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PROPERTY II OUTLINE
I. Leasehold Estates
A. Tenancy for Years (Fixed Term)
1. For a fixed term which doesn’t have to measured in years
2. A term must be fixed period of time but it can be terminable earlier upon the
happening of some event
a) The calendar dates for the beginning and ending of the lease period is
ascertainable
b) One year from the date of signing of this lease, once the lease is signed
the beginning and ending dates are ascertainable, so NO notice is required
3. Ex- you decide to rent from Pat as long as your in law school and pay $500 a
month but then you find a better apt for $400 – your not required to give any
notice that your leaving BUT you still will have to pay rent for the time that your in
law school to Pat
B. Periodic Tenancy
1. This tenancy is for a fixed period of time until either the LL or tenant
gives notice of termination bc it doesn’t have a definite term of how long you
are staying
a) If you don’t give notice than you automatically start a new period and
you have to pay so it continues until termination
b) From month to month, absence contractual provisions to the contrary,
the terms and conditions carry over from period to period
2. Under CL, 6 months notice is required to terminate a yr to yr tenancy
a) For periodic tenancy for less than a yr, notice of termination must be
given equal to the length of period but not to exceed six months
b) If you have a monthly basis you give notice on June 1 then you have
until July 1
(1) The notice must terminate the tenancy on the final day of the
period and not in the middle of the tenancy
(2) Ex – If a month to month tenant who began on Jan.1 decided on
march 2- terminate, the earliest termination date is April 30
c) 5 yr period tenancy – there is a 6 month cap of notice
3. In most states, for a periodic tenancy you just need to give 30 days notice prior
to the termination of the lease for a month to month lease, yr to yr lease
4. A periodic tenancy is more loosely than terms of years, less details are in
writing
a) Ex- you can live in your apt for how ever long for $500 a month and in 3
months if you want to move into a newer apt $400 – must give notice of
termination
C. Tenancy at Will
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(b) Exemptions
Nothing in section 3604 of this title (other than subsection (c) shall apply to -
(1) any single-family house sold or rented by an owner: Provided, That such private individual owner does not own
more than three such single-family houses at any one time: Provided further, That in the case of the sale of any
such single-family house by a private individual owner not residing in such house at the time of such sale or who
was not the most recent resident of such house prior to such sale, the exemption granted by this subsection shall
apply only with respect to one such sale within any twenty-four month period: Provided further, That such bona
fide private individual owner does not own any interest in, nor is there owned or reserved on his behalf, under any
express or voluntary agreement, title to or any right to all or a portion of the proceeds from the sale or rental of,
more than three such single-family houses at any one time: Provided further, That after December 31, 1969, the sale
or rental of any such single-family house shall be excepted from the application of this subchapter only if such
house is sold or rented (A) without the use in any manner of the sales or rental facilities or the sales or rental
services of any real estate broker, agent, or salesman, or of such facilities or services of any person in the business of
selling or renting dwellings, or of any employee or agent of any such broker, agent, salesman, or person and (B)
without the publication, posting or mailing, after notice, of any advertisement or written notice in violation of
section 3604(c) of this title; but nothing in this proviso shall prohibit the use of attorneys, escrow agents,
abstractors, title companies, and other such professional assistance as necessary to perfect or transfer the title, or
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(2) rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more
than four families living independently of each other, if the owner actually maintains and occupies one of such
living quarters as his residence.
§3604 – Discrimination in the Sale or Rental of Housing and Other Prohibited Practices
As made applicable by section 3603 of this title and except as exempted by sections 3603(b) and 3607 of this title, it
shall be unlawful --
(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or
otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status (bc
you have children), or national origin.
(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the
provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or
national origin.
(c) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement,
with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on
race, color, religion, sex,
handicap, familial status, or national origin, or an intention to make any such preference, limitation, or
discrimination.
(d) To represent to any person because of race, color, religion, sex, handicap, familial status, or national origin that
any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.
(e) For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding
the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex,
handicap, familial status,
or national origin.
(f)(1) To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or
renter because of a handicap of - A LL has to make reasonable accommodations to the handicap
(A) that buyer or renter
(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available;
or
(C) any person associated with that buyer or renter.
(2) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in
the provision of services or facilities in connection with such dwelling, because of a handicap of -
(A) that person; or
(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available;
or
(C) any person associated with that person.
(3) For purposes of this subsection, discrimination includes –
(A) a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing
premises occupied or to be occupied by such person if such modifications may be necessary to afford such
person full enjoyment of the premises
except that, in the case of a rental, the LL may where it is reasonable to do so condition permission for a
modification on the renter agreeing to restore the interior of the premises to the condition that existed
before the modification, reasonable wear and tear excepted.
(B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such
accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling; or
(C) in connection with the design and construction of covered multifamily dwellings for first occupancy
after the date that is 30 months after September 13, 1988, a failure to design and construct those dwellings
in such a manner that -
(i) the public use and common use portions of such dwellings are readily accessible to and usable by
handicapped persons;
(ii) all the doors designed to allow passage into and within all premises within such dwellings are
sufficiently wide to allow passage by handicapped persons in wheelchairs; and
(iii) all premises within such dwellings contain the following features of adaptive design:
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accessible locations;
(III) reinforcements in bathroom walls to allow later installation of grab bars; and
(IV) usable kitchens and bathrooms such that an individual in a wheelchair can maneuver
about the space.
1. Discrimination based on handicap. ‘Handicap’ as defined by 3602(h) of the
Fair Housing Act, which states that the term means, ‘ physical or mental
impairment which substantially limits one or more of [the handicapped person’s]
major life activities, a record of having such an impairment, or being regarded as
having such an impairment, but such term does not include current, illegal use of
or addition to a controlled substance
a) Can discriminate against handicap but must make reasonable
accomodations
IV. Delivery of Possession
A. The LL must give the tenant at the beginning of the lease term the right of
possession.
1. If the LL does not have a right of possession or if she fails to transfer it to the
tenant, the LL is in default
2. Hannan v. Dusch – uses the American rule (minority) which says when the
new tenant fails to obtain possession of the premises only bc the former tenant
wrongfully holds over, his remedy is against the wrongdoer not the LL
3. English Rule (majority)
a) Where the tenant’s entry into possession is delayed beyond the date on
which the term was to begin he is not obligated to pay rent for the portion of
the term which he kept out of the possession and may collect appropriate
damages
b) This imposes a duty of the LL, the duty of giving the tenant both the
legal right of possession and actual possession. If the prior tenant is
holding over, it is the duty of the LL to get him out
(1) You have to give physical possession
4. American Rule (minority)
a) The LL need deliver only the legal right of possession. Holdover tenants
become the new tenant’s problem and has to sue to get them out at his own
expense
b) The tenant has sufficient legal and equitable remedies and a greater
incentive to use them than the LL would have
V. Subleases and Assignments
A. Sublease – the tenant who subleases is a LL to his subleassee
1. There is no privity of estate btw the original LL and the subleassee, and neither
one can sue the other
2. At CL if the subleasing tenant conveyed anything less than the whole leasehold
(meaning they retained a reversion) it was a sublease
a) Modernly look to the intent of the parties
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(1) If the transferring parties charges more rent that eh has paid, the
courts view as a sublease
(2) If the lessee transfer his entire interest but the instrument of
transfer provides that if the transferee breaches his obligation of the
lease = sublease (minority)
B. Assignment – leases may be assigned by either the lessee or lessor absent some
contractual provision to the contrary
1. The new tenant is in privity of the estate with the LL and unless otherwise
provided, their obligations are the same as in the original lease
2. At CL if the subleasing tenant conveyed the whole leasehold (not one thing less)
it was an assignment
a) Modernly look to the intent of the parties
(1) If the transferee tenant pays a lump sum, the courts view this as a
assignment
(2) If a lessee transfer all of his interest n some physical part of the
premises = partial assignment (majority)
3. Ernst v. Conditt – Π owned the land, leased to Rogers and Rogers assigned to
∆, there was a fixed lease for a period, where the lessee could pay rent or give the
lessor 15% gross profits
a) The court said no privity of estate btw the LL and the new tenant but
there is privity of estate with tenant 1 and tenant 2. When you are in privity
of estate you are liable for those covenants attached to the land
(1) Since it was an assignment btw Rogers and ∆, ∆ was primarily
responsible to Π
(2) Bc it is an assignment the LL (owner of the property) could go
after Rogers or ∆
4. Kendell v. Ernst - A commercially reasonable basis is a business reason rather
than a personal or discriminatory reason, and rather than an excuse of extort to
more rent.
a) The majority rule allows a lessor to arbitrarily refuse to consent to a
proposed assignment although in many cases the lessor is found by its
conduct to have waived the right to refuse.
b) The minority rule modified the rule by permitting a lessor to withhold
consent only when it has a commercially reasonable objection the
assignment.
(1) Lease is a contract and includes a duty to act in good faith and to
deal fairly. Generally a contract that gives one party discretionary
power that affects the other party also imposes a duty to exercise that
power in good faith
c) Bottom line: YOU ONLY NEED CONSENT TO SUBLEASE OR ASSIGN
TO A THIRD PARTY IF THE LEASE SAYS YOU NEED CONSENT. If the
lease doesn’t say you need consent than you don’t need consent.
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trends of fairness and equity that a LL has a duty to mitigate damages where
he seeks recover rents due from a defaulting tenant.
(1) If the LL has a duty to make reasonable efforts and shall carry the
burden of proving that he used reasonable diligence in attempting to
re-let the premises.
E. Justifications against mitigation
1. When the LL mitigate damages by re-letting abandoned premises, there may be
an unwilling acceptance of the surrender offered by the defaulting tenant
a) Ordinarily the tenant bears the cost of any reasonable expenses incurred
by a LL in attempting to re-let the premises
2. Surrender – terminates a lease, provided of course that the LL accepts the
tenant’s offer
a) If the surrender is effected it extinguishes the lessee’s liability for future
rent but not for accrued rent or for past breaches of other covenants
3. The CL rule still follows in some jurisdictions that the LL may not need to
mitigate. However the LL may have an option of:
a) terminating the lease
b) obtaining another tenant while holding the original tenant liable for any
deficiency that may occur
c) permitting the premises to remain vacant while collecting the agreed
upon rent from the original tenant
(1) However, some jurisdictions apply it only to commercial leases
and not residential leases
4. Abandonment – when tenant occurs he vacates the leased property without
justification and without any present intention of returning and he defaults in the
pymt of rent
5. LL remedies –
a) Rent and damages – the tenant has failed to pay rent when due or has
breached some other lease obligation.
(1) The LL has the right to sue for back rent and for damages
occasioned by the tenant breach of lease.
(2) OR if the tenant is in possession the LL may terminate the lease
and recover possession.
b) Doctrine of Anticipatory Breach – if a LL terminates bc of a breach
of lease, he may recover in addition to back and other damages, the present
value of the amt by which the unpaid rent for a balance of the term exceeds
the amt of such rental loss that the lessee proves could be reasonably
avoided provided the lease either expresses such a remedy or the LL has re-
let to mitigation
(1) Mitigation is built in to this
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c) At CL the failure by the tenant to pay rent did not of itself permit the LL
to terminate the lease, the LLs remedy rather was to sue for the rent due
(1) Modernly – contract law is to the contrary and the law of the LL
tenant is coming to be so as well
(2) In response to the CL rule, LLs began putting forfeiture clauses in
the lease.
(a) If the clause was phrased to end the lease automatically in
the event of the tenant’s breach, the LL could resort to the sort
of summary proceedings.
(b) If the clause merely gave the LL an election in the event of
the breach the LL could only accomplished through the
cumbersome ejectment remedy
(i) Today most jurisdictions have done away with CL
technicalities
d) Security devices – most LLs want more and they have over the yrs
developed a number of techniques to protect themselves in the event of a
tenant’s default (i.e. security deposits)
VI. Quiet Enjoyment & Constructive Eviction
A. At CL, the LL was under no duty to furnish habitable premises, absent contractual
provisions to the contrary. However if there were defects or dangerous conditions
known to the LL and not easily discoverable, the LL had a duty to disclose the defect.
1. Quiet Enjoyment – This means that the LL cannot interfere with the tenant’s
use of and enjoyment of the premises.
a) This covenant is implied in every lease.
b) Even at CL, where the GR was caveat lessee, breach of this covenant
absolved the tenant from his responsibility to pay rent.
(1) This covenant can be breached by either actual eviction or
constructive eviction
c) Actual eviction – if the LL evicts the tenant from the entire leasehold,
the tenant may treat the lease as breached and terminate it. He no longer
has to pay rent.
(1) If the tenant is evicted from only a portion of the leasehold, he
may stay on the premises and refuse to pay rent until the LL restores
the entire premise to the tenant
d) Constructive eviction – if bc of the LLs fault the tenant’s quiet enjoyment
of the premises is substantially interfered with the tenant may treat the
lease as terminated and vacate the premises. He is no longer liable for the
rent. – COMMERCIAL--
(1) The theory behind this is that the LL has so interfered with the
tenant right of possession that she might as well have evicted the
tenant. The necessary elements are:
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1. Duty to Repair – at CL a tenant has the duty to keep the premises in as good
a condition as when he leases it.
2. Duty Not to Commit Waste – a tenant is liable for waste, waste is one of the
two types, ameliorating or damaging
a) Ameliorating waste – if the tenant improves the premises he commit
ameliorating waste. At CL he was liable for this. Modernly they do not
hold tenants liable for this as long as the value of the premises is not
lessened
b) Damaging waste – if a tenant substantially damages the premises, he
is liable. The injury must be one that extends beyond the end of the lease
term. In certain conditions a LL may get an injunction to stop the damage.
A tenant is not liable for ordinary wear and tear.
3. Duty to Pay rent – traditionally the tenant had had the obligation to pay the
rent called for in the lease whether or not the LL performed her part of the lease.
If the value of the rent is not specified or lease is illegal the tenant must pay a
reasonable rental value.
a) Today most jurisdictions excuse further performance from both parties
in cases of accidental destruction
D. The Problem of Affordable Housing
1. Govt Intervention
a) Selection of Tenants – traditionally, a LL could lease or not lease to
whomever she pleased for whatever reason she chose based on race.
Discrimination based on sex, race, and the like were possible in every case.
(1) Civil Rights Act of 1866 – This act prohibited racial and only
racial, discrimination in the leasing and selling of real and personal
property. An aggrieved party could sue the LL or seller for an
injunction or damages
(2) Fair Housing Act of 1968 – This congressional Act prohibits
discrimination in selling or renting based on race, color, religion, or
national origin. The Act was amended to prohibit discrimination
based on sex in 1974.
(a) Exceptions – In the case of single family dwellings a
seller or lessor can discriminate if she owns fewer than four
such dwellings does not advertise in a manner that indicates
her intent to discriminate
(b) Remedies – only the US Attorney General, HUD, or the
aggrieved party may sue the discriminating LL or seller
(c) Prima facie case and burden of proof – once the
aggrieved party makes out a prima facie case, the burden of
proof shifts to the LL to the seller
b) Rent Control – The shortage of affordable housing in many areas has
let to an escalation in rent. Bc of the serious impact on the public generally
many jurisdictions adopted rent control regulations. The courts have
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generally upheld these regulations, so long as the interests of the LLs are
fairly considered.
2. Chicago Board of Realtors v. City of Chicago - Posner says its not
constitutional but the majority opinion says that its make sense that the ordinance
is ok for the safety and health and welfare of the citizens.
a) This was the concurring opinion – stating that if we have to make the
LLs apply to these heighten standards a lot of people are going to be shit out
of luck bc the poor ppl aren’t going to be able to afford the rent. There wont
be as many apts for rent bc the LLs don’t want to complying with the
standards.
(1) Forbidding LL to charge interest at market rates on large rent
pymts does not meet the purpose or improve the quality of the
housing stock. Its effect will be reduced LLs resources and the
resources they devote to improving housing.
(2) Their apparent rationale is to transfer wealth from LLs and out of
state backs to tenants and local banks making this an unedifying
example of class legislation and economic protectionism rolled into
one
E. The Debate over LL Tenant Reforms
1. Govt Subsidized Housing
a) Legislation – the federal govt became involved in housing in the 1930s.
The US Housing Act lets the local public housing authority (PHA) sell tax-
exempt govt bonds to raise revenue. The revenue is sued to construct local
low income housing
b) Regulations – of course numerous regulations need to be complied
with in bldg public housing. Bldg sites must be approved by the local govt
in accordance with federal guidelines. Regulations require that bldg sites be
located outside areas of high minority concentration. PHAs are more eager
to locate the housing in racially segregated areas. The aid of federal courts
has been invoked to force local compliance with the regulations
c) Local approval – A state constitutional requirement that a low rent
housing project can be developed only after approval by a majority of the
local residents has been upheld. The court held that the constitutional
requirement was neutral on its face and not in fact aimed at racial
minorities, Economic, but not racial, discrimination is permissible
d) Admission to public housing – the PHA is free to decide its own
admission requirements with the exception that preference is to be given
veterans and persons displaced by urban renewal. Some courts have held
that a person is entitled to an informal hearing on his eligibility
e) Rent increases in public housing – It has been held that a tenants
right to low rent housing is a property right that is subject to due process.
With this as a rationale, courts have held that tenants are entitled to
exercise certain rights prior to rent increases
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2. Negative easement – this is the right to make the owner of the servient land
not do something that he would otherwise be entitled to do, such as build a
swimming pool within 20 feet of the neighbor’s yard. These easements are
disfavored by the court and instead the courts will construe them to be covenants
or servitudes
a) Gives the holder the right to prevent the possessor of the servient estate
from doing some act on the servient estate
b) Courts recognize some types of negative easements:
(1) Right of airflow
(2) Right to light
(3) Right to channeled water flow
(4) Right to lateral support
(5) Solar easements conversation of easements
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a) The claimant must act in justifiable reliance on the statement. But most
courts will not find an easement by estoppel if the claimant should have
verified the fact represented before relying on it
b) The relationship btw the parties are critical factors in determining
whether an easement by estoppel exists
(1) Courts will evaluate the facts and ifind an easement by estoppel
where they feel the claimant acted in good faith on servient estate
owners words or actions
E. Creation by Implication – an easement may be implied when necessary to
carry out the intent of the parties or when required by public policy
1. Easement by (strict) Necessity- if at the time a grantor divides a tract of
land and conveys part of it to another (say to B) the only means of ingress and
egress is over the remaining land. This form of easement terminates when the
necessity terminates
a) Known as the easement implied by necessity for egress and ingress,
strictly necessary for the enjoyment of a parcel of land, involve access to and
from landlocked property
b) Othen v. Rosier – Π owed 93 acres of land after a number of
conveyances from Hill. ∆ owed 116.3 acres from Hill and Π had to use ∆
land to get to the road which after a bit ∆ constructed a levee which caused
Π walk a muddy mess
(1) Before an easement of (strict) necessity can be implied it must be
shown that
(a) Common owner severed the property there was a unity of
ownership of the alleged dominant and servient estates
(b) The necessity, not mere convenience, for egress and
ingress existed at the time of the severance
(c) The easement is strictly necessary for egress from and
ingress to the landlocked parcel
(i) Egress – the act of going out
(ii) Ingress – the act of entering
(2) An easement by necessity endures so long as it is necessary – if
the dominant owner secures another way out from the landlocked
parcel, the easement by necessity ceases
(a) Strict necessity is an absolute necessity
(3) The court found that since Hill conveyed his entire acre there is
no easement exist to the land
2. Easement By Prior Use (quasi easement) –a single tract of land is
divided into two (or more) parcels there is an existing quasi-easement reasonably
necessary for the enjoyment of the property that the court believes was intended by
the parties to continue.
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a) Van Sandt v. Royster – sewer pipes ran under property and there was
no reservation of an easement for the sewer lines that ran through Π
property (there was a number of conveyances that finally came to Π and ∆
land). The sewage of ∆ floods Π basement
(1) An easement results from an inference as to the intention of the
parties at the time of the conveyance or at least have been within the
possibility of their knowledge of at the time – elements of easement
by prior use
(a) Unity of ownership is severed - Common owner
(b) The use was in place before the parcel is severed – prior
use
(i) What a reasonable person would expect the use to
continue no matter who owned the property
(c) The use must have been visible or apparent at the time of
the severance and
(i) Uses or conditions discoverable by a reasonable
inspection
(ii) Driveways are obvious, sewers and underground
utilities are considered apparent
(d) The easement is necessary for the enjoyment of the
dominant estate
(i) Reasonable necessity for fair enjoyment (some
courts how only for implied grants)
(ii) The restatement evaluates the totality of the facts to
determine whether the parties would have intended the
easement if they had thought of it at the time of
subdivision
3. Prescription - just as by AP one may obtain title to property so by
prescription one may obtain an easement. Similarly, if the would be prescription
user has the permission of the owner, he cannot obtain a prescriptive easement,
elements are:
a) Actual use
(1) Physical presence on the servient estate – to prohibit negative
easements
b) Open and notorious use
(1) Open and visible so that the landowner will or should notice the
use
c) Hostile use (adverse use) (claim of right)
(1) Claimant uses another property without permission
d) Continuous and uninterrupted use
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(1) Only that the claimant use is consistent with that of a reasonable
easement holders use
e) Exclusive use (in minority of states)
(1) The claimant use is distinguishable from the use made by the
general public and that the landowner is not using the property in a
way that would prevent the claimant from enjoying the easement
f) Statutory period
4. Matthews v. Bay Head Improvement Association – Π used ∆ land (beach front
property) to get to the beach on the dry sand.
(1) The dry sand is reasonably necessary for the enjoyment of the
ocean and warrants the public to use the land subject to the
accommodation of the interest of the private owners
(2) There is no need to apply the notion of easement by prescription
bc the beachfront is quasi public nature and is apparent and
therefore it must be open to the public
F. Assignability of Easements
1. Assignable means the easement can be sold, gifted, devised, inherited or
otherwise conveyed. Assignable depends on several factors – major factor whether
easement appurtenant or gross
a) Easements appurtenant run with the land – so whoever possesses the
dominant estate has the right to continue the easement over the servient
estate
(1) The servient estate remains burdened with the easement no
matter who owns the servient estate
b) Easements in gross benefit a person whether or not he owns a particular
parcel of land (no dominant estate)
(1) Commercial easements in gross (those making money or profits)
are assignable bc if they weren’t assignable than the purchasing
company would not be able to use any of the things on the servient
estate
(2) Non-commercial, most courts, prohibits the assignment of
noncommercial to be assignable unless the parties intended it to be
assignable
G. Divisibility and Apportionment – the easement holder attempts to share the
easement with others or to assign, divide or apportion
1. Easement Appurtenant – by selling parcels of the dominant state, transfers the
easement with each parcel.
a) Each resulting parcel becomes a dominant estate and the owner enjoys
the easement over the servient estate so long as the dominant estates don’t
overburden the servient estate
2. Easement in Gross – since not assignable there never divisible or
apportionable – the following applies only to commercial easements in gross
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A. Termination
1. By terms of the Grant – the deed or will granting or reserving the easement
may set an expiration date, terms of yrs or a condition
2. Purpose for easement ends – an easement terminates when the purpose for the
easement ends
a) It applies to all types but most often applies to terminate easements
implied by necessity
3. Merger – once a person gains concurrent ownership of both the dominant
estate and servient estate, the estate merges and the easement disappears
a) The old easement does not re-appear
4. Forfeiture for Misuse – a court may declare an easement forfeited for misuse.
The more common action is an injunction halting the misuse
a) If the court cannot be used without benefiting property adjoining the
dominant estate, a court will enjoin all use of the easement until the
easement holder can stop the misuse
5. Release – the easement holder by deed can transfer part or all of the easement
to the servient estate owner. The transfer is called a release, which must be in
writing
6. Abandonment – two elements, intent to abandon and subsequent non use –
mere non use, no matter how long the duration of the non use DOES NOT =
abandonment
a) Intent to abandon – must be evidence by some identifiable and
unambiguous act inconsistent with the continued ownership of the
easement
(1) Non use for a long enough time does give credence that some oral
pronouncement or act taken long ago constituted the requisite
unambiguous act denoting the intent to abandon – that isn’t the best
evidence though
(2) The best evidence is a deed or written document which moves
abandonment very close to release
b) Presault v. US – the railroad service stopped in 1970 and removed the
tracks going through Π parcel but never applied for abandonment. Ten
years later the state agreed to maintain the former tack strip as a public
trail.
(1) In order to establish abandonment there must be in addition to
non user, acts by the owner of the dominant tenement which
manifest either a present intent to relinquish the easement of a
purpose inconsistent with it’s a future existence
7. Estoppel – the servient estate owner can extinguish an easement by estoppel –
the same standards applied as the creation
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Horizontal privity
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2. Horizontal privity – refers to the necessary relationship btw the original parties
to the agmt for the covenant to run with the land
a) Horizontal privity is not necessary for the covenant to be enforced btw
the original parties
b) Majority of states say horizontal privity will be found only if the
covenant created when on original party transfers an interest in land to
another original party
(1) Some states have drop the horizontal privity requirement
3. Vertical privity – refers to that relationship btw an original party to the K and
those subsequent purchasers tracing their interests in the benefited or burdened
property back to the original party
a) All the vertical privity elements requires is that the subsequent property
owner to benefit or to be bound, must succeed to an original party’s entire
estate in the property, either directly from an original party or through
persons who can trace their interest back to an original party to the
covenant.
(1) For the burden to run to a successor or remote party, the party
must have succeeded to the original promisor’s entire estate or
ownership interest
(2) For a benefit to run that a remote or subsequent purchaser have a
possessory interest in the property
b) Ex) The grantor conveys to the grantee (horizontal privity) – under
common ownership. Then grantor conveys to subsequent owner, B, and
then the grantor and B have vertical privity. If B purchases without notice B
is a bona fide purchaser.
c) For the burden to run, all courts require vertical privity and some courts
also require horizontal privity
(1) Most courts say notice isn’t required for the benefit
XIII. Equitable Servitudes (servitude meaning burden) ES is nothing more than a NEGATIVE
EASEMENT
A. Definition - An equitable servitude is defined as a covenant enforceable at equity
against the assignees of the burdened land. It does not matter whether the covenant
runs with the land.
1. Equitable Servitudes – courts of equity expanded the subsequent purchasers
who would be bound and burdened under the theory
2. Both RC and ES are binding on subsequent BFP must comply with the state’s
recording statute, elements
a) Must satisfy S o F
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a) The recording acts require a BFP for value have notice of the burden
before a court will subject the subsequent purchaser to the burden.
2. Most subdivision ordinances require that the subdivider file documents
including a map or plat. Most courts hold that recorded subdivision plat
constitutes the notice necessary to satisfy the notice requirement for the ES
3. Common Scheme and the S o F - ES are interest in land and must be created in
writing to satisfy the S o F
G. What constitutes a Common Scheme
1. Common Covenants – the common scheme will be found if a suitable
percentage of lots in the subdivision are subject to common covenant
2. When a Common Scheme Begins – a common owner may own a tract and sell
lots from it before the common plan is developed. Since these lots were sold before
the common scheme of development began, they are not part of the common
scheme
3. Geographic Boundaries of Common Scheme – the common owner may own
just one tract but intend to develop only part of the tract under the common
scheme
a) A common scheme on part of the tract will not be burden the land and
not made a part of the common scheme
XIV. Termination of Covenants and ES
A. Termination
1. By the terms of the covenant – many covenants by their terms continue for a
specific number of yrs or until the occurrence of some event
2. Merger – since RC or ES envisions rights and obligations btw landowners, once
a common owner acquires the benefited property and the burdened property, the
covenant or servitude terminates through a merger
3. Release – owners of the benefited property can grant a written release to the
owner of the burdened state and should be recorded in the deed records
a) Rick v. West – Rick (different than Π) acreage was restricted to single
family dwellings, Rick sold a lot to ∆ and 45 acres to an industrialist
pending it was re-zoned but ∆ would not release the covenant, so Rick
conveyed the remaining acres to Π. Π contracted to sell 15 acres to a
hospital but ∆ would not release the covenant
(1) ∆ relied on the covenant that there was going to be residential
housing and the restrictive covenant is valid and binding as the day it
was made
(2) you cannot balance Ricks economic value v. West’s intrinsic value
4. Recession – landowners can execute a document rescinding the covenant so
that the covenant no longer binds any property
a) The recession is effective only if all persons with standing to enforce the
covenant join in executing the document
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5. Unclean Hands – courts will not allow a landowner to violate a covenant and at
the same time to enjoin another landowner from violating the same covenant
a) Π cannot enforce the covenant if he has unclean hands
6. Acquiescence – results when a Π property owner passively endures multiple
violations of the covenant by many lots in the community
a) It envisions such a pattern of violation has occurred that enforcing the
covenant in this one instance would serve no purpose
7. Abandonment – occurs when such a high number of landowners in an area
violate the common covenant that btw their unclean hands and acquiescence the
covenant becomes unenforceable by any benefited landowners
8. Laches – occurs when a person having a right to enforce a covenant waits so
long to bring suit to enjoin a violation that the breaching ∆ is unduly harmed by
the delay itself
a) The delay must be unreasonably long delay under the circumstances
b) Laches does not actually terminate a covenant but it merely prohibits the
enforcement against the ∆ for a specific breach
9. Changed Conditions – covenants can be terminated if the conditions in the
neighborhood have so changed that the covenant no longer serves its intended
purpose
a) Western Land Co. Truskolaski – Western subdivided a tract of land that
was primarily for residential purposes, the lots had restrictive covenants
that limited to land to single family dwellings. In time the area developed
and shops were built. ∆ complained there were significant changes
(1) As long as the original purpose of the covenants can still be
accomplished the substantial benefit will inure to the restricted area
by their enforcement, the covenants will stand even though the
subject property has a greater value if used for other purposes.
(2) Where zoning and restrictive covenants conflict, the more
restrictive prevails
10. Relative hardship – balance the benefits to the neighboring property from
maintaining the covenant against the harm to the burdened property if the
restriction remains.
a) If the harm is disproportionately great compared to the benefit to the
neighboring properties, a court in equity might choose not to enforce the
covenant
b) Nashrstedt v. Lakeside Village Condo – Π sued to be entitled to keep
her three cats in her condo notwithstanding the restrictions imposed by
covenants, conditions and restrictions
(1) Restrictions that are not arbitrary against public policy or that
impose a burden on use that greatly outweighs any benefit will not be
enforced. Enforcement of a restriction does not depend on an
individual owner’s conduct but on the reasonableness.
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11. Recording Acts – A subsequent BFP who takes without actual, constructive, or
inquiry notice is not bound by the covenant
12. Eminent Domain (condemnation) – federal, state, and local govt can force
landowners to sell their property to the govt as long as the govt pays for the
property
XV. Nuisance
A. Nuisances are interference with a person right to quiet enjoyment of her land. The
interference must be an invasion of the land. There are two types of nuisances,
private and public.
1. Nuisance law meaning that one should use one’s own property in such a way as
not to injure the property of another.
a) The interference can be intangible invasion such as smells, light, sounds,
etc
b) Nuisances at Law – A nuisance at law (nuisance per se) is one not
permitted in the neighborhood in question.
c) Nuisances in fact – a nuisance in fact (nuisance per accidents) are one
that due to the location or circumstances is a nuisance.
2. Unintentional Act – an unintentional act may be a nuisance. When an
unintentional act is involved the court must take into acct not only the gravity of
the harm (as in intentional act cases) but also the conduct of the ∆.
3. Intentional invasion is unreasonable for purpose of nuisance law if
a) As before the gravity of the harm caused outweighs the utility of the
actors conduct
b) The harm caused by the conduct is serious and the financial burden of
compensating this and similar harm to others would not make the
continuation of the conduct not feasible
4. Compared to Trespass – an invasion of a Πs land may be either a trespass or a
nuisance. The chief distinction is that a nuisance involves interference with the
quiet enjoyment of the land and trespass involves interference with the right to
possess the land
B. Elements
1. Intentional and Unintentional Interference
a) Unintentional – usually resulting from negligent, reckless, or
abnormally dangerous activities
b) Intentional - The ∆ knows or should know that the interference with the
use of enjoyment of land but feels that society should tolerate or encourage
that activity
(1) It does not mean the ∆ intends to interfere with the Π use and
enjoyment
2. Substantial Interference
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b) Public nuisances protect public rights, any member of the affected public
can sue but usually only if the person bringing suit can show special injury
2. Spur v. Del Webb – Spur owned a feedlot for awhile prior to the development
of the housing subdivision which Π began constructing. Π began to complain
about the smells from the feedlots
a) Coming to the nuisance – when a residential landowner came into the
neighborhood reserving for industrial or agricultural endeavors, they may
not have relief
(1) The coming to the nuisance does not necessity completely bar the
Π from damages or injunctive relief but it’s a relevant factor
b) The operation is both a public and private nuisance. Π is going to have
move but not bc of any wrongdoing on his part but bc it’s a proper and
legitimate regard by the courts for the rights of the public (even though
when Π developed the feedlot there was no indicate of residential bldgs)
(1) Webb is going to pay Π money for the reasonable amt of the cost
of moving or shutting down his business
(a) This is odd that the person who caused the nuisance is
being awarded money
E. Lateral and Subjacent Support
1. Lateral support refers to that provided to one piece of land by the parcels of the
land surrounding it
a) Lateral support can be waived and it can be expressly expanded
2. CL imposes a duty on neighboring land to provide the support that the subject
parcel would need and receive under natural conditions, ordinarily there is no
right to support of structures on the land
3. Generally there is no liability absent negligence if subsidence of improved or
unimproved land is shown to have been caused by withdrawal of fluids
4. Subjacent support refers to support from underneath as opposed to the sides
a) Arises when one person owns surface rights and another person owns
some kind of subsurface rights such as a mineral interest
F. Remedies - There are basically two types of remedies.
1. Four Rules – A conventional view of the nuisance claims could be resolved in
one of four ways
a) Abate the activity in question by granting the Π injunctive relief
(Morgan and Estancias)
(1) Balancing the equities, and change your process a little – now
there is a nuisance – there is more likely to be injunction if the
harm is greater than the utility
b) Let the activity continue if the ∆ pays damages (Boomer)
(1) There is a nuisance is more substantial but we really need the
activity but they are going to compensate you for the damages.
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(1) Taken the value of the harm suffered by the Π in past and the
present and going into the future
(2) One pymt
c) Temporary damages
(1) Lesser, basically the damages occurred from the time the
nuisance began to present (so its past to present)
d) Boomer v. Atlantic Cement Co - ∆ operates a cement plant and the
neighboring land owners allege injury, suing for injunction and damages
(1) The court will grant the injunction unless ∆ pays Π permanent
damages. The theory of damages is the servitude on the land of Πs
imposed by ∆s nuisance. So Π is getting and injunction bc ∆ is not
going to pay permanent damages
(a) Permanent damages are damages for the problem in the
future
XVI. Zoning
A. Zoning Power - only the state has the power to zone (police power)
1. Goals of Zoning – Zoning has as it goal the orderly development of the
community. It promotes economic growth, community health, welfare and safety
2. One of the fundamental characteristics of zoning is that it segregates uses of
land into geographic regions. For health and safety reasons, zoning can regulate
the density of the human population.
3. Zoning restrictions must be for a legitimate govt objective. The EPC requires
that all landowners who are similarly situated be treated equally, unless there is a
legitimate reason for not doing so.
a) Zoning ordinances are constitutional unless you can prove that its
(1) arbitrary and capricious
(2) lacks substantial relationship to the police power
(a) Apply rational basis test
(3) Court will declare the law unconstitutional
b) Eminent domain, if zoning regulations amt to taking, just compensation
must be given by the state
c) Taking – the local govt property exercises it police power when it phases
out uses that are inconsistent with newly enacted zoning changes.
(1) A use that, due to zoning change, is no longer permitted is a
nonconforming use. Most courts say that the landowner must be
given a reasonable time to cease his nonconforming use.
B. Standards of Review (different burdens of proof)
1. Rezoning legislative actions
a) Rational Basis – when a city amends the ordinance
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(2) Zoning Board is a board that oversee ordinances and gives advice
to the legislatures about enacting zoning ordinances
(3) Zoning Board of Appeals/Adjustment is the board to appeal
whether an application is denied bc of a zoning problem
c) Comprehensive Plan – the enabling acts inevitably require zoning
authority to determine a plan which the legislatures must conform too
(1) Statement of govt objectives which establish the goals that the
regulations were set out to achieve
2. The city council may want to re-think zoning and then can re-zone, however
most states enabling acts (this is the power that is given from state to the local city
council) – want to have public hearing to discuss the zoning ordinance
a) Elected body has the police power to promote the health, safety and
welfare so they make the zoning ordinances
b) The board that grants special exception and they are appointed but they
can’t discuss what is going to promote the public welfare just granting or
denying the special exceptions
D. Cumulative Euclid Zoning
1. Village of Euclid v. Ambler Realty Co. - A zoning ordinance, to build
residential property, is going to make Amber’s property less valuable so Amber
decided to repeal the ordinance.
a) Property is a fundamental right and for a state to make an ordinance
that would take property away from others would violate their fundamental
right unless the state has a legitimate and important interest
(1) Properly more like intermediate scrutiny – the legitimate and
important interest in protecting the public welfare. A legislature
cannot act arbitrary and capricious
(2) You can say an ordinance is unconstitutional bc
(a) Either it was facially unconstitutional or
(b) You can say what it is doing makes it unconstitutional
b) Bottom line – zoning is not unconstitutional bc it is within the police
power of the state and is rational
2. Higher zones are allowed in all lower zones but no use can be located in a
higher zone than the zone in which it was first listed
3. Zones are ranked by hierarchy
a) The districts limited to residential uses are know as higher zones
(single family houses)
(1) Less harmful to others
b) The districts allowing multifamily dwellings are lower zones
(1) More harmful to others
(2) Commercial and industrial zones are lower
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2. Zoning does not take into acct the particularities of every lot in the zone. They
are empowered to grant variances for conditions that are unique to a particular lot
or two. If the condition is not unique, a change in zoning should be sought.
a) Run with the land
b) Can be granted to permit a landowner to build or use the land that
otherwise is not permitted by the zoning ordinance
3. Has undue hardship (unnecessary hardship) – hardship that results in all or
almost all no use in which it was originally zoned
a) If granted the variance goes against the plan then the variance cannot be
granted rather you have to pay the Π for the land and results in a taking
(1) These are difficult to get
b) Amending the ordinance is done through the legislatures
4. Commons v. Westwood Zoning Board of Adjustment - Commons try to sell
their vacant lot to Weingarten. Weingarten was going to proposing to build a
house. The original zoning ordinance did not prohibit a minimum footage and
then the ordinance was amended to include a minimum amt on the footage of the
property. So the Commons applied for a variance to show that the ordinance does
apply to them so they can build the house
a) This is an area zone for the frontage of the house.
(1) A use is the characteristic of the use of the area (bakery, farm)
(2) An area deals the size, how big/small, the frontage. An area zone
is less important than a use zone.
b) You have to prove to the Board to be able to get a variance:
(1) As a result of the ordinance it created an undue hardship to me
(a) Undue hardship – no effective use can be made of the
property in the event of the variance denied
(b) The negative criteria – that it doesn’t go against the grain
of the zoning ordinance
(i) Judicial process – fact finder
c) Not allowing someone to do anything with the property creates an undue
hardship. The Π does have an undue hardship but he can’t prove the
negative criteria then you can’t get the variance.
(1) Variances are granted by the board who interprets the ordinance
not the legislatures.
B. Special Exceptions – legislatures states in advance that certain uses will be allowed
that are strict and specific materials have been met
1. Elements (if you meet them the special exception wont be granted) – Look to
the ordinance for the elements:
a) Certain requirements are met
b) Use is not adverse
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b) The idea of zoning just has to be rational basis however, if the zoning is
discriminatory then its intermediate scrutiny.
c) When a municipality adopts or amends a zoning ordinance it acts in a
legislative capacity under its delegated police powers. As a legislative act, a
zoning or rezoning classification must be upheld unless opponents prove
that the classification is unsupported by any rational basis or that the
classification amts to a taking without compensation.
(1) A special use provision permits property within the discretion of
the govt body to be used in a manner expressly authorized by the
ordinance.
(2) When a legislative does act there is a presumption of the validity.
Basically since their elected they know what they are doing, despite
wheat city planner’s recommend.
d) Spot Zoning – favorable treatment to an individual or unfavorable
treatment to individuals
(1) The zoning changes, typically limited to small plots of land, which
establish use classification inconsistent with surrounding uses and
create an island of non conforming use within a larger zoned district
(a) The burden of demonstrating that a particular zoning
amendment is spot zoning rests with the litigant attacking the
ordinance
(b) There isn’t going to be a presumption of validity when we
deal with spot zoning rather there is a presumption of
arbitrary and capricious when dealing with spot zoning
e) The court is saying that if the commissions (and the locals) are
complaining about this ordinance then maybe there should be a tougher
scrutiny than rational basis.
B. Aesthetic Regulation
1. State ex rel. Stoyanoff v. Berkeley – zoning ordinance is authorized, someone
wanted to build a house that was different than what is in the comprehensive plan
a) Aesthetics have a great deal of influence on property rights and therefore
the legislative can regulate this area but there are standards. There is a
delegation of powers btw the legislatives and the board to regulate these
standards. This is a valid police power.
(1) When the statutes are very subjective then you could also argue
it’s unconstitutionally vague.
(2) When the legislatives zone based on aesthetics is more subjective.
If we are going to grant a board to grant or deny something, in some
sort we are going to create a legislative body that will create
standards.
b) The court said that the house is a property right and therefore it should
be in congruence with the surrounding houses. The welfare of the
community involves the property value and therefore the general welfare is
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a broad power. So we don’t want to depreciate the value of the houses and
then be upset and then the people would be worst off.
2. City of Ladue v. Gilleo –When regulating the signage there is a 1st amendment
issue. You can’t have a city legislate free speech. When there is a fundamental
liberty interest (speech rights) there needs to be a higher standard for review. The
state needs to have a compelling state interest and the ordinance must be narrowly
tailored.
a) The problem with aesthetic regulation is when it interferes with a
fundamental right
b) The court said this was content neutral based and therefore you’re
regulating too much speech. If it is content based and non commercial
speech is gets a lot of scrutiny.
c) Signs w/speech
(1) Commercial vs. non commercial
(a) Non commercial – a little more scrutiny than commercial
(2) If its off cite v. on cite
(a) Is it on cite (at the speaker place vs. on a neutral place)–
more scrutiny
(3) Content based v. content neutral
(a) Content based – more scrutiny
(b) Content neutral – time, place, and manner
(i) Content neutral – is not prohibiting from what the
signs are saying but where the sign should be placed
(4) Residential v. commercial
(a) Residential – more scrutiny other than putting a limitation
on the size or something
(i) Highest scrutiny is residential, non commercial, on
site
C. Controls of Household Composition
1. Many efforts have been made to restrict land use based on the composition of
the household. Usually this is intended to prevent boarding house, fraternity
houses, or overcrowded conditions. Such zoning ordinances do present significant
constitutional issues, however.
a) As the time progress there was more zoning on commercial areas vs.
residential zones
b) Highest zoning use is single family residential but what is excluded is
who can live in the house
c) Rational Basis
2. Village of Belle Terre v. Boraas - Dickmans are owners of house in the village
and they leased to Truman and ∆ became a co-lessee. Six students lived in a house
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whom are unrelated. The ordinance restricted land use to one family dwelling
excluding lodging houses, boarding homes, frat houses, or multiple dwelling
house. The word family was used in the ordinance means.
a) The students are arguing the ordinance violates freedom of association
and right to privacy
b) Thus the ordinance is a reasonable, not arbitrary and capricious exercise
of discretion by ∆ -- so Sp. Court held the ordinance is constitutional and
the students lost
(1) Teshura doesn’t agree and believes there should be more scrutiny
than rational basis and feels the family doesn’t have a rational basis
bc if they are concerned with the number of cars on the street or the
noise, etc. then the regulation should be on limited those things
c) The majority found a legitimate state interest in controlling noise,
traffic, and parking and welfare of the people. The means chose, the
definition of family was rationally related to the promotion of the legitimate
state interest. The majority is saying that no where in the constitution does
it prohibit six people living together and there needs to be a line draw
somewhere
(1) This is an issue for state courts
(a) Family values is find as long as we don’t go over a
fundamental right
(b) The court finally says that it must be rational related but
it’s a heighten scrutiny
(c) These kind of statutes are dwindling bc the statute needs to
be more rationally related and basically if your impinging on
family values the courts are saying you better have a good
reason
3. Moore v. City of East Cleveland – Grand parents don’t pay property taxes so
the concern is that since the grandparents are paying and the children are going to
school without paying. East Cleveland zoning ordinance prohibited the
cohabitation of non family members, which included cousins and other members
of the traditional family
a) The court used something other than rational basis review and the state
did not justify the fundamental liberty interests
4. City of Edmonds v. Oxford House - There was a statute defines a family as
prohibited five or fewer unrelated persons living together – family. The Oxford
house is for alcoholic recovering and about 8-12 people living together. The FHA
says that alcoholics are handicapped. The statute has a rational basis but not it
impinged on the handicapped bc of the FHA.
a) The city said that the FHA there is an exemption
b) FHA – applies to selling homes, leasing homes, renting homes – sellers
and landowners, also a limitation on city councils
(1) selling your own house – exempted from FHA
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(1) Today look to FHA – if you can prove a prima facie case then it
will survive
b) The provision having the purpose or effect of excluding groups from the
community
(1) Designed to exclude certain groups out of a community
(2) If excluding a suspect class – unconstitutional
(3) If excluding a socio economic class (prima facie) – constitutional
(a) Poor people isn’t a fundamental right
2. Southern Burlington County v. Township of Mount Laurel
a) Considering the basic importance of the opportunity for appropriate
housing for all classes, no municipality may exclude or limit categories of
housing solely for fiscal reasons. Every developing municipality must by its
land use regulations make realistically possible an appropriate variety and
choice of housing.
(1) The court recognized the clear intent to maintain to property,
taxes low. Mt. Laurel cannot have an all rich suburbs. The city (Mt.
Laurel) has to make it realistically possible to have several people
move into the houses. Every municipality has to have some
commercial, some low income housing, etc.
b) When the land use regulation has a substantial external impact, the
welfare of the state citizens beyond the borders of the municipality cannot
be disregarded.
(1) When it shown that a developing municipality has not made
realistically possible a variety and choice of housing, a facial showing
of violation of substantive due process or EP has been made out and
the burden shifts to the municipality to establish a valid basis for its
action
XIX. Eminent Domain
A. Definition – Eminent Domain is the power of the govt to take privately owned land
for public use. Under the 5th amendment of the US constitution, “just compensation”
must be made for the taking
1. No person shall…nor be deprived of life, liberty or property, without due
process of law… - taking land without just compensation
B. Govt Taking – if the govt uses its eminent domain powers and takes land, it must
pay for the land. Whether particular govt action constitutes a taking is frequently
litigated issue, a taking may be explicit or implicit. If the govt takes the power outright
it follows a condemnation proceeding.
1. In some areas, the govt must first attempt to purchase from the landowners,
but in most jurisdictions, the govt petitions the court to condemn the land.
2. Each person having an interest in the subject property is notified and a trial is
held. The govt must prove its authority to condemn as well as the value to be paid
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for compensation. Implicit takings are more troublesome, bc the parties may not
even agree whether there has been a taking
3. Condemnation – eminent domain
a) The govt forces someone to do something to give the property to the govt
(1) Eminent domain is before the taking
b) Inverse condemnation – landowner challenging a regulatory state action
(1) Whether the govt has crossed that boundary
(2) There is a regulatory state action
C. Public Use
1. Condemnation of private property for a private use or purpose is forbidden, the
power of eminent domain only extends to condemnation for a public use or
purpose.
a) Normally this means that govt cannot take private property only to turn
around and give or sell it to another private party. However the meaning of
the term “public use” depends on what the legislature declares to be the
public interest.
2. Kelo v. City of New London – Pizer invested into a $3 million research bldg, it
was zoned differently the landowner refused to give this property but the courts
allowed it
a) The govt cannot take property from an owner solely to transfer to
another private party even if it pays just compensation
b) The govt may transfer property from one party to another if use by the
public is underlining purpose
(1) Public purpose – related to economic development that would
benefit the public
3. Just Compensation
a) Duty to compensation, required for stability, allows for a limitation on
the govt power, fair market value
(1) Based on the property highest and best used
(2) If only a portion is taken, fair market will be on that portion
(3) If only an interest is taken (an easement), just compensation
must be paid which is the decrease in the property value
XX. Regulatory Takings
A. When the regulation by the state has crossed the line it will not be a valid police
power it will be considered a taking
1. Regulations are not in itself a taking, but they can raise to the level of taking
B. Three Categorical Rules
1. Permanent Physical Occupation
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1. If there is not a taking per se, a regulation can still be determined to rise to the
level of a taking
2. PA Coal v. Mahon - The statute says that you cant mine if the mining is going
to affect the structure and support of the house. The ∆ only bought the surface
rights not the coal (mining) rights. In PA this is the house has three areas to
purpose, 1) surface rights, 2) sub surface rights, and 3) the support. The coal
company owned the support but the statute says that the support is giving to the ∆
(home owner). The coal company had a reasonable investment expectation
a) Govt hardly could go on if to some extent values incident to property
could not be diminished without paying for every such change in the general
law. The GR is while property may be regulated to a certain extent, if
regulation goes too far it will be recognized a taking
(1) it is an ad hoc situation not set standard
(2) regulations can benefit ppl positively and negatively
b) A strong public desire to improve the public condition is not enough to
warrant achieving the desire by a shorter cut than the constitutional way of
paying for the change. Regulation that prohibit public harm will not be
compensated
c) Ex) This is distinguishable from our case - A house which requires the
owner to pay for $10,000 worth of coal to protect the coal miners from
dying, this is not a taking bc it’s a benefit for the public wealth - reciprocity
of benefits
3. Penn Central Transportation Company
a) Whether or not it will amt of taking (or has it gone too far) – still and ad
hoc situation (Teshura)
(1) measure the diminution of value (denominator test)
(2) and balance that against the character of govt
(3) consider reasonable investment back expectations
(4) look to see if a reciprocity of benefits
b) Several factors to determine if the regulation has gone too far
(1) Economic impact of the regulation on the claimant – refers to the
diminution of value (what is the effect of the market value)
(a) If it crosses that line (taking more) argued what has been
taken
(2) Extend to which the regulation has interfered with distinct
investment backed expectations (DIBE)
(a) The landowner must show that he had expectations, he put
money into those expectations and went into the deal with the
intent to develop the land
(i) It is not enough that you would have made money
rather you must prove it in the affirmative
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