cement factory case. P brought nuisance claim for air pollution and vibration emanating from plant. Old NY rule to granting injunction: injunction will be granted if there is a nuisance, period, regardless of disparity in economic harm suffered by either party if injunction is or is not granted. Here the court carves out an exception to the old rule for granting injunctions, and starts to weigh those harms between parties, even where it has found a nuisance, and the court may choose not to grant injunction but instead choose to give damages, effectively converting the nuisance to an equitable servitude, sort of. The new rule is where the nuisance is of such a permanent and unabateable character that a single recovery can be had, including the whole damages past and future resulting therefrom, there can be but one recovery. Permanent damages [as opposed to injunction] are allowed where the loss recoverable would be small as compared to the removal of the nuisance. The court grants relief in the following way: it grants the injunction conditioned on the payment of damages to P’s which would compensate them for the total economic harm to thir property past and future. The rationale is that the problem of air pollution caused by cement companies is industry wide. To close this one down would do nothing to solve the problem of air pollution, nor would it be fair to D when it cannot otherwise do business without creating air pollution. However, in granting permanent damages to P, the D must now perform its own cost-benefit analysis – is it cheaper to pay up or just move on – it could amount to a forced sale.

Del Webb v. Spur. The cow field problem. The unique form of relief. This case involves a nuisance which is both private and public. Because the nuisance is also public, the court is more concerned, and is more willing to grant an injunction. P (the developer of the subdivision) should have foreseen that it was “coming into” the nuisance; it will have to pay for the public nuisance for which it is at least partially responsible. D’s argument in this way is also similar to the general rule of first come first serve in property law. Nuisances are public and are enjoinable when they create dangers to the public health. The rule is informed by the population density of the surrounding area, so that a business that is not a per se nuisance may become one where the surrounding area is populous. The court grants the injunction against D, but finds that P must pay D for the cost of shutting down and moving somewhere else, because P effectively brought the public to the nuisance.

Georgia v. Tennessee Copper. Public nuisance. In Georgia v. Tennessee Copper, 206 U.S. 230 (1907), the Supreme Court dealt with a claim by the State of Georgia against a copper smelting company in Tennessee for harmful air pollution that traveled across the state's border. In determining that Georgia was entitled to an injunction on behalf of its citizens, the Supreme Court made the following often-quoted statement about the state's role in vindicating public interests. "This is a suit by a State for an injury to it in its capacity of quasi-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air. It might have to pay individuals before it could utter that word, but with it remains the final power."

Regulations and Early Zoning Decisions

Zoning. Results from increasing congestion overwhelming traditional property laws. An exercise in police power; this is State Action. A realization that nuisance and restrictive covenants were not getting it done, but also a realization that industrial progress should not be impeded too much. The state may enact statutes to reasonably control the use of land for the protection of the health, safety, morals, and welfare of its citizens. The zoning power is based on the state’s police power and that power is limited by the 14th and 5th Amendments…if an ordinance goes “too far” it becomes a taking.

• City Beautiful movement (The Mall in DC) City Profitable (NY skyscrapers). • Note that first comprehensive zoning programs (and still today) aim effectively at social constructs as well as economic and population density; in effect, zoning often works to keep Race with Race; Rich with Rich and Poor with Poor; as well as Business with Business and Residential with Residential. Exclusionary and Inclusionary. • Standard State Zoning Act. 1922. Just a model, not actual piece of legislation, but most local legislatures based their enabling acts on this. • Really an exercise in police power – the power of the govt to protect health, safety, welfare, morals… • Enabling Legislation at the local level.  Mayor, zoning board (comprised of citizens), and zoning planner give plan to city council who votes on the plan. The plan is prone to amendments. • Led to a profusion of zoning ordinances. Some were held to be constitutional, and some not. The Court is deferential because the zoning boards have a “democratic” feel, being comprised of citizens, and also because the Court does not want to become the town city council. Constitutional Questions. Exist in the backdrop of zoning ordinances.

• 14th Amendment. • Property • Liberty • 5th Amendment. • Due Process. Property Life • 1st Amendment. • Freedom of speech

Euclidean Zoning.

• Very Restrictive. • “highest to lowest.” Districts are graded from highest (single families) to lowest (worst kind of industry). Higher zones are exclusive of uses reserved for lower zones; lower zones are not exclusive of uses that would be okay in higher zones. • Most municipalities go a step further. • Complete exclusion – no residence in industrial; no industry in residential.

Aesthetic Zoning. Courts are deferential to ordinances aimed to promote the “general welfare” that are specifically drawn. Ladue, Issaquah.

Exclusion/Inclusion. Basically, zoning ordinances may not be written in such a way that they discriminate against a protected class in a manner that violates the Constitution or federal statutes such as the FHA. FHA, Belle Terre, Moore, McMinn, Oxford House.

• Constitutional Analysis. Due Process; Equal Protection Clause. The Court is wary of regulations that effectively intrude on the constitutionally protected rights. (Moore). • Fair Housing Act. • Policy: to “provide, within constitutional limitations, for fair housing throughout the United States…” The Act is to be construed broadly; the exception (see below) is to be read narrowly. • It is unlawful “to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of…that buyer or renter.” Discrimination is defined as including “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford persons equal opportunity to use and enjoy a dwelling.” Exception. The FHA entirely exempts from the FHA’s compass “any reasonable local, State or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling.”

Zoning Tools used as Environmental Protection. Wetlands Protection Act; Clean Water Act; etc. More Restrictions. • Minimum Housing Cost Requirements. No good. • Minimum Floor Space Requirements. Mixed judicial reaction, although they have nothing to do with maximum occupancy. These have largely been overhauled into housing codes. • Minimum Lot Size. Generally upheld. • Minimum Setback Requirements. Generally upheld. • Barring mobile or manufactured homes. Mixed; early on these were upheld; in some communities, particularly in the south, these are being struck down.

Euclid. Early zoning case in the Supreme Court. P brings suit claiming that zoning ordinance violates Constitution. He owns some land he claims he expected to be able to sell for profit for apartment development. Euclid’s zoning restricts the land that P owns to purely residential use. The Court upholds the ordinance, showing deference to the local zoning board. The Court applies an analysis similar to nuisance; noting that apartment buildings may increase congestion in residential neighborhoods, and the prevention of such increased congestion may be in the public interest. “…it must be said before the ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.”

Ladue. Aesthetics. The zoning board didn’t want this dude to build a funky looking house in their uptight neighborhood, which is mainly comprised of Colonial and Victorian house construction styles. Here the Court finds that this ordinance addresses concerns of values of their property being diminished, which the Court recognizes as an allowable purpose of zoning ordinances. Aesthetic zoning can be upheld when it is so construed for the general welfare (property values) of owners and/or the general community.

Issaquah. Aesthetics. Here the ordinance is void for vagueness. The ordinance sought to restrict building plans such that they had to be “in harmony” with the surroundings. The dude was trying to build a store, but the Commission kept rejecting his plans for different reasons – it seemed like they all had different ideas of what the ordinance meant – what aesthetic was it trying to create, exactly? No one seemed to know. The Court struck down the ordinance as unconstitutionally void for vagueness. The purpose of the void for vagueness doctrine is to limit arbitrary and discretionary enforcements of the law. The ordinance here was too subjective and an applicant and the Commission could have no objective idea of what would satisfy the Code. Because there is no specific standard written into this Code, the Code, in the hands of the Commission, effectively denies the applicant of Due Process b/c the Commission makes up the standard as it goes along.

Belle Terre. Exclusionary. An ordinance restricting how many non-related folks could live in a house; no more than two non-related people could live in a house. Here the students were not related and there were more than two of them in the house. The owners of the rented-out house and the students bring suit under 42 USC § 1983 (civil rights code) and claim that ordinance violated Constitutional Equal Protection Clause. The Court upholds the ordinance, stating that ordinances do not violate Equal Protection Clause if the ordinance is reasonable, not arbitrary, and bears a rational relationship with a permissible state objective. Here, the legislature may restrict the number of people crowding into a house, since that could become a nuisance. The legislature may lay out zones where “family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.” Marshall dissent thinks that zoning regulations limiting population density is okay, but thinks that this zoning ordinance is not okay because it effectively discriminates only against non-related peoples…also makes the point that the ordinance does not really serve the interest it purportedly seeks to – some families may be very large…

Moore. Exclusionary. Here the Court narrowed its holding from Belle Terre. The City had an ordinance that defined “family” to include no more than one set of grandchildren. Grandma was thrown in jail because she had living with her two grandkids who were not brothers. The Court strikes down the ordinance as unconstitutional, noting that this ordinance does not serve a permissible state interest, in fact, it works against the state interest. “This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the 14th Amendment…when the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation…When thus examined, this ordinance cannot stand.”

McMinn. Exclusionary. NY Court strikes down an ordinance that sought to define biological or legal relationship by listing what is to be considered “family” for the purpose of restrictive zoning. Occupancy restrictions based on biological or legal relationships, the court said, had no reasonable tie to the city’s objectives.

Oxford House. Exclusionary. A group home of 10-12 recovering addicts. The FHA prohibits discrimination against handicaps (among others), but an ordinance will be excused from FHA reach if the ordinance reasonably restricts the maximum number of occupants allowed. The town wants to fit its ordinance which defines family as “persons [without regard to number] related by genetics, adoption, or marriage; or a group of five or fewer [unrelated] persons” under the exception to the FHA. (Note that a claim that the ordinance violated the Equal Protection Clause would have failed – the handicapped are not constitutionally protected class). The Court finds that the ordinance seeks to define who, not how many, may live in a house; the ordinance cannot fit under the exemption to the FHA; the ordinance must be subjected to the FHA analysis. Edmond’s zoning code describing who may compose a “family” is not a maximum occupancy restriction exempt from the FHA.


Takings Generally. Property may not be taken without just compensation. As opposed to zoning, another way government can regulate land use. Sometimes the line between zoning and taking is murky, since zoning often limits the property owners’ autonomy. • Constitutional Analysis. The 14th and the 5th combine. The 14th provides the Due Process, and the 5th provides the just compensation. Eminent Domain. Where the government is happy to pay the just compensation; these proceedings to officially take the land are called condemnations. The P is the govt. • Inverse Condemnation. Where the P is the landowner, who says that although the govt has not overtly said they’re taking the property, that govt has in effect taken it, and the govt should acknowledge that it has taken the property and pay up. Rules. Currently there are several working. • Per Se Rules. Certain facts shown=taking, period. • Physical + permanent intrusion=taking. Loretto. • Complete destruction of economic value of property=taking. Lucas. NB though that there is an exception in Lucas – if the ordinance sought to prevent what would have been a common law nuisance, it would not have affected a taking. • Nuisance control regulations are never takings. • Balancing Tests. Much more amorphous; case by case basis. Penn Coal is the classic statement of a different sort of test, softer around its edges, concerned with differences of degree rather than differences in kind, inquiring whether—on balance—matters have gone too far. • When a govt regulation of a use that is not a nuisance works too great burden on property owners, it cannot go forth without compensation. NB: the problem here is what is too far, what is too great a burden? This is where there is a conceptual severence problem – different folks (and judges) have different ideas of what are property rights (think also of Lucas and the dissent) most essential sticks in the bundle – is it the right to sell for a profit or the right to fish?

Physical Occupation. Per se rule.

Elimination of Economic Value. Per se rule.

Conceptual Severance. See note above. Comes into play in the “complete destruction of economic value” and in the balancing tests – at what point has the government gone too far? Interpreting this standard requires one’s own perception of what property rights are and what of those rights is most important (is it the right to sell for a profit or the right to look at birds?), so different folks are bound to have different interpretations of when regulations become takings. This dichotomy is illustrated by Lucas and its dissent. See infra.

Balancing Interests and the Penn Central Standard. Amorphous, can go either way. P must demonstrate that distinct investment-backed expectations have been frustrated in order to show that a regulation has affected a taking.

• Lingle v. Chevron  Exactions. Exaction – the State tries to condition approval of land use plan upon the owner’s acceptance of a restriction placed upon that land use.  Eminent Domain and the Public Use Requirement. • Kelo v. New London

Loretto. Physical occupation rule. Where NYC approved legislation that required landlords submit to cable company putting cable equipment on their buildings to provide cable service to the tenants. Court forms a hard and fast per se rule here. A physical intrusion of a permanent nature is a taking, period, even if the intrusion is only a wire attached to a building, there must be compensation.

Pennsylvania Coal Co. v. Mahon. Private deal between coal company and landowners – coal company sells off surface rights at discounted rates in exchange for rights to mine the subsurface. REGULATORY TAKING: PA passes legislation stating that such deals are no good – the coal company can no longer mine ALL of the subsurface – it must leave pillars of coal. There is famous language in this opinion. The Court considers the contract to be important in that the folks who bought the surface rights at a discounted rate will be afforded a windfall if this legislation stands. As for the takings analysis, the Court finds that a taking has occurred. Here is the famous language, that has been interpreted and reinterpreted to different tunes and results, it also gives the jump-off for the conceptual severence problem highlighted in almost all takings opinions we read. Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation and must yield to the police power. But obviously the implied limitation must have its limits, or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the dimunition. When it reaches a certain magnitude, in most if not all cases there must be an exercise of eminent domain and compensation to sustain the act. So the question depends upon the particular facts. Brandeis dissent thought the public interest served by the regulation was sufficient to justify the regulation – that preventing houses from falling into the coal mines might be in the public interest; also recognizes the relativity of property values, and that the legislation did not intend to destroy ALL rights to the subsurface – it only sought to destroy the rights to pillars of coal in the subsurface.

Penn Central. The infamous balancing test – the public interest vs distinct investment-backed expectations. (NB: Per Lingle, the Penn Central test has been narrowed to where the only consideration are the property owner’s distinct investment backed expectiations). The regulation at issue sought to preserve the historic character of NYC buildings for the public benefit, also provides owners of restricted buildings with TDR’s, which are in effect compensation before the takings analysis can even begin. The owners of Penn Central wanted to build a skyscraper on top of Penn Central, and stand to make a lot of money from the deal. In effect, owners are arguing that they have property rights to the air above their building, and the regulation frustrates those rights to the point that it should be called a taking. The Court notes that the ordinance is not capricious or arbitrary b/c it touches many buildings in NYC. We conclude that the application of the [regulation] has not affected a “taking” of appellants property. The restrictions imposed are substantially related to the promotion of the general welfare and not only permit reasonable beneficial use of the landmark site but also afford [plaintiffs-property owners] opportunities further to enhance not only the Terminal site proper but also other properties. Rehnquist dissent would probably find a taking – property rights have been taken for public use without just compensation here; would remand to lower court to determine whether TDR’s are just compensation.

Lucas. P bought property on the seashore with investment expectations – he was going to build houses on the property and sell them. State of SC passed regulations forbidding building on “critical areas.” He brought suit claiming that the regulation was a taking. Both sides stipulated to the fact that ALL ECONOMIC VALUE OF THE PROPERTY WAS DESTROYED BY THE REGULATION. The Court lays down a per se rule. We think…that there are good reasons for our frequently expressed belief that when an owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good…he has suffered a taking [for which he should be compensated]. The Court remands to the lower court to determine whether the building on these lots would be construed a state common law nuisance, in which case the regulation would not be a taking. Blackmun dissent: “Today the Court launches a missile to kill a mouse.” Stevens dissent, along with Blackmun dissent, illustrate the conceptual severance problem – they think that all economic value has not been destroyed here; they also think that there are other property values that should be considered as not having been destroyed such that a taking need be found – the P can still sell the land to his neighbors; he can still fish off of the land, he can camp there, etc etc.

Palazzolo. P brings suit after RI passes regulation that negates his plans to build development on much of seashore land that he owns; he wants to argue that a taking has occurred under Lucas. Court notes the irrelevance of timeline of when the property ownership happened compared to when the regulation was passed in the analysis of P’s “reasonable investment backed expectations” per Penn Central. A blanket rule that purchasers with notice have no compensation right when a claim becomes ripe is too blunt an instrument to accord with the duty to compensate for what is taken. Court also notes that Lucas argument fails here b/c there is $200,000 value left in the land. The Court remands for further findings under the Penn Central reasonable investment-backed expectations.

Nollan. Exaction – the State tries to condition approval of land use plan upon the owner’s acceptance of a restriction placed upon that land use. P wants to build a new house on property that he owns. The Commission approves, provided that P provide for a public walkway (easement) to the beach running through his property, to serve the public interest of having the public have a good view of the beach from the street. The Court notes that if the state had demanded a public easement through P’s property, without any conditioned land use permit, there would have been a taking – the state would have been taking the P’s right to exclude others, one of the most essential sticks in the bundle. The issue, then, is whether requiring the easement to be conveyed as a condition for issuing a land-use permit would be any different than had the state demanded an easement through property regardless of the land use permit, in which case there would be a taking…A use restriction does not effect a taking if it substantially advances legitimate state interests and does not deny an owner economically viable use of his land…A use restriction may constitute a taking if it is not reasonably necessary to the effectuation of a substantial government purpose…The Court notes that the proffered state interest – a view of the ocean – does not bear an adequate nexus to the easement through the land. The state could have required a viewing spot on the property – that might have been okay. The state could have required that P build his house differenty – that would have been okay. But the evident constitutional propriety [of a regulation that restricts owner’s property rights for the good of the public] disappears…if the condition substituted for the prohibition utterly fails to further the end advanced as the justification for the prohibition…we are inclined to be particularly careful about the [phrase substantially advances state interests] where the actual conveyance of property is made a condition to the lifting of a land-use restriction, since in that context there is heightened risk that the purpose is avoidance of the compensation requirement, rather than the stated police-power objective. Here the state should pay for the easement. Brennan dissent: there can be no dispute that states may impose conditions on private development; would afford more discretion to the states in their determination of how to substantially advance the state interest; would not require the tight nexus between the interest and the means to serve that interest.

Dolan. Exaction. P wants to expand a parking lot; city conditions approval upon P’s acceptance of “green space” restriction for public use. The Court attempts to resolve the question left open by Nollan – how tight does the nexus have to be between the state interest and the restriction placed upon property to advance that state interest so that no compensation is necessary? The Court allows for more deference to states than Nollan seems to…We think the “reasonable relationship” test adopted by a majority of the state courts is closer to the federal consitutional norm…but we do not adopt it as such…We think that a term such as “rough proportionality” best encapsulates what we hold to be the requirement of the 5th Amendment. No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.” The Court says that the dedication here could lead to the public interest; that is sufficient showing of the nexus.

Lingle. Regulatory. Hawaii has a rent-control statute capping the rent that may be charged, the lower courts struck down the ordinance as a taking, because the statute did not substantially advance a state interest. The Court declares that test inappropriate to the takings analysis of whether compensation is required for the diminution of one’s property rights; and holds that the rent-control statute may stand, provided that the lower court find that the burden placed on the property owners is not too heavy. This case requires us to decide whether the "substantially advances" formula announced in Agins is an appropriate test for determining whether a regulation effects a Fifth Amendment taking. We conclude that it is not. The proper inquiry is only how much the private property owner’s property interests have been frustrated or burdened…A test that tells us nothing about the actual burden imposed on property rights, or how that burden is allocated cannot tell us when justice might require that the burden be spread among taxpayers through the payment of compensation. The owner of a property subject to a regulation that effectively serves a legitimate state interest may be just as singled out and just as burdened as the owner of a property subject to an ineffective regulation. In essence, the Court will not engage in close means-to-ends analysis when determining whether a regulation is a taking for which compensation is required. But at the same time the effectiveness of the regulation may still creep into the analysis, per Kennedy’s dissent, in which he states that a regulation may be so arbitrary and capricious that it violates Due Process, and affects a taking. The same language is also in the majority opinion.

Kelo. Eminent domain. “In assembling the land needed for this project, the city's development agent has purchased property from willing sellers and proposes to use the power of eminent domain to acquire the remainder of the property from unwilling owners in exchange for just compensation. The question presented is whether the city's proposed disposition of this property qualifies as a “public use” within the meaning of the Takings Clause of the Fifth Amendment to the Constitution, [which would allow the City to use eminent domain to “take” the land from unwilling owners in a condemnation proceeding]…Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field.” The Court holds that economic development may be construed as “public use” and therefore that the land may be condemned in a takings proceeding, even where the City is going to take the land and then transfer it to private developers.


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