Theories of Property

o Property as a bundle of rights

How does one acquire property rights?
Why would society want to recognize property rights?
What kind of things can you have property rights in? chattel, P, intangible, land
!undle of rights use, possession, exclusion, disposition
Theory of "ccupancy# !lackstone descriptive approach to property rights
o !efore, there was no scarcity and so first to occupy had right to possession generally there
is a rivalrous use of property recognition of rights preserves peace and order in society
o $a%e about to resolve transient rights so that efforts could be put towards %ore efficient
use&
o $hannels people's econo%ic efforts to %ore productive avenues
(abor Theory of Property ) (ocke nor%ative approach to property rights
o *an has a funda%ental right in his body&
o That which his body produces is his property
o +unda%ental proble%# Who owns the product when the raw %aterials co%e fro% one %an
and the other uses his labor to create so%ething fro% the%?
%ake soup, fro% %y own to%atoes and pour it into the ocean do now own a part
of the ocean?
*oore v& ,egents
-tilitarianis% !entha% the foundation of %odern Property (aw
o Property rights function to %a.i%ize the benefits of property use and productivity in the
%arket for the greater social good
o /e%setz utilitarianis% property rights co%e into e.istence when it beco%es econo%ically
beneficial to do so
Property rights function to internalize e.ternalities to %ake the %ost efficient use of
resources 0land1 %ore efficient use of resources lowers transaction costs
2.ternality an effect of an action that is not accounted for can be positive or
negative
own a lot of land with lots of trees on it& *y neighbors benefits fro% the clean
air produced by having so %any trees on %y property
own a leather production plant and live ne.t to a river& The che%icals that
use to produce leather run into the river and pollute the water
2.ternalities beco%e internalized when the cost of the e.ternalities outweigh
the cost of internalizing the%
Tragedy of the co%%ons when e.ternalities are not internalized
3buse of resources since everyone has an equal right to the property,
everyone can do what they want with the property, even if eventually to the
detri%ent of all
High transactional costs everyone has to put in too %uch to control the
behavior of others with respect to the property
Tragedy of the 3nti)$o%%ons co%plete co%part%entalization of the property such
that it is difficult to obtain all the co%ponents necessary to be productive
High transaction costs
$an lead to e.ploitation
What we can have property rights in
Rule of Capture# +irst in ti%e applies to wild ani%als and fugitive resources and to chattel in
general 0first to capture a dollar found in the street1
o 3 person has rights to a wild ani%al if they are the first to kill, %ortally wound and not
abandon pursuit, or capture it to per%anently deprive it of its physical liberty or rendering
escape i%possible
o /issent# first to pursue with reasonable likelihood of capture
o Tension# what is better# a certain or uncertain rule?
$ertain ,ule# ) provides clarity, lowers transaction costs and provides for efficient use
of 4udicial resources because less cases to go to court, unifor%ity
-ncertain ,ule# allows for variation, e.ceptions, different circu%stances so that 4ustice
is better served& 5o%eti%es better to be right than certain
o 2.ceptions to the ,ule of $apture# the law tends to pro%ote productive behaviors and use of
resources
/octrine of constructive possession# of a wild ani%al is on a person's property, it is
constructively the property of that person& 3 taking of that ani%al on that person's
property constitutes a trespass 61 on the person's land and 71 on the personal
property of the person 0the ani%al1
5uch rights are relative if the ani%al is on ('s land and T trespasses to obtain
the ani%al, then T6 trespasses on T's land to obtain the ani%al, T's right to the
ani%al is superior to T6 and ('s right is superior to T and T6
Animus Revertendi if you do%esticate an ani%al such that the ani%al can no
longer function in its wild state, then you have gained the right to possession of that
ani%al and are provided recourse if such right is endangered pro%otes husbandry
Importers Protection# if you i%port a wild, e.otic ani%al, not native to that location
and i%possible to do%esticate, you have a right to possession of that ani%al
o +ugitive ,esources "il 8 9as apply the rule of capture such that first to access is first to
posses&
f "il or 9as lie beneath the surface of 7 people's land, both have a right to that which
they can e.tract fro% under their respective lands
f the "il or 9as travels such that it longer rests under your land, you no longer have
rights to it&
+ugitive resources in the land are part of the real property& "nce it is e.tracted, it
beco%es the personal property of the owner
Acquisition by Creation
o Copyrights copyrights subsist in original works of authorship fi.ed in any tangible %ediu%
of e.pression, now known or later developed fro% which they can be perceived, reproduced
or otherwise co%%unicated, either directly or with the aid of a %achine or device& n no case
does copyright protection for an original work of authorship e.tend to any idea, procedure,
process, syste%, %ethod of operation, concept, principle, or discovery, regardless of the
for% in which it is described, e.plained, illustrated, or e%bodied in such work&
Property rights are relative, not absolute and can shift, depending on the
relationship and context :5 v 3P
Rule of first possession# when property is attained through labor, e.pense
and organization for the purpose of sale, it beco%es property and rights to that
property are protected by rule of first possession, relative to and against all
other who seek to use it for the sa%e purpose
Property rights function to pro%ote industry and incentivize production and
encourages fair business thus, while one cannot have rights to news;facts
which are co%%on property to the public, those facts;news, treated as a
co%%odity, belong to those that through their industry have brought the% to
the public relative to others who seek to profit off their distribution
,ivalrous v non)rivalrous use ) 7 people can't use the sa%e pen at the sa%e
ti%e, but both can share the sa%e story at the sa%e ti%e
Copyrights/Patents strictly the role of the legislature as provided for in the
Constitution property rights function to incentivize production and creativity in a
%arket econo%y
%itation provides incentive to i%prove upon and creates a co%petitive
environ%ent beneficial to the consu%er, who has a variety of choices and
cheaper product
While rights will be enforced by the courts, they %ust be created by the
legislature
$ases
o $heney !ros v& /oris 5ilk $orp giving %onopoly rights would inhibit
%arket econo%y and deprive public of protection
Rule property rights are limited ot the tangible limits of the
chattel unless there is a common la! or statutory exception
o 5%ith v& $hanel $hanel was not protected by patent so 5%ith, in
creating an i%itation provided a public good by increasing co%petition
and offer public an alternative choice
Authoriship/original !or"s +eist v& ,ural phonebook case
#riginal !or"# independently created by the author and %ust possess at least
so%e %ini%al degree of creativity
o +acts can :2<2, be sub4ect to copyright&
o The co%plication of facts can, assu%ing there is a %ini%al degree of
creativity in selection, coordination or arrangement
o (ocke's labor theory runs counter to copyright law
Idea/expression of idea dichotomy !aker v& 5eldon accounting syste% %anual
(i%its the scope of the copyright act
deas are not sub4ect to copyright, only the e.pression of the idea
deas are e.pressed for their disse%ination and use
If the idea is inseparable from the expression of the idea, it is not copyrightable
*orrisey v& Proctor 8 9a%ble
f there is a li%ited nu%ber of ways an idea can be e.pressed, since ideas are
not copyrightable, to copyright their e.pression would i%pede the use of the
idea
o Patents protected in the $onstitution new and useful process, %achine, %anufacture, or
co%position of %atter, or any new and useful i%prove%ent thereof loo" to statute and
then legislative history/intent
$oes not apply to la!s of nature, abstract ideas, physical phenomenon
Process process, art or %ethod, and includes a new use of a known process,
%achine, %anufacture or co%position of %atter or %aterial
%e!, useful, non&obvious
Why is this protected?
Pro%ote the arts, creativity, innovation to pro%ote the creation of that for
which there would otherwise be no incentive to create, enriches the co%%unal
co%%ons, encourages copying and i%prove%ent
Pro%otes co%%ercial activity
'ay lead to tragedy of the Anti&Commons brings a slight inefficiency to
the syste% puts li%its on the process, deterrent costs of licensing,
per%ission, increases transaction and negotiation costs
(urther highlights the relative nature of property rights
9ives a right of e.clusion not a positive, but negative right
$ases
5 P3T2:T3!(2
o /ia%ond v& $hakrabarty 4ustifies the biotechnology industry
9enetically engineers a bacteria that can break down crude oil
5tatute should be interpreted broadly to protect 3:= new and
useful process, %achine, %anufacture or co%position of %atter
$ongress intended a vague definition, understanding that
new technologies would co%e about
2stablishes definitions#
'anufacture# the production of articles for use fro% raw or
prepared %aterials by giving to these %aterials new for%s,
qualities, properties, or co%binations
Composition of matter# all co%positions of two or %ore
substances and all co%posite articles whether %i.ed
che%ically or %echanically 0gases, fluids, powders or
solids>
$hakrabarty ?manufactures? fro% raw %aterials 0plas%ids and a
bacteria1 by giving the% a ne! form and properties through
hand)labor and by %achinery and has created a ne!
)composition of matter? because the new bacteria is a
co%position of two or %ore substances& Through %anufacture,
$hakrabarty gives the bacteria qualities and properties it
!ould never have in its natural state and he does this through
human&made manipulation and which has the potential for
significant utility&
o Parke)/avis v& *ulford pure adrenalin 4ustifies the phar%aceutical
industry
$istinction of degree v* $istinction of "ind
The purification process created a substance so pure that
essentially, through %anufacture by %eans of hu%an)%ade
%anipulation, the substance acquired qualities and properties it
would never have in its natural state, having the potential for
significant utility
o /ia%ond v& /iehr process of curing synthetic rubber
While the separate co%ponents of the process are not patentable
0for%ula law of nature, co%puter, te%perature gauge1 the
co%bination of these co%ponents used in a new, innovative, non)
obvious method is
5 :"T P3T2:T3!(2 ) +unk !ros 5eed $o& v& @alo noculant
o $o%bination of bacteria that is conducive to cultivation of legu%e
vegetables
o While the co%bination was discovered, it is a natural occurring
co%bination and nothing has been done, no method or manufacture
or ne! composition of matter has been used;created that gives the
bacteria qualities and properties it would not have in its natural state
o Trying to patent a law of nature si%ply by aggregating the bacteria
o Property in #nes Person *oore v& ,egents of -$(3
$ongressional intent re Patent protection is to foster ingenuity and creativity and
productivity in a %arket econo%y for the greater social good and that protection of
individuals with respect to what is taken fro% the% for that progress is protected by
fiduciary duty but that progress is so funda%ental to our society that the doctors' rights
to the tissue are preserved&
/octor's did not patent the cells but used a %ethod;%anufacture to create a new
co%position of %atter so funda%entally different that it no longer was the original cells
2stablishes property rights as a bundle of rights and that a right to property does not
always include all of the bundle right to use, possess, exclude, alienate
+ubsequent possession/Adverse Possession while it doesn't accrue until statutory period runs
co%pletely, adverse possessor is recognized as owner fro% the first day of possession& "nce
statutory period runs, can quiet title in court
o ,enerally does not apply against the govt*
o ,enerally property is acquired through voluntary transfer
2le%ents# give notice to owner viewed fro% the lens of an owner of si%ilarly situated land 0rural,
suburban, urban1
o Actual and -xclusive Possession
%portant to the definition of what land the person actually possesses, what the
boundaries are
:eeds to have enough possession to actually bring an action ensures the quality of
possession is such that it will trigger an action for the owner to kick you off
o Continuous and uninterrupted for the statutory period
5tatutory period doesn't begin to run until a P files action penalizes the owner for
nonuse
/ifferent states have different statutory periods longer v& shorter?
(onger periods %ay deter people fro% trying to acquire land this way, prevents
unnecessary litigation, give the owner %ore ti%e to notice an adverse
possessor
5hort period prevents land fro% wasting by letting others co%e in and %ake it
useful
/efined as such possession as ordinarily %arks the conduct of owners in general in
holding, %anaging and caring for property of like nature and condition
o #pen and notorious gives notice ot true owner
o Claim of title/.ostile $onnecticut rule %akes the %ental state of the adverse possessor
irrelevant so long as they are acting like they are the true owner of the property
To ensure that the person in actual possession isn't there with the per%ission of the
owner
Privity/tac"ing connection or relation between the 7 parties, each having a legally recognized
interest in the sa%e sub4ect %atter 0voluntary transfer of interests1
o Privity of possession# privity between parties in successive possession of real property
o n order for adverse possessor to tack on previous adverse possessor, there %ust be a
privity of possession with so%e sort of legal relationship between the parties
o Prevents successive trespass fro% constituting adverse possession 0there is no legal
relationship between parties
Adverse Possession of Personal Property "'@eeffe v& 5nyder
o The traditional ele%ents of adverse possession, particularly that of being open and notorious
is al%ost i%possible to fulfill with respect to chattel&
o Which standard to use?
5tatute of (i%itation starts when owner is dispossessed efficient, clear, but doesn't
do 4ustice
:ew =ork ,ule 5"( does not start until owner de%ands return of chattel favors
the owner, provides %ore incentive to adverse possessor to clarify the title to property
b;c otherwise, can be taken away up to A yrs fro% when the person de%ands it&
$I+C#/-R0 R12- 3default4# cause of action will not accrue until the in4ured party
discovers or by e.ercise of reasonable diligence and intelligence should have
discovered, facts which for% the basis of a cause of action against adverse possessor
5ince 5"( is intended to punish negligence on the part of the true owner and
pro%otes stability to hu%an affairs 0adverse possessor %ay not know it is
property of another and unfairly punished after %any years of possession1
5hifts the burden to the owner to 4ustify the defer%ent of the start of 5"(
3chieves sa%e purpose as the ele%ents of adverse possession# to vest
ownership in adverse possessor against true owner who does not act diligently
in recovering possession
Privity rules apply
$isability Rule# statutes provide e.ception for disability ":(= + disability e.isted at ti%e of
accrual
o Types of disabilities# %inor, %ental disease, prison
o $annot tack on disabilities
o Will get the longer ti%e period# either statutory period or ter%ination of disability plus B of
years deter%ined by statute
$ases#
o <an <alkenburgh v& (utz Actual 5 -xclusive/Claim of 6itle
*a4ority# (utz did not sufficiently de%onstrate 3ctual 8 2.clusive possession nor do
so under $lai% of Title
not under color of title, did not sufficiently de%onstrate actual possession
because did not properly delineate boundaries of land clai%ing to possess and
did not substantially use all the land nor i%prove the property sufficiently
3s per testi%ony in previous law suit, acknowledged that the land wasn't his
when asked for ease%ent for passway
/issent because (utz ca%e to adversely possess the land, cannot disclai% right to
land by oral disseisin, land was known as his by the co%%unity& 3lso, did have actual
and e.clusive possession because delineated the land 0trees;logs for border and
natural borders1 and the type of far%ing he did required hi% to rotate plots of land for
far%ing& The fact that he knew the property wasn't his didn't %ini%ize the fact that he
intended to acquire it as his own
$olor of Title easier to establish adverse possession
o *anillo v& 9orski #pen 5 %otorious/Claim of 6itle +tate of 'ind of Adverse
Possessor
'aine $octrine adverse possession %ust be established by having intention to
clai% ownership of land adverse possessor knows belongs to another
encourages lying, ad%inistratively challenging, sub4ective
%ay serve ot %ake honest people even %ore cautious and take e.tra steps to
ensure they are not encroaching on others' lands, therefore reduce such cases
in courts
Connecticut $octrine the act of adverse possession is on its own, sufficient&
/oesn't %atter if the adverse possessor did so intentionally or by %istake&
'a7ority R12-
"b4ective, easier to ad%inister, doesn't reward the liers
8hat constitutes #pen and %otorious9 s the encroach%ent visible enough to give
P notice that such encroach%ent occurred?
When there is a %inor encroach%ent that is not open and notorious enough to
give owner notice of adverse possession#
o f too costly to re%ove, either adverse possessors pays fair %arket value
to owner for that land or owner will co%pensate adverse possessor for
re%oval of encroach%ent
o Howard v& @unto Continuous/Privity
$ontinuous although only used as a su%%er ho%e, constituted continuous
possession because used in a %anner appropriate for a property of such nature and
condition
Privity e.isted because colored title was transferred successively between adverse
possessors therefore could tack on
Possessory -states
When deter%ining what type of property has been conveyed, %ust give effect to the grantors
intent and then fall bac" to rules of construction try to give the biggest estate that you can
that is consonant with the words of the docu%ent 0White v& !rown1
o When interpreting grants of possessory estates and future interest, if there's a%biguity, give
the biggest estate you can give consistent with the estate owned by the grantor
Conveying a property#
o 6ransferability# inter vivos transfer while alive
o $evisability# $apable of transfer by will
o Inheritability# $apable of transfer by inheritance
hierarchy of inheritability# heirs deter%ined at ti%e of death, includes spouse
61 ssue direct descendants and spouse& f there are issue, take to the
e.clusion of all others
71 parents
C1 collaterals all related by blood who are neither issue nor parents
D1 25$H23T if no heirs, property escheats to the state
6ypes of -states
o (ee +imple theoretically last forever 0practically to the person and his heirs1
$an be conveyed in all C ways
o (inite -states al!ays follo!ed by a future interest either as a reversion held by
grantor or a remainder held by anyone other than the grantor
(ife 2state for the life ter% of a designated person can be the person to who% such
property interest is conveyed or for the life of another 0pur autre vie1
"nly transferable, cannot be devisable or inheritable because the interest dies
with the person
Ter% of =ears for a set, li%ited, defined period of ti%e
$an be conveyed in all C ways
o (ee +imple $efeasibles has a future interest
in distinguishing between a +5/ and +55$5, %ust look to the transferor's intent and
the to construction principles 0*ahrenholz v& $ountry !oard of 5chool Trustees1
+ee 5i%ple $eterminable auto%atically ter%inates at the happening or
nonhappening of an event
$reated by#
o The language of a fee si%ple
o (i%ited by language that shows intent to ter%inate auto%atically
o (anguage denotes durational aspect# Eso long as, while until during
unless>
+uture interest# possibility of reverter
$onveyable under all C
+ee 5i%ple +ub7ect to Condition +ubsequent does not auto%atically ter%inate
but %ay be cut short or divested at the transferor's election when a stated condition
happens
When language is a%biguous, the court will favor +55$5 over deter%inable
The language of a fee si%ple
(i%ited by language that creates a li%itation# Ebut if, provided that, provided
however, on the condition that>
+uture interest# Right of re&entry/po!er of termination
o While the right e.ists, it is the responsibility of the grantor to e.ecute that
right
:ot transferable
(ee +imple +ub7ect to -xecutory 2imitation treated as either +55$5 or +5/ but
future interest rests in so%eone other than the grantor
3uto%atically cuts the prior interest regardless of language
+uture interest# 2.ecutory nterest
o 5pringing cuts off the possession of the grantor
o 5hifting cuts of the interest of so%eone other than the grantor
+uture nterests
$an be created in the transferor or a transferee#
o n transferor#
,eversion follows a finite estate
*ay be certain to beco%e possessory or contingent
,ight of re)entry;power of ter%ination ) +55$5
Possibility of reverter +5/
o n transferee#
<ested re%ainder certain to beco%e possessory upon the e.piration of the prior
estate created at the sa%e ti%e
9iven to an ascertained person and is not sub4ect to a condition precedent
<ested sub4ect to open;vested sub4ect to partial divest%ent when a class has
not closed 0e&g& children1
3 re%ainder is vested if#
o !orn
o 3scertainable 0can recognize by na%e1
o 3nd there's no e.press condtion precedent in a1 the clause creating the
re%ainder or b1 the preceding clause
$ontingent re%ainder per%its the transferor to let future events deter%ine who the
transferee will be
3ny other re%ainder other than a vested re%ainder
9iven to an unascertainable person or %ade contingent upon so%e event
occurring other than the natural ter%ination of the preceding estate
2.ecutor interest divests or cuts short the preceding interest 0the only way it can
take effect fro% a transferee1 or divests the transferor in the future 0springing e.ecutor
interest1
3lways treated as a contingent interest
+uture interest gives present rights to its owners
o $an sell;gift the future interest presently
o $an en4oin the present possessor fro% co%%itting waste to the land
o $an sue C
rd
parties in4uring the land or clai%ing title hostilely
o :" present right of possession
The battle ground of the wealthy to keep their wealth
o *any social redistribution policies that prevent that fro% happening
Rule Against Perpetuities
o Purpose# trying to keep control fro% reaching too far in the future allows you to control to
the e.tent of people you would probably have known in life
o :o interest is good unless it %ust vest, if at all, not later than 76 years after so%e life in
being at the creation of the interest
o 3pplies to#
$ontingent ,e%ainders %ay vest yet still not beco%e possessory until a future date
<ested re%ainders sub4ect to partial divest%ent;sub4ect to open class gifts
The class %ust close or co%pletely vest
2.ecutory nterests %ust beco%e possessory
6& /eter%ine if ,3P applies
s it a contingent re%ainder, vested re%ainder sub4ect to partial divest%ent, or
e.ecutory interest?
7& f yes, then can the given interest vest at so%e ti%e after the ?lives in being plus
76 years??
C& f yes, then the re%ainder is invalid, it is crossed out and the interests are
reclassified without the re%ainder included
o ,3P refor%# %any states have %ediated ,3P by#
$y Pres# refor%ation change the will to give effect to what the grantor wanted
-5,3P wait and see approach see if it %ight vest anyway within the 76 years of
life in being
"r, so%e states 4ust give a FG year vesting period, void if not vested by then
Co&#!nership/Concurrent Interests
o Potential for 6ragedy of the Commons neither a 4oint tenant nor a tenant in co%%on can
do any at all to the pre4udice of the cotenants in their estate
Partition serves to sever co)tenancies so as to %ove in the direction of individualized
ownership
6enancy in Common separate, undivided shares of property where each owner has a distinct
share and the right to possess the entire property
o $onveyable through all C %ethods
o *a4ority rule is that when a%biguous court would favor a tenancy in co%%on over a 4oint
tenancy
o :o survivorship
:oint 6enants 2ach owner has a distinct share but also owns an undivided whole and has the
right to possess the entire property
o ,ight of survivorship avoids probate
"ne's interest is ter%inated upon death i%portant consequences for creditors
Har%s v& 5prague mortgage doesnt destroy the 7oint tenancy & lien disappears
with the death of the 4oint tenant
2ven though there was a default, because brother died, his interest in the
property e.tinguished and so lien did not hold
There %ust be an actual severance of 4oint tenancy, not the potential for such
severance a lien does not transfer title to the lien holder but %erely gives the
potential for such transfer
2ien theory in putting a lien on a property, a future interest is created but that
future interest will not vest until death& 3t death, however, the interest is
e.tinguished and so there is no lien on the property b;c the future interest does
not hold
o When giving a lien, you are not divested of title but only give so%eone
the right to divest you of title upon the happening of so%e future event,
default
Title theory by giving over a %ortgage, you're giving over a legal title
voluntary conveyance&
o Therefore, 4oint tenancy is severed, beco%es a tenancy in co%%on and
lien re%ains attached to the share of the tenancy in co%%on
o D unities
Ti%e ) acquired or vest at the sa%e ti%e
Title by the sa%e instru%ent or by a 4oint adverse possession
nterest equal undivided shares
Possession %ust have right of possession of the whole
o Hoint tenants can be created even if the unity of Einterest> is not %et and property will be
divided according to the allocated share if it requires 4udicial partition
o 5everability of Hoint tenancy;so%e apply to tenancy in co%%on
3ny of the unities can be broken unilaterally and that, then, creates a tenancy in
co%%on with the re%aining 4oint tenants
5traw%an, Trust %ethod, 4oint tenants agree to sever, declaration of election to
sever
,iddle v& Har%on didn't want husband to get her share as 4oint tenant so she
devised her share as 4oint tenant to herself as tenant in co%%on
o $an conveying to yourself sever a 4oint tenancy? yes
o Hoint tenant can unilaterally convert a 4oint tenancy to a tenancy in
co%%on by conveying to one's self&
o ,e%oves antiquated, sy%bolic procedure of using a straw %an
o "ne can create a 4oint tenancy by conveying to self and other parties
si%ultaneously
Hudicial Partition in kind or by sale
/efault partition is Ein kind> unless physically doesn't %ake sense and the best
interest of all co)tenants indicate partition by sale
/elfino v& <ealencis tenants in co%%on garbage;developers
nvoluntary 3lienation default on %ortgage, ta.es, etc
+haring ;enefits/#uster
o 3ll co)tenants have a right to possess the entire property& 5o long as there isn't "-5T2,, a
co)tenant in possession is not liable to his co)tenants for the value of his use and occupation
of the property
o "uster#
3dverse Possession when co)tenant in possession %ust possess under
hostility;clai% of title against other co)tenants
(iability of an occupying cotenant for rent to other co)tenants !hen co&tenant in
possession refuses a demand of the other co&tenants to be allo!ed in, to use
and en7oyment of the land
5piller v& *ackereth previous lessee %oved out and 5piller %oved in&
*ackereth sent letter de%anding vacate half or provide rent and when showed
up, there were locks on the door&
o :o evidence to show that 5piller refused entry to *ackereth& He had
the right to use of the whole property so long as it didn't prevent others
fro% use& The locks were not indication because used to protect that
which was stored inside
o *a4ority v& *inority ,ules
*a4ority encourages partition, %oving ownership back into the
hands of individual owners and %oving away fro% fractional
ownership
*inority discourages partition and %aintains split ownership
leading to the tragedy of the co%%ons
5wartzbaugh wife didn't want bo.ing facility lease on her land
o (ease doesn't destroy a 4oint tenancy there's always a way out
action for partition
o The 4oint tenant has the right to lease or %ortgage interest in property
even if the other tenant ob4ects& "ther 4oint tenant are entitled to a
portion of the rent& f other 4oint tenant is ousted, then can get fair
%arket value for his share of the rent
2andlord/6enant
7 ways to think about it#
o 6emporal relationship b;wn landlord and tenant for%ation to conclusion
o ,eneral increase in tenants rights over time
Types of (easeholds
o 6erms of 0ears a leasehold estate that is for a fi.ed ti%e period
While fi.ed in ti%e, can be ter%inable earlier upon the happening of so%e event or
condition
,equires no notice to bring the estate to an end b;c the estate is e.plicit in its
ter%ination date
o Periodic 6enancy for a period of so%e fi.ed duration that continues for renewed
succeeding period until either landlord or tenant gives notice of ter%ination
o 6enancy at !ill no fi.ed period& 2ndures so long as both landlord and tenant desire
2nds when a party ter%inates the leasehold or at the death of one of the parties
f lease provides that it can be ter%inated by one party, then can also be ter%inated at
the will of the other party
,easonable notice, unless e.plicit right to tenant ":(=
,ules fro% cases
o 9arner v 9arrish tenancy shall continue Efor and during the ter% of quiet en4oy%ent fro%
the first day of *ay 6FII which ter% will end 9errish has privilege of ter%inating this
agree%ent at the date of his own choice> rent was paid %onthly
Rule of interpretation 9ive weight to the intent of the contracting parties if in line with
%odern co%%on law here determinable life tenancy doctrine of fitting into the
box
When a%biguity err in the direction of a periodic tenancy 0easier to get out of than
ter% of years1
o Hannah delivery of possession
-nglish rule is the ma7ority rule covenant requiring lessor to put lessee in actual
possession
2specially in residential situations, lessee's e.pect to enter the dwelling on the
date when their right to possession begins
-nfair to place this burden on the lessee, who, had he known that it would be
inhabitable, would not have entered into the agree%ent
(andlord is in a better position to deter%ine the availability of the space and
has %ore resources;%ore knowledgeable in such situations to deal with it
accordingly
(andlord is %ore equipped to deal with such a situation and the loss of a
couple %onths rent is not as heavy a burden as to not have a place to live
American rule lessor covenants to give lessee right to possession but should not
be held accountable for the wrongs of a C
rd
party
'a"es rent cheaper if landlord is in fear of being responsible for layover
tenants and costs associated with evicting the%, will %ake rents higher to
cover those costs and the e%pty %onths
'ore efficient use of land if landlord has to ensure an e%pty space and
loses a couple %onths rent for that, then wastes space and use of space
o 2rnst v& $onditt subleases/assignment 5 liability
nterpret the language of the contract by giving weight to the intent of the parties do
this by looking to what the parties are actually giving over 0here, gave over the entire
period of ti%e of the lease with no reversionary interest, therefore, was an assign%ent
rather than a sublease1
Privity of estate v* privity of contract 7 legal relationships for% when entering into
a lease
Privity of estate< someone !ho has all interest for the specified period in
the property
Privity of contract< contractual rights and duties such that these duties
and rights are only binding on the parties to the contract
+ublease privity of contract and estate re%ain between lessor and original
lessee &#& no legal relationship through which to de%and rent;da%ages fro%
sublessee
o $an indirectly influence sublessee by evicting original lessee, essentially
attacking the sublessee's possession through the original tenant
Assignment privity of contract re%ains between lessor and original lessee
0such that original lessee will still be bound by the contractual ter%s1 but privity
of estate transfer to assignee 0lessee can de%and rent;da%ages fro%
assignee through privity of estate and fro% lessee through privity of contract1
o if there is a clause in the assign%ent stating Eassu%e all covenants in
the lease> landlord has no privity of contract with the assignee
subrogation when C
rd
party co%es in, pays for the co%pensation and then
wants to be paid back 0( sues T, T sues T6 through subrogation1
o @endall v& Pestana landlord restriction on right to sublease/assign
f lease is silent on (andlord's consent, tenant is free to do as they will free
alienability is a foundational concept in property
f the lease calls for the (andlord's consent and does not e.plicitly state that (andlord
can withhold consent at his discretion, a implied covenant of good faith to not
withhold consent unless commercially reasonable will be read into the contract
+ree alienability does not apply in residential setting
o !erg v& Wiley eviction of tenant not performing under the lease
Abandonment< vacates without 4ustification, no intent to return, or defaults on rent
6raditional vie! self&help measures if
61 landlord is legally entitled to possession
71 landlord's reentry %ust be by peaceable %eans
'odern interpretation of P-AC-A;2- '-A%+
(aw doesn't want to encourage people taking the law into their own hands,
particularly when the courts have set up a quick legal %eans to do so
f landlord uses self)help %easures, can lead to unlawful eviction, no due
process for tenant, lead to larger da%ages suit
3ny eviction that is not based in the law is not peaceable
Critique if landlord has to take legal %easures to evict tenants, rather than
self)help, will raise tenant rents in general to cover for costs
Critique under co%%on law, if unlawful eviction, tenant could get %uch %ore
in da%ages, lost profits, loss of chattel& -nder new rule, if tenant found in the
wrong, %ay have to pay da%ages to landlord
o 5o%%er v& @ridel, ,iverview ,ealty Abandoned Possession landlords obligation to
mitigate damages
'a7ority rule in the event tenant abandons pre%ises, landlord is obligated to
%itigate da%ages through reasonable efforts to re)let the pre%ises
Takes into account efficiency of land use, don't want land to lay idle
*oves away fro% a property law perspective of leases to a contracts law
perspective
o 3s a %atter of basic fairness
o *odern notions of fairness and equity
(andlord carries burden of proof that he used reasonable diligence in
atte%pting to re)let the pre%ises b;c in a better position to de%onstrate it
o :eed not accept less than fair %arket value or substantially alter his
obligations as established in the pre)e.isting lease
Common la! rule landlord under no obligation to %itigate da%ages
!ased on principal that lease conveys an interest to tenant in the property
which forcloses any control by the landlord no one has a right to interfere with
the interest;possession of the property by the tenant so landlord couldn't
%itigate da%ages
(andlord should not be required to %ake up for another's wrongdoing
(andlord shouldn't be forced into a personal relationship with a new tenant he
does not wish to accept
3bandon%ent of property is an invitation to vandalis% and the law shouldn't
encourage such conduct
+urrender offer of a settle%ent agree%ent, inviting acceptance on the part of the
landlord and thus ter%inating tenant's liability for future rent
3bandon%ent can constitute an i%plied offer of surrender
(andlord's actions inconsistent with to the continuation of the original lease can
constitute i%plied acceptance
re)letting on behalf of tenant doesn't break tenant's obligation but the re)let %itigates
tenant's obligations&
f re)let for less tenant still liable for the difference
f re)let for %ore tenant %ay have a right to the difference
o ,este v& $ooper =uiet en7oyment and constructive eviction & leased business space
had repeated flooding due to faulty pave%ent
Rule any act;o%ission of the landlord which renders the pre%ises substantially
unsuitable for the purpose for which they are leased, or which seriously interferes with
the beneficial en4oy%ent of the pre%ises, is a breach of the covenant of quiet
en4oy%ent and constitutes a constructive eviction of the tenant
Permanent intereference occurs regularly and frequently enough to prevent use
and en4oy%ent of the pre%ises for the purpose of the lease
2essee must vacate !ithin a reasonable time after being e.posed to a constructive
eviction, otherwise constitutes a !aiver of the right to vacate
"bligation to pay rent is dependent upon tenant's having possession undisturbed by
the landlord if one party breaches, the other party is no longer bound
Partial eviction when part of the pre%ises is unusable tenant is not relieved of the
obligation to pay rent
o Hilder v 5t& Peter Illegal lease/Implied 8arranty of .abitability slumlords
Rule residential rental leases have an i%plied warranty that the landlord will deliver
over and %aintain, throughout the period of tenancy, pre%ises that are safe, clean
and fit for hu%an habitation
Previously landlord's obligations to tenant were independent of tenant's rent
obligation to landlord breach of one didn't i%ply the other was not bound&
:o longer viable view in %odern day urban society where tenant is not
e.perienced in perfor%ing %aintenance work on urban co%ple. living units and
there is a shortage of safe, decent housing &#& tenant is in an inferior bargaining
position
To deter%ine a breach of warranty of habitability
61 look to violations of local;%unicipal housing codes
71 /oes clai%ed defect have i%pact on the safety;health of tenant
C1 Tenant %ust show that he;she notified landlord of deficiency and reasonable
ti%e for correction
*easure of da%ages difference between value of the dwelling as warranted and
value of dwelling as it e.ists in its defective condition
$an withhold pay%ent of future rent switches burden of suit on landlord
Punitive da%ages are available if willful and wanton violation
$an fi. proble% then sue for recovery
$an pay rent then sue to recover full rent
2and 6ransaction Inter /ivos transfer
Process
o (ocating a buyer brokers listings
Proble%s can arise fro% the very beginning
!rokers paid J off purchase price incentive to push sale through
regardless of detri%ent to parties
o :ot fully knowledgeable of the process so%e info gets lost along the
way buyers aren't fully aware or educated by the broker to %ake a
fully infor%ed decision
o $urrent %arket conditions are an indication ofr buyers not really
understanding;being properly e.plained the process
o *itigating factor that brokers business relies heavily on reputation
o "ffer
o :egotiating the contract earnest %oney !'s conditions;counteroffers
The $ontract detailed, with %any contingencies
-sually a for% contract b;c co%%on transaction that
sophisticated;unsophisticated parties do
$ontingency process is beneficial b;c allows unsophisticated parties to educate
the%selves and ensure they are properly protected
o n a highly co%petitive %arket, need to %ake decisions quickly, no ti%e
to properly inspect;ensure against encu%brances
o 3gree%ent 0equitable title1
5tatute of +rauds real estate transactions %ust use a written instru%ent to
consu%%ate the transaction
*ust be in writing or no action will be brought
+orces parties to use caution
Provides evidence of the transaction
o 2.ceptions# Partial perfor%ance, 2quitable estoppels 3d%ission fro%
opposing party that there was a transaction
Hickey v& 9reen oral agree%ent with check deposit induced
buyer to sell their other property, then seller backed down
5eller ad%itted to oral agree%ent but clai%ed didn't %atter
b;c oral
2quitable estoppel unconscionable in4ury will deter%ine
if a written contract will be forced on the parties 0could
buyers reneg on their other sale?1 if no unconscionable
in4ury, don't want to establish precedent for quick,
unreasonable reliance
2quitable $onversion equitable title attaches at ti%e of agree%ent unless
contracted otherwise all risk born by buyer
5ituation 6 enter into contract and then property severely da%aged buyer
owns real estate with all the da%ages and seller has clai% for %oney a%ount
deter%ined at ti%e of purchase
5ituation 7 enter into contract and then seller dies will separates real and
personal property buyer is equitable owner of property, seller only has a K
interest and is therefore personal property
o 2.ecutor period inspections;disclosures;financing;title evaluation i%plied condition in
every sale of land contract that the seller will convey %arketable title
*arketable title not sub4ect to reasonable doubt that would create apprehension in
%ind of buyer
-n%arketable title ) if there is a reasonable probability the seller does not own
the full title alleged, the property is sub4ect to an undisclosed encu%brance, or
the purchaser bears an unreasonable risk he or she would be sub4ect to
litigation related to the property in its current condition&
o f seller fails to clear title %ake title %arketable by closing date,
buyer has right to rescind contract
-nless the seller cures any defect before the schedule closing date, a
purchaser can refuse to close and can rescind the sales contract if the title is
un%arketable&
o 2ncu%brances
-ndisclosed co)owners
*ortgages or liens
2ase%ents
Private restrictions ) ,eal covenants or equitable servitudes will
not %ake title un%arketable unless undisclosed or the property is
in violation
(eases
"ptions
*ineral rights
+laws in the deed records
"wnership based on adverse possession colored title
o 9overn%ent ordinances or regulations seller does not have to disclose
these and they do not %ake title un%arketable
-:(255 there is a violation
o n curing the defect, the buyer does not need to accept anything %ore or
less than what buyer contracted to buy
(oh%eyer v& !ower 7 story private covenant violation 8 C ft
away fro% boundary public ordinance violation
$aveat 2%ptor 8 /uty to /isclose /efects
*a4ority ,ule $aveat 2%ptor so long as seller does not %isrepresent
defects to the property nor actively %isleads purchaser, seller has no obligation
to any infor%ation re property buyer beware
o 2.ception where seller creates the pheno%enon that %aterially
i%pairs the value of the property and it is particularly within her
knowledge or unlikely to be discovered by a prudent purchaser
e.ercising due care, nondisclosure constitutes a basis for rescission as
a %atter of equity 5ta%bovsky v& 3ckley ) haunted house
o +raud is not allowed under the doctrine %aterial %isrepresentation,
with the intent to %ake so%eone rely on it, and based on that
reasonable reliance, har% is caused&
*odern trend seller has a duty to disclose %aterial latent defects to the
property, but not i%%aterial or patent defects 0visible1 applies to residential
properties only, not co%%ercial ones b;c co%%ercial buyers are %ore
sophisticated
o *aterial test
"b4ective prong would a reasonable person attach i%portance
when deciding to buy
5ub4ective prong does the defect affect the value or desirability
of the property to the buyer
o 5o%e states require disclosure of off)site defects like noisy neighbors,
to.ic waste du%p, etc
o 5o%e states require disclosure of non)physical defects haunted,
so%eone was killed,
o 5o%e states have stig%a statutes shielding sellers fro% a failure to
disclose psychological;pre4udicial factors that %ight affect %arket value
o $losing ! give lender note and %ortgage, lender give ! KK, ! gives 5 KK, 5 delivers
/eed;Trust
/eed constitutes a %erger of all pro%ises %ade in the contract buyer can no
longer sue seller on any covenants not stated in the deed
2stoppels by deed if grantor conveys property without title but then
subsequently acquires title, title passes to purchaser by operation of law
auto%atically passes
C types#
o 9eneral Warranty deed warrant title against 3(( defects in title, no
%atter when they ca%e into e.istence
$ontains A e.press warranties
C present covenants
o *3H",T= rule ) can only be breached at ti%e the
deed is delivered 5"( starts running at the date of
delivery
o *inority rule ) "nce there is a breach of a present
covenant, the clai% can be quietly assigned to
subsequent grantees as a conveyance is essentially
an assign%ent of one's interest in a property
/a%ages L original purchase price fro%
original grantor to prior grantee plus interest
fro% the ti%e when final grantee received the
property
,ockafellor v& 9ray
o 61 $ovenant of 5eisin grantor warrants that he
owns the estate
o 71 $ovenant of ,ight to $onvey grantor warrants
that he has the right to convey essentially sa%e
as that of 5eisin
o C1 $ovenant against 2ncu%brances grantor
warrants there are no encu%brances warrants
that title is %arketable and will re%ain so after
transfer
C future covenants will be breached at so%e ti%e in the
future not considered a breach until grantee;successor is
evicted fro% the property;buys up the para%ount
clai%;otherwise da%ages 5"( begins to run at ti%e of
eviction or when covenant is broken in the future
o 61 $ovenant of 9eneral Warranty grantor warrant
that will defend against (3W+-( clai%s0including
his own through adverse possession1 and will
co%pensate grantee for any loss sustained by an
assertion of superior title
f buyer knows of an encu%brance that
affects the title, the encu%brance will still be
treated as breach
"nly encu%brances that affect the land
which are patent are not included in the
warranty but those that are latent, that buyer
does not know of, will be included
o 71 $ovenant of Muiet 2n4oy%ent grantor warrants
that grantee will not be disturbed in possession and
en4oy%ent of the property by assertion of superior
title essentially identical to the covenant of
general warranty
!rown v& (ober !rowns receive land with
general warranty deed fro% so%eone who
has only 6;C %ineral rights try to sell but
find out about it& Technically a breach of
present covenant of right to convey;seisin but
5"( ran out tried to sue under $& of Muiet
2n4oy& =et Muiet 2n4oy& Was not 3$T-3((=
disturbed b;c not actually interfered with
Holding good b;c gives incentive to clear
title proble%s, can run risk of 3P, can find
owner and broker a deal
o $ovenant of +urther 3ssurances grantor warrants
to e.ecute any other docu%ents to perfect the title
conveyed
o 5pecial warranty deed warrants only against the grantor's own acts,
but not that of preceding owners still contains all A covenants, but only
against conduct of grantor
o Muitclai% deed contains :" W3,,3:T25 of any kind conveys
whatever title grantor had, if any
+orged v& +raudulent deeds
o 3 +",92/ /22/ 5 <"/ the forged grantor will always have
superior title over 3(( persons, even subsequent bona fide purchasers
who didn't know of the forgery
o +,3-/ a deed procured by fraud grantor will have superior title
against the fraudulent grantee but not against subsequent bona fide
purchasers who didn't know of the fraud
When 7 innocents, the law places the loss on the person who
could have prevented the loss to the other
/elivery of /eed;2ffective /eed ) a deed %ust be delivered with intent that it be
presently operative
Proper delivery when
o The grantor intends to presently convey an interest in property any
oral conditions are erased upon showing of present intent to convey
There %ust be a present intent to convey
5weeney v& 5weeney *aurice conveys to Hohn who
conveys back to *aurice who continues to e.ercise full
do%inion over the property& The condition that the 7
nd

deed take effect ":(= + Hohn predeceases *aurice
evaporates upon property delivery, which there was here
o nstead, could have created a 4oint tenancy with
right of survivorship
o *aurice could have given hi%self a life estate with
springing future interest in +53 to Hohn
3:/
ntent by grantor to divest hi%self of the conveyed interest and
not retain the right to recall the deed 0even if the right is never
e.ercised1 ) to achieve this, can deliver deed to a C
rd
party with
instruction to pass to grantee upon grantor's death
,osengrant v& ,osengrant H 8 * want to give property
to H without probate so sign deed and leave with bank in
envelope for 2TH2, H or H shows there isn't
necessarily a present intent to convey or at least that H
reserved the right to recall the deed
o The grantor delivers a deed to the grantee
o The grantee accepts the deed
*ust be Edelivered> during grantor's lifeti%e but /"25 :"T require present
possession but %ust grant i%%ediate interest
o 2&g& grantor e.ecutes a deed and places it is a safe deposit bock
f grantor intends to pass title or a future interest to grantee :"W,
there has been a delivery even though no present possession
f grantor intends that no interest shall pass until death, there has
been no delivery during life and therefore the deed cannot take
legal effect but %ust be governed by the 5tatute of Wills
$annot be cancelled once delivered 5"+ requires a writing to %ove title back
to the grantor
o Post $losing record /eed;Title insurance
,ecording 5yste% allows for anyone to ascertain owner of land, preserves a secure
place for i%portant docu%ents, protects purchasers for value and lien creditors
against prior unrecorded interests
What can be recorded? 0specified in the recording statutes
o 3ny kind of deed, %ortgage, lease, option or other instru%ent creating
or affect an interest in land
o 3 4udg%ent or decree affecting title
o (is Pendens 0notice of pending action1
o Wills, affidavits of heirship
nde. syste% 7 types tract inde. and 9rantor;grantee inde. 0%ost co%%on
%ethod of inde.ing1
o Title 5earch
61 start with the grantee inde. and go back in ti%e to an
acceptable source or Eroot title>
71 then go to grantor inde. and %ove forward searching if there
have been %ultiple grants of the property interest
$"**": (3W ,-(2 re conflicting interests in land +,5T : T*2
$onflicts that can arise
o $onflict between possessory estates
o $onflict between owner of a possessory estate on owner of a
nonpossessory interest 0lien, %ortgage, ease%ent, covenant1
o $onflict between holders of two nonpossessory interests
*ost states have recording statutes that %odify the co%%on law to protect
innocent subsequent parties& Thus the co%%on law holds unless so%eone
can show that they are a !ona +ide Purchaser protected by statute
o !ona +ide Purchaser
5ubsequent purchaser
That purchases in 9ood faith 0without notice1
+or value
o 5H2(T2, ,-(2 a person who is conveyed an interest fro% a bona
fide purchaser 0protected by recording statute1 has the sa%e rights as
his grantor
o Types of recording statutes
61 ,ace 5tatutes the person first to record their interest wins
!rightline clear rule li%its inquiry into %atters off the
record;difficult to ascertain
9ives very strong incentive to record title
71 notice statutes protects subsequent purchasers against prior
unrecorded interests even though the subsequent purchaser fails
to record so long as there was no notice and no way to have
known of the prior unrecorded interest 3T T*2 "+ P-,$H352
C1 ,ace;notice statutes a subsequent purchaser is protected
against prior unrecorded instru%ents only if the subsequent
purchaser a1 has no notice of the prior instru%ents and 71 records
before the prior instru%ent is recorded
Punishes non)recording and &#& provides incentive to
record
3lso punishes the subsequent purchaser who %ay have
had notice but raced to recording office first
o What constitutes :otice?
Types of :otice
3ctual :otice when one is personally aware of conflicting
interest in real property 0often due to another's possession
of the property1
$onstructive or ,ecord notice refers to knowledge or
notice gained by searching the deed records purchaser
is dee%ed to know all %atters contained in docu%ents
legally recorded in the deed records, even though the
purchaser did not actually search the deed records
nquiry :otice when prospective purchaser hears or
observes so%ething that would cause and ordinarily
prudent person to inquire further if such further inquiry
would have uncovered an unrecorded clai%, the purchaser
is dee%ed to have notice of it
o <isiting the property
o $o%%on sche%e of develop%ent;plans such that
neighboring properties were conveyed by a
co%%on grantor
o Harper v& Paradise race;notice 4d. ) 6F77 deed to
Harper is a life estate with re%ainder in her children
lost and not recorded& 6F7N deed to Harper is an
+53 which refers back to the lost original deed
Harper uses for collateral 8 defaults, property
foreclosed and sold down the chain to Paradise&
However, b;c 6F7N deed specifically refers to 6F77
deed, there can be no !+P's b;c they had notice of
the previous deed and should have inquired further,
and therefore the re%ainder%en of the 6F77 deed
win&
*other Hubbard $lauses describes the conveyance of different
tracts of land generally, rather than specifically identifying each
5uch a clause will always be a valid description of the
property conveyed as between grantor and grantee&
!-T as to 5-!52M-2:T purchasers#
o 5uch a clause will not be sufficient constructive
notice to a subsequent purchaser if it does not
describe the land conveyed with sufficient specificity
to that the specific land conveyed can be identified
o 5uch a clause will be sufficient if it identifies the
property or affords the %eans of identification within
the instru%ent itself or by reference to other
instru%ents of record
(uthi v& 2vans / conveyed to C
rd
party and recorded
deed stating A properties with specificity and a *other
Hubbard $lause with respect to all other properties in
area& Then / conveyed one of the unna%ed properties to
P& $ourt held that such a general state%ent was not
sufficient to give constructive notice to a subsequent
purchaser
$hain of Title Proble%s
8hen doing a title search, it is the responsibility of the grantee to ensure
that the chain of title in their deed is complete& If not, despite the fact that
the deed is recorded, !ill have no effect b/c subsequent purchaser
cannot see it in a title search b/c chain of title is incomplete
o !oard of 2d& "f *inneapolis v& Hughes Hoergers deliver deed to
Hughes but leave grantee na%e blank& Hoergers e.ecute and deliver
deed to / 8 W but don't record& / 8 W e.ecute and deliver deed to
!oard of 2d& 3nd it is recorded& Then Hughes signed and records deed&
Then / 8 W record deed fro% Hoergers to / 8 W&
5ince Hughes deed did not beco%e operative until after Hughes
signed it, Hughes is actually the subsequent purchaser and as
such any recording statutes will protect hi%&
While the deed fro% /8W was e.ecuted and recorded prior to
Hughes' recording, there was no way for Hughes to have notice
of their ownership b;c the deed fro% Hoergers 0Hughes' grantor1
to /8W was not recorded&
n race;notice 4d., then, Hughes was the subsequent !+P,
recorded first and had no notice
n race 4d. Hughes was the subsequent !+P and despite
recording 7
nd
, since no clean chain of title for others, Hughes still
gets it
n :otice 4d. Hughes had no notice of the other conveyance
and so is protected by statutes
o 3 subsequent purchaser fro% the co%%on grantor acquires title sub4ect
to the restrictions in the deed to the earlier purchaser of the subdivision&
*3H",T= ,-(2 ) n a subdivision plan, the purchaser %ust
look into prior conveyances fro% the original grantor to other lots
in the subdivision to check for restrictions or ease%ents& $annot
be safe if the title e.a%iner ignores any deed given by a grantor
in the chain of title during the ti%e he owned the pre%ises in
question&
*inority rule since the restriction is not in the chain of
title, there is no constructive notice
9uillette v& /aly /ry Wall ) The /'s deed referred to a recorded
subdivision plan, and the deed to the 9uillettes referred to the
sa%e plan& !ecause both deeds referred to the sa%e plan, it was
not i%possible for the / to check into the deed to see what the
restrictions of that plan were&
o " conveys to 3& " conveys to ! and ! records& 3 records& ! conveys
to $ who records& Who has clai% to title? 3 or $? ) 5P(T
61 purchaser is not bound to e.a%ine record after the date of a
recorded conveyance to his grantor to see if preceeding grantor
conveyed to another grantee who failed to record prior to !+P's
purchase
71 purchaser is bound to e.a%ine record before and after the
date of recorded conveyance since it is recorded, it gives
constructive notice this approach 9,23T(= increases the cost
of title searching&
(egislative $ontrol of (and -se
(aw of :uisance part tort 0b;c liability arises fro% negligent;wrongful activity1;part property law
0b;c liability is for interference with the use and en4oy%ent of land1
o 92:2,3( ,-(2 one should use one's own property in such a way as :"T to in4ure the
property of another
o 3nalysis#
s there a nuisance? is there a behavior on the land that interferes with the use and
en4oy%ent of another of their land?
P %ust have an interest in the land
-se and en4oy%ent %ust be of an ordinary kind, not e.traordinary sensitive use
o 2&g& light interfering with %ovie)pro4ection is not nuisance b;c
e.traordinarily sensitive use
ntentional private nuisance if it is intentional, courts are concerned with the
reasonableness of the conduct 0liability e.ists when conduct is unreasonable
under the circu%stances1
o ntent purpose or knowledge with substantial certainty0know or should
know1 that the conduct will cause har%
o (ook at reasonableness
Traditional approach focuses on the har% to the plaintiff
,estate%ents balancing of the -tilities
!alance of har% to Plaintiff if not treated as a nuisance
0e.tent and character of har%, social value of P's use,
suitability to the locality in questions, burden on P of
avoiding the har%1 v& balance of har% to public and
/efendant if treated as a nuisance 0social value, suitability
to the locality, i%practicality of /'s preventing the har%1
o $haracter of the har% %ust be 5-!5T3:T3( :<35":
o :on)trespassory;intangible interference 0if trespassory, then tort1 e&g&
%usic, odor, che%ical
What about half)way houses? courts are split
What about 5P3* e%ails? can nuisance law, essentially
applied to land, transfer into the real% of personal property?
3esthetic nuisance unsightliness alone does not %ake a
nuisance, unless for purpose of spite what about aesthetic
zoning regulations then? if purpose of regulation is to prevent
nuisance before it happens and cannot have aesthetic nuisance,
why can you zone aestheticness?
o nterference with use and en4oy%ent of another's land
o 2&g& *organ v& High Penn "il $o& P lives on F acres by oil refinery
e%itting no.ious gases and odors for several hours daily& $ourt held
that intentional, unreasonable and %aterial effects on the use and
en4oy%ent of P's land &#& te%porary da%ages and in4unction to prevent
such nuisance in the future&
-nintentional private nuisance liability e.ists where negligent, reckless or
ultra hazardous but if storing dyna%ite in storage, %ust first approach so
does it then beco%e intentional? How does this interfere?
Private v& public nuisance where is line drawn? depends on the theory you
will argue as a plaintiff,
o Private interferes with the rights in the use and en4oy%ent of the land
o Public interferes with a ,9HT $"**": to the 92:2,3( P-!($
can be brought by any %e%ber of the affected public but usually only if
can show Especial in4ury> usually set out by statute, will likely be an
in4unction
5pur ndustries v& /el Webb /evelop%ent long ti%e cattle
ranch and developer starts buying up land closer to ranch
0%oving towards the nuisance1& To balance the operation of a
lawful business fro% a @:"W:9 3:/ W((+-( encroach%ent
with the concern for public safety and so deter%ine it to be a
nuisance but require the developer to co%pensate the ranch for
having to %ove away
What should the re%edy be?
/a%ages or in4unctive relief?
!alance of the 2quities balance the har% to the plaintiff of not granting
in4unction against the utility of the /'s conduct;cost to / and public interest of
granting the in4unction versus %erely awarding da%ages are they looking at
the utility of /'s conduct or cost to /?
o f utility of /'s conduct;cost to / and public interest outweigh the cost to
P of not granting in4unction, then da%ages will be awarded
Te%porary da%ages all da%ages suffered up to ti%e of suit
Per%anent da%ages one ti%e pay%ent for past and future
har% resulting fro% nuisance
Per%anent da%ages are allowed where the loss
recoverable would obviously be s%all as co%pared with
the cost of re%oval of the nuisance and where the
nuisance is of such a per%anent and unabatable character
that a single recovery can be had, including the whole
da%age past and future resulting therefore
o Procedural issues
o !y deciding who gets the rights;wins;what is;isn't a nuisance, the courts
are practically distributing wealth
2&g& cost of abate%ent is KOG and cost to P is K6GG purely
econo%ic world, P will probably pay KOG)6GG to %ake / stop
2&g& cost of abate%ent is K6GG and cost to P is KOG purely
econo%ic world, the nuisance will not stop
-nder nuisance law,
o f the court states there is no nuisance, then
essentially giving a ,9HT to / to continue the
nuisance, thus giving / KOG enriching /
o f the court states this is a nuisance and grants an
in4unction, then essentially giving a ,9HT to P and
giving P KOG, enriching P
D re%edial resolutions once it is deter%ined to be a nuisance#
o 61 allow the activity to continue by denying all relief
o 71 abate the activity in question by granting in4unctive relief 0*organ 8
2stancias1
o C1 allow the activityto continue if the defendant pays da%ages 0!oo%er
ce%ent co&1
o D1 3bate the activity if the plaintiff pays da%ages 05pures1 would not
be a nuisance but for the behavior of the plaintiff
:uisance law only takes effect once a nuisance co%es into being and so the law
transitioned into other, %ore efficient ways of control land use
$ases
o 2stancias /allas $orp v& 5hultz first deter%ined that the 4et engine
sounding 3;$ unit put in by 2stancias was a nuisance and then, %ust
decide whether to give in4unction or K da%ages& $ost to change would
be K6OG)7GG@& $ourt held to award in4unction b;c no real public interest
is har%ed by it and the unreasonable substantial invasion to P
outweighs the cost to 2stancias
:ote if li%ited to da%ages / would only reduce the noise if
the da%ages award was %ore than the cost to fi.& f not %ore,
then / would pay da%ages but continue with the noise and P
would perpetually have to sue to recover for te%porary da%ages
Why are per%anent da%ages not an option here?
o !oo%er v& 3tlantic $e%ent $o / is large ce%ent plant that e%its dirt,
s%oke and vibrations so strong that crack foundations& $ourt was
concerned about its institutional inco%petence in declaring
environ%ental concerns for the state of := but want to give 4ustice so
declare it a nuisance but on the question of re%edies, given that ce%ent
factory provides a social good in providing ce%ent, CGG 4obs and would
cost /, at a %ini%u%, the KDO** it cost to build the plant, this far
outweighs the cost of not providing an in4unction to the Plaintiff 0court
will not look at cost to others in the neighborhood b;c didn't co%e in as
Plaintiffs and it is the role of the courts to resolve individual
controversies1
/issent %a4ority is essentially condoning;licensing a continuing
wrong so long as they pay people off
(aw of 5ervitudes purpose is to increase the total value of all parcels involved but the effect is to
burden one parcel of land for the benefit of another0others1
o essentially legal theories of enforce%ent how to enforce private pro%ises and to
who%;how far do they e.tend?
3ppurtenant do%inant estate and servient estate
n 9ross servient estate but does not benefit a do%inant estate, but gives the right
to a particular person
o 2ase%ents :":)P"55255",= :T2,25T : (3:/ ) positive pro%ises that can be
conveyed and can be +53, +5/, life estates or other finite estates sub4ect to the 5"+ and
e.ceptions to 5"+, as well as being created by i%plication or by prescription
2ase%ents v& license license is an oral or written per%ission to do so%e act on the
land that otherwise would be a trespass
9enerally revocable
7 e.ceptions to revocability
o (icense is coupled with an interest in the land
o (icense can beco%e irrevocable if estoppel is shown
Holbrook v& Taylor Taylor gets per%ission to use road, it's been
used before, it's the only access to the property, builds a ho%e,
spends K to i%prove the road and continues to use but when
asked to put per%ission in writing, Holbrook refuses& $ourt held
that it was not an ease%ent acquired by 3P b;c per%ission, not
under clai% of title but instead that it was a license %ade
irrevocable due to equitable estoppels Taylor relied on the
per%ission to build ho%e Holbrook in better position to state
that road is his, encourages efficient use of land
2.press ease%ents
$reation by 2.press 9rant usually stated in the deed when the grantor
conveys a part of their parcel;lot to the grantee and also grantee a right of way
over the grantor's property
$reation by reservation usually stated in the deed as grantor conveying
parcel to grantee but reserving a right of way for grantor over grantee's
property
o ,eservation of ease%ent for C
rd
party traditionally not accepted b;c
cannot reserve an interest for so%eone who is stranger to the title
*odern rule can be reserved for a C
rd
party and to invalidate it
would un4ustly enrich the grantee0or subsequent grantees1 at the
e.pense of the grantor who discounts the price based on the
reservation of such ease%ent
Williard v& +irst $hurch of $hrist grantor sold 7 lots to grantee
with e.press reservation of ease%ent on 6 lot to the church
across the street for parking& 9rantee then conveyed to Willard
who sued to quiet title against the church& $ourt upheld the
ease%ent for the above %odern reasons&
,eservation v& e.ception? /o we need to know
%plied 2ase%ents
!y e.isting use based on quasi)ease%ent that an owner of a single
property can use one part of the land for the benefit of another part of the land
so that when the parts are severed, an ease%ent %ay be i%plied
o 2le%ents
$o%%on ownership followed by severance
2.isting apparent and continuous use continuous, not sporadic,
and should be apparent to the grantee and e.isted prior to
,easonable necessity of the use if the land %ay be used
without an ease%ent, but cannot be used without
disproportionate effort and e.pense, an ease%ent %ay continued
to be i%plied on the basis of necessity alone
o <an 5andt v& ,oyster !aily has large tract of land, divides into C plots
and deeds to 7 others under general warranty free and clear of all
encu%brances
$o%%on ownership followed by severance
2.isting apparent and continuous use sewage line used
continuously and grantee should have known b;c already
preinstalled sewage line under his house &#& put on inquiry notice,
at the very least
,easonable necessity of the use while later on, the do%inant
property could have been used without the ease%ent 0reroute the
sewage1, it cannot be used without disproportionate effort and
e.pense due to having to reroute the sewage, therefore
necessary
2ase%ent by :ecessity
o 2le%ents
$o%%on owner severes the property
:ecessity for egress and ingress e.isted at the ti%e of the
severance 0the severance of the allegedly servient land caused
the necessity1
2ase%ent is strictly necessary for egress fro% and ingress to the
landlocked parcel not %erely for convenience
2ven if an alternate route is technically available but the
alternate way goes over unusually inhospitable terrain
/"25 :"T ,2M-,2 P,", -52
o "then v& ,osier Hill conveys 6GG acres to ,osier ad4acent to a public
road, then conveys AG acres to "then 0land)locked1, then conveys
further lands to both& $ourt held that not ease%ent by necessity b;c#
While co%%on owner severs the property,
:ecessity for egress and ingress // :"T 2P5T 3T T*2 "+
severance b;c at ti%e of severance of parcel to ,osier, Hill still
had access to public roads in other areas&
:"T :2$2553,= !-T *2,2(= $":<2:2:T there were
still other accessible points to public roads
2ase%ent by Prescription
o 2le%ents
3ctual use requires physical presence on the servient estate
"pen and notorious use
Hostile -52 under a clai% of ,9HT 0not clai% fo title1
$ontinuous and uninterrupted use
+or the statutory prescriptive period
*2,92, doctrine if the do%inant and servient land co%e under single
ownership, all pre)e.isting ease%ents are e.tinguished does this apply to
e.press and i%plied ease%ents? 3nd does it require that they own the sa%e
estate?
5cope of 2ase%ents %isuse of an ease%ent is a trespass and usual re%edy is an
in4unction, although so%eti%es can be K da%ages
"nce an ease%ent is created for a do%inant estate, an owner of the do%inant
estate cannot proceed to use the ease%ent for other ad4oining parcels
n deter%ining whether an ease%ent has been %isused or whether to grant a
change in use of the ease%ent, the court looks at#
o intent of the parties
language of the deed
how they used the property at ti%e ease%ent was given
use of neighboring properties
zoning laws in the area
have there been any in4unctions in the past and for what?
o whether change in use was reasonably foreseeable by the parties
o and whether the increase will unreasonably burden the servient
tene%ent
2.ception# !rown v& <oss !rown had ease%ent for ingress to and egress
fro% parcel ! over <oss' parcel& !rown purchased ad4acent parcel and began
i%prove%ents which <oss allowed for a period of 6 year at a cost of K66@&
$ourt held that while it did constitute a violation of the scope of the ease%ent,
b;c <oss allowed !rown to rely for 6 year at K66k, and b;c trial court restricted
use of co%bined parcels to sa%e use as original parcel, no future har% would
flow to the <oss& Therefore, in4unction denied&
Ter%ination of 2ase%ents
2.piration by its ter%s if e.plicitly li%ited in ti%e
*erger of do%inant and servient parcels under unified ownership
,elease written by do%inant tene%ent sub4ect to 5"+ and requires a writing
or an e.ception
2nd of necessity in Ei%plied fro% necessity>
2stoppels ter%inated when licensee recoups i%prove%ent costs or when
servient owner relies on representations %ade by owner of ease%ent
*isuse of ease%ent
Prescription can end by abandon%ent upon non)use during the statutory ti%e
/estruction of servient estate
$onde%nation;2%inent /o%ain power if the govt& e.ercises its e%inent
do%ain power to take title to a fee interest in the servient estate for a purpose
inconsistent with continued e.istence of the ease%ent
/efeasable e.pires when the condition occurs
3bandon%ent ) not %erely non)use but also $":$(-5<2 8 -:2M-<"$3(
%anifestation of either a present intent to relinquish the ease%ent or a purpose
inconsistent with its future e.istence
o Presault v& -5 ,ails to Trails 3ct to convert ,, tracks to pubic natural
trails to preserve discontinued rr corridors for future ,, use 3:/ per%it
public recreational use& $ourt first held that these were ease%ents b;c
when a ,, acquires an estate in land for laying track, the state acquired
is no %ore than that needed for the purpose 0regardless of the for% of
transfer1& Then held that since , stopped operation in 6FIO and did
nothing to reinstitute service 0actually taking apart so%e of the track1,
constitutes a conclusive 8 unequivocal %anifestation of present intent to
relinquish 8 purpose inconsistent with its future e.istence, therefore
abandon%ent in 6FIO& 3dditionally, since the use as a public trail is not
a reasonably foreseeable change in the scope of the ease%ent,
constitutes a %isuse of the ease%ent& n creating the public trails,
essentially constituted a taking b;c not within scope of original ease%ent
and original ease%ent was abandoned&
o $ovenants pro%ises to allow others to do things on your land, affir%ative pro%ises as to
one's own responsibilities, negative pro%ises
3ffir%ative v& negative covenants
3ffir%ative covenant requires owner of the burdened estate to perfor% so%e
act or to pay %oney
:egative covenant restrict or prohibits the uses that can be %ade of the
burdened property
,eal covenants depend on the fact that people succeed to particular estates in land
5uccessive owners of benefitting parcels can enforce the preceding pro%ise
again the burdened land even if they have a s%aller estate than the original
owner
5uccessive owners of servient parcels can only be held to the pro%ises of their
preceding owners if the successive owner has the sa%e estate in land as the
preceding owner
2le%ents#
o ntent to bind successors
o *ust touch and concern the land
o 5uccessors %ust have notice
o Privity of estate hori>ontal and vertical privity
o /a%ages %onetary relief or in4unction
$reation of a real covenant ) sub4ect to 5"+ even if only grantor signs it, if
grantee accepts the writing, then bound by such acceptance
2quitable servitudes do away with all the technical proble%s with real covenants
:ot concerned about privity or type of estate
2le%ents
o The parties intend to bind successors
o 3 subsequent purchaser has actual or constructive notice of the
covenant
o That the covenant touch and concern the land either negative or
positive covenant that directly affects the uses to which the land can be
put and substantially affects the value
*ust affect the legal relations of the parties to the covenant as
owners of particular parcels and not %erely as %e%bers of the
co%%unity in general
$aullet v& 5tanley 5tilwell 8 5ons / covneys property to P for
KDk and covenant that will have / construct the original dwelling
or building& $ourt holds that this covenant does not touch or
concern the land b;c there is not both a benefitted and burdened
property but the covenant only benefits /, personally
2.istence of a do%inant estate is essential to the validity
of the servitude
o When the benefit is in gross, will not be held to run
with the land don't want to unnecessarily burden
property ownership if there is no benefit to ad4acent
lands
o When the burden is in gross, %ay still be
considered to run with the land
*ust influence the occupation, use or en4oy%ent of the
pre%ises
o /ertical privity only Property "wners' 3ssociations have i%plied
vertical privity b;c essentially assigned the responsibility of representing
the interests of those who have benefitted parcels through vertical privity
and therefore can enforce equitable servitudes
3dverse Possessors do not run in privity at all
o /a%ages in4unction
$reation of an equitable servitude ) can be interests in land and while %ay be
in writing, in certain situations can be i%plied
o %plying reciprocal negative covenant if an owner of a subdivision
e.tracts a pro%ise fro% a plot in the subdivision, courts will i%ply a
reciprocal pro%ise on the part of the owner with respect to all other
lands owned such that if sells other parcels in the subdivision, the courts
will i%ply that sa%e reciprocal pro%ise on those parcels as well,
whether or not they are stated in the deeds&
3s such, when doing a title search on one's own parcel within a
subdivision, %ust ensure that there are no covenants on other
parcels in the subdivision
3lso, arguably inquiry notice look at how other parcels are
being used
5anborn v& *c(ean *clean wants to put gas station on parcel
and has no restrictive covenant in his deed, although deed states
that it is part of a subdivision in which another parcel previously
was conveyed with a restrictive covenant of single fa%ily
residence only& $ourt held that by requiring the restriction on that
one parcel, owner of subdivision %ade an i%plied return pro%ise
that other parcels would be used in such a way and therefore,
i%plied a reciprocal negative covenant
$o%%on nterest 3ssociations each individual unit is owned separately in fee
si%ple& The rest is owned in fee si%ple as co%%on areas and owned as
tenants in co%%on& 9overnance is established by a declaration of
condo%iniu% that is recorded before the first sale is %ade, providing all dues,
rules, etc& 2ach purchaser, by accepting a deed, beco%es an association
%e%ber and %ust abide by its covenants, conditions and restrictions
o 5upre%e court held that restrictions appearing in the originating
docu%ent have a very strong presu%ption of validity trend is to strike
down original covenants only if they are arbitrary or violate a public
policy or a constitutional right
o :eponsit v& 2%igrant privity of H"3 8 touch and concern the land
establishes that H"3's can enforce covenants and equitable
servitudes on behalf of the other owners of benefitting lands who
are in vertical privity 8 that covenant to pay 0affir%ative covenant1
does touch and concern the land b;c touches and concerns the
parcel owners undivided interest in the co%%on areas and
constitutes a pro%ise as to how the parcel owner will use those
areas&
o P"$":" 5P,:95 v& *3$@2:Q2
o :ahrstedt v& (akeside <illage $ondo 3ssoc restriction on cats and
dogs in the founding docu%ents of the develop%ent yet P purchases
condo and %oves in with C cats& 3rgues that should not apply in her
particular circu%stances& $ourt holds that will not uphold the covenant
only if arbitrary and unreasonable 0so%ething that doesn't affect the
land, related to health, safety of the residents in the association1
$ourt wants to protect 4udicial efficienty, interests and
e.pectations of other owners, keeping H"3 costs down
*"5T deference shown to pre)e.isting covenants in the original
deed
3 little less deferential to subsequent covenants decided by the
H"3
f a covenant cannot be enforced under a real covenant theory, then will likely be
enforceable under an equitable servitude theory
Tulk v& *o.hay establishes equitable servitudes *o.hay through %esne
conveyances received property with covenant to %aintain properly a garden
but wanted to build on it& Tulk was original owner of it and parced out his land
keeping one of the surrounding plots& $ourt held that because original intent of
parties was to have covenant run to successive owners, equity requires that
the covenant be upheld despite there not being horizontal privity between Tulk
and *o.hay b;c otherwise un4ustly enrich *o.hay at e.pense of previous
owners who sold at discounted price b;c of covenant& 3dditionally, *o.hay had
notice of it and knew received at discounted price for that reason hence
2M-Table servitude&
Ter%ination of covenants
*erger if burdened and benefitted property are acquired by a single owner
the covenant;servitude ter%inates
,elease all owners of the benefitted properties can grant a written relase to
the owner of the burdened estate
,escission landowners can e.ecute a docu%ent rescinding the covenant so
that the covenant no longer binds any property effective only if all persons
with standing to enforce the covenant 4oin in e.ecuting the docu%ent
3bandon%ent occurs when such a high nu%ber of landowners in an area
violate the co%%on covenant that between their unclean hands and
acquiescence, the covenant beco%es unenforceable by any benefitted
landowners violations %ust cause such a 5-!5T3:T3( change in the
neighborhood that the original purpose of the covenants has been subverted
$hanged conditions covenants can ter%inate if the conditions : the
neighborhood have so changed that the covenant no longer serves its intended
purpose conditions on land outside the neighborhood are irrelevant even
when the e.ternal conditions %ake so%e Eborder> lots poorly suited for their
allowed uses
o Western (and v& Truskolaski DG acre subdivision with restriction for
only single fa%ily ho%es& $onditions around the subdivision have
changed dra%atically due to develop%ent, population growth,
co%%ercial develop%ent close to subdivision, e.pansion of %ain roads&
/ wants to build a super%arket on one plot& $ourt held that conditions
outside the neighborhood do not sufficiently frustrate the purpose of the
covenant as still provide for safety for children, quiet, tranquil area to
raise fa%ily in, therefore, not sufficiently changed conditions to ter%inate
the covenant
o ,ick v& West ,ick owns A7 acres, sells one to West with covenant of
single fa%ily ho%es only then, believing that rezoning sold to developer
but West refused to consent& $ourt held that not enough evidence of
changed conditions and since ,ick elected to pro%ote a residential
develop%ent, %ust honor it&
Qoning ca%e into play to handle %assive urbanization and industrialization of cities to prevent
har%ful effects before they arose
o Purposes
To prevent inco%patible uses fro% occurring 0thus reducing nuisance1
To increase property values by %inizing use conflicts, increasing property ta. base
To channel develop%ent into patterns that %ay serve larger social goals
o 2uclidian zoning zoning fro% highest 0single fa%ily residential1 to lowest use 0industrial,
%ay e.clude residences b;c of how nuisance)like the industrial uses are1 but cu%ulative
where higher zoning buildings are allowed in lower zoning uses
<illage of 2uclid v& 3%ber ,ealty $o court held that the zoning ordinance in its
general scope is constitutional because it is a valid e.ercise of authority intended to
benefit the general welfare 0segregation of residential, %ulti)fa%ily, co%%ercial,
industrial allows better provision of fire, safety, security to the co%%unity1& $ourt did
state that when applied to a particular parcel, it %ay reach a point where it is arbitrary
and unreasonable but that there are certain procedures set in place to handle
variances and e.ceptionsRRRapart%ents are a %ere parasite
o Qoning power is constitutional and %unicipal authority co%es fro% the P"($2 P"W2, "+
TH2 5T3T2 8 +2/2,3( 9"<T& T" P,"T2$T TH2 H23(TH,5 3+2T=, *",3(5 3:/
92:2,3( W2(+3,2 "+ TH2 $TQ2:5
5tates e%power %unicipalities through 2:3!(:9 5T3T-T25 the 5tandard 5tate
Qoning 2nabling 3ct
creates a process;ad%inistrative structure zoning boards;planning
co%%ission and a board of ad4ust%ent to enforce and take co%plaints
zoning ordinances %ust be in relation to the co%prehensive plan state%ent
of the local govt&'s ob4ectives and standards for develop%ent, based on
surveys and studies to deter%ine the best develop%ent for the general welfare
nonconfor%ing uses general rule nonconfor%ing uses can continue until they end
on their own, by their own natural causes unless nuisance?
3llow variances due to previous use
3llow e.ceptions within a zoning sche%e
o $ourt have a deferential policy ) the pro%ulgation of a zoning ordinance by the %unicipality
is presu%ptively valid if it is not unreasonable or arbitrary
courts use rational basis test if there is a rational relationship b;wn police powers
and zoning, the ordinance will stand& 2ven if fairly debatable, but appears to be a
rational basis, it will likely be held valid
the ordinance %ust be sufficiently definite, otherwise void for wagueness& f vague, it
would cause arbitrary enforce%ent
Qoning laws %ust function to protect the 0health, safety, %orals1 general welfare of the
co%%unity
$annot zone when arbitrary and does not further the general welfare and
public interest
When zoning ordinance is applied to particular parcel, it %ay reach a point
where it is arbitrary and unreasonable
3esthetic ,egulation ) there is a split in the 4d. but %any courts hold that even
though beauty is sub4ective, aesthetic land use regulations are 4ust to prevent
lower property values& 3rchitectural review is one such control
o 5tate e.& ,el& 5toyanoff v& !erkeley court held that aesthetic provision
of the land use regulations was valid because aesthetic unifor%ity of the
neighorbhood was rationally related to the general welfare in that
affected the property values of the ad4oining property owners, ta. base
of the co%%unity is affected and public suffers econo%ically as a
result &#& valid e.ercise of the police power
5ign restrictions ) 3 %unicipality %ay not enact a blanket prohibition against
signs on residential property& 5igns are clearly a for% of e.pression protected
by the +irst 3%end%ent&
o However, they do i%plicate the rights of local govern%ents police power,
as they take up space and %ay obstruct views&
o Therefore, local govern%ent does have so%e regulatory power over
sign place%ent& 3ny regulation of this nature, however, will have to walk
a fine line between legiti%ate health and safety concerns and freedo%
of e.pression&
o $ity of (adue v& 9illeo anti)war signs
f you regulate too little, it's discri%inatory
f you regulate too %uch, infringe on 6
st
a%end%ent freedo% of
e.pression
2.clusionary zoning zoning regulations that essentially %ake it i%possible for
lower inco%e fa%ilies to live in the neighborhood, or so%e other protected
group what other groups?
o :33$P v& *ount (aurel %ount laurel had zoning laws that %ade it
essentially i%possible for low inco%e fa%ilies to %ove into the entire
%unicipality& While *ount (aurel argued that it was for the general
welfare, the court held that it's definition of general welfare was too
narrow& 3 %unicipality is delegated police power by the state and when
the state uses it's police power, it is for the benefit of all of its citizens&
Therefore, when a %unicipality is e.ercising its police power that has
substantial effect outside the %unicipality, on the general welfare of
other citizens of the state, then %ust take those other citizens' general
welfare into account, proportionately
o TH2,2 5 3: 3++,*3T<2 ,9HT T" ("W :$"*2 H"-5:9
The e.clusion for housing for the poor is contrary to the Egeneral
welfare>