THEORETICAL JUSTIFICATIONS FOR PROPERTY I. What is Property? i.

Not a thing: A set of limited legal rights and entitlements that a property owner has, with respect to something 1. Property is how societies should allocate scarce resources in relation to each other. Its how society decides who has rights to things. b. ow property rights originate: Property originates through first possession but also through cultural considerations such as race!assimilation, labor put forth to de"elop the land, go"ernment redistribution, effects social policy!economic de"elopment, morality ". pragmatism, cultural contingency, rights recogni#ed by courts and the state ma$es the rights legitimate. c. Property Rights % a legal entitlement to an indi"idual or an entity, but the e&tent of the legal right is determined by rules 1. Point is for efficiency and fairness '. (imited to ensure that property use and ownership do not unreasonably harm the legally protected personal or property interests of others ). *wners ha"e obligations as well as rights +. ,ltimately you must rely on the state to enforce your property rights -. .mergencies!necessities are e&ceptions % can infringe on someone else/s property ii. Property rights in the bundle of stic$s 1. Pri"ilege to use property 0 use '. 1o alter!change the property % alter or change ). 2ight to e&clude others % e&clude +. Power to transfer title to the property % con"ey -. Immunity from ha"ing the property ta$en or damaged!destroyed without consent % immunity from loss d. Theories of Property theories are tools to decide what the rules will be, sometimes rules and theories o"erlap and sometimes they conflict i. Traditional Native American Conceptions of Property 1. It is not possible to own land in the way that non0Nati"es thin$ of it a. 3piritual "iew of land '. Nati"e Americans de"eloped systems that were based on communal land use and sharing ii. Positivism and Legal Realism 1. 2ights are created through laws, unrelated to morals, based on public policy '. 2ules are intended to protect indi"idual rights, promote the general welfare, increase social wealth, and ma&imi#e social utility a. 1herefore, 4udges should follow rules to create consistency in 4udgments. ). ow members of a group allocate scant resources: how to resol"e competing claims o"er limited resources iii. Justice and Fairness 1. 1here are always gaps in laws and they should be interpreted in a manner that protects indi"idual rights, promotes fairness, or ensures 4ustice a. 2ights theorists: 3ome rights are morally superior to all general considerations. b. Natural rights: these rights are in the nature of human beings and human relationships c. ,ni"ersalists: all rights should be uniformly enforceable in all similar situations. '. 5ertain indi"idual rights cannot be sacrificed for the good of the community iv. Lockeian Theory 1. 3ocial contract theory 1

'. (abor is the foundation of property % if you wor$ on land, you may establish ownership a. .ncourages producti"ity and stimulates commerce b. 5ontrol o"er a resource is what ma$es us human ). Wide property distribution is necessary to get e6uitable results 7distributi"e 4ustice8. v. tilitarianism! social "elfare and efficiency 1. 9ocuses on the how to ma&imi#e social utility or welfare. a. (oo$ing for economic efficiency '. :enefit of standards as opposed to rules is that it encourages fle&ibility to achie"e ma&imum efficiency. vi. #ocial relations 1. Property plays a role in defining social relations a. 1his "iew is ta$en by 9eminists, critical race , critical legal, communitarianism etc. b. 5ertain people and claims are the norm, and others are the e&ception, and law should be conscious of how this effects society. II. 5ompeting 5laims to Original Acquisition a. ;ohnson ". </Intosh 7,.3. 3upreme 5ourt, fed treaty law8 % 1wo claims to title of land that Nati"e Americans inhabit. Pl/s claim came from buying it from the Indians. ,.3. go"ernment con"eyed land to =. Issue of first possession and natural rights. i. 1he issue here as who had the better claim to the title? 1. 5ourt decided that Indians couldn/t con"ey property ii. 2ule: Nati"e Americans 7Pl/s8 were granted Right of Occupancy only, no right to 1ransfer or .&clude. 1. *therwise go"ernment would ha"e had to pay for all the land the Indians occupied. '. 2ight to occupy was meaningless since it could be ta$en away. iii. Policy arguments for this case 1. Pl/s Argument: :ased on a natural rights theory 7naturalism8 % nati"es possess right to sell b!c they had a natural right to the land '. =/s Argument: :ased on a positi"ist theory 7rights through law8 % nati"es were merely inhabitants of the land a. Pl did not obtain title from someone who could con"ey it b. (oc$eian notion that without labor!possession 7ie fencing, crops, raising li"estoc$8 Nati"es didn/t really own the land. LIMITATIONS ON THE RIGHT TO EXCLUDE I. 5ommon (aw Public Policy (imits a. 1he right to e&clude % *wners can e&clude nonowners from their property. i. 1his right is limited: 1. can/t use property in a way that in4ures others '. (imited by e&tent to which property owner has opened up land to the public, ie if they are a public accommodation the right to e&clude is "ery limited, and with common carriers it is almost non e&istent b. Trespass on pri"ate property i. *ld definition going onto the land after being pre"ented to do so. 1. 1his is a 5riminal trespass. ii. New definition 0 going onto the property after it is made clear through a sign or a fence that a person is not allowed. 1. 5i"il claim is "alid e"en if no one said not to come on to the property. iii. .&ceptions: 1respass is permitted 7pri"ileged8 1. .ntry is 4ustified by the need to pre"ent a more serious harm to people or property '. .ntry is otherwise encouraged by public policy. '

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i". 3tate ". 3hac$ 7N;, 1>?1, 9ederal rights and N; statute8 % migrant labor legal aid members tried to help two employees. *wner demanded they lea"e, and the wor$ers were charged with trespass when they refused under N; law. 1. 5ourt chose to decide this under N; state criminal statute and 5ommon law and a"oided constitutional issues so the case couldn/t be re"iewed. a. With these types of state laws, ha"e to as$ if a federal right!law trumps it. '. 2ule: employer can@t deny his migrant wor$er employees!tenants their basic rights and needs on the basis of protecting his real property from trespass. :argaining power, the harm casued by the need being denied, and the person trying to enter should all be ta$en into account. a. 1his case does not mean that these farms are public places. b. 1itle to real property cannot include dominion o"er the destiny of persons that the owner permits to come upon the premises ). 1his case was decided under a realist approach property rights ser"ing human "alues +. Policy: a. :alance property rights w!free access. 9reedom of action of one w!producti"ity of the other. b. 1edesco/s right as an owner % security to enforce on his property for himself and for his employees, his ability to farm!be producti"e i. the migrant wor$ers could go to the aid wor$ers to get the info. c. 2ights of migrant wor$ers % not a party here but they/re the primary focus. 9undamental rights: 2ight not to be isolated, recei"e aid from go"ernment!charities, right to be able to recei"e "isitors, li"e w!dignity and en4oy customary rights among citi#ens, pri"acy. i. Where do we draw the line here? d. 5an the mar$et regulate this? *n the one hand a bad owner won/t attract wor$ers. *n the other, there is not e6ual bargaining power c. Is there trespass on public property? i. Minority 2ule: ,ston ". 2esorts International otel 7N;, 1>A', N; law8 % = e&cluded Pl from his casino because Pl was counting cards. Pl sued = for access. No statute in N; against card0counting 1. When a property owner opens his land to public use for his own profit then he cannot e&clude people for no reason. a. as to be reasonable e&clusion, li$e safety reasons or he/s being disrupti"e '. ,ston is effecting an economic right, but he still cannot be e&cluded ). ,nder the minority, 5asino owner is different than 9arm because the 9arm is not open to the general public. ii. Majority 2ule: :usinesses open to the public ha"e an unrestricted right to e&clude, e"en unreasonably, e&cept common carriers and inn$eepers or "iolations of ci"il rights. 5an e&clude whoe"er they want. 1. 9arm and the 5asino are the same because neither is a common carrier. iii. Policy for 5ommon carrier e&ception 1. <ore li$ely to be monopolies, so it was li$e denying the right to tra"el in general '. =enying people would put them at great ris$ in the elements and to bandits ). 1hey hold themsel"es as ready to ser"e the public and the public relies on that representation. Speech Rights and Access to Pri"ate Property %

a. Majority Rule: (loyd 5orp. ". 1anner 735*1,3, 1>?', 9ederal const.8 % = handed out protest flyers in Pl/s mall. = was as$ed to lea"e by security. = left and later filed suit see$ing in4uncti"e relief and declaratory 4udgment. i. 5ourt balances the -th and 1+th amendment right limiting go"t ta$ings 7in this case of the right to e&clude8 of property rights against the 1st and 1+th. 1. 1+th amend doesn/t apply to indi"iduals, only to go"ernment. '. <arsh " Alabama is the one e&ception to this because it pro"ided all go"t functions. 1he mall is not li$e the corporate town and doesn/t fall under the e&ception. ii. A pri"ately owned mall is not so dedicated to public use as to allow people to e&ercise their 9irst Amendment rights. Pl has the right to exclude. 1. Pri"ate property does N*1 lose its pri"ate character merely because the public is in"ited to use it for designated purposes '. .&ception for speech related to the shopping mall in (ogan Balley, though that was later o"erturned. iii. Pay attention to choice of law here, because it seems silly that ,ston/s recreation rights were protected 7,nder N; const8 while handbiller/s 5onst right weren/t 7under ,3 const.8 i". =issent argued that the mall was the new town center and people will ne"er be able to spea$ freely in these new town centers and that hurts democracy b. Minority rule: N.;. 5oalition against War in the <iddle .ast ". ;.<.: 2ealty 7N;, N; const interp8 %Pl passed out flyers protesting the Culf War. =, owner of the mall, prohibited Pl from passing out flyers. i. 1he more an owner opens his property to the public for his own benefit, the ore !public! he will be treated. 1hree pronged test: 1. Nature D Purpose of the Primary ,se of the Property % <alls are all0inclusi"e. '. 1he .&tent and Nature of the Public In"itation to ,se the Property % <alls ma$e all0embracing in"itation to the public and ha"e significant non0retail uses 7e&ercise, sociali#e, not necessarily shop8 ). 1he Purpose of the 3peech!.&pressional Acti"ity in 2elation to the Pri"ate and Public ,se of the Property % not as pri"ate as it once had been, ta$en o"er the traditional function of the downtown shopping area. =oes not ha"e to relate to the mall/s acti"ities: +. 5an minimi#e the discordance by adopting rule to regulate time, place manner of leafleting. ii. 1his case is based on N; state constitution, and it broadens federal free speech rights c. Policy for mall speech: i. a"e to weigh the rights of the property owners with those of free speech 1. 9ree speech is higher in the hierarchy of rights 7<arshall/s dissent8 so it should be protected. '. 1his is an ine&pensi"e way for the public to hear speech and its unconstitutional to ta$e that away ). 2ight to free speech leaflet on pri"ate property because no real public property to do so a. 1he mall acts li$e a public actor so they should be treated that way. ii. Weigh the burden on retail locations against the cost of broadcasting messages of protest. iii. Against free speech: these are business places and that/s their primary purpose. 1. 1he federal 5onstitution doesn/t pro"ide citi#ens a right to free speech in pri"ately owned shopping centers. '. 1his is an issue that should be dealt with in the legislature if the law needs to change for different times. i". In the end the states ha"e a lot of discretion, but the ,3 const is the baseline +

d. 35 held in Pruneyard 7and (ogan Balley8 that -th amend right not to ha"e your property ta$en without 4ust compensation is not "iolated by the - states that allow free speech on pri"ate property. i. 3o in these mall cases, -th and 1st are not in conflict, it is states" choice. 1. (abor organi#ations ha"e increased rights of access from the National (abor 2elations act. Property owners ha"e to allow access for pic$eting. ADVERSE POSSESSION % ow trespassers become owners I. .lements0 they o"erlap some. a# Actual Possession i. <ust physically occupy 1. A fence can be enough proof, or building, farming, clearing or landscape wor$. '. ,sed for en4oyment, residence, or impro"ements. ii. Eey 6uestion: =oes the possessor treat the land as the Fa"erage ownerG would? iii. :e wary of this being a prescripti"e easement instead of ad"erse possession i". 5olor of title factors in here. b# $xclusi%e i. 1he ad"erse possessor must be in e&clusi"e control of the property. 1. Is it being shared with the true owners? '. 5onduct that would be e&pected of a true owner. ii. 3ometimes when e&clusi"ity is not met for ad"erse possession, one can get a prescripti"e easement. c# &isible' Open and (otorious i. As$: Would a reasonable inspection of the land disclose the possessor/s presence? ii. Possession gi"es notice. 1. <ust be sufficiently "isible, ob"ious to other iii. Ad"erse possessor can use actual notice or constructi"e based on possessor/s use of the property: 1. Acting li$e a typical owner, for that specific piece of land '. :uilt a structure, cleared land, layed asphalt, etc. d# )ontinuous i. Is this the type of continuous use an owner of this property would ha"e? 1. If it/s a summer home, only loo$ing for presence in the summer, etc. ii. Tac*ing 0 periods of possession by different people may be added together. 1. 9or e&ample if one person ad"ersely possessed for - years, and transferred title, the ne&t title holder can tac$ on those fi"e years. a. <ust be pri"ity e. Without the owner/s permission 0 ad%erse or hostile i. (oo$ing for non0permissi"e use. 1. If there/s permission, then its an easement '. If there/s silence, it assumed to be non permissi"e ii. Majority of states say that the possessor/s state of mind is irrele"ant. All that matter is that he lac$ed permission iii. Minority use sub4ecti"e tests: 1. Intentional =ispossession %Ad"erse possessor must be aware that she is occupying property owned by someone else and must intend to oust the true owner. FI $new I didn/t own it, but I intended to ta$e it.G a. 5reates per"erse incenti"e for trespassing '. Cood 9aith *ccupation % *nly innocent possessors pre"ail. FI thought it was mine.G ). 5laim of 2ight 1est % Proof that acted toward land as a"erage owner wouldH no intent re6uirement. FI acted li$e I owned it so it/s mine.G -

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f. 9or a period defined by state statute i. 3ome states lower the number of years re6uired to obtain ad"erse possession when the owner has color of title. 1his means that a written con"eyance appears to pass the title, but fails to actually do so. ii. 9or 9ee simple determinable 793=8 the cloc$ starts running as soon as the condition occurs because its automatic. 9or 9ee simple sub4ect to condition subse6uent, it doesn/t start running until the real owner asserts ownership in some way g. 1he ma4ority of 4urisdictions ha"e a higher than normal burden of proof, ma$ing it clear and con%incing and not preponderance of the e"idence i. Public policy reason for this is that it is not 4ust money damages, it is changing possession of a piece of land without a transfer of money. ,order -isputes a. :rown ". Cobble 71>>I, WB, state law8 %9acts: Pl and = disputed ownership of a two foot wide tract of property on the boundary of their properties. 1he pre"ious owners had ad"ersely possessed for more than the 1J year statutory period i. 1his case "alidated tac$ing, but in the end it wasn/t necessary because of the pre"ious owner/s fulfillment of the 1J year period ii. 5ase also established the ma4ority clear and con"incing standard of proof for ad"erse possessions claims: &acant .and a. Nome 'JJJ ". 9agerstrom 71>A?, Alas$a, state law8 % standard, mandated by state =/s used Pl/s land for "arious purposes from 1>++ until 1>A?. 1hey put a trailer on the land for the summer in 1>?A and built a reindeer pen, had outhouses for a long time in the Northern part. i# =efendants show all the elements of Ad"erse Possession here because their use was consistent with the typical use of that *ind of land was 1. 1he southern part was not used enough and not ad"ersely possessed. ii. 1he goal here is to $eep land in constant use because it is a limited resource. Prescripti%e $ase ents a. An easement is an interest in one of the stic$s in the bundle. b. As opposed to ad"erse possession, which is trying to get ownership, easements are 4ust for one use. i. Parcels are often connected to each other as ser"ient and dominant estates through easements c. Ac6uiring an easement through prescription is similar to ac6uiring ownership through the doctrine of ad"erse possession. i. Prescripti%e $ase ent % Ac6uired through long0standing use 7for a particular period of time8 1. 3ame as ad"erse possession re6uirements, e&cept no e&clusi"ity re6uirement because this is 4ust one use d. 5ommunity 9eed 3tore, Inc. ". N... 5ul"ert 5orp. 71>A> B18 0 Pl claimed a prescripti"e easement o"er a portion of a gra"el area used by its deli"ery "ehicles to turn around, but actually owned by the =. i. 2ule: /eneral consistent use is sufficient to establish a prescripti"e easement % do not need to pro"e with absolute precision but must show general outlines consistent with pattern of use throughout prescripti"e period with reasonable certainty. 1. 1his isn/t the same as other easements which are gi"en with permission. ii. Ac6uiescence $Community Feed #tore% 0 <any states re6uire the easement claimant to pro"e ac6uiescence by the true owner. 1. 9or some courts: means that owner did not assert her right to e&clude by bringing a trespass action. I

'. 9or other courts: (and owner must ha"e kno"n about use, and passi"ely allowed it to continue without formally granting permission. iii. No Negati"e Prescripti"e .asements e. Warsaw " chicago metallic ceilings % Pl built a building without enough space for big truc$s in the dri"eway. e decided to use =/s property and did so for se"en years. At that point d wanted to build on that property. i. 1he statutory time for prescripti"e easement was I years so the Pl won his claim to establish the easement. 1. 1his case is a good e&ample of why intent should matter. 1he Pl $nowingly trespassed on d/s land because of negligence in his own building construction. a. 1his is bad faith and at the least Pl should ha"e to pay. 9or e&am: Arguments for Ad"erse Posession in general: o ,tility, efficiency, producti"e use of land might generally support Ad"erse Possession o =iscourages the concentration of wealth sometimes o 2eliance by ta$ing roots!settled e&pectations and stability 7fairness8 o Incenti"es to loo$ after property % property should ser"e human "alues and ob"iously the real owner is not using the property to not $now there/s an Ad"erse Posessor on it ACAIN31 AP: o If the Ad"erse Posessor "alues the property then they should ha"e to pay for it o Not fair to the original owner o 1itle should ha"e meaning to a"oid lawsuits 0 K and time o A personal attachment to the land o Inefficient % ris$!cost of AP putting labor into the land, owner shows up and the labor was for nothing LIMITS ON THE RIGHT OF USE I. 3olutions to (and ,se 5onflicts between Neighbor a# (uisance: Non0trespassory interference with another/s property rights through use of your own property i. Pri"ilege to use one/s property is limited by the legal rights of other owners to be protected from unreasonable harm to their use or en4oyment of their own property. b. 9our ways to resol"e these conflicts: i. -"s pri%ilege0 =efendant/s pri"ilege to engage in the acti"ity, e"en thought it harms Pl/s property interest 1. 1here/s no "iolation of legal duties here, so = can cause this in4ury ii. Plaintiff"s Security % Pl has a right not to suffer the harm, so if he can pro"e that = engaged in that conduct, then = will owe damages 1. 1his is strict liability iii. Reasonableness test 0 = may engage in harmful acti"ity if it is deemed to be reasonable but not if the conduct and!or harm caused by it are deemed unreasonable. 1. 1his is a moral!policy 4udg balancing the following factors: a. .&tent of harm to Pl and social utility of Pl/s acti"ity b. 3ocial benefits of =/s acti"ity, measured by what society would lose by pre"enting = from freely engaging in harmful acti"ity c. A"ailability of alternati"e means to mitigate or a"oid harm 7cheapest cost a"oider8 d. =/s moti"e e. Which use was established first i". Prior 0se % .ntitlement is awarded to the person who established the first use. ?

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c. 1he re edies a"ailable are: i. =ismissal of the 5omplaint % If solution to conflict is =/s pri"ilege! court will grant motion to dismiss the Pl/s complaint. ii. =amages % Pl/s security L can as$ for damages. <ost common are the cost of restoration and the diminution in the mar$et "alue of the property. iii. In4unction % Pl/s security as well i". Purchased In4unction % =/s use has "alue, but the cost e&ceeds that "alue. Pl has to pay def to stop the acti"ity bc of prior use or unfairness for def to bear the burden alone. d. ,sing the 5oase theorem: Which acti"ity causes more harm? 5ost!benefit analysis. i. No morality ta$ing into consideration. ii. (oo$ing to minimi#e harm and increase benefit. 1. 1his doesn/t ta$e soft "alues into account 1ater Rights % must argue for a standard or a rule, thin$ about which rule will be fair in the most cases. a. 1hree Possible 2ules i. )o on $ne y Rule % No liability. Property owners ha"e the absolute freedom to de"elop their property without liability for any resulting damage to neighbors caused by increased runoff of surface water. 1. Policy 9or: a. = should ha"e freedom to use the land otherwise why own it 7rights!fairness argument8 b. Promotes de"elopment 7social utility argument8. '. Policy against: allows one owner to de"elop his property at the e&pense of another/s property ii. (atural 2lo3 2ule % 3trict liability for the in4ury. 1. Policy 9or: a. 9reedom to en4oy your land!protect your in"estment. *therwise, why own it 7rights!fairness argument8? b. If the de"eloper does not internali#e the cost then that could lead to o"erde"elopment 7social utility8. 1he = is in a better position to pay and so should bear the burden. '. Policy against % deters de"elopment iii. Reasonableness 3tandard 72easonable ,se 1est8 % <a4ority rule. =id =/s conduct cause unreasonable interference with the neighbor/s use of their land? <a4ority rule. 9actors to consider: 1. amount of harm caused '. 9oreseeability of harm ). purpose or moti"e of property owner +. utility of possessor balanced against gra"ity of harm -. Policy: a. 9or L fle&ibility 7allows us to be more fair on a case by cases basis because it/s not always clear which side should bear the cost8. b. Against L potential 4udge/s bias. Possible chilling effect on de"elopment because no way to $now what is reasonable. b. Armstrong " 9rancis 7N; 1>-I, N; common law, adopted from restatement8 =, upstream subdi"ision de"eloper caused ma4or increase in drain flow from its land, flooding and eroding Pl/s land. 1he harm is not disputed, it/s 4ust who is responsible for it. i. 5ourt decides to use reasonableness test and considered the amount of the harm, the foreseeability of the harm, utility of =/s use and the =/s purpose 1. (oo$ to see if utility of possessor/s use of land outweighs the gra"ity of harm. A

ii. = would rather use the 5ommon .nemy 2ule & It has more social utility: it is not efficient to ha"e to thin$ about what will happen to e"ery single landowner downstream. iii. Pl uses the Natural 9low Argument % upstream owners should be responsible and should bear the costs of what their land does to downstream owners. Pls cannot use their property as they used to % no en4oyment, erosion, nearing septic tan$. i". Policy 1. 1here are problems with natural flow % discourages de"elopment, shortage of housing. '. Problems with common enemy % Would render e"ery property downstream useless because their rights would be totally unprotected. c. Ceneral policy concerns here and different perspecti"es to use: i. Rights: freedom of action "s. security. 1. ;ustice in social relationships 0 landowners can use land but don@t ha"e the right to use it in a way that in4ures others '. 2ights as freedom of action 0 right to use property as one wishes regardless of how it interfered. ). 2ights as security 0 right to protect property from harm. A perosn can use prpoerty until it infringes on security or harms another@s property. +. Balue 4udgments 0 decide which claims are legitimate and decide which to protect. ii. Social utility: competition "s secure in"estment. 1. Promoting the general welfare by enacting appropriate incenti"es 0 creates rules to get a particular socially desirable outcome. '. Promoting competition 0 promote de"elopment and impro"ement. :y shielding owners from liability. ). Protecting the security of in"estment 0 pro"ide security from flooding or obstruction of a "iew by creating rules and consistency with a land in"estment. *therwise de"elopers 4ust e&ternali#e their costs onto nearby landowners iii. 3hould these be rigid rules or flexible standards. 1. Predictability "s. 4ustice in the indi"idual case '. 2ules 0 ma$es consistent results. ). 3tandards 0 more fle&ible than rules. <a$es it easier to ha"e 4ustice in each indi"idual case. +++# (uisance % a general protecti"e doctrine 7applicable to an interference not co"ered by a specific rule8. a. =efinition is the substantial and unreasonable interference with the use or en4oyment of land i. No re6uirement for negligence ii. :ased on normal sensiti"ities % no help for the ultrasensiti"e iii. =eals only with legal rights i". 5ompliance with #oning laws is persuasi"e but does not rule out something as a nuisance. b. 1he issue here is there is inco patible use, and who should bear the cost. c. 1hese conflicts come up when there is no e&isting common law or statutory solution d. 1hese are fact specific in6uiries that apply standards, not rules. 1hings to consider: i. Nature of the neighborhood!#oning % suitability of each party/s acti"ity to the location ii. Whether the person came to the nuisance or not % not an absolute defense iii. What has either party done to a"oid the nuisance? i". What is the social "alue of Pl and =/s acti"ities e. =ifference between Nuisance and 1respass i. (uisance % use of one/s *WN land that interferes with a neighbors use and en4oyment of property. Coes to the right to en4oy your land. ii. Trespass % intentional physical intrusion onto another/s land. Coes to the right to e&clude.

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f. Page 5ounty Appliance 5enter, Inc. ". oneywell, Inc. 71>A+, Iowa statute8 9acts: = tra"el agent placed computer in his office that interfered with Pl/s long0time 1B sales business. Problem was caused by radiation lea$ing from computer. i. 1he rule for nuisance is that it has to be unreasonable, which means the manner, place, circumstances, priority, character of neighborhood and nature of the wrong and the magnitude of in4ury are balanced against the utility. 1. Who was there first 7first0in0time8 0 9irst0in time not an absolute defense if the area changes e"en if polluting first '. :urden on the person harmed to a"oid the harm ). 1his would ha"e come out differently if 1Bs were seen as ultra sensiti"e. ii. Policy: 1. 1here was no way to a"oid the damage to 1Bs e&cept to mo"e shop. 1here was a fi& for computers. '. 1his is an emerging technology and we should protect it, or not protect it and ma$e it li"e up to high standards ). Would putting the cost of these computers on one owner be fair? g. $ntitle ents 0 1hree types of remedies, property rule, liability rule, inalienability rule. i. Property rule 0 fi&es an absolute entitlement to engage or be secure form the harm. 1. Pl can in4unction against d. If d wants to commit the harm he has to pay Pl. '. = can get the complaint dismissed. (egal right to commit the harm. Pl can offer d money to stop. ii. .iability rule 0 prohibit each party from interfering with someone else@s interest unless they@re willing to pay damages 1. Pl can get damages but no in4unction. = can $eep going is he@s willing to pay. '. Pl can stop d@s beha"ior if he@s will to pay damages for lost profit iii. +nalienability rule 0 entitlements are assigned to parties and they can@t be sold or e&changed 1. = can@t commit the harm and there can be no agreement between pl and d otherwise '. = can commit the harm and no agreement will alter that. h# Re edies i. :oomer " Atlantic cement 1>?J 0 court found a cement factory that spewed dust and pollution only had to pay damages to the residents bc the factory@s benefit outweighed the cost. 1he harm was greater than any indi"idual should ha"e to bear, but worth it for society. ii. Pl can obtain an in4unction against = when =/s conduct causes more social harm than good and causes substantial harm to Pl 7it/s unreasonable8 iii. Pl can obtain damages but no in4unction if the conduct causes more social good than har, but the harm to Pl is substantial and its unfair to burden Pl with costs of this reasonable acti"ity. i". Pl is not entitled to a remedy if: 1. 1he harm to Pl isn/t substantial '. =/s conduct is reasonable and its fair to impose the costs on the Pl. ). Imposition of damages would put = out of business and it/s important to a"oid that. i. 9ontainbleau otel ". +-'- 7.den 2oc8 79(, common law 1>8 % .den 2oc sought to en4oin 9onotainbleau/s construction of an addition that would bloc$ all sunshine from .den 2oc/s hotel pool and beach in the winter. i. 1here is no legal right to light and airH 5ourt was not willing to create a new property right, as it would be tantamount to 4udicial legislation % this is a 4ob for the legislature. ii. ."en 2oc tried to use ancient lights theory that says that there was an implied easement of light and air en4oyed by the Pl and its predecessors for more than 'J years. iii. Cood faith is not a factor in nuisance cases. 1J

i". Policy: 1. 1his is a good decision because .den roc could/"e purchased the easement, but didn/t. It/s trying to e&ternali#e its cost. '. It/s not for 4udges to legislate, let the legislature pass a new law that affects the whole area. ). 1his is not an in4ury to a legal right, and the rule protects lawful rights of all others, not any possible way someone can be in4ured +. 1his construction is bringing economic de"elopment. -. 1his is a bad decision because the goal of nuisance is to be adaptable and fle&ible I. 1he fountainbleu is being allowed to build in a way that ta$es away .den 2oc/s financial "iability without ha"ing to compensate. At the least, there was a prescripti"e easement here. ?. *ne of them should ha"e to pay the other. j# .a3 and econo ics i. It promotes adopting laws w!the goal of efficiency and wealth ma&imi#ation 7Posner8. ii. ,ses the mar$et to weigh costs and benefits iii. Pros of law and econ: 1. .ncourages predictability and stability. '. <ust protect property rights or people will not in"est in it. ). (imits 5ost e&ternali#ation +. :oth sides in this case could argue that the other is e&ternali#ing costs, and according to different theories in law and economics, you/d either: a. =oesn/t matter who we gi"e the entitlement to, the mar$et will ta$e care of it. 7coase, assumes no transaction costs8 b. <a$e sure that there is no loser 7pareto8 c. <a&imi#e total winners, e"en if there is a loser somewhere 7$aldor0hic$s8. i". Negati"es about law!econ analysis: 1. 1he mar$et cannot address all problems, and it doesn/t ta$e soft "alues into account '. 5oercion % une6ual bargaining power sometimes a. :ias to wealthy 7bargaining power, wealth8 ). <ar$ets are imperfect % don/t ta$e into account pre0e&isting distribution of power and resources +. 1here are always transaction costs. $. Minority: Prah ". <aretti 7WI, 5( 1>A'8 9acts: Pl has a house with solar panels and sues = to pre"ent = from building a house that will bloc$ his sun. Pl informed = of problems with his plans before he built. i. 2ule: Pri"ate nuisance applies to sun and light because as solar panels become more practical, his property use becomes reasonable. 1. 1he three policy reasons for not using the ancient lights doctrines are obsolete: a. 2ights of property owners to use their land as they wish % society as a whole is more regulated. b. (oss of light is an aesthetic nuisance only 0 1his is no longer 4ust an aesthetic nuisance, he/s interfering with Pl/s energy source. c. 3ociety has an interest in encouraging de"elopment of land % there is no need for rapid easy de"elopment. We need slow, thoughtful de"elopment. ii. =issent thin$s the three reasons are still rele"ant: 1. 1he right of property owners todo as they wish is crucial. If Pl wanted this right, he could/"e bought it. '. We may not need as much de"elopment as before, but housing prices are high, and we need more houses. 11

). Pl could/"e bought an easement and attached it to the land. Pl is as$ing for 4udicial legislation to decide that solar energy is more important than property rights. iii. 1he ajority of states are with the dissent, unless it has been legislated =octrinal approaches to settling nuisance claims: Pl %eto rights .asement for lateral support of land Prior appropriation of water 7first user has "eto rights8 Natural flow doctrine for surface water Reasonableness doctrine or iddle position Nuisance doctrine Negligence 7lateral support of structures8 2easonable use doctrine for water <alice doctrine for spite fence Nuisance To ans3er a nuisance question: 4 part analysis 50se e%ery 3ord and fact in the proble to pro ote a particular doctrine 6# .iability -eter ination 9igure out who is liable by considering all of the important factors: 0 Nature of the neighborhood!#oning % suitability of each party/s acti"ity to the location 0 Whether the person came to the nuisance or not % not an absolute defense, howe"er. 3till use a balance of harm. 0 What has either party done to a"oid the nuisance? 0 What is the social "alue of M and =/s acti"ities 0 :urden on M and = to a"oid the conflict 4# Re edy -eter ination p# 768 0 M gets an +(90()T+O( when: =/s conduct is unreasonable and = causes substantial harm to M 0 M gets -AMA/$S but no in4unction if =/s conduct is reasonable, but the harm to M is substantial so that it is unfair to burden M with the costs of =/s socially useful conduct 0 M is entitled to (O R$M$-: if: 18 harm to M is not substantial: *2 '8 =/s conduct causes more social good than harm and it is not unfair to impose the costs of =/s acti"ity on MH *2 )8 the imposition of damages would put = out of business and a"oiding this result is more important than pre"enting the harm to M 0 M is entitled to P0R);AS$- +(90()T+O( if =/s conduct causes more harm than good, but it is fair to impose the cost of shutting down =/s acti"ity on M 7for e&ample, when P comes to the nuisance8 EASEMENT 7type of ser"itude8 I. 3er"itudes in general a. Ser%itude 0 a legal de"ice that creates a right or an obligation that Fruns with the landG or with an interest in the land. 1ransfers automatically from owner to owner. 1hey are a "ariety of legal mechanisms to control the use of and access to real property. i. .icenses% temporary permission to use!enter!control property. Not transferable % personal to the license0holder. ,sually for a short0time, generally re"ocable at the will of the property owner, and informal. 1. .&amples are in"itations to people/s home or the grocery store. ii. $ase ent 0 permission to enter or control another/s property that is permanent or irre"ocableH must usually be in writing 7because interests in land are sub4ect to the 3*98. 1' -ef pri%ilege da nu injuria absque

5ommon enemy rule 7water8 No easement for light and air 9ree use or absolute ownership for ground water

b. c. ++# + a.

1. Affir ati%e % gi"e easement holder the right to use or access another/s land 7e&ample: cable cord for your tele"ision8. '. (egati%e % gi"es easement holder the right to restrict the use of owner/s land 7e&ample: light and airH you cannot build and bloc$ the pool. Cenerally frowned upon. a. (OT$: Negati"e easements and real co"enants can o"erlap e"en though they/re not the same thing, each ha"e some distinctions 7the restatement treats them as the same8. 1he distinction is usually in the form in which it/s created. ). Prescripti%e $ase ent: ac6uired by necessity or long standing use. 2ecall, it is li$e ad"erse possession but you don/t need e&clusi"ity. iii. .asements came first, but the court sought to limit them so as to not limit the use of land. 3o land owners made co"enants, and courts started policing them. .6uitable ser"itudes happen when e6uity courts starting hearing these cases. 1. Allows for stic$s to be di"ided among people. *ne person gets certain stic$s e"en though the owner controls most of the bundle. i". ) ways to create an easement: 1. 1he normal way by express grant 7must be in writing8 0 e&press easement in writing with the terms of the transaction '. i plied either a. by prior use 7as part of a land transfer8H ) elements, see below i. 5ommon ownership % ' parcels that used to be owned by one person ii. 5ommon owner used the se"ered parcel before the con"eyance in the way the easement is claimed iii. 1he easement is reasonably necessary and beneficial to en4oyment of dominant/s land. b. *r by necessity 7landloc$ed8 ). by prescription % similar to ad"erse possession An easement is an interest in the land. 3tic$ in the bundle A co"enant is a condition on the ownership, could be a stic$ in the bundle 7negati"e8, but might not be 7affirmati"e8 i. People don/t come on to your land from a co"enant. plied and $xpress $ase ents Implied by prior use: Cranite Properties ". <anns 7I( 1>A?8: 5on"eyor owned - lots. e con"eyed one of them to =. Pl had always used the dri"eway for his supermar$et truc$s to turn around and as an entrance to his apartment building. = see$s to pre"ent Pl from using its easements. = L ser"ient estate. i. 2ule: Absolute necessity to grant easement is not re6uired here. If pre"ious use is continuous and apparent, the degree of necessity re6uired to create an implied easement is reduced. 1. 2e6uiring the truc$s to enter the front of the store, or cutting the par$ing spaces in half to build a dri"eway are both possible, but "ery unattracti"e. '. =ef claims that because there is no easement on the deed, then there shouldn/t be an implied easement since pl is con"eyor ). Pl says the easement was open and ob"ious, and he wouldn/t of con"eyed without the easement ii. Applying the ele ents of prior use ease ent: 1. Pl owned both parcels originally '. 1he dri"eways were used before con"eyance to access the apartments and the supermar$et ). It is reasonably necessary 7though not absolutely, as in a landloc$ed situation8 1)

+++#

iii. An ease ent by necessity: 1. *ne tract!piece of land before con"eyingH '. Nou really ha"e to need it % not 4ust it would ma$e your life easier 7as seen in reasonably necessary of prior use8H ). No prior use necessary b. (ecessity 0 An easement by necessity may be granted to the owner of a landloc$ed parcel o"er remaining lands of the grantor to obtain access to the parcel i. 9inn ". Williams 7I( 1>+18 = con"eyed +J acres to Pl out of a former 1+J acre lot. 1hat lot traditionally used =/s roads, but he is not permitting it so no ingress or egress is possible 1. 2ule: Where an owner con"eys a portion of his land which had no outlet e&cept o"er the land of the grantor or of strangers, an easement by necessity e&ists o"er the retained land of the grantor. a. (ecessity is strict in these cases '. Policy: a. Pro easement: We =o not want land to become useless, and though the costs get put on the = it should ha"e been foreseen b. Against easement: Possibly better for the legislature to re6uire the land0 loc$ed owner to apply to a public entity and pay for the easement 7always get it 4ust ha"e to pay8 i. 1his can go wrong because the Pl needs the easement, the = can charge whate"er he wants for it ii. At the same time, the law is protecting those without foresight % Pls should ha"e put an easement in the original deed. A gamble to rely on generosity lasting fore"er. c. 2ight!fairness in predictability of ha"ing an easement in writing ". social utility to allow access to land to be used ). +ntent of the /rantor & "ery important in most 4urisdictions. No easement of necessity will be recogni#ed if it is clear that the grantor intended to sell, and the grantee $new she was buying a landloc$ed parcel. a. *ther courts $such as 9inn ". Williams% disregard the intent of the grantor, to promote the de"elopment of property. c. .i its on negati"e easements: the right to lateral support of one@s building, right to pre"ent the bloc$ing or light and air, right to pre"ent interference with the flow of an artificial stream. i. 1hese can be co"enants, but not easements 1. 5o"enants can be wiped out 7easements can@t8 through the doctrines of changed conditions and undue hardship. 1he restatement )rd ma$es both co"enants and easements sub4ect to these doctrines. $ase ents Running 1ith the .and < $ase ents +n /ross a. :ig Ouestion for Written .asements: =oes :enefit of the .asement 2un with the (and? i. 2uns with the land means that it is as if it were attached to that parcel so that any future owner of the parcel is benefited or burdened by the easement 1. Appurtenant easement 0 runs with the land '. .asements in gross 0 doesn@t run with the land. ). Eey is the intent of the grantor. 5ourts will loo$ at the writing and policy considerations if that is not clear. ii. 1hey run 3ith the land if: 1. In writing '. *riginal grantor intended it ). 1here was notice to subse6uent owners of the ser"ient estate 7actual notice, "isual signs, constructi"e notice 1+

iii. .asements created by i plication' necessity or estoppel run with the land if that was the intention and they@re necessary for the en4oyment of the dominant estate. i". All of this applies to easements and real co"enants. ". 5ourts are more willing to find easements to run w!the land if it is a commercial, not personal, entity 1. Note: It is possible that burden can run with land while benefit will not. "i. Creen ". (upo 71>A' WA8 Pl con"eyed part of their land to = with an .ntrance!e&it easement. = built a trailer par$ and some residents were noisy with their motorcycles 1. Is the easement personal or appurtenant 7meaning to grantee or anyone on the land8? Appurtenant. An easement is not personal if there is anything in the grant to suggest that it was intended to be tied to the land retained or con"eyed. '. 1his easement is appurtenant because it will be useful to anyone who owns the parcel 7i.e. not 4ust the =s can use it 7personal easement in gross8, they can con"ey it to whoe"er is li"ing on their land8. ). Policy: a. Presumption for appurtenant easements 7it ma$es land more useful8 i. .asements in gross can be held by anyone and create uncertainty. ii. Appurtenant means it/s held by the land and its occupiers. b. If in gross, there is usually a designation of the named indi"iduals c. Note: A ser"ient owner is entitled to impose reasonable restraints on the right of way to a"oid a greater burden on his estate than was originally contemplated in the easement grant, so long as such restraints do not unreasonably interfere with the dominant owner/s use. i. 5an/t totally bloc$ e&it!entrance but can restrict to 6uiet use. "ii. 5o& ". Clenbroo$ 5ompany 7Ne"ada, 1>I'8 = granted an easement to original owner of Pl 7de"eloper/s8 land. =e"eloper wants to subdi"ide the AJ acres, but the only entrance is from the resort/s easement. 1he resort has closed access to one of the roads, and refused repairs on the other. .asement 4ust said ingress and egress. 1. Clenbrro$ is see$ing to widen the road, but that depends on if the easement is appurtenant 7applies to any occupant of the land8. '. 5ourt found that this was appurtenant because the language was directed at the original AJ acre estate and not the owner at the time. ). 2ule: 5ourt found that easement was li ited to 3hat 3as actually necessary for 3hat the ease ent intended. *wner of easement may prepare, maintain, impro"e, or repair the right of way in a manner and to an e&tent reasonably calculated to promote purposes for which it was created. 5annot cause undue burden on ser"ient estate. a. 3o far there/s no proof of undue burden because the de"elopment has not been built yet. b. +ntentions of parties at the time of the grant controls % here, this means the width of the road is limited but not the amount of traffic. c. Policy: i. =oes not ha"e to be reasonably consistent with the use to which the ser"ient property is employed or contemplated in the original grant which was a single family occupancy. 1. 2easoning is that the = could ha"e protected itself when granting the easement: 6ualify it for single family use, made it in gross, etc. ii. Necessity may e"entually pre"ail o"er intent 7what the easement was when it was con"eyed8. *nce the subdi"ision is built, safety concerns of all those cars on a 10lane road may trump intent. 1-

iii. ,ndue burden, howe"er, possibly on the Pl to ha"e the subdi"ision, all the traffic % use the facts. "iii. enley ". 5ontinental 5able"ision 7<*, 1>A-8 Pl had gi"en the phone company and the electric company an easement in gross 7meaning its attached to the companies, not to land8 to come onto his land. 5able company comes onto his land too. 1. 2ule: +f an ease ent is exclusi%e =and in gross> it can be di%ided up by the do inant estate and gi%en to others# '. ere, the type of use proposed by cable company is similar to the original intent of grantor % phones lines were for communication as is cable. It also would not be an undue burden on Pl to let cable company on. a. If ser"ient owner 7home owner8 retains pri"ilege of sharing benefit conferred by easements it/s non0e&clusi"e and not apportionable. Crantors/ rights diminish if grantors share w!others. If e&clusi"e, presume apportionability because grantor suffers no loss b. .oo* to deed: if grantor reser"es right, then not apportionable. Presume apportionability without e&plicit language ). Policy: a. 5able didn/t e&ist before but it is the same idea 7communication8 as the other companies, so it should be included. b. 1he other companies had to pay, so why shouldn/t this company ha"e to pay to get this easement. i&. 1erminating .asements % - ways 1. :y writing 7release8 '. 1ime limit in the original easement ). <erger % when the holder of the ser"ient estate becomes the owner of the dominant. +. Abandonment indicated by conduct -. Ad"erse possession or prescription by owner of ser"ient estate or third part. I. 3ometimes courts will terminate the easements because of frustration of purpose, meaning the easement no longer ser"es its purpose. SERVITUDES I. )o%enants % A promise connected to the use and en4oyment of real property % using land in a certain manner. a. Pri"ate agreement for land to be used in a particular manner o"er time i. Important doctrine: ma$es these agreements not 4ust personal to the original promisor, but enforceable 3ith the land when it is con"eyed or people die. ii. 5o"enants started bc there was a limit as to how many negati"e easements a property could ha"e. iii. 5o"enants are contracts, but they were gi"en an e&ception and allowed to be assignable to other people. b. ,nli$e an easement: =oesn/t gi"e holder any right to go on ser"ient estate i. Ci"es owner of dominant estate the right to pre"ent owner of ser"ient estate from using property in a certain way or insist on a particular use on the ser"ient estate, ie no discount stores. c. 2eal )o%enants and $quitable Ser%itudes are "ery similarP i. -ifferences 7when there is a "iolation of land use8: 1. 2eal 5o"enant % determines whether party can get damages '. .6uitable 3er"itude % determines whether party can get in'unction d. $le ents for co%enants 0 damages 1I

i. 1riting % has to be in deed or declaration. 3ome courts use e6uitable estoppel to pre"ent misleading oral representations, others won/t. ii. (otice 1. Actual $nowledge % when buyer or lessee is actually told about co"enant '. In6uiry % buyer or lessee is on in6uiry notice if any condition of the premises indicated that the property was burdened by the co"enant. a. .&amples: A right of way. Purchasing a split of a parcel from someone running a discount store ). 5onstructi"e %if the co"enant was recorded in the registry of deeds or title. i. <a4ority ;urisdictions: need to do a full title search. ii. <inority ;urisdictions: only need to loo$ at direct chain of deeds. b. *wners and renters!lessors both ha"e a responsibility to engage in a title search i. 2e6uired in residential and commercial conte&ts, but actually necessary in commercial, whereas in residential its ignored. iii. +ntent to run 3ith the land % hinges on the original intent of the grantor. 3ometimes its e&plicit, but if not, and it benefits the land, it is presumed to run with it. 1. ,sual language: heirs and assigns or is intended to bind future owners. i". Touch and concern % this is a hard to pro"e. :oth the benefit and the burden of a real co"enant must touch and concern the affected parcels of land before it will be considered to run with the land. 1. :urden0 obligation touches and concerns the land if it relates to the use of the land, and the obligation is intended to benefit current and future owners of the dominant estate. '. :enefit % obligation touches and concerns the dominant estate if it impro"es the en4oyment of that land or increases its mar$et "alue. ). 1his is where benefits held in gross usually fail. 1hey would need to demonstrate a legitimate interest in enforcing the ser"itude ". Pri%ity of estate % this is tric$y. Need hori#ontal pri"ity between original parties and strict "ertical pri"ity to get damages. 1. Without hori#ontal pri"ity it is an e6uitable ser"itude a. Co through one analysis and determine at the end if it/s a co"enant or e6uitable ser"itude. '. ori#ontal Pri"ity % the relationship between the original co"enanting parties. a. <utual pri"ity % when two owners ha"e simultaneous interest, li$e landlord tenant b. Instantaneous pri"ity % a fiction created by American courts to say that if a co"enant is created at the moment that the owner of both parcels, sells one parcel off. i. 1his is abolished by the restatement )d because it can be a"oided by using lawyers as straw men who buy the land, insert the co"enant and sell them bac$. ii. =on/t get hung up on instantaneous hori#ontal pri"ity % a sale satisfies the re6uirement between the two initial parties. iii. owe"er, be wary of finding hori#ontal pri"ity if the co"enant was not entered into at the time of the sale c. .&cludes: i. Agreements between neighbors 7no con"eyance8 ii. Agreements not made at same the time of con"eyance d. <ass rule: mutual pri"ity e&ists where there are appurtenant easements o"er another/s land. 1?

e. Note: 3ome 4urisdictions 7and under the 2estatement8 do not re6uire hori#ontal pri"ity for the :.N.9I1 to run with the land. It is only re6uired for the :,2=.N to run, but not for the benefit. ). Bertical Pri"ity %the relationship b!w the original co"enanting parties and the subse6uent owners of each parcel. a. 3trict Bertical Pri"ity( grantor does not retain any future interest in the land. .&ample: an outright sale. b. 2ela&ed Bertical Pri"ity( :urden and benefit are on any subse6uent user, e"en lessees. *riginal co"enanting party can retain some interes. i. 2estatement accepts this % does not re6uire strict "ertical pri"ity c. People who are e&cluded under strict "ertical pri"ity: i. Neighbors who are not owners, but who benefit ii. *wners who got their title from the grantor of the restriction, but the restriction was granted after they already purchased their land. d. Note: Bertical Pri"ity: 3ome 4urisdictions allow for rela&ed "ertical pri"ity on the :.N.9I1 side. 3till re6uire strict "ertical pri"ity for the :,2=.N side. +. 1hird parties are sometimes allowed to enforce e6uibale ser"itudes without pri"ity if it was the intent of the co"enant ma$er. :ut most courts don/t allow co"enant enfocement. "i. 1he ,enefit can run' e%en if the burden does not 7e"en if burden is Fin grossG, ie not held by ad4acent property owner8 1. 3ome states say that the burden can run e"en if the benefit is Fin grossG, but the 2estatement prohibits this. ,nder the restatement, for the burden to run with the land, both benefit and burden must touch and concern the rele"ant parcel. e. Whitins"ille Pla#a ". Eotseas 7<A, 1>?> 9acts: Eotseas 7=8 owned two ad4oining properties. Eotseas con"eys one parcel to 1rust with a co"enant that Eotseas would not build a competing discount store. 1rust con"eys its Parcel to Whitins"ille Pla#a 7Pl8. Eotseas leases to 5B3 who decides to put a discount store in "iolation of the co"enant. i. 2ule: 2easonable co"enants against competition may be considered to run with the land because they fulfill the fi"e elements abo"e. 1he tric$y elements were notice, touch and concern and pri"ity. 1. (otice: 1here was actual notice bc 5B3 was told about it. 1here was also constructi"e notice because it was in the chain of title a. A minority of states would say there wasn/t constructi"e notice here because it wasn/t in the direct chain '. Touch and )oncern % 1his co"enant has an economic effect on both parcels, so it touches and concerns. a. a"e to address this for both burden and benefit. ). Pri%ity: there is no "ertical pri"ity between these parties, because Eoteas and 5B3 ha"e a lease. a. An injunction is a"ailable against Eotseas, but no damages. b. 1here is "ertical pri"ity between Pla#a and 1rust, and hori#ontal pr"itiy between 1rust and Eotseas. ;urisdictions don/t allow for rela&ed "ertical pri"ity on burden side, only on benefit side. E 7Parcel :, burden8 R 7lease only8 5B3 Q 1 7Parcel A, benefit8 R P

1A

++#

+ plied Reciprocal (egati%e Ser%itude a. <ust start with a common owner and it originate for a mutual benefit. 1hese common restrictions increase property "alue for e"eryone. i. 1his is a fact!conte&t0specific analysis ii. 1hese run w!the land iii. 1his is used when an e6uitable ser"itude won/t wor$, for e&ample if a parcel is di"ided to 1JJ lots and I purchase the )Jth lot, the ?J people who by after me are in pri"ity with me, but the )J people before were not. Balue of these co"enants go down o"er time, so court created this doctrine. b. 1wo elements: i. )o on plan area ii. (otice of co on plan to buyer of restricted lot. c. ."ans ". Pollac$ 71>>J, 1S8 5ommon land owned by two people around a la$e, subdi"ided the plots with restricti"e co"enants including prohibiting business!commercial use to create a subdi"ision. Pl sought to en4oin the commercial use of unrestricted lots in the center of the de"elopment under the implied reciprocal negati"e easement doctrine. 5o"enants allowed restrictions to be changed with a T "ote of the property owners. i. 2ule: A general plan of subdi"ision restriction need not apply to all tracts in a subdi"ision for the doctrine of implied reciprocal negati"e easement to apply. ;ust the la$efront, not center, pieces of land ha"e the 2estricti"e 5o"enants 7the de"elopers had no intent that the parcel would be affected by the co"enant8. 1. ."en though not all tracts had the restriction, it can be i plied b!c there was a general de%elop ent scheme. All la*e?front plots were intended to be restricted, not the center a. because the "oting rights were only attached to la$e0front lots they were the only ones restricted. '. 1here is no writing or intent to bind the center parcels, so they would not be bound ). 1hird party beneficiary doctrine % allows later parties to enforce against earlier buyers when .3 would not 7pri"ity8 d. 3anborn ". <c(ean 71>'- <I8 =efendants wanted to put up a gas station on part of their lot. All the lots on that part of the road had once been owned by one guy who put residential restrictions on -) of the >1 lots. =/s chain of title contained no restrictions i. 2ule: An owner is on inquiry notice if he li"es in a neighborhood that is all residential. e is also on constructi%e notice if the ma4ority of lots ha"e restricti"e co"enant. 1. eld no gasoline station because of the common plan 7-) of >18 despite the fact that there was no writing anywhere. ii. Policy: 1. If we don/t apply these restrictions on the other owners who didn/t ha"e it in their deed, then it will be useless to the -) others. 5ould be that the -) paid more for their house. '. If the plan creator wants a uniform plan he should put it in all deeds. 5ourts should be there to correct a mista$e if its missing from one deed, but this is barely half. a. Its unfair to ma$e buyers loo$ at neighboring deeds. iii. 1he mere presence of a common plan does not constitute N*1I5. b!c a plan can e&ist w!o being apparent in any way. Ways to identify a plan: 1. Presence of restrictions '. A recorded plat showing the restrictions ). Presence of restrictions in the last deed +. *bser"ance of restrictions by owners in a similar de"elopment -. 5onformity to the written restrictions I. (anguage stating co"enants are to run with the land 1>

III.

?. 2ecording of a declaration e. 2iley ". :ear 5ree$ Planning 5ommittee 75A, 1>?I8 9acts: Pl were told by sellers that their lot would ha"e restrictions, but they were ne"er placed in the deed. 1here was a declaratory statement later, that Pl ne"er signed. Pl/s want to build a snow tunnel in "iolation of the restrictions on e"eryone else/s lot. i. 2ule: Restricti%e co%enants are N*1 enforceable when the restriction is not contained in the original deed and filed the after con"eyance. Planning committee cannot enforce the restriction. 1. 1he planning board was lac$ing a writing in this case. '. 1his goes against 3anborn, which says that if most are restricted, then it doesn/t matter if there/s no restriction on that one. ii. 5A later holds that as long as the declaration is recorded before the deed, it doesn/t ha"e to be in the deed iii. Policy: 1. It was ne"er in their deed, so they/re not burdened. Perhaps they wouldn/t ha"e bought it, or would ha"e as$ed for reduction of price if it had been in the deed. '. 1hey were on notice and e"eryone else is bound. 1here is no way for his neighbor/s ne&t buyer to $now that he is not bound. e can ruin the neighborhood for e"eryone. ). 1here/s been reliance here by the other buyers, so there/s an estoppel argument. Ter inating )o%enants: <any ways to terminate a co"enant a. )hanged conditions % focus on whether co"enant still benefits dominant estate i. .l =i, Inc. ". 1own of :ethany :each 7=., 1>A+, pri"ate agreement8 9acts: 1AJ acre beach area settled by 5hristians who put a no alcohol or commercial use co"enant into '!) of their property. 1own e"entually includes 5hristian de"elopment, so that 1-U of lots ha"e restrictions. 1hose lots end up with businesses, pac$age store, and brown bagged alcohol. Pls get a li6uor license and =s oppose. 1. 2ule: Nes. A court will not enforce a restricti"e co"enant where a fundamental change has occurred in the intended character of the neighborhood that has made the purpose sought by the co"enant undesirable, and e&tinguishing the benefit. a. 1here was also ac6uiescence here. '. Policy: a. Its important that co"enants that are no longer useful not be enforced so as not to o"erly burden land i. Increase in brown0bagging was the e"idence of the significant change. b. 1his is still a family community and there are people who benefit from that and come to :ethany for that. i. 1his stic$ wasn/t purchased, and it shouldn/t be gi"en. ii. 9actors to 5onsider 9or 5hanged 5onditions: 1. 5haracter of change '. Property at play % is there an undue hardship to the property? ). =oes change result in no substantial benefit to the dominant party? +. Is there a #oning change? b. Relati%e hardship % if hardship to ser"ient estate is considerably greater than benefit to dominant estate, co"enant will not be enforced i. (ange " scofield 0 court didn@t enforce a co"enant re6uiring assent from all neighbors for construction on a lot. 1he court found there was no effect on property "alues and so the benefit was negligible, while the hardship of not being able to buy a house was great. ii. 2est )rd sees this test as a good way to select appropriate remedies. Non enforcement might be appropriate, but some damages should be paid. 'J

c. d. e. f. g. h. i. 4. $. l. IB.

iii. *n the other hand, in 3halimar assoc " =*5 enterprises a golf course was forced to continue operating according to a co"enant, despite the fact that it wasn@t profitable. .conomic conditions weren@t enough to get rid of the co"enant. Acquiescence % if Pl has tolerated pre"ious "iolations of the co"enant by the owner of the ser"ient estate, the co"enant may be terminated 0nclean ;ands % if Pl has "iolated the co"enant himself, it may be terminated Abandonment % if Pl has tolerated "iolations in the co"enant by owners of other restricted parcels in the neighborhood co"ered by the co"enant $stoppel % if dominant owner promises not to enforce the co"enant, she can be held to it if ser"ient owner relied on promise. .aches % if the co"enant is ignored for a long time, but not long enough to ma$e it a prescripti"e easement, the court may allow you to end the co"enant Mar*etable title acts % many states ha"e statutes that terminate restricti"e co"enants if they are not re0recorded after a specified period of time .anguage in instru ent % language in deed says co"enant will end after a certain period of time Merger % if the burdened and benefited estates come under the ownership of the same person, the co"enant will terminate Release % All parties may agree to end the co"enant Prescription &open and notorious "iolation of the co"enant for the statutory time

Restraints on Alienation 0 1he transfer of property or an interest in property a. 5o"enants restrain alienation. 1he greatest ownership interest is fee simple, and there are no alienation restraints on that. i. )d restatement says that reasonable limits on alienation are allowed, li$e in orse Pond. b. 9i"e types of limits: i. -irect restraints on transfer ii. Ser%itudes requiring the consent of either grantor 7de"eloper8 or association 7generally 4ust right of first refusal8 to transfer 1. 1hese are frowned upon because they are held in gross, unless the de"eloper has not sold all lots yet. iii. 2ights of first refusal i". .easing restrictions ". 2estraints to *eep housing affordable. c. 1hese cases in"ol"e whether these restrictions should be enforced. (ots of P*(I5N d. Alienability is efficient 7and a huge stic$8 and supports free mar$et "alues. It/s about people whereas easements are about how the property de"eloped. e. Arguments against limitations: i. Pre"ent dynasties, ii. Allow for distribution of ownership, iii. Promote the autonomy of current owners, i". Note efficient uses and transfers of land f. 9or limitations: i. 1he ability to limit who your property goes to encourages owners to sell. ii. 1his is a property right that should be protected for current owners. g. orse Pond 9ish D Came 5lub ". 5ormier 7N 1>>J8 unting club used a straw man to create a restraint on alienation, that re6uired 1JJU "ote of its members plus dissolution to lea"e that land. Pls registered as a charitable trust. 1hey now want to swap lands to be more rural, :ut = "oted against it because he li"es ne&t door. Pl wants the restriction "oided as an unresabonle restraint against alienation. i. 2ule: 1he reasonable restraint rule that leans toward eliminating alienation restrictions doesn@t apply to charitable organi#ations. Alienation restrictions stand for charities '1

unless it can be shown that there was an unforeseen circumstance and the sale is now in the best interest of the charity. 1. 1est: A restraint is "alid if reasonable. ere, it is unreasonable 7"oid only if unreasonable8 ii. Policy: 1. 1his is one reason that courts frown on co"enants in gross, because though there is no dominant estate, and one member is claiming the right of one dominant in gross owner to 6uash the desire of the rest. a. 1his is silly because the hunting club should go where there/s hunting. b. 1his = is not the beneficiary the club had in mind when it created this co"enant. '. As an in gross holder of this easement, = has a right to compensation at the least, and to hold his co"enant. ). If this club is found to be a charity, then it/s important that this be enforced to ensure that people donate their land to charities and can be assured they/re used for proper purposes. h. NW 2eal .state 5o. ". 3erio 7<=, 1>'>8 =e"eloper sold lots in fee simple with a restriction on alienation for fi"e years. *wner tried to sell his land to 3erio, one year after buying it, without the de"eloper/s consent. i. 2ule: 1his restriction is repugnant b!c it is inconsistent with a grant of fee si ple. 1he restriction was designed to depri"e 3erio. ii. Policy: 1. Crantee $new what he was getting into when he purchases with the restriction % bought it at a certain price. If he wanted to sell sooner he should/"e bought somewhere else '. 1hese sorts of limitations protect the de"eloper to ma$e sure he creates a certain type of neighborhood. ). 1his will hurt home de"elopment because it will tell de"elopers they won/t ha"e control of their neighborhood once they sell one house. +. 1his is not what a fee simple is. 1he de"eloper is 4ust trying to $eep this as a wealthy neighborhood and will re4ect based on class and race. i. 2iste ". .astern Washington :ible 5amp, Inc. 7WA, 1>AJ8 = sold land to Pl/s parents with a restriction that they could only sell the land to those who subscribe to conduct consistent with the = and are appro"ed by the grantors. (and con"eyed to their son, Pl. Pl wants to sell it without restrictions. i. 2ule: A restricti"e restraint on the sale of fee si ple title is a "iolation of public policy 7repugnant to the state and to fee simple8. 1he restriction in the deed clearly pre"ented the Pl from selling land he purportedly recei"ed in fee simple. ii. Policy: 1. (imits on alienation ma$e it harder to sell. If you want these limitations, you can/t put the deeds in fee simple. :ut it in some other estate. '. =ecreases property "alue to ha"e these limits. ). 1his is 4ust discrimination. 4. 3helley ". Eraemer 735*1,3, 1>+A, 5onstitution8 Pls bought parcel in an area where many of the homes contained a restricti"e co"enant based on race. 1he parcel they bought had a co"enant, but the seller wanted to sell anyway. i. 2ule: 5o"enant alone does not "iolate the 1+th amendment, but the purpose of the co"enants was secured only by judicial enforce ent in state courts. 1he enforcement by a court that triggers the 1+th amend, and ma$es enforcing this co"enant a "iolation of equal protection# 1. 5ourt/s action is 4ust li$e racial discrimination in 4uries. ''

ii. Policy: 1. 1his is a case about the essence of property, which it the power to control resources in a way that the state will enforce. '. 1his is the court protecting people/s rights under the constitution. Its better that the court in"alidate these than collude in discrimination. ). It is better to ha"e had these co"enants in"alidated by the legislature. 1his is 4udicial acti"ism at its worst. 1he 35*1,3 should ha"e deferred to the state courts. +. 35*1,3 chose not to find the co"enants unreasonable, because that was against <issourri common law. THE RIGHT TO TRANSFER I. .states and 9uture interests a. Ceneral ideas i. *wners may share ownership by di""ying up ownership rights o"er time, with one owning the present right to possess the property and the other a future power to ta$e possession from the present owner in specified circumstances. =i"iding up stic$s. 1. Present estate holder( right to possess the property while her property rights last '. 9uture interest holder( will obtain the right to posses the property when and if the present interest terminates ii. 2ule0based but policy atters w this too: 1. .fficiency in using property % balance of present and future owners, concerned with the le"el of control past owners ha"e on future owners control 7dead0hand control8 % times change and we want people to be able use property accordinglyH '. =istribution!hierarchy % property should ser"e human "alues % need property to wor$!to li"e, incenti"e to others to wor$ so that they can afford property ). 5o"enants are preferred to future interests, because that way the go"t isn/t changing property ownership in court . b. 2ee Si ples, no future interests: i. 9ee: A fee is any estate which is potentially infinite in time 7it may not be infinite in time because the condition may occur but it may not ma$ing it infinite in time8 ii. 2ee Si ple Absolute 7what we most commonly thin$ of as ownership8: property ownership without an associated future interest. 1. *wner of fee simple absolute has the present right to posses property, and all of the future rights 7sale, gift, de"ise in a will8 a. (anguage: * to AV* to A and her heirsV* to A in fee simple '. Assumed to be fee simple absolute if not stated otherwise. c. -efeasible fees 0 present interests that terminate at the happening of a specified e"ent, other than the death of the current owner. 1hese cannot be destroyed, they go on fore"er. i. When the future interest belongs to the grantor % 1. Automatic 1ransfer after a certain e"ent is fee si ple deter inable for the present interest and the grantor has the possibility of re%erter. '. If the transfer depends on grantor/s decision whether to ta$e the property bac$ once the condition is "iolated, the present interest is fee si ple subject to condition subsequent and the grantor/s future interest is a right of entry a. Important: 9uture owner has to assert her rights when the condition is "iolated or the stated e"ent occurs. If she does, the ownership shifts to her. If she doesn/t it stays with the current owner. ). 1he difference between these two is all in the language ii. When the future interest belongs to a third party % ')

1. When the future interest in a defeasible fee belongs to someone other than the grantor, the present interest is called a fee si ple subject to executory li itation and the future interest in the third party is an executory interest. d. .ife $states % an estate that e&ists only for the life span of the original grantee. i. (ife estates can act li$e fee simples. 1hey can be determinable, sub4ect to condition subse6uent and sub4ect to e&ecutory limitation. ii. A con"eyance of ) to A for life creates a life estate interest in A % A owns property during his lifetime. When he dies, he loses control. iii. 5urrent interest L life estate i". 9uture interest L 2e"ersion if it is in the grantor ". 9uture interest L remainder if it is in a third party 1. )ontingent re ainder: the remainder ta$es effect only upon the happnening of an e"ent that isn/t certain to happen 7ie, until & graduates college8 *2 if the remainder will go to someone who can/t be ascertained at the time of con"eyance 7to a yet unborn child8 a. :eware of the rule of perpetuities b. <ost states don@t allow for destructibility of contingent remainders. '. &ested Re ainder % Identifiable people at the con"eyance, with no indefinite conditions a. Absolutely &ested Re ainders: not sub4ect to change b. Bested 2emainders Subject to Open: a remainder that may be di"ided among persons who will born in the future c. Bested 2emainders subject to di%est ent: a remainder that may be destroyed by an e"ent that occurs after the original con"eyance. d. (ot subject to rule against perpetuities ). Note: Bested remainder sub4ect to open or di"estment: A remainder is contingent if you can/t tell who the ne&t owner will be or if there is a condition that must be satisfied in order to get the property. e. Al3ays as*: i. Is this a fee or life estate? ii. If it/s a fee, does the grantor a third party hold the future interest? 1. If it/s a third party it is a 93 sub4ect to e&ec limitations. '. =oes it "iolate the rule against perpetuities? iii. If it goes to the grantor, what will the grantee ha"e? 1. .ither 93 determinable if its automatic '. or 93 sub4 to condition subs if its by choice i". If it/s a life estate, does it go to the grantor or third party? 1. If it/s the grantor, there/s re"ersion '. If it/s a third party, as$ are the parties identifiable and the condition is certain to happen? a. If yes, it/s a "ested remainder. i. 1hen as$ if its sub4ect to change? 1. If no, absolutely "ested remainder '. If yes, how? 5an it be di"ided? 5an it be destroyed by a future e"ent? a. If di"isible, then sub4ect to open. i. =oes it "iolate 2ule against perpetuities? b. If it can be destroyed, sub4ect to di"estment b. If no, then it/s a contingent remainder. i. =oes it depend on an e"ent? If yes, condition precedent '+

ii. =oes it depend on a person yet to be determined? If yes, unascertained person. iii. =oes it "iolate the rule against perpetuities? Present +nterest: 9ee simple absolute 9ee simple determinable 1ords =used to create the interest>: Fto .G Fto . and her heirsG Fso long asG FwhileG FduringG FuntilG FunlessG Fpro"ided thatG Fon conditionG Fbut ifG 2uture +nterest in /rantor: 0 2uture +nterest in 7rd Party: 0

Possibility of re"erter 7automatic8

9ee simple sub4ect to condition subse6uent 9ee simple sub4ect to e&ecutory limitation (ife estate

2ight of entry for condition bro$en 7or power of termination8 0

Funtil 7or unless8 . . . then to . . .G Fbut if . . ., then to . . .G Ffor lifeG

.&ecutory interest 7automatic8 2emainder 7automatic8

2e"ersion 7automatic8

II. Interpreting A biguous )on%eyances a. A(WAN3 loo$ to the language of the deed to determine intent. b. *rder of preference to interpret 7reasoning page -'), last full W8: i. 5ourts would rather see it as creating an intended purpose not a binding future interest. 1. 1his is because it pre"ents change of ownership. ii. 1here@s also a preference for a co"enant o"er a future interest. 1. Eeeps the title with the current owner iii. 9ee simple sub4ect to condition subse6uent is preferred to fee simple determinable. 1. :ecause the current interest isn@t automatically forfeited and for the time being ownership stays. i". A fee simple is preferred o"er a life estate. c. Policies behind presumption against forfeiture 0 i. .nforcing restrictions promotes the interest of the grantor in contrrolling future use. 1he presumption against the grantor/s interest would enforce the rights of the current owners and promotes economic efficiency. ii. owe"er not enforcing restrictions if they@re "ague can also encourage grantor@s interest bc if he@d wanted to grant he would@"e made it super clear. '-

d. Wood ". :oard of 5ounty 5ommissioners 7WN, 1>AA8 Pl claimed that a grant of land to the 5ommissioner of 9remont 5ounty 7=8 was sub4ect to a condition subse6uent 7or 93=8 that the land be used as a hospital % sold Ffor the purpose ofG constructing and maintaining a county hospital as a memorial. ospital shuts down, 5ounty tries to sell the land, Pl wants land bac$. i. 2ule: A grant of fee simple determinable must clearly state that the estate will terminate if not used in accordance with the grant. ere, language did not create such an interest. (anguage used could ha"e been so long as, during 793=8 or on the condtion that, pro"ided that 7933538 1. 1his case is an e&ample of the preference against forfeitures 7i.e. property switching hands8 '. 5ourt prefers fee si ple construction. ii. Policy: 1. We should only gi"e people future interests if they are 5(.A2 in wanting it 0 we want $eep land in the hands of current owners. 1his encourages efficiency '. 1his is the grantor suing, so he $new what he granted, and the court is going against some language in the instrument that said this was =efeasible. e. 5athedral ". Carden 5ity 5ompany 7NN, 1>>>8 3tewarts sold land to the church with as a defeasible fee, as long as it was used for church acti"ities. It also said it couldn/t be sold. 1he heirs con"eyed their possibility of re"erter or right of entry 7its unclear which it was8 to the 5ompany in 1A>1. Now church wants to sell i. 2ule: 5ourt finds this to be a 93353, which was a contract right that wasn/t assignable in 1A>1, defeating the 5ompany/s claim. ii. 1he court also bases its ruling on the purpose of the con%eyance, which was not to burden the church, but help it. 1. 1he church says, it would help if sold and money was freed up. '. 1he company would be entitled to damages if it could show any. iii. 5ourt used policy to interpret this as reentry of possibility of re"erter. f. .dwards ". :radley 7BA, 1>A+8 ;ones inherited the land from her mother, with a limit that the land not be encumbered or sold, and if it was, then the grand$ids would get it. ;ones wants to sell the farm so she attempts to get her children to con"ey their future interests bac$ to her. *ne daughter 7:radley8 does not consent. In her will, ;ones e&cludes :radley and orders the farm sold. :radley says that this is part her farm now, and doesn/t allow it i. 2ule: 1he original will created a .ife estate. 5ondition prohibiting alienation of "ested fee simple estate is repugnant. 5ondition on limitation upon life estate is "alid. 3o where the intent of the original grantor 3as clearly not fee si ple absolute, then it will be seen as a life estate. 1. 1he will mentioned fee simple ? times, but not when gi"ing ;ones this land, and direct language is not re6uired in BA '. 1his is an e&ception to the general rule that fee simple is preferable to life estate. ii. Policy: 1. 1his is more accurately a 933.( and the mother didn/t "iolate the conditions, so it should be hers to di"ide as she wishes. '. 1his is a life estate because the grandchildren were the future interest holders and that/s who the grandmother had the clear intent to protect.

'I

III. Rule Against )reation of (e3 $states a. 5ourts generally follow a rule against the creation of a new estate. A con"eyance that does not fit in with any of the established categories must be interpreted to create the most closely analogous estate. i. 9ormally % means grantors must put their con"eyances in a recogni#able form if they want courts to recogni#e the pac$age of rights they ha"e intended to create. ii. 3ubstanti"ely % certain pac$ages of rights will not be recogni#ed b. ;ohnson ". Whitton 7<A, 1A>)8 5ourt construed a con"eyance that does not fall into a recogni#ed category of estate as a fee simple absolute b!c it would be the most fair!most analogous. 1his con"eyance tried to create a new estate, but court struc$ it down. IB. Rule Against Perpetuities 0 In"alidates future interests that may "est too far into the future, a. 1he 2ule Against Perpetuities: A future interest is not %alid unless at the time of its creation, we are sure that it will "est within '1 years after the death of any person ali"e at the time of creation. i. If there is ANN remote possibility that it will "est later than '1 years after the death of any person ali"e at the time of creation, it is INBA(I=. =oesn/t matter how remote the possibility, the future interest is no good. 1. (oo$ for a "alidating life, this is a person within whose lifetime the interest is certain to "est. a. 5orporations aren/t li"es in being. '. 1he interest is created at the time of con"eyance or the moment the testator dies or the moment the trust document is signed 7or when a trust becomes irre"ocable8 ). Best is when the contingency occurs that ma$es the interest holder certain to come into possession. a. 9or e&ample, 9or e&ecutory whene"er the condition occurs b. 9or contingent remainders, it is "alid when the contingency happens, li$e @o to a for life then to b if b graduates from law school@. It "ests when b graduates from law school. c. 9uture interests of grantors are granted from the moment they@re created. ii. 1echnically '1 years and > months 7baby concei"ed 4ust before the father/s death8 % 5( addition. 1. No interest is good a. unless it must "est, if at all b. no later than '1 years after the death c. of some life in being at the creation of the interest b. Policy reasons: i. (imits dead hand contro, promotes mar$etability of property, ma$es property more efficiently used. ii. A compromise between the liberty of the past owner and the present owner. c. Interests to which the rule applies: i. 5ontingent remainders ii. .&ecutory interests iii. Bested remainders sub4ect to open i". *ptions to buy, preempti"e rights, rights of first refusal are all sub4ect to the rule. d. Interests to which the rule =*.3 N*1 apply: i. Absolutely Bested remainders ii. Bested 2emainders 3ub4ect to =i"estment iii. Any future interest in the grantor 7re"ersions following life estate, possibility of re"erter or right of entry following defeasible fees8 e. 9irst, Identify the 9uture Interest, then if the rule applies, use it7as$ yourself if this could happen in -JJ years8. if there/s a "iolation, stri$e the offending language which will lea"e you with a 93= or 93A '?

f. N*1.: ,nder &ested Re ainders Subject to Open0 2,(. *9 5*NB.NI.N5. % * to A for life, then to the children of : where : already has one child. ,nder the rule of con"enience, the courts will close the class when A dies, so that the children can ta$e possession after A/s death: they will not ha"e to share the property with any after0born children. g. 3ome states ha"e modified the rule, but gi"ing a >J year limit rule on "esting interests, with mar$etable title acts, some use the wait and see doctrine, to see if the interest e"er does "est and only in"alidate it if it "iolates the rule then B. 1aste a. (aw of Waste: life tenant can use property, but waste implies neglect or misconduct resulting in material damage to or loss of property i. =oes not include ordinary depreciation of property due to age and normal use o"er a comparati"ely short period of time. b. Any future interest holder can bring waste claims 7including a lessor8. i. <ost common ones are leasehold and life estate because you $now that interest will come to end 7not a condition that may or may not occur effecting the possibility of reali#ing your future interest8. ii. 1he more tenuous the future interest, the less li$ely waste claims can be brought. c. ) types of Waste: i. &oluntary: deliberate!destructi"e 7affirmati"e8 act of waste 7a deliberate act8 ii. Per issi%e: failure to use ordinary care of prudent person for preser"ation!protection of property resulting in waste 7a failure to act8 iii. A eliorating: actions that increase "alue!utility of property. A special type of waste. *ne cannot always engage in this $ind of waste 4ust because it increases the property "alue 7see 6uote below8. 1. <elms ". Pabst :rewing 5o. 7WI8 1he buyer demolished house and built a factory. 1he neighborhood had changed so much that nobody would actually li"e in the house. a. 1he 5ourt held that although the re"ersioner or remainder holder ordinarily is entitled to recei"e the property in substantially the same condition in which the life tenant left recei"ed it, the life tenant is entitled to ma$e fundamental changes to the property if Fa co plete and per anent change of surrounding conditionsVhas depri"ed the property of its "alue and usefulness as pre"iously used.G d. <oore ". Phillips 7E38 5laim for waste by remainderman 7daughter and grandson8 against mother who had a life estate. Re ainder en saw the property but had bad relations with mother, who let the property deteriorate i. 2ule: It is the duty of a life tenant to preser"e the property and to pre"ent decay or waste. ere, the life tenant did not $eep up the property, 1. 2emaindermen can wait until after death, because waste is not something that can be defended. '. A life tenant is considered a fiduciary and has a responsibility to $eep up the property. ). (aches and estoppel don/t wor$ here. 1his delay didn/t wor$ to mother/s disad"antage so no laches. 1here was no detrimental reliance, so no estoppel COMMON OWNERSHIP I. Barities and 2ights a. 5ommon ownership of residential property i# Tenancy in co on 1. .ach tenant in common, no matter how small her fractional interest, has the right to possess the entire parcel unless all the cotenants agree otherwise by contract 'A

a. 1he fractional interest is only important in terms of profit when land is sold. '. When a tenant in common dies, his interest goes to his de%isees under his will or to his heirs a. <ay be transferred % ) to A and * as tenants in common ). 1enants in common are the preferred form of co0ownership and will be gi"en if there is an ambiguous con"eyance ii# 9oint tenancy 1. .ach 4oint tenant has the right to posses the entire parcel, li$e tenants in common '. ,nli$e tenants in common, 4oint tenants ha"e traditionally been re6uired to possess e6ual fractional interest in the property ). Right of Sur%i%orship % when a 4oint tenant dies, her property interest is immediately transferred to the remaining 4oint tenants in e6ual shares +. 9ormalities of 5reation % if any are missing then ha"e tenancy in common a. 0nity of Ti e: 1he interest of each 4oint tenant must be created at the same moment in time b. 0nity of Title: All 4oint tenants must ac6uire title by the same instrument c. 0nity of +nterest: All 4oint tenants must possess e6ual fractional undi"ided interests in the property, and their interest must last the same amount of time d. 0nity of Possession: All 4oint tenants must ha"e the right to possess!en4oy the entire parcel -. Se%erance % If A and : own property as 4oint tenants, each owner has the right to obtain full ownership of the property when the other dies. a. If A sells her one0half di"ided interest to 5, the 4oint tenancy is se"ered, and :/s right of sur"i"orship is destroyed. 1he result is that : and 5 are tenants in common. i. only occurs between the selling owner and the remaining ownersH it does not change the relations of the remaining owner among themsel"es, they are still 4oint tenants. iii. :oth ;oint and tenant in common are free to transfer interests without the consent of the cotenants during their life time. 1. ;oint tenants can de"ise their interest in a will '. 1enants in common can ne"er de"ise their interest since it goes to cotenants automatically ). If there are problems, they can ha"e the property partitioned among themsel"es, or can force a 4udicial partition b. 2iduciary Obligations of 5otenants or ;oint 1enants to 3hare the :enefits and :urdens of *wnership i. No duty to pay rent if one co0owner is li"ing on the property and the other isn/t. 1. .&ception is if they/"e been ousted. *uster is an affirmati"e act by which one co0 owner wrongfully e&cludes others from the 4ointly owned property, ie by changing loc$s '. 5onstructi"e *uster: without physical act or any fault, character of property changes to ma$e 4oint occupancy impossible or impractical!unbearable a. .&amples: if property is too small to be physically owned by all of the co0 owners, possessing co0owners ha"e a duty to pay non0possessory co0 owners. Another e&ample is when conditions are so impractical 7di"orce8. <ay be entitled to rent in this conte&t. ii. :enefit: co0owners ha"e the right to share any rents paid by third parties who are possessing the property '>

iii. 3haring the :urdens: 5o0owners ha"e a duty to share basic e&penses to $eep property, including mortgage, ta&es and insurance. No duty to share costs of ma4or impro"ements unless they agree to do so. i". *ne cotenant cannot obtain ad"erse possession against another %# Tenancy by the entirety 1. A"ailable only to married couples. 5an@t sell the interests, can@t di"ide the property e&cept in di"orce. '. 5reditors of one spouse can@t touch this property "i. 5ommon ownership of commercial property through partnership. c# Marriage i. *li"as ". *li"as 7N<, 1>A>8 the couple separated in 1>A) and were di"orced in 1>A+, but the final property distribution did not happen until 1>A?. e wants rent money 71!' of reasonable rental "alue of home8 from time he left house until time of final property distribution. <r. *li"as argues constructi"e ouster. After di"orce he became a tenant in common w!<rs. *li"as after because unmarried people cannot be tenants by the entirety 1. 2ule: 1he husband is not entitled to rent because he departed the home for another intimate partner. 5onstructi"e ouster only applies when the reason for lea"ing is hostility. a. usband left to li"e with his girlfriend, and he had burden of proof to show constructi"e ouster. '. Policy: this rule of constructi"e ouster would be different if they were 4ust li"ing together and not married, because marriage is considered special. a. 1his de"alues other intimate relationships, including non married intinmate partners, family members, etc. d. )onflicts o%er transfers by one owner. i. 5arr ". =e$ing 7WA, 1>AA8 =ad and son 7Pl8 are tenants in common. =ad leases his interest to the = in return for crops. Pl wants rent K instead and did not consent to =ad/s lease. 1. 2ule: =ad may lease his interest 3ithout per ission of the son and the son doesn/t ha"e to 4oin the lease. a. .ach tenant in common has full rights to do what they/d li$e with the land. b. (essee becomes =ad in the co0tenancy and son still has full rights. c. 2emedy L partition the land or reap the benefits of lease by accepting all the terms of the lease. '. Policy: a. 1his is correct because cotenants each ha"e full ownership and we don/t want to infringe on their rights as full owners. i. Protects third parties ii. Protects property rights b. If they didn/t want this problem they could ha"e used a different form of ownership c. 1his is a bad idea because it allows cotenants to stab each other in the bac$. 1hey should both ha"e to gi"e consent. e# -eath i. 1enhet ". :oswell 75A, 1>?I8 ;ohnson and 1enhet are 4oint tenants 7meaning sur"i"orship in each other8. ;ohnson leases his interest for a term of years to :oswell, indicating that he owned it fee simple, and without telling 1enhet, then ;ohnson dies. 1. 2ule: 1he issue here is whether unity is maintained despite the lease. A lease does not se%er a joint tenancy. 1he lessee/s interest e&tends only so far as the lessor/s, and since 4oint tenants only ha"e a life estate, the lease endds )J

a. ;urisdiction specific % some ;s the lease would ha"e created a permanent se"erance or temporary se"erance 7because there was no clear indication that either ;oint 1enant desired termination of the estate8 i. Permanent L selling the interest ii. 1emporary L the interest is se"ered while the lease is in place, and if one dies, then it stays se"ered. After the lease is o"er it reunifies 18 If its se"ered, then the property would go to heirs because it would now be tenancy in common. b. :ecause ;oint tenancies can only be created by clear intent, they can only be ended with clear intent. c. ;oint tenant inherits the property free of all encumberances, including lessees and mortgages. '. Policy: a. 1his is awful for third parties and the law should se"er and protect them b. 1hird parties ha"e to do title chec$s and this would lea"e the 4oint tenant 3*( for the thing that he had e&plicitly bargained for ). ow could lease ha"e sur"i"ed ;ohnson/s death? a. ;ohnson could ha"e been e&plicit that he was brea$ing the ;1 7sold it for e&ample8. b. If Pl had died first and then ;ohnson died % ;ohnson heirs would ha"e gotten the property "ertically encumbered and so the lease sur"i"es. b. -i%orceV i. Eresha ". Eresha 7N.8 usband and wife had 4oint ownership in property and husband had leased the property to their son. =i"orce made husband and wife 1enants in common. =i"orce awarded the leased land to the wife who then tried to terminate her son/s lease of the property. 1. 2ule: usband had full right to enter into this lease as a tenant in common, so the lease is "alid. When wife too$ that property from the court in the dissolution, she $new it was encumbered by the lease, and now she must honor it. a. .eases sur%i%e dissolution of arriage, but not death. b. 1his is li$e buying property $nowing there/s a lease on it. the lease still stands. c. Ceneral policy issues: i. When co0owners disagree, it creates two problems: 1. resol"ing rights of co0owners a. *ften neither choice will ma$e either party happy, can effect relationships though there is the bac$0up remedy of partition '. resol"ing rights of third parties a. An innocent party % purchasers are e&pected to chec$ title but maybe too much of a burden on renters d# )reditors i. 3awada ". .ndo 7 I1>??8 3awadas in4ured in crash by <r. .ndo. <r. and <rs. .ndo con"ey their property 7tenants by the entirety8 to their sons so that the creditors of the Pls cannot get it % they continue to li"e in the house. 1he 3awadas win in liability trial against .ndo. = cannot pay. 1hen, <rs. .ndo dies. 1. 2ule: An estate by the entirety is not subject to the clai s of the creditors of one of the spouses and therefore the con"eyance to the sons was not fraudulent. a. '1 states ha"e tenancy by the entirety and there are four $inds: i. In <ass, husband has complete control. ii. the interest of the debtor spouse can be sold for separate debts sub4ect to the other spouse@s right of sur"i"orship )1

iii. attempted con"eyance by either spouse is "oid and the estate can@t be sub4ect to the debts of one spouse. i". the right of sur"i"orship can be alienated to pay debts, but the use and profits can@t be. b. awaii chooses ). i. 1his is mostly a public policy decision about protecting families at the e&pense of creditors, particularly tort creditors, li$e here. ii. 5reditors should re6uire the signatures of both spouses. c. =issent says separate interests should be alienable!sub4ect to creditors. 1his law was e"entually created to shield women from men/s actions, but now they should both be e6ually affected LANDLORD-TENANT LAW I. (easeholds 0 a way of di"iding property interests o"er time 7it is a future interest, li$e a life estate8 a. .ease % landlord transfers possession of property to tenant for a specified period in return for periodic rental paymentsH (andlord retains the right to get the property bac$ at the end of the rental period. 5an be personal as well as real property such as an automobile. b. 2esidential "s 5ommercial % courts are more li$ely to adopt common law rules to regulate residential leases b!c commercial tenants are assumed to ha"e sufficient bargaining power and e&pertise while residential tenants ha"e less c. 9our types of 1enancies: i. Ter of :ears 1. lasts for a specified time determined by the parties a. can be terminated based on an e"ent or condition stated in the lease '. (andlord/s 9uture Interest: re"ersion ). 1hird Party/s 9uture Interest: remainder, only if at the time the lease is signed, landlord ma$es clear that this will happen +. =eath of either (andlord or tenant does not terminate tenancy ii. Periodic Tenancy 1. 2enews automatically at end of specified time, unless one party chooses to end it. .&: month0to0month '. Notice is re6uired to end tenancy ). =eath of either (andlord or tenant doesn/t terminate tenancy iii. Tenancy at 1ill 1. 3imilar to periodic, e&cept no notice is re6uired to end tenancy '. =eath of either (andlord or tenant will terminate tenancy ). <any states ha"e abolished tenancies at will by re6uiring notice i". Tenancy at Sufferance 1. A tenant who wrongfully stays when the lease is o"er % a holdo"er tenant '. If the (andlord accepts rent chec$s from a holdo"er tenant, he may be held to ha"e agreed to a new tenancy calculated by the rental payment schedule 7e&.: monthly chec$s create a month0to0month tenancy8 ). =ifferent from a trespasser, who ne"er had a right to be there in the first place d. (aw discourages self help for landlords. 1hey must use 4udicial proceedings. i. 3ome states allow self help, but they are few since they encourage "iolent confrontations ii. Proceedings for e"iction ha"e been e&pedited to help efficiency iii. 1o remo"e a tenant you need to establish grounds for good cause: 1. 9ails to pay rent a. With or without a conscionable increase b. With or without written notice '. =estroys peace and 6uiet ). =estruction or damage to property )'

+. :reach or "iolation of reasonable rules, that were accepted in writing in the lease a. Biolates co"enants where right of reentry is the conse6uence -. (andlord see$s to permanently board up or demolish premises bc of code "iolations, tries to comply with code "iolations but can@t, tries to correct illegal occupancy, is a go"t agency ready to change the land use. I. *wner wants to permanently retire the building as residential. ?. (andlord changes terms of a new lease which tenant refuses to accept. A. (andlord is con"erting from rental to condo, etc. .&cept against senior citi#en whose tenancy is protected. >. It/s a condition of a condo buyout, small time landlord see$s to occupy or sell to a new occupant. 1J. 1enant@s occupancy was conditioned on employment, and employment has ended. e. Bas6ue# ". Classboro % 7N; statute, and common law8 After Bas6ue# was fired as a migrant farmwor$er, he was not allowed to stay o"ernight in the barrac$s until he found alternate housing. 1hey $ic$ed him out e"en though there were "acant spaces. Bas6ue# did not spea$ .nglish and the contract he signed to wor$ for Classboro was in .nglish.. i. 2ule: When a migrant farmwor$er is fired, he may be e"icted only by a judicial proceeding# Self?help cannot be used by employer hereP 1. 1he court didn/t want to e&tend landlord tenant law here, because it is e"en li$e a superintendant type relationship '. ."en though he was not a tenant, the court implied a pro"ision into the pri"ate E for a reasonable notice and process 7time8 before he could be $ic$ed out of the barrac$s. ). had he been a tenant 7and not a trespasser, li$e landlord claimed8, he would ha"e been entitled to some notice and some process whereas landlords can use reasonable self0help to get rid of trespassers. ii. Policy: 1. 5ourt found that this was a contract of adhesion, written in only in .nglish with huge bargaining power discrepancies. 7Professor ale8 a. 9ollows 3tate " 3hac$ line of protecting migrant wor$ers '. It is bad for public interest to let employer use self help and deny this person housing with no pay, no shelter, and no tic$et bac$ to P2 a. 5ourt is enforcing these contracts, so it has a role 7 ale8 ). 1his is ruining the freedom of poorer people to enter into contracts because it sends a message to employers that courts will meddle with their contracts. 7professor 3chwart# article8 +. Word of mouth can protect these wor$ers as those who come bac$ to P2 will tell others not to wor$ for Classboro. 73chwart#8 -. 1his is a problem for the legislature, not for courts 73chwart#8 I. 1he P2 department of (abor supported these contracts and they should/"e protected the wor$ers at formation, and not left it to courts here. II. 5onflicts About Rent a. .andlord"s Rights i. 1he right to recei"e the agreed0upon rent ii. 1he right to ha"e the premises intact and not damaged iii. 1he (andlord/s re"ersion % the right to regain possession at end of lease term b. (andlord/s Re edies When 1enant :reaches 7fails to pay rent, or brea$s co"enant in lease8 and Refuses to .ea%e: i. Possession and :ac$ 2ent % landlord may sue for rent already due but not paid 7bac$ rent8 and for possession 7e"iction8 ))

ii. If tenant wrongfully holds after lease period and continues to pay rentVlandlord may choose to accept new tenancy relationship or sue for possession 1. 9or possession, must refuse to accept rent chec$s, or mar$ them that this doesn/t create new tenancy agreement c. (andlord/s Re edies When 1enant :reaches and .ea%es i. =uty to <itigate =amages and try to re0rent ii. (andlord can then sue for lease0mar$et differential and other costs associated with getting the new tenant 1. New rent has to be reasonable and within mar$et range iii. a"e to inform the tenant that landlord is not accepting surrender of lease and they are still responsible for damages. i". (andlord can no longer do nothing and then sue at the end of the lease term d. 3ommer ". Eridel 7N;8 % 1>?? Eridel/s engagement bro$e off so he did not need the apartment. 3ommer did not mitigate damages e"en though there was another person who wanted to mo"e in. Pl see$s unpaid rentH = claims Pl failed to mitigate damages and he is therefore not responsible for the rent. i. N; adopts a new rule that landlord has a duty to itigate da ages. <ust use reasonable diligence in his attempts to re0rent the apartment. 1. 5ourt "iews this as a regular contract and not as the landlord/s transfer or property interest for a time. '. ,3 <a4ority rule L no mitigationH emerging minority rule L mitigation ii. Policy: 1. 2ationale for adopting the new rule % fairness: a. 9air to tenant: should only ha"e to pay for the transaction costs of re0 renting the apartment 7ad"ertising, etc.8 and the months of rent missed by the (andlordH needlessly wasting the =/s resources!"acant property being wastedH update an outdated rule. '. What about fairness to (andlord: bargained for a '0year lease 7would ha"e been higher if month0to0month8H no mitigation was the law at the time 7retroacti"ely applying the law8H bearing the burden of =/s personal lossesH may be selecti"e about who he wants to rent to 7intangible cost especially in residential!if he li"es there8 a. It becomes landlords burden to show that e"en if he rents out the now0 abandonded apartment, he could/"e put that tenant somewhere else.

)+

III. Sublease %# Assign ent 7the co"enant here is to pay rent8 a. Sublease % 1enant retains some future interest, or the right to control the property in the futureH co"enant does not run with the land, so no %ertical pri%ity i. (andlord can only go after original tenant 7not subleasor8 in a sublease for damages 7can go after subleasor for an in4unction % some courts allow this8. b. Assign ent % 1enant assigns all remaining interestH co"enant runs with the land 7li$e a real co"enant % - elements neededH no pri"ity of E but pri"ity of estate8, so %ertical pri%ity i. (andlord can go after tenant or assignee 7second tenant8 in an assignment for damages 7and an in4unction8. ii. 1he original tenant has the right to be reimbursed by the new tenant for the amount owed to (andlord if the (andlord chose to sue the original tenant. c. 1here are three different situations in"ol"ing the tenant"s right to transfer: i. 1he lease is silent % can sublease 1. 5ourts want to promote the policy of alienability. ii. 5an sublet or assign but only with (andlord/s consent % can sublease w!consent 1. Ouestion is whether a criterion of FreasonablenessG should be implied in the phrase Fno subletting w!o landlord/s consent.G iii. Prohibit it altogether % cannot sublease d. Eendall ". .rnest Pestana, Inc. 75A8 5ity leased hangar to Perlitches who entered a lease with bi&ler, and then Perlitches assigned to Pestana. Eendall bought :i&ler/s business. 1oo$ on the commercial lease 7renting hangar space8. (ease includes co"enant Fno assignment without consent of the (andlord.G (andlord won/t consent to the transfer e"en though Eendall has good balance sheet. i. 2ule: 5onsent may be withheld only if there is a co ercially reasonable reason for withholding of consent. 1. Illustration of whether or not to add in a reasonableness re6uirement to the E when it 4ust says no consent w0out permission of lessor '. 1his is the inority rule, applies only to commercial leases, and imposes a reasonableness re6uirement e"en where there is none. ii. Policy 1. (essor has made a commercially sound choice of who will owe him rent and courts shouldn/t impose someone else on him a. 2esponse: <itigation re6uirements ha"e trumped this argument. If :i&ler abandoned the lease, Pestana would ha"e to accept anyone. '. (essee could ha"e bargained for a reasonableness clause in the lease but didn/t. 1his interferes with freedom to contract. 1his ma$es it impossible to ha"e a re4ect at will standard. a. 2esponse: there is a good faith re6uirement in all contracts, and that/s all that inserting reasonableness in does to the contract b. 1his is 4ust a change to the default position in contracts, landlords can specifically put in that no reasonableness re6uirement e&ists and that will stand. ). 1his should be left for the legislature +. 1he lessor should be entitled to the benefit of the increased rent "alue, not the lessee. a. 2esponse: that/s not how leases wor$. (essee ta$es on ris$ that "alue could go up or down and lessor sells that ris$ for a price. -. 1his will 4ust increase costs. e. 3la"in ". 2ent 5ontrol :oard of :roo$line 7<A8 2esidential lease for a rent0controlled apartment. 1enant assigned his lease without (andlord/s consent which "iolated the lease. (andlord categorically refused to allow the new tenant. )-

i. 2ule: In residential leases, landlord may refuse arbitrarily or unreasonably to gi"e consent. Not an unreasonable restraint on alienation. 1his is the ma4ority rule. 1. 5ommercial space is different because it is more limited '. (andlord of commercial space is using unreasonable means to get increases in rent. ). (andlord might li"e in te building +. 5ommercial leases are -01J years, where residential are 10'. IB. 2ights to ;abitable Pre ises a. istorically, common law "iewed leases b!w landlords and tenants as independent % 4ust b!c landlord didn/t deli"er her promise, didn/t mean tenant could breach one of his promises. i. Important e&ception was that the (andlord could not breach a co"enant not to disturb the tenant/s 6uiet en4oyment of the tenancy. 1his e&ception gradually de"eloped into the doctrine of constructi"e e"iction. b. )onstructi%e $%iction 0 *ccurs when landlord interferes with tenant/s 6uiet en4oyment so much that tenant can 4ustifiably stop paying rent and mo"e out before the end of the lease. 1his is a physical e"iction and the interference with the 6uiet en4oyment must be the (andlord/s fault. i. <in4a$ 5o. ". 2andolph 7NN8= tenants withheld their rent due to the inability to use '!) of their space because of water lea$s and dust from their upstairs neighbor and from construction by the landlord. Pl landlord brought this action for non0payment. =s see$ a reduction in the bac$ rent because their right to 6uiet en4oyment of the premises was "iolated by the (andlord in many ways. 1. 2ule: 1he doctrine of constructi"e e"iction is a defense to nonpayment e"en when the tenant doesn/t lea"e the whole space, but is forced out of part of it a. 1raditionally, tenants had to mo"e out to use constructi"e e"iction as a defense. 5ourt here is mo"ing away from the traditional rule. b. ere, court allows for partial constructi"e e"iction % tenant can use constructi"e e"iction as a defense without mo"ing out. '. 1hey could ha"e also argued nuisance but that would/"e re6uired them to go to court and get an in4unction. Instead they 4ust stopped paying rent. ). Policy: a. It is hard for tenants to relocate in tight urban mar$ets. <o"ing is e&pensi"e b. e has a contract to li"e here, and he shouldn/t be forced to abandon that right in order to assert others. c. It/s a gamble if they mo"e out % could lose their claim of constructi"e e"iction and then would be stuc$ paying two rents. d. 1his is bad because it encourages fraudulent claims for minor problems 4ust for tenants to get out of paying rent. c. What happens when the disturbance is coming from a third party, not from the landlord himself? (andlord not responsible for the beha"ior % third party: i. :lac$ett ". *lanoff 7<A8 Croup of tenants alleged that Pl, the landlord, had breached his co"enant of 6uiet en4oyment as a defense to an action for rent. Noise was coming from a lounge the landlord owned, not from landlord himself. Pls had to mo"e out. (ounge/s lease had a clause saying that the music could only be heard inside, but not outside the building. (andlord could control "olume sometimes 1. 2ule: Where the landlord allows a third party to conduct themsel"es in a way that will naturally and probably cause a disturbance that substantially impairs the right of 6uiet en4oyment of other tenants, landlord has constructi%ely e%icted the tenants. a. 2uins the habitability. b. 1his is an exception to the idea that landlords aren/t responsible for nuisances caused by their tenants. )I

'. Policy: a. 1enants should ha"e had to bring a nuisance claim, because if landlord hadn/t owned both areas, that would ha"e been the remedy, and that shouldn/t entitle the tenants to depri"e the landlord of rent b. 1his isn/t intentional action by the landlord. e/s 4ust doing his business, and its not his fault. 1his increases the burdens on (andlords and ma$es it less profitable and fle&ible to be in business. c. 1his is a legislati"e issue. d. (andlord shouldn/t ha"e leased to the lounge or should ha"e enforced the noise control co"enant he had with the lounge. e is in the position of control and ends up causing harm to his pre"ious tenants. ii. ) approaches to third party distrubances: 1. Traditional =.egal> Approach: (andlord not responsible for the actions of third parties e"en when there is an e&press pro"ision. '. (o Pro%ision in the (ease: there is an implied duty not to interfere with the 6uiet en4oyment that the tenant has and cannot "iolate this pro"ision of the other tenants. If the tenant breaches this implied duty the (andlord can e"ict the noisy tenant. a. 2estatement focuses on conduct that can be legally controlled by the (andlord. ."en if no clause for noisy parties, constructi"e e"iction defense may be allowed. <any ;s imply this duty to not disturb the 6uiet en4oyment of other tenants. ). Middle /round: as seen in :lac$ett. No implied duty unless there is a pro"ision in the E. Absent such a pro"ision there is no ability of the (andlord to control or e"ict a noisy tenant. d. + plied 1arranty of ;abitability: i. 1raditional rule L buyer bewareH lessor 4ust had to deli"er the premises. No duty to deli"er and maintain a particular habitability unless e&pressed in lease. *nly had to tell hidden defects that were $nown to the (andlord. ii. 5onstructi"e e"iction deals with non0physical intrusions 7more li$e nuisance8 and implied warranty of habitability refers to the physical aspects of the dwelling. iii. 5ontractual obligations of the (andlord and the tenant were independent rather than dependent. In recent years most states ha"e repudiated a lac$ of duty to repair or maintain and the independent co"enants rule. i". ;a"ins ". 9irst National 2ealty 5orp. 7=.5.8 1enants are sued for not paying rent. 1heir defense is that the (andlord "iolated 1-JJ pro"isions of housing code and their apartments were not habitable. 1. 2ule: 5ourt creates an i plied 3arranty of habitability. Analogi#es it from warranty of merchantability and housing construction cases where contractors are held liable. 1enants obligation to pay rent is dependent upon the (andlord/s performance of his obligation which includes the warranty of habitability. a. 5ourt decides to treat this li$e a normal contract instead of the creation of an interest in property. i. ,sed to be that lessees were interested in the land to farm and the house wasn/t important and farmer could do most repairs. ii. Now in the urban housing mar$et tenants are loo$ing for shelter that functions and its impossible for tenants to do most repairs b. A tenant relies on a landlord li$e a car buyer relies on the manufacturer. Apartments are more li$e products than property. c. 1here is a huge disparity in bargaining po3er here bc of wealth and housing shortage. 5ourts need to protect tenants. '. Policy: )?

a. If we ha"e a housing code, it ma$es sense that landlords should be re6uired to $eep up with it during the time of the lease. If tenants can/t stop paying rent, there/s no way to enforce that obligation b. 1here aren/t enough housing inspectors to go around and this enforces the housing code effecti"ely. i. 5odes are minimal and co"er only important things c. Poor people should be protecti"e from careless and fraudulent landlords by being able to withhold rent. d. 1his was not a decision for the court. 1he legislature should ha"e added this into the housing code if it was necessary to protect tenants/ rights. ). 3hould parties be able to contract out of the warranty of habitability? a. No because you can/t contract away basic rights. 1he person doing this wouldn/t really understand what they/re doing. 1hey/re sacrificing their long term health and well being for short term financial gain. 1hat is not in the best interest of societ b. Nes because that/s what freedom of contract is all about. 5ourts can ma$e sure that these tenants really understand, but with a shortage of affordable housing, courts should allow for freedom to gi"e away some rights to encourage more housing for the "ery poor. ". Re edies for breach of habitability: 1. rescission0 the right to mo"e out before the lease term is o"er '. rent withholding % landlord must be notified of the problem before withholding rent ). rent abatement 0 reduction of rent +. In4uncti"e relief or specific performance -. Administrati"e remedies 0 local housing inspectors, remedies in local admin courts. I. criminal penalties ?. compensatory damages e. Retaliatory $%iction0 1he remo"al of a tenant from possession of property due to the tenant/s complaints or other conduct to which the landlord is opposed. (andlord can terminate lease and end of term for no reason. i. ill"iew Associates ". :loom6uist 7Iowa statute8 1enants of a trailer par$ tried to form a tenants association to address deteriorating conditions. - tenants <et with landlord and one of them had a physical altercation with the landlord. All of the tenants in"ol"ed in that meeting recei"ed e"iction notices from ill"iew. <anager/s secretary testified that this was 4ust the first round, that they/d get the whole tenants association. 1enant refuse to lea"e so the Pls sue to ta$e controlH =s defend on grounds of retaliatory e"iction. 1. 2ule: retaliatory e"iction can be pro"en by showing e"iction within I months of tenant action and no other good reason. a. Starting a tenants association, or lodging a complaint is tenant action b. 3houting and heated discussions are not an e&cuse for a landlord, but a physical altercation is. i. (andlord has the burden to pro"e it wasn/t retaliation c. (andlord also can/t decrease ser"ices, threaten e"iction, fail to renew rental agreements, increase rent. '. Policy: a. 1his is good because it allows tenants to lodge complaints and try to impro"e the place they li"e. b. 1his is bad because it forces landlords to li"e with o"erly pic$y tenants who are "erbally abusi"e ii. Imperial 5olliery ". 9out 7WB, 1>AA8 Pl owned a coal mine and ga"e housing to wor$ers for 1K a month. e instituted an e"iction proceeding against =, who claimed the e"iction )A

was in retaliation for his participation in a labor stri$e at his coal0mining 4ob. <onth0to0 month tenancy. 1. 2ule: 2etaliation may be asserted as a defense to a summary e"iction proceeding only if the landlord is alleged to be retaliating against a tenant"s action as a tenant. a. ere the alleged retaliation was for union acti"ity at wor$, and that/s not a sufficient lin$ '. Policy: a. 1his is bad because when wor$ and tenancy are related, landlord should be pre"ented from retaliating for action in either capacity. b. =on/t want this concept to be too broad because it infringes on landlord/s legal property rights. RECORDING ACTS I. What is a 2ecording act? a. Intended to pro"ide buyers with the security of $nowing that they will really own the property interests they are buying. b. 1he deed is "alid without or without recording, recording 4ust ensures it will be recogni#ed in a court. c. 2ecording acts define priorities % whose interest will pre"ail in different $inds of disputes. i. 1raditional rule was first to record is the official owner 72ace8. 2ecording acts alter that. ii. ."ery state has passed a recording act iii. Pro"ide strong incenti"es to record interests. d. 1hese acts don/t determine an o"erall loser and winner, because the loser can often sue for fraud after. 1hey 4ust determine possession II. ow to 5onduct a 1itle 3earch a. /rantor?/rantee +ndex % will not show a wild deed 7deed that is recorded to early or too late to show up in the inde&, i.e. before the grantor obtained the interest or after he lost it.8 b. /rantor +ndex: all instruments are listed both alphabetically and chronologically by the grantor/s last name c. /rantee +ndex: all instruments are listed both alphabetically and chronologically by the grantee/s last name d. Inde& has basic descrpitoin and guide to find actual deed. III. 1ypes of 2ecording Acts a. Race Statutes: 1he person who records first will pre"ail % she has won the race to the registry. i. =oes not matter if the pre"ailing party $new about the prior con"eyance or not. 1. *nly a few states use this. '. Ad"antage: pro"ides a huge incenti"e for 6uic$ recording ). Problem: potential for slea#y dealing. ii. .&ample: * con"eys to A, A does not record. * subse6uently con"eys the property a second time to :. : $nows of the earlier con"eyance to A. : records the deed from * to :. In a lawsuit, between A and :, : pre"ails. b. (otice Statutes: A subse6uent purchaser pre"ails o"er an earlier purchaser only if the subse6uent purchaser did not ha"e notice of the earlier con"eyance. i. ,sed in about X the states 1. Ad"antages: gets around the fraud of subse6uent purchaser getting the propertyH adds fairnessH still an incenti"e to record because recording pro"ides constructi"e notice and protects against subse6uent sales by grantor. '. Problem: some reduction in certainty because it can be hard to determine who/s on notice and when e&actly things happened ii. .&ample: * con"eys to A, A does not record. )>

* then con"eys to :, who has doesn/t $now about * to A : pre"ails o"er A e"en though : does not record the deed from * to :. : also pre"ails o"er A e"en if A later records her deed from * to A before : records her deed from * to :. c. Race?(otice Statutes: A subse6uent purchaser pre"ails o"er prior unrecorded interests only if she 18 had no notice of the prior con"eyance at the time she ac6uired her interestsH '8 records before the prior instrument is recorded. i. ,sed in about X the states ii. Ad"antages!Problems: same as with Notice 3tatues. iii. .&ample: * con"eys to A, A does not record. * then con"eys to :. : has no $nowledge of the earlier con"eyance from * to A. A recordsH then : records. A pre"ails o"er : because, e"en though : had no notice of A/s deed, A recorded first. d. 3helter =octrine % Protects the middle man bona fide purchaser from not being able to sell because he later finds out there was an earlier con"eyance e. 3abo ". or"ath 7Alas$a 1>?I8 (owery owned land which re6uired a patent. (owery to or"ath, who recorded before the re6uired patent was issued. After the patent was issued, (owery con"eyed again to 3abo, who recorded. or"ath/s deed is wild because it was before the patent was issued. 3abo did a title search, found nothing, so he records. i. 2ule: Alas$a has a 2ace0Notice statute. A deed outside of the chain of title is not constructi"e notice and a subse6uent recorded deed will ta$e priority, if recorded without actual or constructi"e $nowledge 7need one of these8. 1. 2ace0notice see$s to protect a bona0fide purchaser who records, e"en if there has been a pre"ious con"eyance in a wild deed. a. 1his protects diligent second purchaser, who searches and finds nothing b. Wild deeds, li$e or"ath/s deed, which was recorded outside of the chain of title, did not put 3abo on constructi"e notice of the con"eyance to or"ath. c. 1he grantor inde& would ha"e shown ,3 to (owery in 1>?), and or"ath recorded a deed before 1>?). i. ad or"ath recorded after 1>?), before sale to sabo, 3abo would ha"e been on notice. d. Policy: i. 5an/t re6uire chec$s for wild deeds because its too cumbersome. 5reates uncertainty. ii. or"ath should/"e re0recorded after the patent was issued. iii. Ouitclaim deed L unusualH in"ol"es gi"ing whate"er the owner has but does not include warranty. 3hould ha"e put 3abo on in6uiry notice of a possible wild deed. 1. owe"er he did title search, can/t as$ for more. i". 3hould use a tract inde&, not grantor grantee because they follow e"erything that happens with a particular tract, easier to follow,e&pensi"e and not used in many places. e. .stoppel :y =eed: here (owery con"eyed without ha"ing it. when this happens, as soon as lowery were to get title, it would be con"eyed. '. Cift: 5on"eyances that ha"e been purchased ta$e precedent o"er those that ha"e been gi"en as gifts. If the same piece of property is gi"en to two donees, the first to recei"e it first wins it 7first in time, first in right8. TA@+(/S I. 2egulatory 1a$ings +J

a. 1he 2ifth A end ent % prohibits the federal go"ernment from Fta*ingG pri"ate property Ffor public use without 4ust compensationG. b. Allows go"ernment to acquire pri"ate property for public use for compensation. 2e6uires determining that the proposed use is public and determining what constitutes 4ust compensation i. Applies to the 3tates through the 2ourteenth A end ent, which prohibits the state from Fdepri"ingG the citi#ens of property Fwithout due process of lawG ii. When states operate within their police power, they may create in4uries but they are without legal redress. 1his is not a ta$ing. iii. .minent domain is when the state ta$es or condemns pri"ate property, pays owner mar$et "alue, and uses for the furtherance of public welfare. 1. 1his has been broadened o"er the years. c. Regulatory ta*ings 0 when a regulation strips a property owner from using their property li$e a factory can@t operate under en"ironmental statutes. i. 1he goal here is to loo$ for fairness and 4ustice, ma$ing sure that a fe3 indi%iduals arenAt required to bear the burden of public good for all people. d. 1he court has also tried to create cases of per se categories to find regulations that constitute categorical ta$ings and re6uire compensation no matter what. i. go"t mandated per anent physical in%asions of property always re6uire compensation ii. regulations that depri"e an owner of all econo ically %iable use of property unless bac$ground principles of nuisance and property already restrict that use. e. ,nder the ad hoc test 7Penn 5entral8, these three categories are most often found to be ta$ings: i. depri"ation of core property rights or estate in land ii. interference with reasonable in"estment bac$ed e&pectations iii. re6uired dedications of property imposed as conditions for land use de"elopment permits when those re6uirements don@t substantially ad"ance the same interests that land use authorities used to say they could deny the permit in the first place. f. <iller ". 3choene 7BA, 1>'A8 3tate statute re6uired all cedar trees infected with red rust be cut down if they/re within two miles of an apple orchard because the rust ruins apple treest. Pls were ordered to cut down their cedar trees. i. 2ule: 3tate did not e&ceed its constitutional powers when it ordered the destruction of the cedar trees 7not a ta$ing and so no compensation re6uired.8 1. 3tate is simply choosing to sa"e one more "aluable class of property o"er another. '. 1his is within state"s police po3er to limit spread of disease ii. Policy: 1. 1he cedar tree owners should/"e been compensated because they were forced to get rid of lumber and aesthetics by the go"t for general welfare. '. 2egulations re6uire the state to limit property rights, and it/s not always a ta$ing. *wners don/t ha"e absolute rights to begin with. g. Penn 5entral " NN5 1>?A, 35 % Crand central station was deemed a historic landmar$ and the city refused to allow them to build an office building on top of it. 3tation claimed this "iolated its "ertical property rights and constituted a ta$ing i. 2ule: in order to something to be a ta$ing, the courts should loo$ at 1. econo ic i pact on the indi"idual '. the e&tent to which the regulation interferes with an in%est ent bac*ed expectation ). a physical in%astion is more li$ely to be a ta$ing, than a regulation. 1. 1he parcel is loo$ed at in its entirety, so the right to build wasn/t remo"ed, 4ust that particular plan was re4ected. '. 1his restriction is on a lot of buildings, and #oning does pretty much the same thing, and its not a ta$ing. ). Penn central isn/t solely burdened. +1

ii. =issent argued that this is different from #oning laws, because they create a basic structure that e"eryone benefits from. 1his is +JJ out of 1 million buildings. iii. owe"er this is the $ey test that is applied down the road. h. Eeystone :ituminous 5oal " =ebenedictis 1>A?, 35*1,3 % PA law re6uired enough coal to be left underground to support structures abo"e. 5oal companies said this "iolated the underground rights they had bought. i. 2ule: this isn/t a ta$ing because it is a regulation that li its' but doesn"t co pletely interfere with the property right. Its not a physical in"asion, it only re6uires that 'U of coal be left in the ground, so it barely interferes with in"estment bac$ed e&pectations. ii. =issent disagreed with in"estment bac$ e&pectation analysis. Pruneyard 71>AJ8 (oretto 71>A'8 Nee 71>>'8 Pamphleting at mall No ta$ing 5able 1a$ing <obile home No ta$ing regulations Noupee 71>>?8 1oo$ away right of 1a$ing alienability (ucas 2egulated where 1a$ing buildings could be 1ahoe03ierra 1emporarily halted Not a ta$ing building II. Ouestions to as$ when applying the Penn )entral test: pg?>J a. Is this a per se ta*ing 75onsider these three types of ta$ings, which are per se ta$ings: 8 i. Is it a forced physical in%asion? 1. Pruneyard " 2obins 1>AJ, 35*1,3 2hen6uist: Petitioners at a shopping center were as$ed to lea"e. 5A sup ct said that free speech rights allows this, and Pruneyard claims this is an uncompensated ta$ing. a. ."en when there is some physical in"asion, when there@s absolutely no econo ic effect it will not be a ta$ing. When the in"asion is temporary and limited and since the owner hasn@t e&hibited an interest in e&cluding all person@s, this isn@t a ta$ing. i. 1his would be different if the petitioners deterred shopping. '. (oretto ". 1eleprompter 7358 % 1he city re6uired the landlord to allow cable e6uipment to be laid across the apartment building. 1he wire too$ up "ery little space and actually increased the "alue of the property. a. 2ule: A per anent' forced physical in%asion is always a ta$ing that re6uires compensation, no matter how slight the in4ury or how minimal the in"asion i. Co"ernment re6uired to pay 4ust compensation 7on remand only K1 for the intrusion8. b. =issent argues that this ignore the other elements, where there is no economic effect and no affect on in"estment bac$ed e&pectations. i. (andlords already ha"e to ha"e fire e&tinguishers and mailbo&es, so why not this. c. Policy i. 1his pre"ents future worse ta$ings and establishes a bright line rule, but 4ust compensation must be nothing. ii. In pruneyard they $ept control of time, place, and manner, so it wasn/t a permanent physical in"ation iii. 1his is absurd because it adds to "alue and the chords are negligible and don/t interfere with anything. +'

Nee ". 5ity of .scondido 7358 %1he state enacted a law limiting the bases upon which a par$ owner could terminate a mobile home owner/s tenancy 7limits constructi"e e"iction and ma$es the property rent controlled8. Nees, par$ owners, claimed it was a physical in"asion of their land and re6uired compensation. 1his can result in perpetual tenants 7right to occupy indefinitely at sub0mar$et "alue8 and a shifting from (andlord to tenant the benefit of K earned on increased rent on the property. a. 2ule: (ot a forced physical in%asion. ;ust a mere regulation. ere owner opened up his land, "ersus in Loretto! where a stranger came onto the land. i. <a$es the (oretto rule not so brightline b. Policy i. Nee opened up his land, so now he has to deal with e"eryone e6ually, and can/t e"ict. ii. 1his is absurd because it turns renters into mini owners without the in"estment part and allows them to be perpetual tenants at subpar rents. iii. <a4or depri"ation of an economic "alue ii. Is this a ta*ing of core property rights' li$e right to e&clude, or con"ey? 1. Pruneyard is a limit on the right to e&clude as well as a physical in"asion a. In this conte&t it begs the 6uestion, what is a core property right and what can go"t ta$e away? '. :abbitt ". Noupee 735*1,3, 1>>?8 % 5ongress passed an Act to ameliorate the fractionation problem that was happening with Indian land. 5ongress/ solution was that property would automatically go to tribe rather than the heirs without compensation. eirs claimed it was a ta$ing of their property because they couldn/t con"ey Note: Property interest was "alued at about K1'JJ % not insignificant. a. olding: 1his is a ta$ing because the Act infringes on a core property right: the right to de%ise property to your heirs. i. 2egulations can change rights, but cannot completely abolish a right 7e&ample: estate ta&es8. b. Policy: i. 1he go"t has to step inhere to pre"ent further fractioni#ation of Nati"e lands. Noupee 4ust needed a better lawyer to transfer this land before his death. ii. 1his is a core right, and go"t can/t touch it without compensation, no matter wha the interest it. iii. =oes the regulation result in total economic depri"ation? 1. (ucas ". 3outh 5arolina 5oastal 5ouncil 735*1,3, 1>>'8 % 3tate :eachfront <anagement Act, which sought to counteract coastal erosion, barred (ucas from erecting homes on two parcels of land near the ocean which the Pl had bought to de"elop for single family homes. 3tate 35 had not found a ta$ing because the regulation was a public benefit pre"enting serious home 7erosion, destruction of beaches % tourist industry for 358. a. olding: A ta$ing. :right (ine 2ule: 1he state must compensate a landowner when a regulation denies an owner all econo ically %iable use of his land. 3uch a regulation always must be compensated. i. 3tate 35 was wrong to analogi#e (ucas/ use to a no&ious use or nuisance. ii. 1his does not pre"ent claims to be brought and won on if there is a 5( nuisance or property use law that it also fits into to b. Policy: +)

).

i. Protect reasonable e&pectation interests of property owners. (ost something here. 1. At the same time, property owners $now that their property is sub4ect to regulation especially in a sensiti"e area li$e this '. Not all use is depri"ed here. 5old ha"e set up a boyscout camp or some other use. ii. (aws li$e this pre"ent state legislatures from being able to protect the common good because they can/t compensate e"eryone. i". 1ahoe03ierra ". 1ahoe 2egional Planning Agency 7358 % (egislature placed a ' year moratorium on de"elopment around the la$e to determine impact on the la$e. 1he court e&tended it to I years. *wner bought land and was pre"ented from building and sues for compensation. 1. olding: Not a ta$ing. :ecause the oratoriu is te porary, the property will reco"er its "alue as soon as they are lifted. a. (ucas doesn/t apply because it didn/t constitute a permanent depri"ation of all use. b. 1his is a fu##iness within the :right line rule '. Policy: a. 1his isn/t a ta$ing, its temporary, and its 4ust the amount of time needed for thego"t to protect this uni6ue la$e and the surrounding area. Co"t can/t compensate to conduct studies. b. Its already been I years, how long does it ha"e to be before its permanent. 1his is a total dimunition in "alue and state should ha"e to compensate. b. If this isn/t a per se ta$ing, loo$ at the three factor test: i. )haracter of the /o%ern ent Action: Is the regulation a physical in"asion, is it the sei#ure of a core property right, or is it a general regulatory program affecting numerous parcels and designed to protect the public from harm by ad4usting the benefits and burdens of economic life to promote the common good 7li$e #oning8? 1. 2egulation <*2. (IE.(N to be a 1AEINC if go"/t action is: a. A forced physical in"asion of pri"ate propertyH b. An e&traction of a benefit for the good of the community rather than pre"ention of harm by the property ownerH or c. A forced redistribution of bargained0for contractual rights from one party to the other rather than a general regulatory program designed to respond to e&ternalities caused by the property use '. 2egulation (.33 (IE.(N to be a 1AEINC if go"/t action is: a. A regulation of property use, rather than a forced physical in"asionH b. An acti"ity considered to be a nuisance by common lawH c. Property owners are somehow still recei"ing a benefitH d. A choice between incompatible property interestsH or e. An enforcement of implied obligations of good faith in the contractual relationship ii. -i inution of $cono ic &alue 1. 2egulation <*2. (IE.(N to be a 1AEINC if diminution of "alue is 3,:31AN1IA(, with the e&tent of it measured in the following way: a. (oo$ing at what is ta$en 7large U of mar$et "alue of property is destroyed8H or b. (oo$ing at what is left, after the regulation is in place '. 2egulation (.33 (IE.(N to be a 1AEINC if: a. If diminution in "alue is <INI<A( according to either what is ta$en or what is left ++

c.

d.

e.

f.

g.

h.

b. If diminution in "alue is 3,:31AN1IA(, but it is 4ustified by a strong public interest iii. Interference with reasonable in%est ent?bac*ed expectations % 1. more li$ely to be a ta$ing if a citi#en has already in"ested substantially in reasonable reliance on an e&isting statutory or regulatory schemeH a. Interferes with "ested rightsH or b. Interferes with an e&isting present use of property '. it is less li$ely to be ruled a ta$ing if the regulation pre"ents the owner from reali#ing an e&pected benefit in the future a. Imposes an opportunity lossH or b. 1he change in the law is one that the owner should ha"e anticipated such that the owner/s reliance was unreasonable If there is a ta$ing, as$ if its for public use i. 1a$ings are ne"er permitted for pri"ate use, e"en with 4ust compensation ii. Public ,se: 3o long as the state/s use of its eminent domain power is Frationally related to a concei"able public purposeG the public use re6uirement is satisfied. awaii ousing Authority ". <id$iff 7358 3tate passed Act that sought to redistribute land from a few families to the population in general for an oligopoly redistribution scheme. Pl argued that the redistribution was unconstitutional because it benefitted pri"ate indi"iduals % no public purpose, not for the public good. i. 2ule: Purpose of statute was to allow for ore 3idespread o3nership 7public purpose to reduce the e"il of concentrated land ownership through redistribution8 % clearly related to a legitimate go"ernment interest. 5ourt completely defers to the legislature here. 5onstitutional. 1. 1he court only as$s if the legislature rationally belie"e that the act would promote its ob4ecti"e? Poletown Neighborhood 5ouncil ". =etroit 7<I8 5ity statute sought to condemn land to sell it to C<. Purpose was to promote industry and economic stability % alle"iate widespread unemployment problem. i. 2ule: ."en though the land was going to a pri"ate actor, the use here is public in its purpose 7sol"e unemployment, pro"ide ta& base8. 1. 5ourts must gi"e great deference to the legislature, e&cept when there is specific identifiable pri"ate use 7as here % C< identified8. 1hen, there is strict scrutiny, and the power of eminent domain is not to be e&ercised w!o substantial proof that the pubic is primarily to be benefited. It is here. :oth cases cite *erman v. Parker $#C% which gi"es deference to the legislature unless there is no reasonable foundation in its conclusion. When the legislature spea$s, the public interest has been declared and is Fwell0nigh conclusi"e.G i. 1his case in"ol"ed slum clearances % the use of eminent domain power to rede"elopment slum areas and for possible sale!lease of condemned property to pri"ate interests is o$ay. 3tandard use L rarely disturb the legislature/s finding of public use. 2ule for public use: 5ourt should completely defer to the legislature is purpose of the statute is rationally related to a concei"able public interest. If statute is reasonable, it is *E, e"en if going to a pri"ate beneficiary $+idkiff% i. When there is a specific and identifiable pri"ate use, the court needs to use a stricter scrutiny. It should only defer to the legislature if there is substantial proof 7clear and significant8 that the public is primarily to be benefited. $Poleto"n8. 5ourt remaints deferential to legislature, but less so than in <id$iff 7substantial proof ". reasonable proof8. Eelo " 5ity of New (ondon 'JJ-, 35*1,3 % 5ity of New (ondon authori#ed use of eminent domain o"er an area to re"itali#e the city and increase ta& re"enues. Pfi#er was going to mo"e into the ta$en area, which was going to ha"e a little public par$ use and lots of office space. +-

i. If the purpose is legiti ate and the eans are rational, the court will not re"iew plans on a plot by plot basis to determine if the ta$ing is "alid. 1. 1here has to be a public benefit, but it doesn/t ha"e to be definite or concrete, but it can/t be prete&tual. '. Primary use to benefit the public. ). Eennedy/s concurrence re6uires assumption of in"alidity and strict scrutiny. +. =issent, */5onnor: this gi"es leg the ability to depri"e people of property to update city bloc$s to be better, which is whate"er the leg says. a. 1his is too much deference. b. 1his isn/t li$e a blighted slum, therse were perfectly good houses. c. 1he plan should either ha"e to go around them, or it isn/t "alid -. =issent, 1homas: this is changing the -th amendment to say for public purpose, and not public use. a. 1he awaii and C< cases were wrong too, because that/s not use by a public entity. 2eiteration of how to do a ta$ings problem: 1. Is this a per se ta$ing? Will fall into one of the three rules!categories Physical in"asion 5ore property right 1otal and permanent depri"ation of economic "iable use o Note: there are e&ceptions to each of these three categories. .&ample: temporary moratorium. o *n e&am: e"en if you say it fell into one of these ) rights must also do )0factor test. 3ay: in the case the court does not fall that it fell into S brightline rule, we will apply the )0factor test. '. If not a per se ta$ing, is it a ta$ing under the )0factor test? 5haracter of the go"ernment action =iminution of "alue Interference with reasonable in"estment0bac$ed e&pectations ). Is the property being ta$en for public use? If so, then 4ust compensation is re6uired. 1he regulation must be rationally0related to a legitimate state interest to e"en be ta$ing at all. 1his 6uestion would not arise if there was no ta$ing % ob"iously not on an e&am. 1hen see if it is compensation necessary. No right or wrong answer, 4ust ma$e an argument based on the case law we/"e read, common sense. If public use, then 4ust compensation is re6uired. Would argue both sides of whether or not it is a public use. Ceneral 6uestions about ta$ings: 1he issues here are should society as a whole bear the burden and compensate or should the indi"dual bear the burden? why are courts more e6uiped to do this than legislatures. 1hat wasn@t their 4ob originally.

+I