Property Outline Fall 2020

Property Law – Fall 2020 – Parker
*Exam Formatting
I – SPOT ISSUE
R – STATE THE RULE
A – APPLICATION to the FACT PATTERN
H – HOWEVER (counterarguments; as many as possible)
N – NEVERTHELESS (restate original argument)
C – CONCLUDE (wrap-up, not detailed)
*The Bundle of Sticks (Group of Disaggregated Rights)*

General:
 Each stick represents a right or stream of benefits
 The bundle emanates from the government and you depend on the state to protect them.
 These rights are relative to the rights of others. Some restrictions are about enabling those property
rights (need these restrictions for rights to be effective and meaningful) and some restrictions are a
diminution of your own rights to protect other interests.
 Rights v. Interests (Absolute v. Relative)
o Property rights can be curtailed by rights of others as defined by state:
o Zones in which you are free to act, and zones not free to act
o Some enable property rights (traffic light); some offer as pure limitations on property rights
o (school zones)
 Personal v. Real (Things v. Land)
 Claim to use v. Burden to use (Use/Benefit for P v. Use/Benefit for D)
 Sticks 
Property Rights:
 Right to use or control your property (limitation allows you to use your property in the first place…
think of traffic light example for ownership of cars)
o Things you personally own and can use (hammer and nails to make table)
Page 1 of 46
PROPERTY PARKER FALL 2020
o Things you don’t own but can use (driving a rental car)
o Limited by speed limits (whether you own the vehicle or not)
 Right to exclude (one of the most important property rights)
o Not absolute, legal rules can limit the right to exclude - these rights of others are called Rights of
Access
o Privileged (allowed or permitted use/Trespass when refuses to leave) v. criminal (physical entry
onto land without permission)
o Trespass: Right to exclude v. Right to reasonable access
- Π must show ∆ came onto land
- No need to show intent to trespass or that ∆ knew property was private
o Limitations in Right to Exclude (Exceptions):
- Place of public accommodation
- Government regulation
- Police enforcement
- Common carriers (innkeepers)
- Civil Rights Act of 1966 Limitations
o Defenses to Trespass
- Consent – permission (implied v. expressed)
- Necessity – justified to prevent more serious harm
- Public policy – measuring burden/benefits
- Privilege – entry by individual with authority or Court Order
 *if state  due process issue
 Power to alienate (sell property)
o You personally own and can sell or give (ex: own cow, can sell milk)
o Curtailed by taxes
 Right to bequeath (give property)
o When given in a will, called "right to devise"
o If you no longer want something, you can sell it or give it away
o Sometimes curtailed. Ex: you can legally give an adult friend alcohol or cigarettes, but w/o
license you can’t charge them
 Right to be immune from damages/destruction
o “I can destroy it if I want to and I own it”
o Limitations: public nuisance, hazardous
- Slave-owners had the right to control, benefit from, and transfer slaves, but NOT the right
to kill them
o Right of destruction = clearest proxy for property rights as a whole
 Right to be immune from expropriation (governmental seizure and takings)
o Locke – immunity from expropriation is a sufficient condition of property. Property can’t be
taken from someone without consent
o Controversial (applies to takings)
- By being a necessary condition, it implies that many (or perhaps all) takings or taxations
by the government infringe on property rights
- What’s at stake?  distributive justice, taxation in market economies (primary funds for
state welfare, education, healthcare)
o Immunity exists so long as the property owner engages only with his own property
- Immunity weakens when the property holder starts to derive market income through
management or sale
Page 2 of 46
o Allowing the possibility of non-consensual expropriation is contradictory because it tries to make
the concept of property compatible with its own extinction
- Expropriation is not consistent with various regulations of property
William H Taft – “The Right of Private Property”
 Cornerstone of successful civilization and national prosperity is in the protection of private property
 The rights of property led to the accumulation of capital, which helped build western societies.
 Attempting to tell working people that the destruction of property is bad for labor interest.
 Written when socialists were coming to the US in large numbers, attempts to persuade the working class
that they are better off if the propertied class is protected.
 Taft is influenced by the Lockean theory of property: You own yourself; therefore, you own your
labor.
*Trespass: The Right to Exclude and Rights of Access*

Common Law Limits on the Right to Exclude:
Cases: State v. Shack, Commonwealth v. Magadini, Uston v. Resorts International Hotel, Glavin v.
Eckman, Jacque v. Steenberg Homes
Terms: trespass, intrusion, common carrier, chattels, cone of privilege “ad coelum, ad inferos”,
privileged trespass, clear and imminent danger, necessity defense, rules v standards
 Trespass Definition: An unauthorized, intentional intrusion on property possessed by another (above

and below the surface)
o Intent - not necessary to show that the trespasser intended to violate the owner's legal rights…
trespasser does not need to know the property is private
 Intent is met if the ∆ engaged in a voluntary act – i.e. walking onto property
 Exceptions/defenses:
 Necessity to enter is a defense to trespass (lifesaving, crime prevention) entry is
justified by prevention of a more serious harm to persons/property
 Consent to enter is a defense to trespass (invited in)
 Public Policy – if trespass is encouraged by public policy – paying respect to
gravesite (State v. Shack)
 Privilege – police entry
o Courts compare the right to exclude v. right to reasonable access
 Forms of Trespass
o Literal sense  Physical entry onto another’s land
 Can be through an agent such as an employee
 Can be through an object such as a building that extends over the land of another
o Privileged Trespass  defenses to trespass (above)
 Consent
 Necessity
 Public policy considerations
 Privilege
o Criminal Trespass
 Criminally initiated by federal or state officials (rather than private citizens)
Page 3 of 46
 Purpose  to deter wrongful activities and punish those who engage in them
 Trespass Remedies
o Nominal damages – even if no harm occurred to the land
o Compensatory damages – if trespasser caused harm to property
o Punitive damages – to punish or deter outrageous or malicious behavior
o Injunction – ordering wrongdoer to cease wrongful conduct
o Declaratory judgment – stating legal rights one has over another party
 Trespass to Chattels - (applied to personal property)
o Allows owners to recover damages for intentional interferences with possession of their personal
property.
o Plaintiff must allege some injury to property or show either dispossession or intentional using or
intermeddling with it.
 ***State v. Shack*** (migrant workers, public policy limits on the right to exclude)
o Rule: real property rights are never absolute – necessity, whether private or public, may justify
entry onto the land of another
o Holding: no trespass, necessity of providing legal counsel and medical aid justified the entry
o Public policy argument: right of individuals to supersede property rights, existing property
rights would render federal law ineffective, "property rights serve human values"; Trespass by
necessity or the common good is no trespass at all
o Decision based on common law
 ***Commonwealth v. Magadini*** (homeless man sleeping, necessity defense, lawful alternatives)
o Rule: Someone facing "clear and imminent danger" is not required to conceptualize all possible
alternatives (only a reasonable number of alternatives should be required)
o Holding: D’s proposals are not effective alternatives. The court isn’t prepared to say, as a matter
of law, that P must seek shelter outside his town to demonstrate a lack of lawful alternatives
o Reasoning: Sleep is not an option for humans. The law doesn’t permit punishing the homeless
for simply being homeless.
 Necessity Defense
o For a defendant to be entitled to a necessity defense instruction, he must present “some evidence
on each of the four underlying conditions of the defense” (Commonwealth v. Kendall)
 (1) a clear and imminent danger, not one which is debatable or speculative
Page 4 of 46
 (2) a reasonable expectation that his action will be effective as the direct cause of
abating the danger
 (3) there is no legal alternative which will be effective in abating the danger, and
 (4) the legislature has not acted to preclude the defense by a clear and deliberatechoice
regarding the values at issue
 ***Desnick v. American Broadcasting Companies*** (investigative journalism, ophthalmic clinic)
o Facts: Reporters posed as patients, but were undercover investigative reporters. The story wasn’t
favorable to P. He claimed that ABC committed a trespass by entering under false pretenses.
o Holding: An undercover investigation, when it does not disrupt a company’s functions or invade
private space (e.g., the home), is not trespass because it does not interfere with the possession of
land that is protected by the tort of trespass.
o Notes: Distinctive case  even if consent is obtained under false pretenses, and the owner
would revoke consent if intent were known, it does not necessarily invalidate consent.
o Contrastable with Food Lion v. ABC, Inc. (consent to private places was obtained by fraud)
 ***Uston v. Resorts International Hotel*** (blackjack card counting) **minority position**
o Facts: card-counting blackjack player, was prohibited from sitting at the casino’s blackjack table
o Holding: a person has the right of reasonable access to property open to the public so long as the
person does not threaten the security of the premises.
o Notes: generally considered an outlier because it follows early common law rules
o Policy  justification for extending right of access to all businesses open to the public rather
than limiting it to innkeepers and common carriers – (1) inns and common carriers were more
likely to be monopolies than other businesses (denying the ability to travel or find a place to
sleep away from home, (2) these businesses provided necessities whose denial would place
people at risk from the elements or bandits, and (3) inns and common carriers hold themselves as
ready to serve the public, and the public relies on this representation
 Rules versus Standards
o Rigid Rules
 Trespass law operates as a rigid rule in most jurisdictions – owners have virtually
absolute discretion to exclude from private property for any reason not specifically
prohibited by law
 Advantages: (1) clarifies who has the power to control a particular resource, quickly
settling disputes and (2) promotes transactions by identifying who owns a particular set
of rights in land, clarifying who has the power to sell it
 Disadvantages: rigid rules often bring unanticipated and substantial injustice, when the
application of the rule seems unfair courts may be unwilling to apply it
o Standards
 Used to increase flexibility and more closely approach the judges’ intuitions about the
just results in particular cases
 ***Glavin v. Eckman*** (cutting neighbors trees)
o Facts: D hired someone to cut down trees on P’s property without permission. Damages
awarded based on the restoration cost and tripled
o Holding: restoration damages can make an owner whole, actual damages don’t always amount
to the price of deterring others
 ***Jacque v. Steenberg Homes*** (driving mobile home across private property)
Page 5 of 46
o Facts: plaintiff denied defendant’s request to move a mobile home across his land, defendant
ignored him and moved it across the land anyways
o Holding: if nominal damages are awarded for trespass, punitive damages may also be even when
no harm to the property resulted from the trespass
o Policy: because a legal right is involved, the law recognizes that actual harm occurs in every
trespass to land (whether or not compensatory damages are awarded), deterrence  punitive
damages remove the profit from illegal activity (must be in excess of the profit created for d to
recognize a loss)
Public Accommodations Statutes

Readings: Civil Rights Acts of 1964 and 1866; New Jersey Law Against Discrimination; Boy
Scouts v. Dale (SCOTUS, 2000), Masterpiece Cakeshop v. Colorado Civil Rights Com’n
 ***Civil Rights Act of 1964, Title II***

o NO discrimination on the basis of: race, color, religion, national origin
 Does not cover: sex, age, disability, or sexual orientation
 Does not provide for damages, but allows injunctive relief and recovery of attorney’s
fees
 All persons are entitled to the full and equal enjoyment of goods, services, facilities,
privileges, advantages, and accommodations of any place of "public accommodation"
 Established pursuant to The Commerce Clause, which authorizes Congress to regulate
interstate commerce
o Place of Public Accommodation - operations affect commerce or it is supported by state action
 Inns, motels, or other lodging establishments
 Restaurants, cafeterias, or other facilities principally involved in "selling food for
consumption on the premises"
 Theaters, concert halls, sports arenas – any place of entertainment
 Note - “place” doesn’t need to be a fixed parcel of real estate (Boy Scouts v. Dale)
o Does not create a private right of action – you cannot sue an establishment, you have to file a
complaint with a governmental agency
o Exceptions to this Act
 Private establishments – provision does not apply to private clubs or establishments not
open to the public except to the extent that they are made available to the public
 Two factors to determine "privateness"
 Selective – if the org. is selective in who they accept
 Limits – if there are limits to the number of members
 ***Civil Rights Act of 1866***
o Only regulates race discrimination but does provide for damages to an injured party.
o Any citizen has the same rights that a white person has to make and enforce contracts, and
purchase / lease / sell / hold / convey real property.
o In 1964, it was thought that this statute only applied to state conduct, but it was intended to
cover private conduct as well.
 Post-1964 judiciary decisions have forced private entities to abide by this law as well.
o Loophole  “Exclusionary Vibes” - indirect strategies to deter certain classes of people from
trying to enter an establishment
Page 6 of 46
 Creating an unappealing environment,
 “Exclusionary amenities” – bundling a product with a product that members of a
particular racial group are unlikely to want (ex. housing bundled with a mandatory golf
club membership)
 Dress codes – “no baggy clothes or bling”
 ***New York Executive Law***
o Much more expansive than federal public accommodation laws
o States may increase protections, but they are limited by other federal laws.
 Constitutional Limitations on the Right to Exclude
o ***Dale v. Boy Scouts of America***
 Facts: Dale’s position of assistant scoutmaster was revoked by Boy Scouts on the basis
that an open homosexual & gay rights activist.
 Holding: Boy Scouts are not a physical location; NJ’s public accommodation law does
not apply. NJ’s law would violate D’s first amendment right of expressive association.
 Reasoning: The forced inclusion of an unwanted person in a group infringes on this
freedom if the presence of that person significantly affects the group’s ability to
advocate public or private viewpoints.
o *** Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Com’n***
 Facts: Craig and Mullins requested a cake for their wedding. Phillips declined because he
does not create wedding cakes for same-sex weddings due to his religious beliefs.
 Holding: if the application of the public accommodations law fails to treat the cake
maker neutrally and respectfully, then it violates the Free Speech or Free Exercise
Clauses of the First Amendment
 Reasoning: while same-sex couples are afforded civil rights protections under laws and
the Constitution, religious and philosophical objections to same-sex marriage are
protected views and can also be protected forms of expression.
Federal and State Constitutional Free Speech Access Rights

Cases: Lloyd Corp. Ltd. v. Tanner
 US and State Constitutions have different provisions/clauses for the protection of free speech
o Supremacy Clause – Federal Constitution trumps statutes that are in conflict with each other
o Free Speech Rights are typically in conflict with Owners' Rights to Exclude in property law
o 1st Amendment – declaring rights of access to public centers for free speech versus
 5th and 14th Amendments which protect the right to exclude on private property and the
right to not have property taken for public use without just cause
 ***Lloyd Corp. Ltd. v. Tanner*** (flyers in the mall) (distinguishing cases - Marsh and Logan)
o Facts: Tanner distributed political handbills about the Vietnam War in a privately owned mall
o Holding: Since the mall is not a state actor, Lloyd is entitled to exclude handbillers from its
private property.
o Reasoning: The 1st Amendment does not protect Tanner’s speech  free speech
Constitutionally protected against State action, not private actions 
o The 1st and 14th Amendments only limit States from infringing on constitutional rights, not
privately owned corporations.
o 5th and 14th Amendments state that private property rights cannot be infringed. Property does not
lose its private character because it is big or successful.
Page 7 of 46
 Free Speech v Property Claims
o Most states agreed with Lloyd not to extend free speech rights to shopping centers
 Some have interpreted their state constitutions to provide free speech access to shopping
centers (Pruneyard) for general purposes like handing out leaflets OR for specific
purposes like seeking signatures for ballots
o Three possible outcomes
 The 1st Amendment of the Constitution granted citizens a right of access to public
shopping centers for free speech purposes (rejected in Lloyd)
 No right of access if created by the Constitution but any right of access created by state
law would represent a taking of property without just compensation and thus would
violate the owners' property rights (5th and 14th) (rejected in Pruneyard)
 Free speech access is neither required by the first amendment (Lloyd), nor prohibited
by the 14th Amendment (Pruneyard)
 The states choose between protecting the right of owners to exclude and the right
of access for free speech purposes to property otherwise open to the public
Beach Access and the Public Trust

Cases: Matthews v. Bay Head Improvement Association
 The Doctrines of Dedication, Prescription, and Custom:

o Dedication – involves a gift of real property from a private owner to the public at large; requires
an offer by the owner and acceptance by the public.
o Prescription – if the public has used property possessed by another for a particular purpose for a
long time, the public can acquire such rights permanently even if they never had them originally.
 The permanent right to do something on another’s land  easement, and such rights can
generally be granted through a contractual agreement.
 The public can acquire a prescriptive easement if a property owner fails to exclude
trespassers from her property within the statute of limitation (very rare).
o Custom – similar to prescription, but it acquires property for the public’s use by demonstrating
longstanding, uninterrupted, peaceable, reasonable, and uniform use of a property by the public
for a significant amount of time
 (i.e., it has been an area of public use for a long time and isn’t exactly taking property
away from a private owner).
 The Public Trust Doctrine
o The State (in a trust for the people) has ownership, dominion, and sovereignty over land
flowed by tidal waters, which extends to the mean high mark
 Gives the public the right to use and enjoy tidal areas  requires proper access to the
tidal areas and the use of the dry sand area
o Uses under Public Trust Doctrine:
 Navigation, Recreational, Fishing, sandy beach land to the line of vegetation
 ***Matthews v. Bay Head Improvement Association***
o Facts: Matthew sued when D excluded the public from using its beaches during the summer,
claiming the public had the right to gain access to the tidal land across the property owned by D
o Holding: Public’s right to enjoy tidal lands includes right of access to privately owned dry sand
lands
Page 8 of 46
o Reasoning: The Association is a quasi-public organization that was operating as a municipality,
so it had to open its membership to the public at-large.
The Right to be Somewhere and the Problem of Homelessness

 ***Pottinger v. City of Miami*** (Miami sweep of homeless)
o Facts: ACLU brought suit in Miami challenging the sweep of homeless people from city parks
before the Orange Bowl Parade in 1988
o Policy Considerations: Homeless people can’t do routine daily acts (urinating, washing,
sleeping, eating, cooking, relaxing, etc.) in the privacy of their own home; thus, they must do
those things in public places. Arresting homeless people for these acts is essentially punishing
them for being homeless. Atkins argues that this constitutes cruel and unusual punishment.
*Nuisance: Resolving Conflicts Between Free Use and Quiet Enjoyment*

Nuisance
Cases: Dobbs v. Wiggins, Page County Appliance Center v. Honeywell, Boomer v. Atlantic Cement
Co
 Terms and Definitions

o Nuisance: substantial and unreasonable interference with the use or enjoyment of land
 Involves using your property in a way that interferes with another’s property
 Nuisance is non-trespassory and one can be held liable regardless of the standard of
care (i.e., it’s more like strict liability than negligence)
 Look at substantial harm and reasonableness (social utility) analysis
o Competing interests:
 1) P’s right to enjoy property (security)
 2) D’s privilege
o Reciprocal Nature of Costs: preventing D from causing a harm that poses a cost to P (i.e.
nuisance) can also inflict a cost on D by limiting his freedom to use his land.
o Nuisance per se (nuisance at law): activities that are so disfavored that they will be held to
constitute a nuisance no matter where the activities take place or what consequences they
generate.
o Public nuisance: an interference with a right common to the general public
 (e.g. pollution of a river, or building a bridge from your property to your friend’s property
that is too low for ships to pass under it).
o Private Nuisance (3 types) – interference with
 (1) The land itself (water pollution, ground shaking that damages buildings
 (2) Health/comfort (air pollution and noxious odors)
 (3) Funeral parlor, leper colony, mental hospital, or explosives factory.
o Nuisance in fact (per accidens): An otherwise lawful activity that becomes a nuisance based on
the way the activity is conducted. Depends on the context (e.g. noise).
 Courts resolve land use conflict in one of 4 ways:
o (1) Defendant’s privilege - ∆ can engage in activity on his property even though it harms
property interests of π.
 ∆’s freedom to act – damnun absque injuria (damage without legal injury)
Page 9 of 46
o (2) Plaintiff’s Security (Strict liability) – if conduct engaged in by ∆ is prohibited by law, π has
absolute right not to suffer any harm
 Π entitled to damages and injunction. Π must prove that action is prohibited conduct and
that this action caused damages to property
 Sic utere tuo ut alienum non laedus – use your property so not to harm the interests of
others
o (3) Reasonableness Test –middle ground. Allows ∆ to engage in activity if deemed reasonable,
but not if it is deemed unreasonable. Factors in determining:
 Substantial harm: judged by the weighing of rights / harm (from P’s perspective)
 Factors (Second Restatement)
o The extent of the harm involved.
o The character of the harm involved.
o The social value that the law attaches to the type of use/enjoyment
invaded.
o The suitability of the particular use/enjoyment invaded to the character of
the locality; and
o The burden on the person harmed of avoiding the harm.
 Reasonableness: judged on social utility (weigh the reciprocal costs from D’s
perspective)
 Social benefits of D’s activity measured by what society would lose by preventing
D from freely engaging in it
 Suitability of conduct in character to location
 Impracticability of avoiding harm – how impractical is it for ∆ to change
 ∆’s motive (profit may constitute legitimate motive, spite or malice may not)
 Prior use – which use was established first, greater protection sometimes given to prior
uses.
 Harm must be substantial in that owners should not have to bear burden for good of
society
 Right thing in wrong place (“pig in a parlor”)
 Unusually sensitive - ∆ will not be liable if complaint by π is based on π’s unusually
sensitive use of land
o (4) Prior Use – sometimes legal entitlements are awarded to person who established first use
 Remedies and Defenses
o Defenses:
 Temporal priority - Coming to the nuisance; harmful activity established first.
 Hypersensitivity - Can privilege a serious harm to P if D’s conduct is considered
generally inoffensive.
o Remedies:
 Dismissal - motion to dismiss for failure to state claim upon which relief can be granted
 If NO substantial harm and positive social utility  dismissal
 If there IS substantial harm and positive social utility, but would put ∆ out of
business  avoid dismissal
o Social value of ∆’s conduct is more important than preventing harm to π
 Positive externality – when ∆ cannot afford to pay π but the social utility is
greater than harm caused
o (ex: π suffers 100 units worth of harm, ∆ can’t pay, but there is 200 units
worth of ∆’s social activity)
Page 10 of 46
Damages – π may ask court for damages to compensate for harm already done (cost of
restoration; depreciation in market value)
 Damages awarded if there IS substantial harm and if there is also social utility
 Ex: ∆ causes 100 units worth of damage but has 200 units worth of social utility
(Dismissal if π came to the nuisance)
 Injunction – order by court for ∆ to stop doing things – π must state expressly what
 Awarded if there IS substantial harm but NEGATIVE social utility (harm exceeds
benefit of ∆’s activity)
 Ex: π suffers 100 units worth of damage, ∆ only has 50 units worth of social
utility
 Purchased injunction – order by court for ∆ to stop doing activity on grounds that social
benefits are SUBSTANTIALLY OUTWEIGHED by social costs
 Substantial harm and NEGATIVE social utility, but π comes to the nuisance, then
purchased injunction (unfair to make ∆ pay)
 Inalienability rule - ∆ has no right to commit the harm OR π has right to engage in
protected activity, even if 2 parties contracted against it
 Ex: right to safe working conditions can’t be sold (you can’t contract away right
to safety)
o Analysis order: Gravity of the Harm  Social Utility  Appropriate Remedy
 ***Dobbs v. Wiggins*** (barking dogs)

o Facts: D ran a training ground for dogs in a residential area, and P was tired of the barking.
o Holding: affirmed that dogs posed a substantial nuisance but rejected remedy of the trial court.
o Reasoning: No evidence prescribing the number of dogs be that low (or high)
 *** Page County Appliance Center v. Honeywell*** (radiation interference with TV store)
o Facts: radiation from D’s computer caused interference with the picture on the tvs in P’s store.
o Holding: D can be liable for nuisance even if they used the highest degree of care to prevent or
minimize the effect.
o Reasoning: D’s hypersensitivity defense failed because TV stores are common, this case is an
example of nuisance-in-fact (as opposed to nuisance per se)
 *** Boomer v. Atlantic Cement Co*** (cement plant)
o Facts: alleged injury to P’s property from dirt, smoke, and vibrations emanating from D’s
cement plant. P filed actions for an injunction and damages.
o Holding: π is entitled to an injunction that will be lifted once damages are paid by ∆.
Page 11 of 46
o Reasoning: ∆’s value increased overall social utility; therefore, its conduct was reasonable
Light and Air
 ***Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five*** (blocking pool sunlight)

o Facts: π sought to enjoin ∆ from building an addition that would block access to light and air at
π’s pool.
o Holding: No injunction because π does not have a right to the flow of light and air.
o Notes: example of judicial deference because the court felt this was a matter to be decided by a
zoning board
 *** Prah v. Maretti *** (blocking solar panels)
o Facts: P sought to enjoin construction of D’s house because it would block his solar panel’s
access to sunlight.
o Holding: If a new structure will unreasonably interfere with the use or enjoyment of his
property, the construction can be enjoined under the theory of private nuisance
o Notes: Outlier case, the court opted to weigh social values in this case
Water Rights: Flooding and Diffuse Surface Water

 Diffuse Surface Water - drainage water from rain, melting snow, and springs, that runs over the surface
of the earth but does not amount to a stream
o Common Enemy Rule – Surface water is a common enemy. No liability can be claimed because
a person has the right to do whatever is necessary to stop surface water.
 Pro development / Pro-Defendant
 Very extreme but adopted in most states, so many exceptions to this rule that the
reasonableness test has been adopted in some jurisdictions
 Exception – when ∆ flows water in unnatural way and in a constant flow, but no liability
for run off surface water resulting in damage to neighboring property
o Civil Law (natural flow) rule – you have the right not to have interference of surface water on
your property  strict liability
 Anti-development / Pro-Plaintiff
 Grants injured property owner absolute security against injury from flooding caused by
neighboring owner’s development of their property
 Exception – Owners can discharge water through natural drainage ways but cannot alter
the amount, force, flow, or direction or they will be liable for resulting damage
o Reasonable Use Test – Court determines in specific cases if the ∆’s conduct cause unreasonable
interference with the neighbors use of their land
 Factors: amount of harm, foreseeability of harm, purpose or motive with each possessor,
social benefit of development of land versus damage caused to lands of neighboring
homeowners.
 Unfair that neighboring homeowners should have to bear burden of damages
caused by use of another possessor rather than by those who engage in activities
for profit
 ***Armstrong v. Francis Corp.***
o Facts: ∆ changed the drainage pattern of a field and caused significant erosion downstream that
damaged π’s property
Page 12 of 46
o Holding: when drainage flow has been increased so substantially so as to cause damage to π’s
property, ∆ should pay π an amount that will allow π to install protection on his land.
o Importance: Illustrates a shift toward the reasonableness test - common enemy and civil law
rules are extremes
 Policy arguments for reasonableness test
o Rights: Freedom of action v. security – weighing the freedom of action with the security of the
party affected to enjoy their rights
o Social Utility: Competition v. secure investment – want to encourage the free market economy
but no one would invest if property rights were not secure
o Predictability v. justice in the individual case – flexible standards are best suited to provide
justice in individual cases but they cannot be mechanically applied (rules v. standards)
Support Rights
 Lateral and Subjacent Support
o Lateral Support – excavation on a particular parcel may undermine support for neighboring
land
o Subjacent Support – digging of wells, if enough water is withdrawn, neighbor’s subsurface
may subside
o Under old common law – landowners owned surface and earth beneath the surface, from the
center of the earth to the sky
 ***Noone v. Price*** (broken retaining wall, house slipping)
o Facts: π discovered their house was slipping down a hill and believed it was caused by an ∆’s
deteriorated retaining wall. (wall built in 1910s, home built in 1920s)
o Holding: absolute right to lateral support  only for land in its natural state; π can recover by
proving the deteriorating wall would’ve led to the subsidence of their land in its natural condition
o Note: If you remove the lateral support and substitute with artificial support (a wall), the
obligation continues to run with the land
 ***Friendswood Development Co. v. Smith-Southwest Industries*** (water extraction)
o Facts: ∆ extracted water from wells, nearby landowners claimed that their land severely
subsided as a result
o Holding: *in future cases* if the landowner’s removal of groundwater is negligent, willfully
wasteful, or malicious, and such conduct is a proximate cause of damage to the land of
another, then the landowner would be liable
o Note: the rule adopted in this case does not apply to ∆ because of contract integrity policy
concerns.
 Proper Standard of Care in Support Cases
o Negligence Standard: Court will impose liability if ∆’s conduct created an unreasonably great
risk of causing harm that was foreseeable to P’s property interest
o Nuisance Standard: Court determines if ∆’s activity was unreasonable and causes substantial
harm to the use and enjoyment of P’s property
 Courts look to consequences, compare gravity of harm w/social utility of harmful
conduct
*Prescription*
Relativity of Title
Page 13 of 46
 Property rights are relative
o The Law of Finders - Who is entitled to found property depends on whether the conflict is
between the finder and original owner, a subsequent possessor, or the owner of the land where it
was found. It also depends on whether the property is considered lost, mislaid, or abandoned.
 Lost: owner accidentally misplaced the property.
 Mislaid: owner intentionally left it somewhere and forgot where he put it.
 Abandoned: owner intended to relinquish all rights to the property.
o Finders typically lose against original owners of lost or mislaid property but can win against
original owners of abandoned property.
 ***Armory v. Delamirie*** (chimneysweep finds jewelry)
o Facts: π finds jewelry; goldsmith takes it and refuses to give it back.
o Holding: the finder of the jewel, though without absolute ownership, has a right to keep the
jewel against all but the original owner.
o Importance: Establishes possession as a valuable property right and evidence of ownership
 ***Charrier v. Bell*** (native burial plot)
o Facts: π exhumed items from a Native American burial plot from another person’s land.
o Holding: objects buried with the dead are not abandoned property, unjust enrichment theory
dismissed
o Importance: In general, stuff buried on the land belongs to the owner of the land.
 ***Christy v. Scott*** (which title is valid in Texas)
o Facts: π was granted land by U.S. gov’t in Texas but ∆ was already on the land. ∆ ejected π, and
π sued to quiet title.
o Holding: The issue of whose law to apply to quiet the title will be decided on remand, court
follows the principle of relativity of title
Adverse Possession
 Definition
o Defines how a third-party non-owner can prevail in a possessory conflict with the true title
holder.
o The prevailing party in an adverse possession case extinguishes the previous title holder’s title.
o The evidentiary standard is clear and convincing evidence.
o Quiet Title: a type of claim that asks the court to grant a declaratory judgment that the adverse
possessor has become the owner of the disputed property.
 Elements
o Continuous
 Seasonal or infrequent can sometimes apply (Nome 2000)
 Later re-entry doesn’t restart SOL
 Tacking – may tack predecessor’s time to satisfy SOL. Must pass directly (no gaps)
(Brown v. Gobble)
 Privity necessary – contract of sale, gift, inheritance
 Cannot occur when:
o Successive trespassers and true title holders cannot tack
o an adverse possessor cannot tack on a prior period of possession if she has
ousted the prior possessor or if the prior possessor abandoned the property
o Actual
Page 14 of 46
 acted as an actual owner, show improvements or significant activities on the land
(building, living, business, farming, planting)
 Evidence: enclosure, cultivation, any use and occupation of land
o Open & Notorious
 Factual question  if the title holder was reasonable, they would be aware of the
trespassing
 Evidence: building structures, improving land, reputation, farming on land
o Exclusive
 can invite guests over; must be exclusive, cannot share it with someone (unless
concurrent)
o Hostile Possession
 When a person exceeds scope of permission, can be adverse even if the possessor
believes to be within his rights to be on land; intent is irrelevant; “non-permissive”
 Ways to destroy hostile possession:
 Permission is given. Any kind of permissive use is NOT hostile
 True landowners asks adverse possessor to modify use of land & adverse
possessor complies
 Three tests: [depends on whether jurisdiction believes intent is required]
 Objective Test – state of mind irrelevant
o Lack of permission – occupation not subordinate to owner’s title
o Occupier’s acts objectively appear to be claim of ownership
o Begins when he gets onto land
o Discourage true owners from sleeping on rights in face of possessory
encroachments
o Encourage prompt identification and resolution of encroachment
 Bad Faith/Intentional – Is aware that property isn’t theirs but goes ahead
anyway (building a foot onto another’s property when knowing isn’t theirs)
o Courts tend to rule against awarding title when encroachment done
intentionally
o Criticism: rewarding deliberate trespassers
 Good faith - in good faith believes that she is, in fact, owner of land in possession
o AP serves to protect reasonable expectations of longstanding possessors
that their possession will continue in the future without interruption
o If applying, possessors who knew (bad faith) cannot claim AP
o Justification: security of true owners
o Criticism: rewards sloth owner & not productive occupier
 Color of Title - writing that looks like ownership, but might not be legally enforceable
 Satisfies adversity element
 Possess all land descried in defective deed so long as it’s single parcel & they
occupied significant portion of it
 If enter 100-acre farm under color of title, actually possess 50 acres, then you
constructively possessed remaining 50 acres and can acquire all the land
 Claim of Title – no writing (satisfies hostility requirement)
 Can only claim land they actually physically possessed
 If you have color of title to land A and mistakenly move onto land B, you do
NOT have color of title, but might have claim.
Page 15 of 46
o Statute of Limitations – owner’s cause of action to recover begins when adverse entry of land.
 Disabled owner – Provides for tolling if owner is disabled at time cause of action
accrues. (If disabled after COA, no tolling)
 Ex. Infancy, insanity, imprisonment
 ***Brown v. Gobble*** (go-to adverse possession / tacking case)
o Facts: π) wanted ∆ to stop building a road along the edge of ∆’s property; π’s predecessor in title
built a fence beyond the property line (in the space where the road was planned to go).
o Holding: π provided evidence for each element of adverse possession and established (through
tacking) that the statutory time period was satisfied.
 ***Romero v. Garcia*** (lacking signature voids color of title)
o Facts: mother-in-law didn’t sign a deed for land given to her son and daughter-in-law. Daughter-
in-law had color of title and sued to quiet title
o Holding: the deed was sufficient to show color of title even though one party failed to sign it
because the boundaries of the land were able to be ascertained upon further examination.
o Importance: Go-to case for deed defects or color of title issues. We treat people with color of
title more favorably (arguably) because they’re a more orderly person than a squatter.
 ***Nome 2000 v. Fagerstrom*** (Alaskan AP)
o Facts: π owned land in Alaska; ∆ claimed ownership thorough adverse possession
o Holding: conduct was sufficient to meet the requirements of adverse possession even without
the cabin on the property
o Importance: Use consistent with any similarly situated owner is sufficient to establish claim by
adverse possession; the land in question is rural and thus has a lower requirement of use
 Interests NOT affected by adverse possession
o Future interests – adverse possession does not run against the owner of a future interest
(remainder) if entry is made when a life tenant has possession
 Not that if entry had been made before the owner created the remainder, the statute would
begin to run against the owner and his successor in interest
o Liens, easements, equitable servitudes – an adverse possessor does not destroy any lien,
covenant, etc. until he interferes with it so as to give the holder of the right cause to sue the
adverse possessor
o Governmental land – with a few exceptions, public policy exempts government land from
adverse possession
 Policy Justifications for Adverse Possession
o Degree of certainty of ownership to possessors of land by eliminating possibility of stale claims
o Lowers administration costs/litigation costs
 Counter: Can be just as must a problem in litigation due to transaction costs
o Shortens period prospective purchasers & lenders need to examine state of title
o Encourages maximum utilization of land (society likes this)
o Allow for productive user to take title from unproductive user
 Counter: real owner may get more out of land
 Alternative ways to solve boundary disputes:
o Doctrine of Agreed Boundaries – if uncertainty to boundary, and parties agree where boundary
is, then that is where it is unless there is an objective way to tell where it is. Cannot change
boundaries through agreement.
 Not a conveyance but acts like one
Page 16 of 46
o Doctrine of Acquiescence – location must’ve been there for sufficient time to bar right of entry
under SOL
 If parties disagree on boundary, and 1 or both parties acting as if boundary moved, and
other party acquiesces for a long period of time, court may say boundary has shifted
 Or, one person may act as boundary has changed, and if other doesn't argue, after
sufficient time, that is new boundary
o Estoppel Doctrine – true owner might have known while other party subjected himself to
expense L
o Doctrine of Accession – person in good faith adds labor to property of another. Who owns
product?
 When only labor added, actual owner owns product unless substantial value
 Laborer owns resulting product but must compensate owner for trespass
 Or could go to whoever supplied more significant and valuable material.
 If it’s the Good Faith Improver (Statute)– still have to compensate owner for
trespass
*Servitudes*
Easement Info
 Terms
o Servitude - a right or obligation that automatically passes to subsequent owners / possessors of
the land.
o Easement – an affirmative servitude, non-possessory right held by one to make specific, limited
use of another’s land
 Affirmative easement – right of way
 Negative easement – height restriction
o Dominant estate – benefitted parcel/ holder of easement
o Servient estate – burdened parcel, land used for the purpose of the dominant estate
o “Running with the Land”
 Requirements for the burden to run- easements created by implication, necessity, and
estoppel generally are held to run with the land if they were intended to do so and are
reasonably necessary for the enjoyment of the land
 If not within the above exceptions, they only run with the land if:
o Writing
o Intent to run with the land (express or implied)
o Touch and concerns the land
o Subsequent owners had notice at the time of purchase (actual, inquiry, or
constructive)
o Privity
 Horizontal – at the time the covenant is imposed (instantaneous or
mutual)
 Vertical – only if the title to the entire servient estate can be traced
back to the promisor
 Requirements for the benefit to run
 Transfer of easements appurtenant – normally pass with the transfer of the
dominant estate, must convey all or part of the dominant estate
Page 17 of 46
o The deed that conveys the dominant estate does not have to refer to
appurtenant easement  easement passes by implication to the new owner
of the dominant estate
o Subdivision – if the dominant estate is sub-divided into smaller lots sold to
different people, ad the geography is such that each of the smaller lots can
benefit from the easement, then each will generally be permitted to do so
 Transfer of easements in gross – common law  not transferrable
o Commercial easements intended to be used for economic purposes may be
assigned
o Personal easements – some modern courts allow assignment of non-
commercial easements in gross
Affirmative Easements Negative Easements

- Entitles the holder to do a physical act on another’s - Enables the holder to prevent the owner of land
land (right of way to walk, sewers) from making certain uses of that land (can’t build a
- Not to act on one’s on land tower blocking an ocean view)
- Right to lateral support, air flow, light, channeled
water flow
- View easements, solar easements, conservation of
historical/scenic views
Appurtenant Easement Easement in Gross

- Landowner benefit, tied to a particular piece of land - Personal benefit tied to the individual, not to a
(runs with the land) specific parcel of land, the land is not benefited
- Rights attached to the estate itself, passes along - No dominant estate (held by an individual)
with title when sold – not severable - Doesn’t run with the land, continues to be in the
- Needs to be neighboring land individual
- Apportionable – subdividing/selling parcels of the - Ends at the holder’s (grantee’s) death unless
dominant estate transfers the easement to each parcel assignable
- Each new parcel becomes a dominant estate; the - commercial easements in gross are transferrable,
owner holds the easement over the servient estate so non-commercial are not
long as they do not overburden the servient estate
o Appurtenant v In Gross – Intent of the Grantor
 Clear language
 If the easement would be useful separate from the ownership of neighboring land (ex.
utility easement)  courts will likely hold it was intended to be in gross
 If the easement has little to no utility separate from ownership, and it useful to anyone
who owns the benefitted parcel (Green v Lupo)  courts will likely hold appurtenant
o Ambiguous easements
  assume appurtenant
 Argument – easier to eliminate, more intentional, owners are more aware of it
 Counter-argument – easements in gross are hostile to encumbrance on property
  construe it as broadly as possible to carry out the purpose for which it was granted
 Types of Easements
o Prescriptive easements – similar to adverse possession claims, but requires actual use instead of
general possession for a sufficient period of time
 Successful litigation results in continued use rather than transfer of title
Page 18 of 46
 Required elements
 Actual use – physical presence
 Open and notorious
 Continuous – tacking permitted
 Exclusivity (not really required)
 Adverse/ hostile
 For the statutory period of time. (same as AP for that jurisdiction)
 Some jurisdictions require proof of acquiescence such that
 (1) the owner never brought a trespass claim,
 (2) the owner knew about the use and passively allowed it to continue, or
 (3) a reasonable owner should have known about the use.
 Prescriptive easements not permitted  negative easements and easements on govt land
o Implied Easement – no express contract to create the easement, implied by conduct or public
policy
 Prior use implication requirements: (from before division of property)
 Conveyance
 Common owner prior to division
 Prior usage that was
o Necessary to the dominant parcel
o Apparent at the time of conveyance
 Reasonable necessity – for use and enjoyment (strict – MUST need it)
 Continuous use (not sporadic)
 Intended continuation
 Existing use
 Apparent – (not necessarily visible – like a sewer)
 Necessity Implication requirements (easement for access when property is divided)
 Common owner
 Physical Conveyance
 Necessity for egress and ingress did not exist at the time of severance
 Easement for strictly egress and ingress
 Necessity is required
o Express Grants (Writing)
 In writing
 Reservation in grantor – owner conveys land to someone else and reserves for himself
 Creating and Terminating Easements
o To create:
 Prescription
 Implication
 Express grants (writing)
 Strict Necessity
o To terminate
 By the Terms of the Grant
 Purpose for Easement Ends
 Merger
 Forfeiture for Misuse
 Release
Page 19 of 46
 Abandonment  mere nonuse, no matter how long, does not constitute abandonment
 Estoppel
 Prescription
 Recording Acts
 Eminent Domain
Prescriptive Easements
 ***Community Feed Store, Inc. v. Northeastern Culvert Corp***
o Facts: a feed store had been using a piece of land for vehicles for many years before it was
conclusively established that another party owned the land. The actual owner erected a barrier
which prevented the feed store from using the land
o Holding: general usage outlines must be provided in a prescriptive easement; π provided
documentation that proves usage to a level of reasonable certainty, therefore his claim was valid
Express Easements
 ***Green v. Lupo***
o Facts: dispute about appurtenant or in-gross easement, adjoining landowner converted property
to a mobile home park and noisy motorcyclists have started to annoy the easement creator.
o Holding: where the grant is unclear, the extent of the easement must be construed as broadly as
necessary to carry out the purposes for which it was granted.
o Note: Case for a strong assumption of appurtenant easements
 ***Cox v. Glenbrook Company***
o Facts: Cox sought to widen the road over π’s land to enable further development of a
subdivision.
o Holding: where the grant is unclear, the extent of the easement must be construed as broadly as
necessary to carry out the purposes for which it was granted
o Notes: No evidence that grantor or original grantee ever intended for easement (road) to be any
wider than it was constructed
 *** Henley v. Continental Cablevision of St. Louis ***
o Facts: (π) had the right to grant easements for creating and maintaining electric, telephone and
telegraphic service. ∆ used a license it received from the two utility companies who serviced the
subdivision for the purpose of transmitting television shows.
o Holding: license issued to ∆ was valid because the easements were intended to be exclusive
and therefore apportionable.
o Notes: Example of an easement in gross.
Implied Easements
 *** Lobato v. Taylor ***

o Facts: The land was part of the “Sangre de Cristo” land grant. The owners exercised rights to
enter and use thee property for over one hundred years. Jack Taylor fenced the land in 1960 and
forcibly excluded them.
o Holding: π have implied rights in ∆’s land for the access to the profits detailed in the Beaubien
Document
o Notes: Go to case for easements by estoppel. Good to argue easements implied by prior use.
 *** Granite Properties Limited Partnership v. Manns ***
Page 20 of 46
o Facts: π sold some land to ∆ with driveways on that land that π used for commercial and
residential purposes; π wanted to keep using, but ∆ did not want to allow it.
o Holding: the evidence regarding the need for use was sufficient to fulfill the necessity
requirement
o Notes: Good to argue easements implied by prior use.
 *** Finn v. Williams***
o Facts: π sued ∆ to enforce a dormant easement to reach a public highway from π’s landlocked
estate.
o Holding: where an owner of land conveys a parcel thereof which has no outlet to a highway
except over the remaining lands of the grantor or over the lands of strangers, an easement exists
o Notes: Go-to case for easements by necessity
Covenants
 Terms
o Covenant – a promise to do (affirmative) or not to do (negative) something, an agreement for a
restriction or an obligation. Remedies come in the form of damages
o Equitable servitudes - covenants that can be enforced by injunction; also, the privity
requirement is replaced with a notice requirement.
 Requirements: writing, intent, touch and concern, notice (no privity)
 Remedy  injunction
o Touch and concern - requires the covenant to concern the land in some way (i.e., it must affect
the value of the land, but it doesn’t have to be physical).
o Horizontal privity - satisfied when the covenant is created during the legal transfer of land
(note: it is usually accomplished through “instantaneous privity”).
o Strict vertical privity - covenant transferred through the legal transfer of land; prior party
cannot retain any interest in the land (e.g., doesn’t extend to Landlord / Tenant transfers).
o Relaxed vertical privity - covenant transferred through the legal transfer of land; however, the
prior party may retain an interest in the land (e.g., Landlord / Tenant qualifies).
o Negative covenants: imposes all burdens on subsequent owners of burdened estate; extends
benefits to all subsequent owners of benefited estate
o Affirmative covenants:
 Lessee:
 Bound to burdens only if it is a promise that they can reasonably perform more
than other person
 Enjoy benefits if they are promises 1) to repair, maintain, or render services; 2)
confer benefits that may be enjoyed by possessor w/o diminishing covenant’s
value to lessor
 Life estate: All of benefits & burdens run to holders of legal life estates
 Adverse possessors –
 Title holders only enforce affirmative covenants that are to: 1) to repair,
maintain or render services to benefited property; or 2) confer benefits that may
be enjoyed by possessor w/o diminishing value of covenant to true owner
Page 21 of 46
 Burdens and benefits
o For the burden of a covenant to run:
 Writing
 Intent for the burden to run
 Touch and concern
 Horizontal privity
 Strict vertical privity
 Notice (common now, not common historically)
o For the benefit of a covenant to run:
 Writing
 Intent for the benefit to run
 Touch and concern
 Relaxed vertical privity
 Defenses to real covenants:
o Abandonment – when conduct of person entitled to benefit of covenant demonstrates intent to
relinquish rights
o Changed conditions – covenant unenforceable when conditions in area of burdened land have
so substantially changed that the intended benefits of covenant cannot be realized
 *** Neponsit Property Owners’ Association v. Emigrant Industrial Savings Bank ***
o Facts: bank bought a foreclosed home @ auction and did not pay the required HOA fees; HOA
sued to enforce the covenant
o Holding: Does a covenant contained in a deed requiring the payment of money “touch and
concern” the land?  Yes.
o May privity of estate exist between a property owner and the property owners’ association? 
Yes.
Substantive Limitations on Creation and Enforcement of Covenants
 Grounds for challenging covenants
o Assertions of constitutional violations
o Claims of discrimination under the Fair Housing Act
o Claims of restrictions on alienability
o Claims of unreasonable restraint on trade
o Modern courts also address public policy concerns by invalidating a covenant under a
reasonableness test
 Reasonableness test factors
o (1) Intention of the parties when the covenant was executed, and whether the parties had a
viable purpose that did not at the time interfere with existing laws or policy.
o (2) Value of the covenant by the parties at the time of conveyance.
o (3) Whether the covenant clearly & expressly set forth the restriction.
o (4) Whether the covenant was in writing, and if so, whether subsequent grantee had notice.
o (5) Whether the covenant was reasonable concerning area, time, or duration (note: covenants
that extend for perpetuity or beyond terms of a lease may be deemed unreasonable).
o (6) Whether the covenant imposes an unreasonable restraint on trade or secures a monopoly
for the covenanter.
o (7) Whether the covenant interferes with the public interest.
o (8) Even if the covenant was reasonable at the time it was executed, changed circumstances
now make the covenant unreasonable.
Page 22 of 46
 *** Davidson Brothers, Inc. v. D. Katz & Sons, Inc***
o Facts: P sold one of his supermarkets to D with a covenant requiring it shall not be used for a
grocery store for 40 years. New Brunswick purchased the store from D and leased it to a grocery
store, violating the covenant.
o Holding: found the covenant to be so against public policy concerns that it should be
invalidated.
o Notes: decision based on an 8-factor reasonableness test
 *** Nahrstedt v. Lakeside Village Condominium Association *** (cat lady in the apartment)
o Facts: Woman sued to prevent HOA from enforcing a restriction against keeping pets in a condo
development. She asserted that the restriction was unreasonable as applied to her
o Holding: the HOA covenant was reasonable.
o Notes: - use restrictions in the declarations of common interest developments are different
because the presumption is that they are reasonable.
o -the reasonableness of a condo use restriction is determined based upon the community as a
whole, not just the ∆.
 *** Shelley v. Kraemer ***
o Facts: black family bought a house in a neighborhood with a racially restricted covenant that, if
enforced by the courts, would not allow them to live there.
o Holding: court enforcement of a racially restrictive covenant constitutes a state action that
violates the Equal Protection Clause of the Fourteenth Amendment
o Notes: the court saw its enforcement of the covenant as the state action.
 *** Evans v. Abney ***
o Facts: a senator willed property for a whites-only park. The park could not continue to operate
on a discriminatory basis, so the Supreme Court of Georgia reverted the property to the heirs.
o Holding: allowing non-whites into the park would violate the covenant, but not allowing them
would be unconstitutional; ownership is reverted to the heirs.
o Notes: Cy-press: a doctrine that modifies the purpose of a trust when a settlor establishes a
charitable trust and charitable purpose identified by settler becomes impracticable/impossible
to achieve.
Modifying and Terminating Covenants
 Terminating covenants
o Equitable defenses  2 major ways to terminate covenants
 Changed conditions doctrine
 Must show that nobody still benefits from the covenant
 Covenants will not be enforced if conditions have changed so drastically in the
restricted neighborhood that enforcement will be of no substantial benefit to the
dominant estate
 Relative holding doctrine
 Focuses on whether the covenant causes substantial harm to the servient estate
compared to the dominant estate
 If the harm outweighs the benefit “by a considerable magnitude”  covenant is
not enforceable
o Other ways to terminate covenants
 Language in the instrument – covenants that terminate within a stated number of years
unless renewed
Page 23 of 46
 Merger – if burdened and benefitted estates are owned by the same person the covenant
terminates
 Release – agreement in writing by all involved parties that the covenant will terminate
 Prescription – open and notorious violation of the covenant without permission for the
statutory period may terminate the covenant by operation of the SOL
 *** El Di, Inc. v. Town of Bethany Beach ***
o Facts: a restaurant in a quiet Delaware beach town wanted to sell alcohol.
o Holding: conditions have changed substantially; P may sell alcohol.
o Notes: conditions changed because: quiet seaside town turned to a resort town, drinking already
occurs there regularly, the zoning was changed for a commercial district
 *** Blakely v. Gorin ***
o Facts: covenant wouldn’t allow anything to be built in a Boston alley because it provided light
and air for an apartment building.
o Holding: the court will not uphold the covenant but will require damages to be paid.
o Notes: the covenant was no longer of substantial benefit to the public, the court wanted to put the
land to its best use
Present Estates and Future Interests

 Terms
o Possessory Estate – right to present possession of land
 Freehold estate – various ways people can own land
 Non-Freehold estates – non-ownership
o Future Interest – right to possess land at some time in future
Page 24 of 46
 Future Interests in Third Parties: (to be a remainder, must become possessory immediately on natural
termination)
o Vested remainders – 1) owned by person who could be named; 2) not subject to condition
precedent
 Subject to open – remainder may be divided among persons born in future
 Subject to divestment-may be destroyed by event that occurs after original conveyance
 “O to A for life, then to B, but if B has flunked out of law school, the property
shall revert to O”
 “But if”
 Absolute vested remainders – not subject to divestment
o Contingent remainders – 1) unascertained person; or 2) subject to condition precedent
 Condition must be incorporated into clause which gives property
 “To A for life, then IF B survives A, to B and his heirs; otherwise to C and his
heirs”
Page 25 of 46
o B’s interest contingent remainder b/c condition incorporated into gift to B
 condition precedent.
 Destructibility: if it fails to vest by natural termination of prior vested estate.
 Ex: O conveys “to A for life, remainder to B and her heirs if B reaches 21.”
o A has life estate. If B is not yet 21, B has contingent remainder (contingent
on B reaching 21) and O retains reversion. Assume A dies and B is not yet
21. B’s contingent remainder destructed).
o Executory interests - always contingent interests (not remainders) and can never become
vested! Created in fee simple determinable
 Cut short a prior estate, do not follow natural termination
o Summary:
 If condition precedent contingent remainder
 Condition subsequent vested remainder subject to divestment
*Common Ownership of Residential Property*

Varieties of Common Ownership
 Concurrent tenancies (common ownership of residential property)

o Types:
 Tenancy in common (TIC)
 Joint Tenancy (JT)
 Tenancy by the entirety
o Partition in TIC and JT (NOT in the entireties)
 Judicial partition – can be filed where property is physically divided among co-owners
 If not feasible or appropriate, the court will order the property to be sold and
proceeds divided
 Voluntary partition – where co-owners agree themselves to partition through physical
division or sale
 Statutes prohibit partition of common areas in condominiums
 Partition in kind  the division of the land held in co-tenancy into cotenants’ respective
fractional share. If land cannot be fairly divided, the estate may be sold and proceeds
divided.
 Tenancy in common - Default (and most common) form of concurrent ownership, can be created
explicitly or by presumption
o Attributes:
 Unity of possession - Each cotenant has the right to possess the entire property regardless
of fractional interest
 Each co-tenant has an “undivided interest”
 Does not require unity of interest – one can have a life estate while another has a
fee simple
 One may unilaterally file to terminate co-tenancy and divide the property and its
proceeds
 No right of survivorship - cotenant may devise interest or allow it to descend by
intestate succession
o Creation
Page 26 of 46
 Any conveyance to 2+ married people (“to A and B”) is presumed to create a tenancy in
common (absent clear language to create a joint tenancy)
 When someone dies intestate with multiple heirs
 When severance ends a joint tenancy
 When divorce ends a tenancy by the entirety
 Language – “to A and B” creates a tenancy in common, but “as tenants in common” can
be added for safety
 In cases of ambiguous language  presumed tenancy in common
o Transferability
 Each tenant has the right to alienate all or part of interest without consent of other tenants
 Transfers and the right to sell, mortgage, or lease do not end the tenancy in common
 Joint tenancies – two or more people own a single, unified interest in a real or personal property, Most
common example  joint bank accounts
o Attributes:
 Right of survivorship - (main difference between a TIC and a JT); when a joint tenant
dies, the property invest is immediately transferred to the remaining joint tenants in equal
shares
 No right to devise interest (could sever joint tenancy and create a TIC avoid this)
 No need to go through the probate system
 Possession – may occupy the entire premises, subject only to the same right by other
tenants
 Equal shares – identical interests transfer equal shares
 Free to encumber unilaterally or file for partition
o Creation: must use specific language (O conveys to A and B as joint tenants)
 Requires the four unities:
 Time – interests created at the same moment in time
 Title – all joint tenants must acquire by the same instrument
 Interests – all joint tenants must possess equal fractional, undivided interest in the
property; interests must last the same amount of time
 Possession – all joint tenants must have the right to possess the entire parcel
 Some states have abolished one or more of these unities
o Transferability
 Virtually inalienable because alienation severs the tenancy, and cannot be devised or
descend by intestate succession
 May be unilaterally severed into TICs
o Severance: one joint tenant wishing to destroy the right of survivorship but still remain an owner
(retain interest) only needs a “strawman” to convey interest and convey it back
 Can be served through a conveyance or mutual agreement
 Severance only occurs between the selling owner and the remaining owners
 Tenancy by the entirety - Only available to legally married couples because they are deemed at
common law to be a “single entity”
o Similar to joint tenancy except 
 Couple must be married
 Only ended by divorce or death
 Interest cannot be sold, transferred, or encumbered by a mortgage without spousal
consent (in most states)
Page 27 of 46
 Creditors cannot attach property held through tenancy to satisfy debts of one spouse
(Sawada v. Endo)
 Right of survivorship cannot be destroyed
o Married women’s property acts
 Adopted in all common law marital property states and eliminated husband's right of
exclusive control
 Under the statutes, either spouse has the power to manage and control marital property,
including property held in tenancy by the entirety
 ***Olivas v. Olivas*** (cheating husband moves out and wants rent)
o Facts: Cheating husband moves in with his girlfriend; wants ex-wife to pay him rent for time
spent in the house after the divorce through the final judgment.
o Holding: no constructive ouster because Mr. Olivas chose to move out
o Notes: Before divorce: community property  After divorce: TIC
 ***Carr v. Deking*** (farmers fighting)
o Facts: Father and son were tenants in common. After father’s death, the farmer was forced to
accept that his lease was subject to the son’s equal right of possession
o Holding: On remand, the court was to determine whether the son wanted to partition or share the
property
o Notes: Son was not entitled to eject the farmer because one tenant in common (i.e. the father)
can lease his interest in the property without the consent of the other tenants in common.
 ***Tenhet v. Boswell*** (leaser to third party dies)
o Facts: joint tenant leased his interest in land to a third party. Then he died
o Holding: the lease did not sever the joint tenancy because there was no express intent to end it
o Notes: the lease was extinguished at death because leases can’t last longer then the lifetime of
the joint tenant
 ***Sawanda v. Endo*** (conveyed home to son after accident)
o Facts: Mr. & Mrs. Endo conveyed the family home (owned as a tenancy by the entirety) to their
sons after Mr. Endo got into an accident without insurance
o Holding: the conveyance was not fraudulent
o Notes: Hawaii does not allow creditors of a spouse to subject property held as a tenancy by the
entirety without the other spouse’s consent, the couples interest is indivisible
 ***Ark Land Co v. Harper*** (buying a remainder to coal mine)
o Facts: P acquired 67.5% of an undivided interest from several family members. P attempted to
purchase remainder for coal extraction, but the remaining family members refused to sell.
o Holding: Reverse and remanded to enter order to partition in kind.
o Notes: Economic value is not the exclusive test for determining whether to partition in kind
or by sale. Sale is extreme if it’s not what all owners want
*Landlord-Tenant Relations*
Lease Information
 Types of leases
o Commercial leases – courts are less likely to regulate (assumed bargaining and negotiation
occurred)
o Residential Leases
Page 28 of 46
o Two main interests:
 Tenant’s present possessory interest
 Landlord’s future possibility of reversion
 Categories of Leaseholds (non-freehold estates): each includes a duty on the tenant's part to pay rent
o Term of years – lease for a determinate period (6-month lease)
o Periodic tenancy – month to month tenancy
o Tenancy at will – can be terminated at will (without notice) by either party
o Tenancy at sufferance – the tenant is in possession who wrongfully stays after lease ends.
 Definitions:
o Tenant: person holding a possessory interest in land for a determined period or at will by
permission of LL, where LL holds an estate of longer duration in the same land; has a non-
freehold estate
o Leasehold = (possessory interest) v. Easement = (use rights)
o Leasehold v. Hotel guest – (extent of time, landlord right of access – hotels can access room at
any time) Main difference  liabilities
 Hotel – occupancy right; hotels can provide certain services
 Leasehold – possessory right; more privacy rights
o Occupancy v. Possession Factors
 Duration of time
 Intent
 LL can't enter without telling T
 Terms of payment
 Provisions of services (level of furnishing)
 What kinds of sharing of facilities
o Leaseholds as conveyances v. leaseholds as contracts - often unclear; traditionally was
conveyance of property (I convey to you, end of my obligation/buyer beware)
 Trending towards contracts
o Structure of LL-T Litigation (most claims are by LL)
 LL seeking payment of back rent
 Eviction
 Damages resulting from LL's breach of lease
 T can also make counterclaims if the jurisdiction allows it
 Include claims for damages (courts can order Rent Abatement)
 Petition for injunction relief (ordering LL to fix apartment)
 Tenant may raise defenses to these claims:
 Deny breach
 Raise an affirmative defense (explain why no rent)
o Sublease – a way tenants can usually transfer possessory interest
o Duty to deliver possession – by the landlord in majority of jurisdictions if a prior tenant
wrongfully continues to live on premises when his lease expires
 Obligation to remove the prior tenant by evicting him or convincing him to leave.
o Acceleration Clauses – L can contract that if a lease is broken a fixed amount is due
immediately. Only enforced if fair.
Page 29 of 46
o Security Deposit – Some landlords charge high security deposits to protect against skipped rent.
States have regulated security deposits under a certain limit, to be put into a specific account, or
to be returned with interest.
o LL-T Relationships – division of property interests between LL and T;
 3 main rights
 Right to receive the agreed upon rent, AND
 The right to have the premises intact and not damaged (duty not to commit waste)
 Landlord reversion or right to regain possession at end of lease term
Conflicts About Rent
 Tenant Duties and Landlord Remedies
o Tenant Duties 
 Tenant's duty to repair (Doctrine of Waste) – tenant cannot damage (a.k.a. commit
waste on) the leased premises.
 Types of waste
o Voluntary (affirmative) waste – tenant is liable to the landlord for
voluntary waste; results when the tenant intentionally or negligently
damages the premises.
o Permissive waste – T has no duty to the LL to make substantial repairs; T
has duty to make ordinary repairs to keep the property in the same
condition as at the commencement of the lease
o Ameliorative waste – T under obligation to return the premises in the same
nature and character as received; T cannot make substantial alterations to
leased structures
 Destruction of the Premises Without Fault – when leased premises are destroyed
(like by fire) without the fault of either the LL or the T, no waste is involved
o T can terminate lease (majority)
 Duty not to use for illegal purposes
 If the T uses the premises for an illegal purpose, and the LL is not a party to the
illegal use, the LL may terminate the lease or obtain damages and injunctive
relief
o LL Remedy
 LL may terminate lease & recover damages if illegal conduct’s
continuous
 Duty to pay rent – leases usually contain a provision making the rent payable monthly
or in some other type of arrangement
 Modern Law: modified the rule so that a material breach by the LL of his implied
or express obligations at least temporarily to relieve the T of paying his rent
 The fact that the T has abandoned the premises will not relieve him from duty to
pay rent (exception with constructive eviction)
 Rent is not apportionable; it does not accrue from day to day, it accrues all at once
at the end of the term. If leasehold terminates early, T must pay a proportionate
amount of the agreed rent.
 Rent deposits – LLs often require a deposit from the T at the outset of the lease,
which is considered a security deposit.
 Termination of rent liability/Surrender – if a T effectively conveys back rent
(surrenders) his leasehold to the LL, the T's liability for future rent ends.
Page 30 of 46
 Duty to remove at end of lease
 Right to affix
o Remedies for LL  (accept T's surrender OR Re-let on the T's account OR Wait and Sue at end
of lease)
 Tenant fails to pay rent and remains on premises
 Possession and back rent – may sue tenant for rent and regain possession (as
well as cost to evict tenant and be able to re-rent to someone else)
 A breach by either the LL or T does not give rise to a right to terminate the lease;
most leases grant the non-breaching party the right to terminate
 Tenant breaches and abandons –
 Landlord can accept T’s surrender - tenant who breached absolved of liability
once landlord accepts breach
o Landlord may sue for back rent owed but not paid for time before tenant
abandoned premises by moving out
o May sue for damages for beach of lease (new fair market price – previous
rental price)
 Refusal to accept surrender – Re-let on Tenant’s Account – notify tenant,

actively look for new tenant, “re-let” apartment on tenant’s account
o When new tenant found, landlord may sue former tenant for difference in
rental prices (reasonable)
 Wait and Sue for Rent at the end of the Lease v. Mitigating Damages
o Cannot sue for remaining rent in middle of term (if so, must ask for
damages). Wait until end of lease term to sue for unpaid rent
o Most states reject this option. Instead, L has a duty to mitigate damages
– must attempt to re-let apartment (burden of proof on L - placed ads)
(Sommer v. Kridel)
o If L fails to mitigate and waits until the end of lease to sue – damages
reduced by amount that would’ve been avoided if L mitigated damages
 T's Liability depends on surrender: If the LL repossess and/or relets, T's liability will
depend on whether the LL has accepted a surrender of the premises. If not, T remains
liable for the difference between the promised rent and the fair rental value of the
property.
 Acts that constitute acceptance of surrender – if LL resumes possession of the
premises for himself  this usually constitutes acceptance of the surrender, and T
will be relieved of any further liability.
 Acts that do not constitute acceptance of surrender – Even if LL enters after
abandonment to make repairs, receive back keys, or offers to relet on T's behalf,
these acts alone don’t constitute acceptance of surrender
Page 31 of 46
 Holdover Tenants – if tenant wrongfully holds over at the end of the lease and the LL
accepts a new rent check, a new relationship has emerged
 Periodic tenancy
 In most jurisdictions, self help has been statutorily prevented
o Self help is when a landlord takes matters into his own hands
o LL must evict tenant through court proceedings so that it is peaceable
rather than forcible (changing locks without warning is violation)
 ***Sommer v. Krindel*** (mitigating damages for defaulting tenant)
o Facts: D was supposed to move into an apartment in May but couldn’t. He asked to terminate
the lease and offered the two months’ rent already paid. P didn’t rent it to a new tenant for 4
months and sued D, demanding the total amount for the full two-year term of the lease.
o Holding: Sommer has the duty to mitigate damages.
o Notes: Old rule - Landlord did not have a duty to mitigate damages caused by a defaulting
tenant. New rule - Based on fairness, equality, and contract law, the landlord has a duty to
mitigate damages.
Tenant’s Right to Habitable Premises

 Landlord duties and Tenant Remedies
o Duty to deliver possession of premises
 LL Duty - must deliver actual possession: most states require the LL to put the T in actual
possession of the premises at the beginning of the leasehold term
 minority states  LL's obligation is merely to give the T legal right to possession
 T remedy – Damages: T is entitled to damages against a LL in breach of the duty to
deliver possession
o Quiet enjoyment - implied in every lease is a covenant that neither the LL nor someone with
paramount title will interfere with the T's quiet enjoyment and possession of the premises.
 Covenant of Quiet Enjoyment may be breached in three ways: actual eviction, partial
actual eviction, or constructive eviction. Can be both a covenant and a warranty
 Actual eviction – when the LL or paramount title holder excludes the T from the
entire leased premises. Terminates the tenant's obligation to pay rent.
 Partial Actual Eviction – occurs when the T is physically excluded from only
part of the leased premises. T's remedies for breach will differ depending on the
circumstances. (Minjak Co. v. Randolph)
o Partial eviction by LL – entire rent obligation relieved
o Partial eviction by 3rd person – rent apportioned
 Constructive eviction – if the LL does an act or fails to prove some service that
he has a legal duty to provide, and thereby makes the property uninhabitable, T
may terminate the lease and may also seek damages.
o Conditions:
 Acts causing the injury must be by LL or by persons acting for him
 Resulting conditions must be uninhabitable (flooding, no heat in
winter, etc.)
 T must move out and show the premises with uninhabitable; if T
doesn’t vacate within a reasonable time, he waives right to do so
o Right to receive the agreed-upon rent
o LL's right to regain possession at the end of the lease
Page 32 of 46
o Implied Warranty of Habitability – most states adopted by court decision or statute the
implied warranty of habitability for residential tenancies. Standards more favorable to Ts than in
constructive eviction, and range of remedies is broad.
 Standard – reasonably suitable for human residence. Standard applied is the local
housing code if one exists. If there is none, the court asks whether the conditions are
reasonably suitable for human residence.
 Remedies – adopted by various courts for violation of the implied warranty.
 Recission - T may terminate the lease and move out (like constructive eviction)
 Rent withholding
 Repair and deduct - T may make repairs directly and offset the cost against
future rent obligations
 Rent abatement - T may reduce or abate rent to an amount equal to the fair rental
value in view of the defects in the property
 Injunctive relief/specific performance – ordering LL to comply w/ housing code
 Criminal Penalties
 Administrative remedies - T may remain in possession, pay full rent, and seek
damages against the LL
 Compensatory damages - when a violation harms personal property
 Landmark case: Javins v. First National Realty Corp. (DC 1970): lead to reading
housing codes into the lease
 Tenant's obligation to pay is dependent on the LL's performance of his obligations
 Different ways to interpret Javins' Warrant of Habitability
o (1) - standard of warranty = housing codes; failure to meet them = breach
o (2) – standard of warranty = housing codes, compliance is sufficient if
habitability is unaffected, only a substantial defect will constitute a breach
o (3) – housing code and violations are compelling but not conclusive
o (4) – standards of habitability are completely different than housing codes
o Retaliatory Eviction – if T exercises the legal right to report housing or building code violations
or other rights provided by statute, LL is not permitted to terminate the T's lease in retaliation
 Retaliatory Presumptions – If a complaint is lodged 60 days before eviction notice then
it is presumed that the eviction is retaliation. In such case, the burden of proof is on the ∆
to show there was an action reason to evict.
 Rebuttable Defenses / Factors for establishing a defense of retaliatory eviction
(Hillview and Imperial Colliery Co.)
 Landlord’s decision was a reasonable exercise of business judgment
 Good faith desire to stop being landlord
 Good faith desire to use property in other ways
 Lack of financial ability to repair property
 Unaware of tenant’s activities
 Did not act at the first opportunity after he learned of tenant’s conduct
 Landlord’s act was not discriminatory
 ***Minjak v. Randolph*** (jazz musician)

o Facts: musician’s loft disrupted by sand, water, and a shitty landlord. Unable to use 2/3 of the
loft, and therefore the tenant’s wanted an abatement of 2/3 the rent.
o Holding: Court gave Randolph what he wanted plus punitive damages
Page 33 of 46
o Notes: Constructive eviction was used as the doctrinal defense. - If a landlord substantially
interferes with tenant’s quiet enjoyment with the property, it is treated as though they have
actually been evicted.
 ***3000 B.C. v. Bowman Properties Ltd.*** (spa below barber shop)
o Facts: a spa needed to move out after the landlord leased the above unit to a hair cuttery, which
that created excessive noise in the spa.
o Holding: damages for the time period from the construction starting to the termination of the
lease: lost profits, moving expenses, spa credits paid out, and loss of business goodwill. Declined
to award damages for speculative repeated renewals of the lease.
o Notes: constructive eviction was the doctrinal defense because the landlord breached the implied
covenant of quiet enjoyment
 *** Javins v. First National Realty Corp.*** (didn’t pay rent bc of housing code violations)
o Facts: Two renters withheld rent from FNR (P) due to numerous violations of the housing
code. The violations arose after the leases began.
o Holding: rules in favor of the tenants.
o Notes: housing code violations that arise during a lease term may negate the tenant’s
obligation to pay rent (before this case they didn’t) - the implied warranty of merchantability
and the implied warranty of habitability
 *** Hillview Associates v. Bloomquist *** (trailer park meeting brawl)
o Facts: D met with management (P) when Davenport (a tenant) hit P in the face. P served
everyone present at the meeting with a notice of eviction, but the tenants failed to vacate.
o Holding: Davenport’s eviction is legitimate, but the other tenants are entitled to remain in the
trailer park.
o Notes: Now, laws prohibit retaliatory eviction - There is a six-month presumption of
retaliation; during this window, the burden is on the landlord to disprove retaliation.
 *** Imperial Colliery Co. v. Fout *** (retaliatory eviction after strike)
o Facts: Fout asserted a defense of retaliatory eviction because of his participation in the strike
against Milburn.
o Holding: eviction is not retaliatory because “the retaliatory eviction defense must relate to
activities of the tenant incidental to the tenancy.”
o Notes: participation in the Milburn strike is completely unrelated to his status as a tenant in
Imperial's house or the habitability of the premises
*Property and Sovereignty*

Basic Info
 Terms:
o 14th amendment – Cannot deprive any person of life, liberty and property without due process
o Police power – power of state gov’t to pass legislation regulating private conduct to protect
public health, welfare, and safety (Ex: limiting highway to 55 mph)
 Damnum absque injuria – damage without legal redress
 Affects everybody - gov’t has right to do this without compensating
Page 34 of 46
o Eminent domain – power to take or “condemn” private property, paying just compensation to
owner, and transferring property to some use to further the public welfare (building highway)
 5th amendment - private property shall not be taken for public use without just
compensation. (binding on states by the 14th amendment)
 Can’t be given to a private person, has to be for the public
 If gov’t compensates & can show it is for public use  very few options for recourse
 Difference from police power is compensation
o Regulatory outlines: occur when government’s regulation of private property “goes too far”
such that compensation to the private owner is due. Usually analyzed through an Ad Hoc Test.
 Categorical (per se) Takings
 Physical invasion or OCCUPATION by the authority of the government.
 See Loretto; Causby; Kaiser Aetna; but see Heart of Atlanta Motel; Yee.
 Total takings - render the property valueless.
 Two exceptions: nuisance law or background principles of the state’s common
property laws would duplicate the result.
 See Lucas.
 Conceptual severance: ad hoc test requires knowing what property is claimed to have
been taken; the court must know what the denominator is in a fraction that represents the
(property taken) / (the whole parcel owned by π)
 The surface as the denominator
o Property can be conceptually severed based on how much of its surface is
affected; analysis differs dramatically depending if there will be a physical
occupation of the land or a regulation imposed.
o “Whole Parcel” Rule – see Palazzolo.
 Air, Surface, and Mineral Rights as separate interests
o Once severed, the surface, mineral, and air rights can be considered
separate properties for takings purposes (very rare).
 Regarding air rights, compare Causby with Penn Central.
 Temporal Severance
 Property can be conceptually severed on a timeline.
 Permanent takings (e.g., for the use of a highway) will often require
compensation.
 The government can be liable for damages during which an unconstitutional
temporary taking is in effect.
o Necessary administrative delays and not-unreasonably- long emergency
moratoria are not temporary takings. See Tahoe-Sierra.
o Judicial takings - the takings clause does not address which branch of government may take
property, only that private property may not be taken without just compensation.
 See Stop the Beach.
o Exactions - conditions imposed by a municipality that a landowner/developer must meet before
the municipality will issue the landowner/developer a subdivision, building or occupancy permit.
 An exaction may be a dedication of land for public purposes, a restriction on the
development of land, or a required improvement.
 See Nollan; Dolan; Koontz.
 When does a regulation cross the line from police power to eminent domain power?"
Page 35 of 46
o Takings clause  defines when an exercise of the police power has gone too far in infringing on
private property rights without adequate public justification constituting an exercise of eminent
domain needing compensation
o Elements of the Takings Clause –
 1) a taking
 2) for public use
 3) without just compensation
Regulatory Takings
 *** Pennsylvania Coal Company v. Mahon *** (mining under surface)

o Facts: P conveyed a surface of a plot to Mahon, retaining the right to mine underneath the
property with a provision that D take the land subject to risks associated with mining. PA
enacted the Kohler Act; preventing mining that could affect the integrity of surface land. Mahon
then sued PA Coal, arguing that the new state law barred PA Coal from mining.
o Holding: Taking. PA may not force P to cease its operations without just compensation. while
the use of property may be regulated, overregulation will be considered a taking.
o Rule: whether a regulatory act constitutes a taking requiring compensation depends on the extent
of diminution in the value of the property
o Notes: Private Interest, Not Large Public Interest at State: The damage done by the prohibited
activity is private, not a public nuisance. There is no public safety justification for the statute,
notice before mining would suffice to protect public safety.
o In contrast, the damage to P is significant. It abolishes an estate in land and a binding contract.
o Majority (Holmes) - Whether a regulatory act constitutes a taking requiring compensation
depends on the “extent of diminution” in the value of the property.
 (1) In this application, the Kohler Act constitutes an exercise of eminent domain,
requiring compensations.
 (2) The Kohler Act in general constitutes an exercise of eminent domain
 no public safety justification for the statute, notice before mining would suffice to
protect public safety
 Mining is an important resource, by not allowing the coal company to mine, the
value is restricted
o Brandeis Dissent - regulation is in fact nuisance law, there is a threat to public welfare, common
law of Penn can act and not compensate. As long as purpose is to protect public, the government
can act under police power.
o Just because some homeowners are benefited in some disproportionate way doesn’t mean
it is not in the interest of the public
o Just because the coal profit is lost does not justify compensation
o Nuisance Exception – If a land use is itself noxious, dangerous, or causes a public
nuisance, the legislature is free to regulate it without compensation, even though the
police power may cause a great loss to the owner.
 Restrictions protecting the public health, safety, or morals from danger is not a
taking. Here, the police power applies insofar as the Kohler Act prohibits a
noxious use, the noxious use here being the subsidence of buildings.
o Public vs. Private aspect of Kohler Act
 A restriction doesn’t stop being public because incidentally some private persons
may receive gratuitously valuable special benefits
Page 36 of 46
 A restriction imposed for a public purpose will not be lawful unless the restriction
is an appropriate means to the public end.
 Keeping coal in place is surely an appropriate means of preventing subsidence of
the surface, and ordinarily is the only available means.
o Diminution-of-Value Test is flawed
 Value is relative and cannot be determined by a court of law.
 Test raises unanswerable questions like how much value is required, and
compared to what? Is it to be compared to the overall value of land? And, if
public safety is imperiled, neither grant nor contract, can prevent against exercise
of police power.
o Average Reciprocity of Advantage is not needed – Reciprocity could equal the benefits
of living in a civilized community.
o Diminution to Coal Co. is Great:
o The statute extinguishes the mining rights under surface owned by the public and govt,
making it very expensive to mine coal in there, effectively destroying the right.
o Desire to improve public condition is not enough to warrant achieving desire and not
paying for it
o If the Extent of Diminution / Property = 1  extent of diminution is great.
o Distinguishes from Plymouth Coal (upheld law requiring miners to give up a pillar of
coal for safety because there was an average reciprocity of advantage.)
 Here, the court says there is no such reciprocity.
o Holmes’ 5th Amendment View
o 5th Amendment has the means of invalidating legislation.
o Government could hardly go on if they didn't have the power to regulate. Some values
are enjoyed under an implied limitation. (Doesn't say what is limited)
 *** Penn Central Transportation Co. v. New York City *** (skyscraper on grand central terminal)
o Facts: NYC’s Landmark Preservation Law effectively prohibited Penn Central from building a
fifty-story office building on top of their historic terminal
o Holding: The Landmarks Preservation Law is upheld
o Importance: Created the ad hoc / Penn Central Test
o Reasoning:
 Government may execute laws or programs that adversely affect recognized economic
values without its action contributing a “taking.”
 The NY Landmark law is good for the city, promotes tourism, etc.
 Government cannot go on if government could not take or diminish some rights
without paying compensation.
 P's argue: Airspace was valuable, taken without compensation:
 NO. A P cannot show taking by showing a loss of previously held right. Court
views property as a whole, not as a collection of separate rights.
 Adopts Brandeis’ dissent from Mahon.
 P's argue: The landmark laws affect only select individuals:
 NO. The landmark laws are part of comprehensive, citywide scheme, so they are
not discriminatory. They are not arbitrary either, subject to judicial review. Not
uniquely burdened, 53 other buildings are deemed landmarks
o Renquists’ Dissent:
 Believes the laws singled out P. Only 400 buildings out of millions were subject.
Page 37 of 46
Landmark Laws do not = zoning law because there is no average reciprocity of
advantage.
 The nuisance/police power exception should not apply because Penn Station wasn't being
regulated because of safety, health, or welfare. The proposed addition was in compliance
with all zoning laws.
 The huge loss is being placed on the P because they built a nice looking building. Not
fair. This type of undue burden and discrimination is what the 5th Amendment prohibits.
 It doesn't matter that there is still some use of property—A taking is still a taking, even if
the government allows some reasonable use of property.
 “It is the character of the invasion, not the amount of damage resulting from it, so long as
the damage is substantial, that determines the question of whether it is a taking.”
 Factors to consider in a takings question:
o Economic Impact of Regulation – The greater the diminution in value, the more likely the
regulation will be characterized as a taking.
 Focuses on property as whole
 Penn Central can transfer development rights to make other properties higher 
mitigates, if not compensates damages
 No owner is guaranteed the most beneficial use
o Extent regulation has interfered with Investment Backed Expectations – more likely to be a
taking if a person has invested substantially in reasonable reliance on an existing statute
 Pennsylvania Coal Co. v. Mahon – Leading case for the proposition that a state statute
that substantially furthers important public policy may so frustrate DIBE that it amounts
to a taking—Completely destroyed property rights
 Armstrong v. US – Taking when government planes flew over farm and rendered chicken
farm useless – Completely destroyed property’s use
 Penn Central can still continue to profit and obtain a reasonable return on the investment
 Penn Central may be able to build an addition, just presumably less than 50
stories tall
 Aetna v. United States – Taking when private marina invested in connecting a private
lagoon with navigable waters and was required to allow free public entry
o Character of the Regulation
 In Penn Central, the regulation does not interfere with present use of the terminal
 Regulation is more likely a taking if the government physically appropriates private
property for public or other use. (see Causby)
 Land use regulations have been upheld even though they destroy or adversely affect
recognized real property interest because they generally do not affect existing reasonable
uses of property
 Acquisitions of resources to permit/facilitate uniquely public functions have been held to
constitute takings
 Ad hoc inquiry from Penn Central
o Ad Hoc - courts take things on a case by case basis – looking at the particular circumstances of
each case, engaging in factual inquiries which focus on three major factors from Penn Central
o Test components:
 Character of government action
 More likely police power if govt action is a regulation of property use as opposed
to forced physical invasions or occupations (Loretto) or interference with
contracted rights (Penn Coal)
Page 38 of 46
 Is there an average reciprocity of advantage provided by the regulation?
o Ex. pillars of coal in Plymouth Coal Co. v. Pennsylvania.
 Misuse of the regulatory authority of the government?
o Ex. government denies services so as to decrease the value of the land
before providing just compensation.
 Uncertainty in the application of regulations so that an owner is unable to plan for
the use or development of the property?
o Ex. repeated, bad faith rejections of development plans that always come
with new demands.
 The importance of the government action (i.e., does the regulation prevent a
significant threat to the environment)?
o Police power designed to protect community from harm as opposed to
extracting benefit
o Ex a municipal ordinance prohibiting coal mining under a city in order to
prevent subsidence.
 Economic Impact of regulation
 Use and value are used interchangeably; it examines the owner’s economic loss.
 Is the owner left with an unreasonable number of uses for the property?
 Must determine the denominator, and the diminution in value must be great.
 Where the regulation results in diminution of value, courts consider whether it
confers an average reciprocity of advantage
o Does it take and give benefits to everyone?
o If so, it mitigates any diminution of value
 Diminution of value alone cannot transform a regulation into
compensable taking if there is strong public interest (Miller)
 Interference with Investment-backed expectations
 Expectations depend upon whether
o (1) π was aware of problem that produced the regulations,
o (2) π could reasonably forsee the enactment of regulations, and
o (3) π knew that his use was highly regulated to begin with.
 π’s expectations not given a lot of weight if he was aware that use would pollute a
nearby waterway, or filling in nearby wetlands would require state and federal
permits, or that use would make him a player in the highly regulated industry.
 Unlikely to be found a taking if it interferes with future or speculative rights of
property
 Exception to exception in Lucas
 Existence of a regulation before you invest property doesn’t automatically negate
that your investment backed expectations have been interfered with (Palazzolo)
 Per Se Takings – exceptions where you don't need to use any analysis to determine the outcome of the
case because it is a taking via a bright line rule
o Categories of Per Se Takings/Regulatory Action
 (1) Government mandated "permanent physical invasion of property" (Loretto)
 (2) Regulations that "completely deprive an owner of all economically viable use of
her property unless background principles of nuisance and property law independently
restrict the owner's intended use of the property" (Lucas)
 (3) Deprivation of certain core property rights or estates in land (Babbitt and the right
to transfer property after death)
Page 39 of 46
 (4) Retroactive deprivation of vested rights belonging to owners who invested
reasonable reliance on a prior regulatory authorization
 (5) Required dedications of property imposed as conditions on land use development
permits when those dedications do not substantially advance the same interests that land-
use authorities asserted would allow them to deny the permit altogether (Lingle, Nollan,
Dolan)
 Per Se exceptions to the Penn Central Test
o Regulations that completely deprive owner of all economically viable use of property
o Government mandated permanent physical invasion of property
Economically Viable Use
 Regulations that completely deprive owner of all economically viable use of property (unless
background nuisance/property law independently restrict intended use)
o  equivalent of physical appropriation and must be compensated.
o Lucas = TAKING, 100% diminution of value  state must compensate when regulatory action
denies owner of economically viable use, unless it’s a nuisance
 Nuisance shouldn’t be the sole justification for severe restriction
 Dissent:
 Deprivation of all economic viable use isn’t objective, depends on denominator in
deprivation fraction
 Rule could be meaningless: courts rarely find total deprivation of value due to
chosen denominator
 Nuisance law  valuable determination of whether use is harmful
Permanent Physical Invasion
 Government mandated permanent physical invasion of property
o Loretto = TAKING  permanent, physical invasion is a taking without regard to public interest
 Owner has no right to possess occupied space or exclude others from possession
 Permanent physical invasion forever denies owner any power to control use of property
 Gov’t still can regulate landlord/tenant
 Cannot give landlord’s property to 3rd party
 Dissent: didn’t interfere with reasonable investment (Loretto didn’t know of cables when
bought property)
 Court not clear on difference between temporary and permanent
o Pruneyard = NOT A TAKING  fundamental property rights; temporary & limited occupation
doesn’t count, Physical invasion is NOT determinative
o Rule: State can constitutionally mandate that a private property owner allow political activity on
property (=NOT TAKING)
o Right to exclude – taking of the right BUT not every destruction or injury to property by gov’t
action has held to be taking
Page 40 of 46
o  failed to demonstrate right to exclude is essential to use or economic use of property – no
CORE right
 *** PruneYard Shopping Center v. Robbins*** (students handing out flyers in a shopping center)
o Facts: students ejected for distributing protest flyers in a shopping center.  Is the right to
exclude so essential to the economic value of a mall that a state-authorized limitation of it
amounts to a taking?
o Holding: No. A state’s enforcement of individuals’ freedom of speech on private property open
to the public does not amount to a taking of the owner’s property.
o Notes: Government has an interest in protecting free speech rights. The owner’s right to exclude
was not entirely taken because he could enforce time, place, and manner restrictions
 *** Loretto v. Teleprompter Manhattan *** (cable box on roof)
o Facts: D installed cable that occupied portions of P’s roof / side of building. In 1973, New York
passed a law prohibiting interference by a landlord in the installation of cable and acceptance of
payment from a cable company.
o Holding: The mere fact that equipment is permanently installed on building by a third party with
govt permission means the action constitutes a taking of P’s property, requires just compensation
o Notes: Go-to per se physical occupation case
 *** Lucas v. South Carolina Coastal Commission*** (can’t build beachfront)
o Facts: P bought 2 beach front parcels. Regulation prohibited development of habitable structures
seaward from erosion line (included all of P’s land). P’s land was rendered essentially valueless.
o Holding: The regulation completely deprives Lucas’ property of all economic value and
constitutes a taking
o Notes: Total takings case with two exceptions: nuisance law and background common law
can function as government defenses.
o Reasoning:
 Scalia – Yes taking – 100% Diminution Value = Taking
 Except where the regulation does no more than state nuisance law
 Justice Stevens’ (dissent) believes total takings rule is wholly arbitrary because 95%
diminished value recovers nothing, but 100% receives just compensation.
 *** Palazzolo v. Rhode Island*** (can’t build on wetlands)
o Facts: P was denied permission to develop the wetlands on his property; he was only granted
permission to develop upland property, most of his property was not allowed to be developed.
o Holding: NO TAKING, exception to Lucas. a property owner obtaining property after a
regulation on the property is passed may still challenge that regulation as a taking requiring just
compensation
o Notes: remanded to lower court to be determined under the Penn Central test because Lucas is
not applicable
o Reasoning:
 (1) The issue was ripe for decision, it was clear that P wasn’t getting a permit;
 (2) The cases indicate that the whole parcel controls; and
 (3) Regulations enacted before title is acquired do not immunize the state from takings
challenges.
 Relating Palazzolo to Lucas
o Lucas says owners who buy before the law is made can claim a taking and those who buy after
(and are therefore aware of the regulation) cannot.
Page 41 of 46
o Palazzolo says making the timing the basis of whether something is a taking would be
prejudicial because it would differentiate those who buy before and after.
 *** Tahoe-Sierra Preservation Council v. Tahoe Regional Planning*** (lake tahoe clarity)
o Facts: moratoria on building around Lake Tahoe was put in place in order to review how to best
preserve the lake’s clarity (an injunction extended this to six years).
o Holding: Stevens (temporary deprivation, NOT a Lucas exception. Analyze under Penn Central
o Reasoning:
 5th Amendment creates a distinction between physical and regulatory takings, specifying
that only physical takings of private property for public require just compensation.
 Property cannot be considered to have lost all economic value because as soon as
moratorium is lifted, it will recover the value.
 Fluctuations in property value cannot be considered a taking.
 Inherent difference between acquisition of property for public use, and the regulation of
property from private use.
 This regulation should be classified as a regulation of property from private use
o Policy: If governments are required to compensate landowners every time a moratorium is put
into place in order to plan the development of an area, then officials would rush through the
planning process or skip it altogether, fostering growth in the community that is ill-conceived or
inefficient.
Deprivation of core property rights

 *** Babbit v. Youpee*** (can’t transfer fractional interest)
o Facts: congress passed a law (and later a revised it) that prohibited the transfer of land to
devisees who would hold a very fractional interest in the land.
o Holding: Ginsberg - Taking. Congress may not legislate in such a way as to abrogate the right
of persons to pass on property to his heirs.
o Notes: As amended, the section severely restricts the right of an individual to direct the descent
of this property. Allowing a decedent to leave an interest only to a current owner restricts the
number of potential successors.
o Dissent (Stevens): The federal government has a vowed interest in removing impediments to the
development of property, this is not a taking.
o Policy – how to put a value on the right to devise?
 *** Murr v. Wisconsin*** (need one acre to build)
o Facts: area where the property is located is prevented by state and local regulations from the use
or sale of adjacent lots under common ownership as separate building sites unless they have at
least one acre of land suitable for development.
o Holding: No taking. Merger provision in local minimum size lot regulation applicable to
property along river was a legitimate exercise of government power.
o Notes: Petitioners haven’t suffered a taking under Lucas because they have not been deprived
of all economically beneficial uses of their property. Nor have they suffered a taking under
the Penn Central test. The valid merger of the lots under state law informs the reasonable
expectation that the lots will be treated as a single property. The lots are contiguous. Lot E
brings value to Lot F.
o Denominator test
 Treatment of property under state and local law (ex: aggregating taxes)
 Physical characteristics of the land (ex: proximity, surveying)
Page 42 of 46
Prospective value of regulated property (if one aggregated parcel raises the value of the
other, it weighs against a finding of a taking.)
 *** Stop the Beach Renourishment, Inc. v. Florida Dept.*** (judicial takings, adding sand to beach)
o Facts: D granted a permit to restore a portion of oceanfront beach by adding 75 feet of dry sand
to the ocean side of the mean high-water line
o Holding: Not a taking. Rights have not been violated because this is not a constitutionally
recognized right. (to have home up to water mark)
o Notes: Only a taking if rights are taken that were previously held. In this case, the plaintiff never
had the right to begin with, so it is not a taking.
Exactions
 Required Dedication of Property as Conditions of Land Use  quid pro quo
o Development permits for when the conditions do not substantially advance the same interests
that land-use authorities claimed would allow them to deny the permit
 *** Nollan v. California Coastal Commission*** (building a bigger beach house)

o Facts: P wanted to replace a beach house with a larger, more modern one. D conditioned the
permit on an easement for the public to walk on their property to go from one park to the other.
o Holding: Taking. There must be an essential nexus between regulation and legitimate state
interest that the regulation of the property supports
o Notes: Essential nexus: (1) Evidence of a connection, (2) No more than rational relationship, (3)
Has to be irrational relationship to be overturned
 Ex: preventing flooding, reducing traffic congestion (from Dolan)
 *** Dolan v. City of Tigard *** (conditional permit requiring green space)
o Facts: P wanted to redevelop his business. D gave a conditional permit requiring P to dedicate a
portion of the property to the city to be used as “green space”
o Holding: The city’s dedication requirements constitute an uncompensated taking of property.
o Notes: the required dedication is related both in nature and extent to the proposed
development’s impact (reasonable relationship test), but the city failed to state why a greenway
is required in the interest of flood control.
o Even with an essential nexus, there must be rough proportionality between the interest and the
burden; the impact of the regulation or exaction must practically handle the problem it is
meant to mitigate or solve.
 *** Koontz v. St. Johns River Water Management *** (developing wetlands mitigation)
o Facts: P applied for a permit to develop wetlands and offered to mitigate the loss with an
easement over 11 acres of adjacent land. D declined P's offer, proposing that he either reduce the
size to one acre or pay for improvements to unrelated property owned by D several miles away.
o Holding: Applying Nollan and Dolan tests, the water management district cannot condition
approval based on giving up property without compensation.
o Notes: Offsite mitigation: your negative impact can be mitigated by contributing to some other
project; paying for your variance.
o - Monetary exactions are subject to the Nollan/Dolan tests. (Taxes are not takings.)
Page 43 of 46
Takings for Public Use
 *** Hawaii Housing Authority v. Midkiff *** (reduce concentration of land ownership in Hawaii)
o Facts: Land Reform Act created a condemnation scheme to reduce the concentration of land
ownership. HHA held a public hearing on P’s land and determined acquisition of the land will
effectuate the public purposes. P filed suit.
o Holding: The Act is constitutional. The land did not have to be put into public use in order to
use eminent domain. It is the taking’s purpose and not the mechanics that are important.
o Notes: A taking with a not-irrational public purpose satisfies the Public Use Clause.
o If there is no public use, the state cannot take your property.
o To win a takings challenge, you must say a public purpose is “inconceivable.”
 *** Kelo v. City of New London *** (No more New London)
o Facts: New London approved a development plan and purchased property from willing sellers
and used eminent domain to acquire additional properties in exchange for just compensation.
o Holding: “Public use” is really “public purpose.” Economic development has always been said
to be furthering public purpose. Success of the plan has nothing to do with constitutionality.
o Notes: Economic development is a legitimate public purpose.
Case Taking (Yes/No) Test

YES Extent of Diminution / Property = 1 
Pennsylvania Coal Company v.
extent of diminution is great.
Mahon
Penn Central Transportation Co. NO Ad Hoc / Penn Central Test
v. New York City
PruneYard Shopping Center v. NO Per se exception to Penn Central (permanent
Robbins physical invasion)
Loretto v. Teleprompter YES Per se exception to Penn Central (permanent
Manhattan CATV Corp. physical invasion)
Lucas v. South Carolina Coastal YES Per se exception to Penn Central
Commission (all economically viable use)
NO Remanded for Penn Central Test, exception
Palazzolo v. Rhode Island
to Lucas (not per se exception)
Tahoe-Sierra Preservation NO Remanded for Penn Central Test
Council v. Tahoe Regional (not per se exception)
Planning Agency
YES Per se exception to Penn Central (core
Babbit v. Youpee
property rights)
Murr v. Wisconsin NO Denominator test
YES Per se exception to Penn Central (permanent
United States v. Causby
physical invasion)
YES Per se exception to Penn Central (permanent
Kaiser Aetna v. United States
physical invasion)
Heart of Atlanta Motel v. United NO
States
NO Per se exception to Penn Central (permanent
Yee v. City of Escondido
physical invasion)
Page 44 of 46
Horne v. Department of YES Per se exception
Agriculture
Andrus v. Allard NO
Stop the Beach Renourishment, NO Per se exception to Penn Central (core
Inc. v. Florida Dept. property rights)
Exactions
Nollan v. California Coastal YES Essential Nexus Test
Commission (1) Evidence of a connection
(2) No more than rational relationship
(3) Has to be irrational relationship to be
overturned
YES Two prong test:
(1) Essential nexus? (even if yes, go to
second prong)
(2) Degree of exaction demanded by gov’t
must be roughly proportionate to the
projected impact of proposed development
Dolan v. City of Tigard
- Π loses ability to exclude (no time,
place, manner restrictions can be imposed)
- Must show benefits/burdens
- City has some burden of demonstrating
additional benefit and if it reasonably
relates
Koontz v. St. Johns River Water YES Nollan and Dolan tests
Management District
Takings for Public Use
Hawaii Housing Authority v. NO Eminent Domain / Judicial Deference
Midkiff
Kelo v. City of New London NO Rational Basis Standard
*Initial Acquisition*
Conquest and Government Distribution of Lands
 Competing justifications for property rights

o Core justifications of property claims
 Sovereign allocation of rights, efficiency or social welfare maximization, distributive
justice or equality, settled expectations, labor and investment, and possession or
occupancy of the property
 Justifications can point in several directions, some are argued to be more compelling than
others (economic efficiency)
 Discovery Doctrine
o European nations assume free title to land they discovered (back to Roman law – to victor goes
the spoils)
o Discovery is foundation of title in European nations, and this overlooks all proprietary rights in
the natives
 Native Americans limited in ability to sell occupancy rights (restriction on alienability)
Page 45 of 46
Tribes could sell limited rights of occupancy only to discovering European nation. Not to
private individuals
o Purpose of doctrine:
 Prevents disputes. Universal standard.
 Applies as between European powers
 It becomes confusing of who owns what
 *** Johnson v. M’Intosh *** (Indian v American title)
o Facts: P was granted a tract of land by the Piankeshaw Indians. Congress conveyed the land to
the US govt and sold a portion to D. P brought this action to eject D.
o Holding: M’Intosh has title. The transfer from the Indians to Johnson is now invalid.
o Notes: United States had, from the beginning, asserted its own absolute and complete title to the
land occupied by Indians by right of conquest, thereby assuming “the exclusive right of
extinguishing the title which occupancy gave to them.”
Page 46 of 46

Property Outline Fall 2020

Uploaded by

Document Informationclick to expand document information

Copyright:

Available Formats

Property Outline Fall 2020

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Property Outline Fall 2020

Uploaded by

Copyright:

Available Formats

Property Law – Fall 2020 – Parker

*The Bundle of Sticks (Group of Disaggregated Rights)*

*Trespass: The Right to Exclude and Rights of Access*

 Trespass Definition: An unauthorized, intentional intrusion on property possessed by another (above

 Trespass to Chattels - (applied to personal property)

o Decision based on common law

 ***Commonwealth v. Magadini*** (homeless man sleeping, necessity defense, lawful alternatives)

Public Accommodations Statutes

 ***Civil Rights Act of 1964, Title II***

Federal and State Constitutional Free Speech Access Rights

Beach Access and the Public Trust

 The Doctrines of Dedication, Prescription, and Custom:

The Right to be Somewhere and the Problem of Homelessness

*Nuisance: Resolving Conflicts Between Free Use and Quiet Enjoyment*

 Terms and Definitions

 ***Dobbs v. Wiggins*** (barking dogs)

Light and Air

 ***Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five*** (blocking pool sunlight)

Water Rights: Flooding and Diffuse Surface Water

Affirmative Easements Negative Easements

Appurtenant Easement Easement in Gross

 *** Lobato v. Taylor ***

Present Estates and Future Interests

*Common Ownership of Residential Property*

 Concurrent tenancies (common ownership of residential property)

 Refusal to accept surrender – Re-let on Tenant’s Account – notify tenant,

Tenant’s Right to Habitable Premises

 ***Minjak v. Randolph*** (jazz musician)

*Property and Sovereignty*

 *** Pennsylvania Coal Company v. Mahon *** (mining under surface)

Economically Viable Use

o  equivalent of physical appropriation and must be compensated.

Permanent Physical Invasion

 Government mandated permanent physical invasion of property

Deprivation of core property rights

 Required Dedication of Property as Conditions of Land Use  quid pro quo

 *** Nollan v. California Coastal Commission*** (building a bigger beach house)

Case Taking (Yes/No) Test

 Competing justifications for property rights

You might also like

The Bundle of Sticks (Group of Disaggregated Rights)

Trespass: The Right to Exclude and Rights of Access

 Commonwealth v. Magadini (homeless man sleeping, necessity defense, lawful alternatives)

 Civil Rights Act of 1964, Title II

Nuisance: Resolving Conflicts Between Free Use and Quiet Enjoyment

 Dobbs v. Wiggins (barking dogs)

 Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five (blocking pool sunlight)

 * Lobato v. Taylor *

Common Ownership of Residential Property

 Minjak v. Randolph (jazz musician)

Property and Sovereignty

 * Pennsylvania Coal Company v. Mahon * (mining under surface)

 * Nollan v. California Coastal Commission* (building a bigger beach house)