Gifts Intervivos Gift Causa Mortis Testamentary Disposition I) Types of Gifts A) Inter Vivos Gift of personal property made

e during the donors lifetime and delivered to the donee with the intention of irrevocably surrendering control over the property 1) Absolute, unconditional, irrevocable 2) Precedes over WILL because WILL only takes effect after death. B) Gift Causa Mortis: Gift made in contemplation of donors immident death 1) Must be made in light of donors present illness or peril 2) Doner has to die from that particular illness or peril (without an intervening recovery) 3) Delivery must occur 4) There must be some evidence of Donors intent 5) Revocability- if donor survives, he/she can revoke at will OR if they die from something other than the illness or peril. C) Testamentary Dispositions 1) Wills and Trusts are NOT completed gifts because the donor is not parting with the item or giving up control of the item. Furthermore, there is no present intent to transfer, rather the intent is to transfer the property at death. II) Making a Gift Valid (Delivery, Intent, Acceptance) A) are three requirements for the making of a valid gift 1) Delivery from the donor to the donee (Actual or Constructive) (a) Must be as perfect and complete as the nature of the property and the attendant circumstances and conditions will permit. You dont have to carry a house and give it to the person. (b) Must relinquish dominion. Donor has no rights over it. (i) Can be actual or symbolic o Actual- Giving actual possession of the gift to donee. Simplest and BEST form of delivery. o Symbolic- Delivery of something in lieu of the thing, which is the subject matter of the gift. The circumstances have to require that this kind of delivery is enough. In Matter of Cohn- courts allowed it because the stocks were tied up at the time gift was made, but husband fully intended to deliver to wife and relinquish dominion. o Constructive- obtaining possession or control of the gift (key to the trunk where the gift was hidden). Different than symbolic because you actually have access to the item. Its very weak unless theres no other way to do it. Basically, you would have to not be able to move or get out of bed. 2) Donor must possess intent to make a present gift (a) Must be a PRESENT intent to transfer, not a gratuitous promise to make a gift in the future (b) Delivery presents evidence of the intent to transfer. 3) Donee must accept the gift. (a) Usually presumed unless the gift has deleterious quality (property that is a nuisance) Nuisance Right to Support Water Rights

I) NUISANCE unreasonable interference with the use or enjoyment of land A) Looking at whether actions of the landowner is a nuisance 1) What was the character of the harm 2) What was the social value of the use invaded 3) Was it suitable for the character of that area (Bove v. Hanna Coke) B) Types of Nuisances 1) Private- Involves interference or invasion of private interest in the enjoyment of land. (a) Personal property rights (Amaral Gray- golf balls hitting the porch and house) 2) Public Involves interference with the rights of the public. (Del Webb- cattle feedlot) 3) Nuisance Per Se: Conduct that is a nuisance itself (a house of prostitution). 4) Nuisance per accidents: Otherwise lawful conduct that is wrongful because of the particular circumstances of the case (where it is located). (Halfway houses and soup kitchens might be nuisances in residential areas, but are not nuisances per se). II) RIGHT TO SUPPORT A) Lateral - The right to support from adjoining soil 1) Landowners have an absolute right to lateral support of their land in its natural state. Possessor of adjoining land owes an absolute liability not to remove lateral support to adjoining land. (a) Exceptions (i) Act of God, if the weight of structures of the property owner causes the collapse (only liable for natural state of soil). (ii) Artificial Support Once you put in artificial support, it becomes incident to and burden on the land upon which it is constructed. Subsequent owners have ta duty to maintain the structures supporting the lateral lands. B) Subjacent Support Support of surface by underlying earth (mining) 1) Surface owner has an unqualified right for support for the soil and the buildings thereon 2) Surface landowner can draw water from below without liability unless it was drawn willfully, maliciously, or negligently and it causes subsidence. III)WATER RIGHTS A) Use of Water 1) Prior Appropriation (Been abandoned for Riparian Rights) (a) First come, first served (b) Appropriators do not have to be riparian owners (c) Must be used for beneficial uses; not just wasting it 2) Riparian Rights: Owner may use all the water necessary to meet his domestic needs, but where she uses the water for commercial use or irrigation, the consumption must be reasonable. (a) Reasonable: Riparian owner may use the waters course in any way that is beneficial and does not unreasonably interfere with the beneficial use of other riparian owners. (b) Natural Flow: Riparian owners are entitled to have water flow maintained in its natural state with respect to quality and quantity. B) Surface Water Rights 1) Common Enemy Rule: Land Owner can divert water however he wants without fear of liability. You cant do this anymore. 2) Civil Law Rule: subjects a landowner to liability whenever the landowner interferes with the natural flow of surface water.

3) Reasonable Use Rule: permits each landowner to make reasonable use of his land even though he alters the flow of water thereby harming other landowners. This is the majority rule today. C) Underground Water Rights 1) Not moving (Percolating or Ground Water) (a) surface owner may pump water as long as the use is reasonable. Can not divert the water to other properties 2) Moving (Underground Streams) (a) Water is treated the same way as if it were moving on the surface

Land and the Right to Exclude Right to Exclude Kaiser Aetna I) Rights to Exclude A) Possession is a prima facie evidence of title and sufficient to maintain a claim of ejectment. Plume v. Seward & Thompson 1) Must have actual bona fide occupation of land. (a) Cultivation not necessary, just potential for use (b) Enclosure not required 2) Exercise of causal acts of ownership, i.e. paying taxes, recording deeds. II) Kaiser Aetna A) The right to exclude is a fundamental right that the government cant take without compensation. 1) Includes title owner and those in possession, such as tenants 2) State cannot force an owner to create access for public or allow public onto property unless govt pays fair value for land it acquires/condemns. 3) Exceptions include necessity, inability to control movement, prescription, estoppel, consent, First Amendment, Social Needs, Custom 4) Prop owners who acquire land adjacent to navigable waterways take ownership subject to the sovereigns pre-existing right. Public enjoys a federally protected right of navigation over navigable waters of the US.

EXCEPTIONS to the RIGHT TO EXCLUDE Custom Public/Access First Amendment Native Hawaiian Rights (HI rights, undeveloped land) CUSTOM/PUBLIC ACCESS Oregon I) Custom and Public Access A) Custom is such a usage as by common consent and uniform practice has become the law of the place, or of the subject matter to which it relates. Gives public access to private property. You cant exclude if custom is established. State of OR ex rel. Thornton v. Hay B) Elements of Blackstonion Custom (O-CRAPER) 1) Obligatory (a) Recognized by all and not left open to the option of each landowner whether or not she will recognize the publics right (such as access to dry sand area for recreational purposes). Publics right has never been questioned. 2) Certainty (a) Certainty of place - Visible boundaries of the area and character of land. There must be clear limits. (i.e. that little patch of dry sand that leads to the beach). (b) Certainty of person Specific group of people (i.e. the people of Hawaii who needs to get to the beach). 3) Reasonableness (a) Satisfied by evidence that the public has always made use of the land in a manner appropriate to the land and to the usages of the community. 4) Ancient (a) It must have been used so long that the memory of man runneth not to the contrary. Long and general sufficient. 5) Peaceable (a) Use must be peaceful and free from dispute. Its satisfied by evidence of exercise without interruption. 6) Exercised without interruption (a) Need not be exercised continuously, but without interruption by anyone possessing a paramount right. 7) Repugnant (a) Not inconsistent or repugnant with other customs or laws. Constitutional Rights Pruneyard I) Pruneyard Shopping Center A) One can restrict time, place, and manner on expressive activities on private property that has been opened up to the public to minimize interference with economic interests; however, once you invite the public in, you can not totally exclude certain members where the exclusion would violate a constitutional protection. Its open to the public; therefore, you are subject to respecting constitutional rights of the public. Native Hawaiian Rights Hanapi PASH Pele Defense

I) Native Hawaiian Rights Have rights to use their land for traditional, cultural, and ceremonial practices A) 3 part test 1) Descendents of native Hawaiians who inhabited the islands prior to 1778 (no blood quantum required) 2) Established that the right is constitutionally protected as a traditional native Hawaiian practice (gathering, fishing) 3) Exercise of that right occurred on undeveloped or less than fully developed property. B) PASH- opened up native Hawaiian practices to those related to or accompanying native Hawaiians C) Pele Defense Fund- Expands the exercise of Native Hawaiian practices outside of a persons ahuapuaa if it was traditionally practiced that way 1) As opposed to Kalipi, which said you can only practice your rights in your own ahupuaa. D) Native Hawaiian Rights are not takings because it is a background principle of law. 1) When the owner of real property is required to sacrifice all economically beneficial uses of his property in the name of the public good, he must be compensated unless: (1) the owner created a nuisance; or (2) there was a background principle of state property law that would not allow the owner to collect (e.g., custom, Native HI rights). Lucas.

Involuntary Transfers Between Private Parties Salvage v. Finds Adverse Possession Eminent Domain (KELO) I) Law of Salvage v. Law of Finds A) Admiralty law favors law of salvage over law of finds. Columbus-America Discovery Group v. Atlantic Mutual Insurance Co. 1) Law of Salvage (a) Assumes property being salved is owned by another and thus is not abandoned. (b) Original owner retains ownership (c) Salvors are entitled to a hefty salvage award (this case was 95%), which often exceeds how much they put in to find it. (d) If no owner comes forward, salvor gets it. 1) Law of Finds (a) Only pertains when previous owners have abandoned property. Must be proved by clear and convincing evidence that its been abandoned. (b) In this case, where its been clearly abandoned or the property is so ancient, no owner appears in court, finders, keepers. II) Adverse Possession (AVONEHC) A) Statutory Method of Acquiring land to prevent landowners from holding land without making use of it. Technically adverse possessors are trespassers until the statutory period has tolled. Once requirements are met, ownership transfers immediately. Marengo Cave Co. v. Ross B) Elements of Adverse Possession 1) Actual (a) The adverse possessor (AP) used the land in a way consistent with and appropriate for the character of that land. 2) Visible (a) Common Observer must be able to readily see that who is really using the land. You cant just be sneaking in during the middle of the night and using it. 3) Open and Notorious (a) If true owner were ever to check on that land, she has to know that the AP is using it. It must be manifest to the community. 4) Exclusive (a) The AP must treat it as her own and prevent others from possessing the land. Multiple people cant be using it. 5) Hostile (a) Owner does not give you permission. 6) Continuous (a) The AP must use it without a break in the use for the duration of the statutory period. (b) Hawaii requires 20 years and you can only Adversely Possess up to 4 acres. (c) Tacking is when there is a transfer from the first to second AP and the period is still considered continuous. (d) Owner could have put up a fence or called the police interrupting the continuous period. 7) Disability (Prison, insanity, under 18) (a) Gives owner 5 years from the date the disability expires to bring action, even if the Adverse Possession statute has already run out. (b) Must have commenced BEFORE adverse possession commences.

(c) Even if true owner was mistaken about boundaries and didnt know it was his own, if the AP meets all the requirements, AP gets title. 8) You CAN NOT adverse possess against the Government III)Transfers to the Sovereign: Eminent Domain- Govts authority to take land. A) Eminent Domain 1) Fifth Amendment: Nor shall private property be taken for public use, without just compensation. Just compensation is the fair market value of the property being taken. No discounts. 2) The crts have read this clause of the 5th amendment to enable the govt to acquire private property as long as it serves a public use and the govt pays just compensation. 3) The govt acquires land through Eminent Domain proceedings. 4) Condemnation is the process by which property is taken and compensation is paid. B) Kelo v. City of New London (2005) 1) Public Use became very loosely interpreted to public purpose. Transferring land to a private party (developer) became a public purpose, which was for urban renewal. However, there must have been a well-developed, comprehensive plan in place (There must be reasonable certainty that expected public benefits would accrue.) 2) Development is OK 3) Midkiff: Breaking up an oligopoly for economic revitalization OK 4) Naked Transfer: One couldnt just transfer from one private party to another like 99 cents store to Costco. You cant do it as an economic preference. City of Lancaster said, because Costco told me to. 5) Public Reaction was swift. Legislatures enacted some sort of constitutional amendment to roll back the broad definition of public use articulated in Midkiff and Kelo. Tightened up eminent domain rights for redevelopment unless a severely blighted area.

Other Kinds of Takings Consequential Damages Govt is liable for Inverse Condemnation Off-Setting Judicial Takings Implied Dedication I) Consequential Damages A) Liability for Consequential Damages- Destroying Land. Pumpelly v. Green Bay Company 1) Where real estate is actually invaded by superinduced additions of water, earth, sand or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking. II) Inverse Condemnation - Rubano v. Dept of Transportation A) Where a govt agency, by its conduct or activities has effectively taken private property without a formal exercise of the power of eminent domain, a cause of action of inverse condemnation will lie. 1) In Rubano, court said it was Rubano suffered consequential damages; however he was in the same position as any other member of the public and must suffer any burdens the highway improvements imposed. There is no guarantee of a flow of traffic and mere diversion and circuity of travel is not enough to constitute a denial of access. Gas stations cant get compensated because the govt moves a highway. (a) Your case must be special and different from that suffered by the general public. Must be a substantial loss of access to ones property. (b) Courts allowed inverse condemnation for Tessler, where biz owners permanently lost access to their property because govt built a wall directly in front of the property. Customers had to go through winding residential neighborhood to get there. It was more than just the fact that it was inconvenient. It cant just be because its inconvenient. III)Off Set of Special Benefits A) In some cases, govt action benefits a property owner and actually increases the value of the property. Should govt be allowed to off-set compensation by that benefit? YES. Govt can only do this when it takes only part of a landowners land. Acierno v. State of Delaware 1) Special v. General Benefits (a) Special (i) Directly and proximately affect the property remaining. (ii) Arise from peculiar or unique relation of the property to the public improvement. (iii) Adds to convenience, accessibility and use of property due to the public project (iv) Public at large does not enjoy these benefits; only the private owner does (b) General (i) General public shares the benefit. (ii) Arise from the fulfillment of the public project which justified the takings in the first place 2) Must not be speculative. If theres only a future possibility, you cant set it off. 3) Calculate damages by value of whole property before minus value of the remainder. IV) Judicial Takings A) When Court decisions divest landowners of valuable rights of land ownership. Should this be treated as eminent domain? Robinson v. Ariyoshi

1) If there is no compensation offered for this kind of taking, that would be unconstitutional. Here, court said state has to bring condemnation proceedings if theyre going to interfere with vested water rights V) Implied Dedications A) Voluntary transfers of land to the sovereign for use by the general public. Its usually a development agreement to provide roads or other public improvements for the betterment of the community which state maintains. Rogers v. Sain B) Express v. Implied Dedications 1) Express Dedication (a) Oral or written transfer to state w/out compensation 2) Implied (a) Owner invited or has permitted public to sue land for a long time. Its enough that there was an INTENT to dedicate. Must be unequivocal. There is a high standard. (b) Owner opened property (c) Owner acquiesces to the use of property by public (d) Property is repaired and maintained by public/government (e) Public has used it for a long time C) This is different than adverse possession and prescription because: 1) Based on theory of voluntary transfer 2) Acquiescence v. Hostile 3) Sometimes, there is no real difference theoretically.

PUBLIC TRUST DOCTRINE & CUSTOM Phillips Petroleum v. Mississipi (Submerged and Submersible Lands are Public) Matthews v. Bay Head Improvement Association (Sometimes Dry sands must be public) Opinion of Justices in NH (Opening Private Prop Dry Sand to Public is a Taking) I) Public Trust Doctrine A) Some lands are public in nature. This doctrine forbids excluding public from these resources. Even if title is transferred to private party, land is still burdened with publics right to access and use of the land. 1) Submerged and submersible lands are preserved for public use for fishing, navigation, and recreation and state, as a trustee for the people, bears the responsibility for preserving and protecting the right of the public use of the waters. B) Ebb and Flow Test Phillips Petroleum v. Mississipi 1) Lands beneath waters under tidal influence are given to States upon their admission into the union. Waters dont have to be navigable in fact because Public trust doctrine does not only protect rights to navigation, but also fishing and recreation. (a) States differ in drawing the lines. (i) MA- lowest wash of the wave (favors private) (ii) HI highest wash of the waves as evidenced by the debris or vegetation line excluding waves caused b seismic or storm activities (favors public use) (iii) NJ: mean high tide line (compromise) C) Dry Sand Area. Where use of the dry sand is essential or reasonably necessary for enjoyment of the ocean, the doctrine warrants the public use of the upland dry sand area subject to an accommodation of the interest of the owner. Public must be afforded reasonable access to the foreshore as well as a suitable area for recreation on the dry sand. Matthews v. Bay Head Improvement Association 1) Matthews used the following circumstances on whether the dry sand area on public property must also be opened for public use. (a) Location of dry sand area in relation to the foreshore (b) Extent and availability of publicly owned upland sand area (c) Nature and extent of the public demand (d) Usage of the upland sand by owner. D) Opinion of the Justices in New Hampshire 1) Dry sand area is not extended to use by the public under the public trust doctrine unless there was an easement through prescription or custom. Otherwise, it would be a taking.

POLICE POWER Pennsylvania Coal Co. v. Mahon (Police Power gone too far) Lucas (Total Taking) Loretto (Physical Invasion; no exceptions taking) Penn Central (Partial Takings) Chevron (Agins test is dead) I) Police Power A) When States reasonably conclude that Health, Safety, Morals or General welfare would be promoted by prohibiting particular contemplated uses of land, the Courts have upheld land use regulations that destroyed or adversely affected recognized real property interests. (Zoning Laws, Historic Preservation, Aesthetics, which is General welfare?) II) Different Types of Takings 1) Regulatory Penn Coal Takings that go too far 2) Total/Per Se/Lucas Takings 3) Partial/Penn Central Takings 4) Permanent Physical Loretto Takings A) Pennsylvania Coal Co. v. Mahon 1) The Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general lawGeneral rule is, while property may be regulated to a certain extent, if the regulation goes too far, it will be recognized as a taking. (Penn Coal) 5) Loretto- Governments requirement that bldg owners permit installation of (a) When govt requires an owner to suffer a permanent physical invasion of her property, however minor, it must provide compensation. B) Lucas 1) When an owner of real property has been called upon to sacrifice all economically beneficial use in the name of the common good, that is, to leave his property economically idle, he has suffered a taking. Must compensate the landowner under the 5th Amendment. (a) Exceptions (i) Noxious and Harmful Uses (ii) When the law was already in place when you bought the land C) Penn Central Partial Takings Regulatory Taking 1) Whether a particular restriction will be rendered invalid by governments failure to pay for any losses proximately caused by it depends upon the following circumstances: (a) Character of the government action (Health, safety, morals, public welfare. Obviously health is high up on the list) (i) Regulations noticeable affecting one or a few lots to the land owners detriment that results in a benefit to the state or surrounding landowners is a factor weighing in factor of finding a taking occurred. A few people should not be forced to bear a burden that should be borne or paid for by the public at large. (ii) Consider the purpose to be achieved and the economic effect regulation has on the prop owner. (b) Economic impact of the regulation (i) Landowners economic loss. The extent to which the regulation has interfered with distinct (reasonable) investment backed expectations. If regulation interferes with landowners investments into their property, it may be deemed a taking. However if an owners improvements can still be used after the regulation, no taking.

o Does the land still hold economically beneficial use? The taking was of something more valuable than what is left. (ii) Diminution in value may be a factor but it must be a great or complete loss of value in order for it to be a taking D) Chevron 1) Agins substantially advances some legitimate state purpose test is not a valid method of identifying regulatory takings for which the 5th Amendment requires just compensation.

Zoning
Euclid (Not a taking as long as it is not arbitrary and capricious) Pierro (Zoning to exclude motels OK) Bartram (Amendments OK- furtherance of the towns general plan; best interest of community) I) Euclidian Zoning A) Regulates development through land use classifications and dimensional standards. 1) single-family residential, multi-family residential, commercial, institutional, industrial and recreational. 2) Each land use must comply with dimensional standards that regulate the height, bulk and area of structures. These dimensional standards typically take the form of setbacks, sideyards, height limits, minimum lot sizes, and lot coverage limits. B) The traditional planning goals are providing for orderly growth, preventing overcrowding of land and people, alleviating congestion, and separating incompatible uses (such as insuring that a noisy factory cannot be built near a residential neighborhood). II) Zoning Ordinances A) Commission creates the local zoning ordinance and then dismantled. Only the legislature has the authority to change zoning. 1) Reasonable restrictions designed to preserve the character of a community and maintain its property values are within the proper objectives of zoning. Pierro v. Baxendale B) Zoning ordinances are a valid exercise of the police power and thus do not violate the constitutional protection of property rights. 1) For an ordinance to be declared unconstitutional, it must be clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare. (a) public welfare includes spiritual as well as physical, aesthetic and monetary. It is w/in the legislature to determine that the community should be beautiful as well as healthy, spacious, clean, well balanced, carefully patrolled. General welfare similar. 2) Federal or state government can restrict individual rights through law or actions in these situations: (a) Law must further a legitimate state interest (b) And the law must be rationally related to that state interest 3) Legislative bodies may make such (zoning) classifications as they deem necessary and as long as their classifications are based upon reasonable grounds so as not to be arbitrary or capricious they will not be upset by the courts. (Equal protection)

Zoning: Amendments, Special Use, Variance, Nonconformities Amendment (Grocery store in residential area) Special Use Permit (Clubhouse in residential area) Variance (Mobile Home Park in a single family/ag area) Nonconformities (Plumbing biz in a residential zone) I) Amendments - Amending the zoning ordinance is the most extreme method for a landowner to obtain permission for a presently non-permitted land use. A) Theyre legislative so the deciding body doesnt have to listen to the opinion of the neighbors because they are thinking about the benefit of the entire general public and not just the neighborhood B) Text vs. Map Zoning 1) Text Describes the restrictions on the districts, separating them by: (a) Use (b) Bulk (Height, area, setback) (c) Special conditional uses (d) Variances (e) Nonconformities 2) Map divides by districts. Maps show what property has been zoned as what district. Text tells you what uses are permissible in within the zones on the map. C) Spot Zoning: Action by a zoning authority which gives to a single lot or a small area privileges which are not extended to other land in the vicinity is in general against sound policy and obnoxious to the lawSpecial treatment for one relatively small lot. 1) Spot zoning is disfavored when (a) zoning authority gives a single lot or a small area privileges which are not extended to other land in the vicinity. It is generally against sound public policy and obnoxious to the law. It can be justified only when it is done in furtherance of a general plan properly adopted for and designed to serve the best interests of the community as a whole. (Grocery store in a residential area that wants to encourage decentralization of businesses and better for the neighborhood to have a store). (b) Amendments that affect a small property in a differently zoned area is very suspicious. Special use Permit would have been better. Special Use/Conditional Zoning I) Special Use Permit: Zoning ordinances also usually provide for special use permits. Typically, a special use permit must be obtained for such things as private schools, hospitals and churches. In many local (and some state) land use schemes, it is possible to obtain a change of use without obtaining an amendment by means of a special or conditional use permit, or special exception. This avoids the problem of spot zoning. A) Generally, an applicant is not entitled to a special use permit as of right, but only in the discretion of the zoning board; however, usually no showing of special hardship has to be made (as in the case for a variance). 1) Special use permits provide for infrequent types of land use, which are necessary and desirable but which are potentially incompatible with uses usually allowed in residential, commercial, and industrial uses. (a) Its not a right, its a discretionary grant made by the administrative body making the decision. (DPP reviews and gives a Directors Report and Recommendation, gives to

Planning Commission (if 15 acres or less, the buck stops here. If not, then Land Use Commission) (b) Hearings are required to weigh the desirability of the use against the adverse impacts. (c) Decision making body must base their decision based on balancing the benefits and the adverse impacts to the neighboring properties 2) Generally relate to a large tract of land B) Kotrich (Club was allowed. Board imposed several restrictions to protect neighborhood) Conditional Zoning: Many ordinances provide for conditional zoning. Under this device, the rezoning of a particular parcel is made subject to the developers promise to comply with certain conditions, which will protect neighbors. (e.g., O owns a parcel in an area zoned residential-only. If the ordinance allows for conditional zoning, the town might rezone Os parcel for light industry, but only if O agrees to large set-backs, a low floor-space-to-land-area ration, or other condition). Permitting a use which is not listed under the permitted use category of the subject propertys zoning does provide the local authority with more flexibility, at least in theory, than it has when faced with a simple map or text amendment request. II) Variances A) May alter the use to which property may be put (e.g., commercial use in a residential zone), or grant area or bulk concessions (e.g., modify setback lines or height requirements). Virtually all zoning ordinances have a provision for the granting of variances, i.e., relief in particular case from the enforcement of an ordinance. 1) Variances are ADMINISTRATIVE. 2) Standard Zoning Enabling Act: Has served as a model for zoning enabling acts in many jurisdictions. It provides a local zoning board of appeals primarily for the purpose of granting such variances after a hearing, but some jurisdictions converted such boards into hearing agencies only. B) Variance Requirements (The landowner should be granted a variance if strict application of the zoning ordinance would place undue-necessary hardship on the landowner because of the unique circumstances of the land). Topanga Association v. County of Los Angeles 1) Denial would result in unnecessary hardship to the owner (must be tied to the land, not a hardship self created or reflecting the landowners economic status i.e. rocky terrain in that one area). (a) A variance from the terms of the zoning ordinance shall be granted only when, because of special circumstances, the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classifications. 2) The need for the variance is caused by a problem unique to the owners lot (not one shared by many lots in the area) (a) A variance shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is situated. 3) The variance would not be inconsistent with the overall purpose of the ordinance, or inconsistent with the general welfare of the area. III)Nonconformities A) Rapid comprehensive Euclid zoning resulted in existing structures and uses no longer permitted in the new districts. B) City of Los Angeles v. Gage

1) The ordinance is a valid exercise of police power if it is not arbitrary or unreasonable or if it has a substantial relation to the publics health, safety, morals or general welfare or if it is not an unconstitutional impairment of a persons property rights. 2) Govt must allow a reasonable time to phase out the nonconforming use. If the amortization period is rsx, the courts will uphold the elimination the use. Specialized Controls Aesthetics (single story glass house blocked by street; houses all around 2.5 stories high) Historic Preservation I) Aesthetics A) Power of the state to exercise police power to regulate aesthetics raises concerns because attractiveness is subjective. Aesthetics allowed being justification for land use; however only half will allow it to stand alone as the justification for regulation. Protecting property value is the bottom line. B) Reid v Architectural Board of Review of City of Cleveland Heights 1) Concept of public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. 2) Highly trained architects that help maintain the standard prevent aesthetics from being too subjective and help set standards. C) Basic standard vs. More Specific Standard 1) Basic: Does the bldg conform to the existing character of the neighborhood and not cause a substantial depreciation in neighboring property values 2) More Specific Standards: Design, material, grading lines, and orientation. II) Historic Preservation A) Ordinances directed toward preservation of historic districts generally valid and readily upheld rather than single, individual landmarks. There is reciprocity of advantage when entire district is historic. Burdening all properties benefits your property because all surrounding properties are burdened B) Designating single, individual bldgs are harder. Burden is imposed on one single owner who reaps no reciprocity of benefit. Go through the takings analysis like Penn Central.

Subdivision Creating conditions based on the development is not a taking. I) Subdivision A) Youngblood (was about vesting rights and ministerial acts requiring approval if all conditions met). B) Applies when land is to be divided for development. Subdivision regulations lay down conditions for approval of a subdivision plan. 1) Promotes orderly planning of communities for roads, utilities and public services. Administrative/Quasi-Judicial. C) Control of land development through subdivision used to be from plat acts. 1) Requires that no parcels be divided and sold without the filing of a plat, a drawing of the parcel showing the division or divisions into which it had been carved. The plat acts help facilitate real estate conveyancing by producing a more useful property description which could be recorded in deeds and real estate sale contracts in the official land records. 2) Metes and bounds system made everything a mess. Badly planned subdivisions. Not enough streets, design and public facility problems. D) Current Process: Submit a preliminary plat to local plan commission for review. 1) Streets, sidewalks, lots and public facilities are sketched on the plat. Conditions and dedication requirements written directly on it or attached. 2) After review, (a) 1. modifications, conditions, restrictions (discretionary and administrative), approval (quasi judicial). Must be consistent with the existing general plan), then, (b) 2. more detailed final plat submitted (Ministerial; just a checklist). Restrictions and conditions run with the land and become binding. Detailed plat approval is by city council and is ministerial. No discretion. You meet the conditions from the pre-plat, youre approved. E) No city or county can approve a tentative map unless the proposed subdivision is consistent with applicable general or specific plans of the city or county. F) Law governing the subdivision of land is the law at the time the prelim plat is submitted. Owners right are vested when they submit the prelim plat. Changes in zoning that might later affect property does not apply to the subdivision once prelim plat submitted. 1) In Hawaii, once the last discretionary permit issues (usually approval of prelim plat, Developer gets vested right. II) Consistency Doctrine A) Save Sunset Beach (GATRI case in it) 1) Main issue was the conflict between state planning designation and city and countys zoning ordinance. The most restrictive use governs. Consistency doctrine. So more restricted uses under development plan governs.

Planning Nolan and Dolan- Development Conditions Land Development Conditions are legitimate if they are: 1) A valid exercise of police power. 2) Theres a nexus between harm caused by development and condition sought 3) Nature and scope of condition imposed is roughly proportional to the harm caused by the development At the earliest stage, Development conditions attach at the stage where the development drives the need for the conditions. Rezoning does not drive the need for anything and conditions may not be attached to a rezoning. I) Land Development Conditions A) The major constitutional issue with respect to fees, dedications and exactions, is the relationship between such land development, and the land dedication or fee for the public facility, or other condition imposed or levied by government. Govt can impose conditions and dedication of land and fees, BUT it must be rationally limited to a legitimate state purpose. 1) Dedication-requires developer to dedicate land to the govt as a condition of the permit 2) Exaction: Govt requires fees to support a public facility/infrastructure as a condition on the permit. i.e. Wasterwater treatment facility. 3) In lieu fee- when govt gives developer choice to dedicate/building infrastructure itself or pay a fee so govt can do it. Most high end developers dont want to create low income housing in the middle of their development even if there is a need, so theyll pay an in lieu fee so govt will go build it somewhere eles. 4) Benefit that a condition is trying to protect must PRE-EXIST development (cannot get developer to provide for problem they are not creating) B) Nollan (No nexus between the condition proposed and the original purpose of creating the need for coastal development permit) 1) There must be a NEXUS between the condition imposed by the government and the original purpose of the building restriction. Must be a nexus between the harm caused by the development and the conditions sought to be imposed. 2) If a regulatory condition is imposed on a development permit, that condition must substantially advance the same governmental purpose that refusing the permit would serve or else the action will constitute a taking and require just compensation. 3) While access to the beach is a legitimate state interest, can state prove that the development actually causes the need for this access? NO, unless there was an easement and the development plans to build in the path of it. If the development didnt cause the lack of access, it doesnt create the need for it. C) Dolan (Although there was nexus, the conditions imposed were not proportional to the impact of the proposed development) 1) Proportionality Prong (a) If a nexus existed, then exactions imposed by respondent must be roughly proportionate to the projected impact of the proposed development. (b) City must make individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development. (must make some effort to quantify its findings in support of the required dedication) (c) Exactions are constitutional provided the benefits achieved are reasonably related and roughly proportional, both in nature and extent, to the impact of the proposed development. (d) Providing affordable housing for low-income families is a legitimate state interest. However, many jurisdictions attempt to attach low-income housing requirements on the

development of large scale, market rate housing developments. Does bldg these market rate unit drive/cause the need for low-income housing? USUALLY NO. Better argument for requiring developers to provide it when the development is a hotel or other project that would employ low-income earners. (Use a study to show nexus).

Coastal Zone Management The purpose of the CZMA is to control development within an SMA through use of the SMAP, not to totally prevent or prohibit development in an SMA. I) FEDERAL A) National Program of coastal zone management commenced under Federal Coastal Zone Management Act designed to encourage states in coastal areas to plan, mange and regulate the use of land in coastal areas. Federal CZMA provides funds for the creation and implementation of state coastal zone management plans, on the condition that they follow various coastal land regulatory management guidelines. 1) Programs coastal boundaries are defined as coastal waters and adjacent shorelands that are strongly influenced by each other. B) STATE 1) CZMA is a comprehensive State regulatory scheme used to: (a) protect the environment and resources of the shoreline areas. (b) It imposes special controls on the development of real property along shoreline areas in order to preserve, protect, and where possible, restore the natural resources of the coastal zone of Hawaii. C) COUNTIES 1) State authorizes Counties to create Special Management Area in order to control and implement the objectives of the CAMA. Development in these areas are controlled by a permit system administered by the Counties. II) Topliss v. Planning Commission (Hawaii) Will traffic have a substantial adverse environmental or ecological effect on the coastal zone? A) Granting or Denying SMA Permits 1) Must allow development UNLESS: (a) Development will have a substantial environmental or ecological effect (which can be outweighed by a strong public interest in favor of development (b) Development is inconsistent with the objectives, policy and guidelines of the CZMA B) The CZMAs authority is restricted to those lands that have a direct and significant impact on coastal waters or coastal resources. 1) Even development away from the coast can be regulated under the CZMA to protect the view to and along the shoreline even if you cannot see the shoreline.

Clean Water I) 404 Dredge and Fill Permits/Wetlands A) Purpose is the cleaning and maintenance of nations waters. One main objective is to restore and maintain chemical, physical and biological integrity of Nations Waters. Fed Program. Creates incentives for local govts to create standards and regulations that would help maintain or improve waters of the state. B) Rapanos 1) Limits the expansive definition that Corps gave to navigable waters. (navigable in fact, tributary systems of navigable waterways, adjacent wetlands actually abutting traditional navigable waters. (a) The waters of the US include only those relatively permanent, standing or continuously flowing bodies of water forming geographic features that are described in ordinary parlance as streams, oceans, rivers and lakes.

Easements right to use property of another without possessing it Easements Appurtenant Easements In Gross I) Appurtenant v. In Gross A) Determining the difference 1) Determination of whether its one or the other is based on parties intent as reflected in the language of the deed AND relevant surrounding circumstances. 2) Easements appurtenant favored judicially 3) Failure to use words such as heirs and assigns or appurtenant or runs with the land often creates a presumption that the easement is in gross. 4) Listing a holder of the easement by name creates a presumption of an easement in gross B) Easements Appurtenant - created for the use of the owner of an adjacent parcel of land 1) Servient Estate is the land burdened with the easement. Dominant estate is the parcel benefitted by the easement. 2) The easement appurtenant passes automatically with the dominant tenement and its burden passes with the servient estate. (The only exception is when the servient tenement is acquired by a bona fide purchaser with no actual or constructive notice of the easement.) 3) C) Easement in Gross - confers easement upon a holder some personal or pecuniary advantage related to his use and enjoyment of his land. Servient tenement only since easement holder derives a gain independent of his or her ownership of land. 1) The easement in gross is presumed personal to its holder and is usually not transferable. II) Formation of an Easement/Creation of Easements A) Usually Statute of Frauds requirement applies for Express grant or reservation 1) By an Express Deed Can be created by grant or by reservation (a) Express Grant- deed explicitly conveys an easement DEED OF EASEMENT (b) Express Reservation (i) Grantor of land reserves to himself an easement when conveying a parcel of land to someone else (c) Reciprocal Easement (i) Property owners enter into an arrangement that restricts/grants property use for mutual satisfaction (owners trade easements). Each estate will serve as both dominant and servient estate. 2) By Operation of Law (Hellberg v. Coffin) (a) Strict Necessity (i) Expression of public policy that will not permit property to be landlocked and rendered useless. Owners and ones entitled to the beneficial use of landlocked property (tenant) have the right to condemn a private way of necessity for ingress and egress. (b) Implied Easement appurtenant to the land (from prior use) (i) Must have former unity of title. One owner of the dominant and servient estate. (ii) A separation of the estates by a grant of the dominant estate (the one receiving the benefit separates the land) (iii) A reasonable necessity for the easement in order to secure and maintain the quiet enjoyment of the dominant estate. (c) By Prescription (not a fee simple interest in property-just an interest)

(i) THERE MUST BE ACTUAL KNOWLEDGE of the use BY THE OWNER *Note that for adverse possession, constructive knowledge was enough and you needed exclusive control for adverse possession.. o MacDonald Properties, Inc. v. Bel-Air Country Club - MacDonald did not complain for 11 years, even though he knew of the golf balls falling within the property. He did not protest. o Ryan v. Tanabe- The prescriptive period does not begin to run until the unity of ownership of the dominant and servient tenements (this case was Bishop Estate) is severed. (ii) Open (iii) Notorious (iv) Continuous (v) Adverse use under claim of right o Can be presumed if the use continues for the statutory period and the owners of the servient estate does not provide evidence that the use was permissive. o If you put up a sign that said, I am giving you permission, it is not adverse. (vi) For a statutory period. III)Determining the Scope and Purpose of an Easement. A) Cushman Virginia Corp v. Barnes 1) The extent of an easement created by a conveyance is fixed by the conveyance. However, if the court determines that the language is ambiguous, extrinsic evidence must be considered to ascertain the parties intent. 2) Splitting Dominant Estate: When a Dominant Estate is divided and conveyed to different owners, these parcels will still be entitled to the use of the easement as long as they have access to the easement. (a) If the easement is for a right of way and the dominant estate is divided and conveyed away, this does not necessarily create an additional burden. Degree of burden may be increased, but thats not sufficient to deny the easement. 3) Reasonable Use- When the grant does not limit the use of an easement, it may be used for any purpose to which the dominant estate may then, or in the future, reasonably be devoted. 4) Technological Advances: Generally Servient Tenements must accept reasonably technological changes. B) Transferability of an easement 1) Personal easements in gross are traditionally prohibited. Some courts will allow it if there is evidence that this was intended by the grantor and grantee (its stated in the deed creating the easement). (a) Commercial easements: Court allow the transfer of commercial easements in gross because of the commercial nature of the easement C) Divisibility 1) Miller v. Lutheran Conference & Camp Association (a) One stock rule- restricts the divisibility of an easement in gross. When dividing an interest in an easement in gross, all holders must exercise the easement as one stock. Looks to avoid imposition of excessive, unreasonable use on the serivent estate. (b) Some jurisdictions yield to an original burden standard which hold that they are divisible as long as the total burden does not exceed those contemplated by the original grant. IV) Termination of Easements

A) By their Own terms- says it in the deed. The easement expired or something happened that makes the easement expire B) Unity of Title- The title to the easement and title to the servient estate are held by the same person, there is a merger and the easement is extinguished. C) Release- the holder of the easement may execute a written release to the owner of the servient estate. D) Abandonment: Cts will never terminate b/c of non-use, there must be some act/affirmative act by the owner of the dominant tenement, which conclusively or unequivocally manifest either a present intention to relinquish the easement or a purpose inconsistent with its future existence (Preseault v. United States (1996): Railroad case where they removed the tracks and wanted to use it for bike path.) E) Estoppel- if the servient owner materially acts in reasonable reliance on the easement holders assurances that the easement will no longer be enforced. F) Lack of Necessity- once the easement of necessity is no longer needed, the easement will expire. G) Condemnation of the Servient Estate: When the govt condemns the servient estate, this may extinguish the easement. Govt would still have to pay compensation for the easement.

Profits and Licenses I) Profits Some right growing out of the soil. Its like an easement, but not only can you enter the land of another, you have the right to take or sever something from the land. Common materials are timber, coal, oil, gas, minerals, and animals. A) In Gross or Appurtenant. 1) Assumed to be In gross since they are usually acquired to benefit the owner economically rather than in the use of his land. B) Assignability 1) May be assigned and passed through inheritance because profits can be segregated from the fee of the land and conveyed in gross to one who has no interest in ownership in the fee. C) Divisibility 1) One Stock Rule applies to profits just like easements. D) Statute of Frauds 1) Profits are an interest in real estate so SOF requires a writing for its creation E) Rights of the Grantor 1) Under no obligation to maintain or preserve for the pleasure or sport of the grantee. Grantor can still do whatever he wants even if it interferes with the grantees use as long as its in good faith for the improvement of the property and not to injure the profit. F) Reasonable Use- Exercise of the profit will be limited to the usual and reasonable methods generally used in the vicinity at the time of the execution of the grant. II) Licenses privilege. A) Revocable entitlement to enter the land of another for some narrow, delineated purpose. Different than easements and profits because those are rights to enter or use the land, not a revocable privilege. B) A license is a permission to do some act or series of acts on the land of the licensor without having any permanent interest in it. It is founded on personal confidence and is therefore not assignable (generally). C) A license gives one the right to someones land without being a trespasser. D) Licenses arent real property interests, so they fall outside of the statute of frauds. They can be created orally and enforced without a writing. E) Licenses are freely revocable. 1) EXCEPTION: Where a license is more than just a naked right of entry, but also a right to erect structures and to acquire an interest in the land in the nature of an easement by the construction of improvements theron, the licensor may be estopped from revoking the license only when the licensee has invested substantial money and or labor in reliance on the reasonable expectation that the license would not be revoked. F) McCastle was deemed a license and not profit because 1) Doesnt contain anything indicating that the assignors would allow a third party the rights and privileges granted to the licensee. 2) Was only for 1 yr 3) Licensors werent giving Licensee a right to the timber so no conveyance of a real interest in property, just a right to come on and cut down the trees.

LANDLORD TENANT I) Warranty of Suitability for Intended use A) No implied warranty that leased premises are fit for the purposes for which they are let. Caveat Exemptor. 1) Burden is on the lessee to inspect the property prior to entering the lease as long as lessor gives lessee reasonable opportunity to inspect 2) Lessor has no duty to disclose, but lessor must not make false misrepresentations 3) When there is a fiduciary relationship, one must disclose (Landlord/tenant is not one) II) Duty to put Lessee in possession A) English Rule (Majority) 1) Landlord has duty to put tenant in both legal and actual possession of premises. 2) If theres a holdover tenant, landlord has t the duty to remove them to allow new tenant to take possession. 3) Once tenant takes possession, theyre on their own. B) American (Minority) 1) Landlord only need put tenant in legal possession of the premise 2) Holdover tenants must be removed by new tenant 3) Landlord has no duty to have the holdovers removed III)Transferring Lease: Assignments and Subleases A) Assignment- tenant transfer entire remaining term of lease to third party. Outright transfer of all or part of an existing lease. Assignee is stepping into the shoes of the assignor. 1) Creates privity between landlord and assignee 2) Landlord has cause of action against the assignee if theres a breach 3) Assignee is bound by the original lease- all covenants and conditions 4) Assignee must pay rent to landlord, even if assignee p[aid the assignor. Assignees duty is directly to the landlord. B) Sublease- tenant transfers less than the entire remaining time or interest in a lease to a third party. A sublease involves the creation of a new tenancy between the sublessor and the sublessee, so that sublessor is both tenant and landlord. 1) No privity between landlord and sub-tenant. (a) Terms of original lease cannot be enforced by the landlord against the sub-tenant. (b) Landlord would have a cause of action against the original tenant for breach though C) Restricting the right to transfer is a presumed right UNLESS 1) Landlord specifically restricts tenants transfer rights 2) Provision requiring landlords consent before sublease or assignment 3) Courts disfavor clauses that totally ban the right to transfer rights under a lease because it leads to inefficient use of scarce resources (housing) D) How to tell the difference 1) Look at the intent of the parties at the time of transfer (a) If Tenant reserves some interest (reversion even for one day) its sublease (i) Reserving a right of reentry (ii) Covenants to surrender possession to original tenant at the end of the sub-tenants term (iii) Subtenant had to pay a different rent than the original lease (iv) Transfer made on different terms or conditions from those contained in the main lease (b) Entire interest conveyed, its am assignment (All remaining rights, title and interest) IV) Surrender & Acceptance

A) When a tenant surrenders the premises to a landlord before expiration of a lease and the landlord accepts this surrender, the tenant is no longer in privity of estate with the landlord. 1) No obligation to pay rent after privity extinguished 2) Tenant must show the landlord intent to accept. (a) Proof may be landlord reentering premises (b) Proof could be landlord reletting premises (c) Proof could be the landlord remodeling the premises V) Duty to mitigate damages of a breached lease A) Traditionally, landlords had no duty to mitigate by re-letting the premises when a tenant breached and vacated B) Trend Rule is that a landlord who seeks to hold a breach tenant liable for unpaid rents must have taken commercially reasonable steps to mitigate its losses. Looking for another tenant. VI) Constructive Eviction- tenant is physically dispossessed of the beneficial use of the property because A) Landlord fails to fulfill an obligation to repair or replace an essential structure or provide a necessary service. 1) This results in a breach of the covenant of quire enjoyment if the failure substantially affects tenants beneficial enjoyment of the premises. 2) Denying essential services heat, water, gas, electricity B) Tenant may surrender property in a reasonable period and stop making payments 1) Tenant waives that right if they continue to remain in possession VII) Warranty of Habitability A) Old Rule: landlord has no obligation to make premises habitable (back in the day, there were only farmers and leases dealt mostly with farm land) B) New Rule: Leases contain implied covenants of habitability. If landlord breaches, tenant may withhold rent and use it to make repairs needed. 1) Residential, not commercial leases 2) Tenants obligation to pay is now dependent on landlords duty to keep and maintain the premises in a habitable condition 3) Housing codes must be followed (a) Cant retaliate because a tenant tells on you (Retaliatory Eviction) 4) Warranty of habitability cannot be waived VIII) Rent Control A) Is it a taking? Yee.

NEGATIVE EASEMENTS and EQUITABLE SERVITUDES I) Negative Easements restrict the way in which OTHERS can make use of their property. Negative easements holders do not have a right to use the servient (burdened) tenement but they do operate to restrict the way in which the owner of the affected property make use of the land. CASE: Peterson - Antenna case. Antenna blocked light and air (unobstructed view) and ran with the land even if at time of easement, you couldnt have known antennas would be invented. A) Characteristics 1) Always appurtenant 2) Can only be created by express writing; cannot arise through implication, necessity or prescription unlike affirmative easements 3) Proper remedy is injunction B) Four Types of Negative Easements 1) Light 2) Air 3) Support 4) Artificial Stream flow II) Conservation Easements are non-possessory interest of a holder in real property imposing limitations or affirmative obligations, the purpose of which include retaining or protecting natural, scenic, or open spaced values of real property, assuring its availability for agricultural, forest, recreational, or open space use, protecting natural resources, maintaining or enhancing air or water quality of preserving the historical, architectural, archaeological or cultural aspects of real property. A) Characteristics 1) Usually in gross. Easement holders are usually non profits or a state of federal agency interested in conservation. 2) Created when a landowner relinquishes the right to use a particular parcel of land in some specified way that would detract from, diminish or extinguish its natural qualities. III)RESTRICTIVE COVENANTS (Equitable Servitudes and Real Covenants) A) Equitable Servitudes are way to enforce a covenant that may have been inserted into a K as a land use control strategy that limit the uses to which neighbors could put their property, and also a way developers could offer a controlled environment. I Now Think Candy Interesting- Intent, Notice, Touch & Concern Land, Injunction 1) Original parties must have intended the agreement to bind later owners. 2) Later owners must have had notice of the restriction (whether actual or constructive) (a) Actual Successor in interest has knowledge that the land he is buying is burdened by a restriction (b) Constructive When the restriction is recorded in the chain of title to the property. Even if the successor in interest does not check the chain of title, he will be charged with constructive notice because he should have checked the chain o title before buying the land. (i) Inquiry notice places an obligation on the buyer to inquire about possible restrictions on the land even if they were not expressed in the deed. o Is the character of the surrounding area such that you might think there was some sort of restriction making all the properties the same? All pink houses with green windows. If there isnt no inquiry notice required. Otherwise you need to have inquired.

o Inquiry must lead you to find out about the restriction. If there are all pink houses and green windows and you ask, and people just say they like it, then you havent had true notice. (c) General Plan/Common Scheme Doctrine- This type of notice is applied to address situations in which restrictions that are generally applied to a development has been omitted from the deeds of purchasers of individual lots. (i) Must establish that there was a consistent use of covenants to control development (ii) The common plan was in place at the time the Defendants purchased the lots (iii) Evidence shows a common scheme whether its platts, developer flyers, marketing materials 3) Covenants must touch and concern the land 4) Remedy is always injunction as it is a suit in equity. NOTE: Privity of Contract is NOT required. Even if you never were part of the original covenant in the contract, the equitable servitude can still be enforced. B) Reciprocal Negative Easements (Mutual benefits and burdens) 1) Sanborn v. Mclean (a) If the owner of two or more lots, so situated as to bear the relation, sells one with restrictions of benefit to the land retained, the servitude becomes mutual, and, during the period of restraint, the owner of the lot or lots retained can do nothing forbidden to the owner of the lot sold. (b) Not personal to owners but operative upon use of the land by any owner having actual or constructive notice. (c) Mutual benefits and burdens 2) Must have a common grantor (a) Cant arise from just having other lot owners conforming to a general plan if their original grantors are all different. 3) Plan (a) Shows the substantial uniformity of the restrictions upon the lots included in a given tract, statement of intention in documents of pa public nature, and recorded plats. 4) Notice (a) Massachusetts requires an express promise in the deed of another to restrict all other parcels covered by the Plan. The person with this promise in his deed may try to enforce the right in court through equity. (b) Hawaii accepts that rule that equitable servitudes can be implied even where there is no promise to restrict others included in the plaintiffs deed.

COVENANTS I) Real covenants are promises to do or refrain from doing something related to land. Theyre not real property interests by contractual limitations. A) Covenants Appurtenant run with the land. It runs with the land if it binds not just current owners but future as well. 1) Must Touch and Concern the land (a) Both the benefit and burden must touch and concern the land. (i) Burdens if it affects the burdened party in her capacity as a landowner (ii) Benefits if it increases the covenantees enjoyment of the land that that enjoyment comes directly from the ownership of the land. (b) Courts arent super strict, but it must concern the land. Its not necessarily a physically touching the land test. (i) For example, anti-competition covenants have been upheld when its purpose is to control commercial growth in a particular geographical area. Whitinsville Plazadont build another discount store near me. 2) Covenanting parties must intent it to run with the land (a) Look at the specific language used and the circumstances surrounding the creation of the covenant. (i) Binding on the covenanters heirs and assigns is strong evidence of intent that the covenant run with the land. But just because thats not in there doesnt mean that is not what was intended. 3) Privity of estate is required to some degree. There must be a link between original parties to the covenant and those trying to enforce against whom you are trying to enforce the covenant. (a) Horizontal and Vertical privity required (i) Horizontal exists when the covenantor and covenantee share an interest in land or when a covenant is created in connection with a conveyance of an estate from one party to another. Horizontal has practically been abolished. (ii) Vertical exists when person presently claiming the benfit or being subjected to the burden, is a successor to the estate for the original person so benefited or burdened. B) Covenants In Gross arise when the covenant is mean to benefit the grantor personally rather than held for the benefit of a particular parcel of land. 1) Usually discouraged by courts and will presume they are appurtenant when there is ambiguity. (a) When there is ambiguity, courts will look at the purpose of the covenant and the surrounding circumstances at the creation of the covenant. II) LIMITATIONS on COVENANTS A) Against Public Policy, Alienation, Unreasonable, Change in Circumstances, Abandonment 1) Against Public Policy (a) Must further an important public purpose (i) (Crane Neck Association - deinstitutionalizing mental challenged persons) (b) Requirement of an illegal or unconstitutional act are unenforceable. 2) Alienation (Lauderbaugh- Board trying to keep out Jews) (a) Absolute ban on alienation is void. If the limits are reasonable, it could be valid (i) Rights of first refusal to repurchase (ii) Restraints on transfer for brief periods of time (iii) Sale approval by board as long as approval are based on standards rather than on the whim of board members. 3) Unreasonable (Cat case)

(a) Will not enforce if the burden on the use of affected land far outweighs the benefits of the land. (b) Courts treat recorded use restrictions as presumptively valid so covenants in covenants are deferential. (c) Common Interest Developments (i) Reasonableness determined by reference to facts that are common to all owners in the common interest development, not to just to a specific individual homeowner. (d) Consent Covenants (i) Covenants providing for consent before construction or remodeling have been widely upheld even when homeowners associations have broad discretion as long as its exercised reasonably and in good faith. o Having clear standards provide strength to enforce the covenant. 4) Change of Circumstances (a) Will not enforce a restrictive covenant where fundamental change has occurred in the intended character of the neighborhood that renders the benefits underlying the restriction incapable of enjoyment (i) Fact specific inquiry o Character of the neighborhood and benefit of the covenant. Does the change in character make the covenant moot? (ii) Change must be so pervasive that the entire area or subdivisions essential character has been altered. o Changes to the bordering areas are not enough. Must be in the neighborhood itself. 5) Abandonment (a) Requires evidence that prior violations by other residents have so eroded the general plan that the enforcement of the covenant would be useless and inequitable. (i) Will not enforce if the covenant, which applies, has been habitually and substantially violated so as to create an impression that its been abandoned. (ii) The violations have to be material to the overall purpose of the covenant. Minor violations are insufficient to find abandonment (iii) Proof of abandonment should be limited to the covenant you are claiming to be abandoned. Violations of other covenants in a contract is not a valid defense of abandonment. III)Remedies for Breach A) Sandstrom Test- when an owner deliberately and intentionally violates a valid express restriction or intentionally takes a chance, the appropriate remedy is mandatory injunction to eradicate the violation (regardless of the relative damage caused by the injunction. 1) Must be affirmative. You built that second story even when people told you that you couldnt. That second story has got to come off even if its very expensive to you. Relying on architect not a defense. B) Pelosi Test- If a defendant can show that they took action not knowing or intentionally violating the restriction, a balance of equities test will be use to determine the proper remedy. 1) If injunction causes a great hardship, court will offer difference relief. Pelosi- road cant come out; well take out the tennis court. 2) Pelosi used it because the developers had violated the restrictive covenant. The purchasers are asked to bear the burden of the injunction, so court balances to make sure its not unduly unfair (removing road means no ingress and egrees). Purchasers werent innocent, however they didnt actively violate the covenant. C) Latches (Unclean hands cant invoke equity) 1) You cant sit on your case until the construction is complete.

2) If there is a delay, it must be reasonable under the circumstances. (a) Delay reasonable if you brought it up as soon as you found out even if it was later in the construction.

TENANCIES I) Joint Tenants - Two or more people own a single, unified interest in property. Each owner owns an entire interest of land equally with the rest of his co-owners A) Creation 1) Deed, will, or Joint adverse possession (a) Deed should state that the land is being conveyed to A and B Jointly or as joint tenants (b) When property is transferred in a will to two or more people equally, law assumes recipients are joint tenants. If there is no will, recipients take the land as tenants in common. B) Traditionally joint tenancies could only be created if they were 1) For the same duration (TIME) 2) In the same document (TITLE) 3) In the same amount (INTEREST) 4) And equal right to use the property (POSSESSION) C) NEW TREND more relaxed. 1) Intention of parties matters the most D) Right of Survivorship 1) Joint tenants has the right of survivorship. Death of a joint tenant means the decedents interest flows directly to the remaining joint tenants. (a) It supersedes WILLS. Even if a joint tenant leaves their interest to someone else, the land flows to the other joint tenants E) Severance of one of the unities converts the joint tenancy into a tenancy in common 1) Severance can be done through a sale of the interest in one of the joint tenants. This destroys the joint tenancy between the original owners and creates a tenancy in common with the new owner. The joint tenancy for any original owners remain. 2) If all Joint Tenants agree to convert to Tenancy in Common, no need to memorialize it. 3) If you murder one of your joint tenants, this severs the joint tenancy and right of survivorship does not apply II) Tenants In Common- Each tenant has same right to possess the entire property subject only to the rights of his cotenants. Ambiguous grant of land makes it a tenancy in common. Courts prefer this type. A) Doesnt require the four unities; only that each tenant has an equal right to possession. B) No right of survivorship. Decedents interest can be willed or passed intestate. C) Unequal shares allowed III)Rights of Co-Tenants A) Can sever co-tenancy by requesting a judicial partition where each cotenant gets their respective share of the property by sale. B) If a cotenant collects monies from a third party to use the land, these monies are held in trust for the other cotenants and each can collect his/her pro rata share of the income. C) Right to charge rent to cotenants using the property 1) Common Law one tenant who occupies all or more of his proportionate share is not liable to his cotenants for rent, use or occupation UNLESS (a) Theres an express of implied agreement (b) The tenant kicked out the other cotenants. 2) Minority states- cotenant in possession will be responsible to pay the reasonable rent to his cotenants because there is no reasonable argument that can be advanced for allowing one in possession to reap a financial benefit by occupying property owned by his cotenant. D) If one of the cotenants pays the purchase price, taxes or cures liens on the property, this cotenant may look to the other cotenants for contribution of his/her pro rata share.

E) If improvements are made by one of the cotenants without the other cotenants consent, they may not have to her back. IV) Tenants by the Entirety Husband and Wife A) Right of survivorship even if one kills the other B) Both parties have to sign to transfer property. 1) A husband and wife singularly can transfer his/her OWN right to the property, which is the right of survivorship. (a) If husband tries to transfer his ownership to debtor, the debtor gets nothing until the husband dies first. If wife dies first, debtor gets it. 2) Death, valid divorce, or mutual agreement will all terminate a tenancy by entirety. It gets converted to either Joint Tenancy or Tenancy in Common depending on the court. V) Marital Concepts A) Degrees are not marital property because its personal to the owner and acquired through years of individual work, not just through efforts during marriage. NY holds opposite. B) Reimbursement Alimony- you can get your spouse to reimburse you for the sacrifices you made so the other spouse could advance their career. C) Communal Proper Regimes require that all property acquired during the marriage by divided fifty-fifty. It does not include property owned by a spouse before the marriage, separate property acquired by gift, devise, or inheritance during the marriage.