1. Part I - POSSESSION

2. Possession and Ownershipa. Classic Property Theories

i. Occupation Theory1. Physical occupation of an object gives a person an inherent right to be protected to keep it

as long as it is in their controla. Act of seizure leads to rightb. Common property is seized for individual usec. Pufendorf/Blackstone

2. Akin to yelling out loud “This is mine” loud enough so all can hear. 3. Blackstone’s conception:

a. Property started at the beginning of timeb. God gave us dominion over earth; therefore, it and everything in it is the general

property of all mankind, exclusive of other beings.c. He who first began to use it, acquired therein a kind of transient property; that

last as long as he was using it and no longer.d. Mankind increased in number

i. Needed more permanent ideas of propertyii. Movables of every kind became sooner appropriated than permanent

substantial soil. b. Animals: if they escape or he abandons them they can be someone else’s property.

a. Drew normative conclusion that organized society is just protecting the status quo - Humans naturally seek to acquire for themselves and family. If somebody tries to take it, then there is fighting.

b. Challenged by Maine b/c based on the historical record, there were communal groups and ownership

c. Normative view of property is that private property is a good thing even if we accept the extraordinary focus on the solitary individual

d. Spinoffs:i. Will- by doing this we’re ensuring survival of race and human will

ii. Utilitarian- in order for market to function you have to have a starting pointit’s gotta be clear who can make the decisions regarding property.

2. H. Maine, Ancient Law:a. Occupancy (Occupation)- the advisedly taking possession of that which at that

moment is the property of no man, with the view of acquiring property in it for yourself.

b. Res nullius- things which have not or have never had an ownerc. Social Compact of Hobbes (people cede their rights to create sovereignty

retained by the state in return for protection and a more functional society). d. Anthropological

3. Barbeyrac’s conception:a. Uses Locke’s Labor perspective that everyone is entitled to the full product of his

laborb. Must be the first to announce an intention to possess in order to have possession

4. Pufendorf:a. Uses Hobbes’ belief that all things existed in natural state of communion prior to

act/agreement of menb. It is the act or covenant that appropriates things among menc. You have to actually wrestle the beast to have possession

5. Acquisition should be protected because:a. Basic human needs (acquisition for consumption)b. Protecting autonomy, as property is an extension of selfc. Protects human will (Kant)

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d. Efficiency (Bentham) – markets can’t work unless you can easily allocate resources

e. Easily applicable rules best protect the peace6. Applies “Rule of Capture” in cases of ferae naturae – whoever is first to capture has

claim above all others7. Benefits of this theory

a. Easily applied and determinedb. Encourages competition, so long as everyone has equal right to capturec. We allocate resources to avoid fighting because it’s in human nature to grab onto

thingsd. Encourages the full exploitation of resources

8. Criticisms of this theorya. Barbeyrac – from Locke, everyone is entitled to the full product of his laborb. Maine – property was seized by groups for communal use, not individual

ii. Labor Theory1. John Locke (Labor):

a. Every man has a property in his own person and only he has that right. The labor of his body and the work of his hands are his. Therefore, whatever he removes out of the state of Nature and he has mixed his labor with, is his own property.

b. The hare that one is hunting should be yours (P. v. Post).c. As much as any one can make use of to any advantage of life before it spoils,

that’s what he should mix his labor with.d. Money began to make men separate themselves and made land valuable. Money

obviously can’t spoil. e. Locke’s theory supported middle class revolutionaries in their quest for private

property as a source of production and power. f. Book criticizes Locke p. 123-124

2. What makes property permanently yours is working on/with it and making it yours3. Not just about grabbing something but putting it to work4. You can see this in present-day copyright protection

iii. First In Time Rule1. The first person to take possession of an un-owned thing owns it. 2. A prior possessor prevails over a subsequent possessor. 3. Policies behind it:

a. Reward laborb. Encourage competitionc. Ease of administrationd. Protect investment in resourcese. Encourage people to bargain with each other rather than fight

4. Usually applied to wild animals and findersa. Wild Animals:

i. Law requires capture, not just pursuit for possessionii. If animal is mortally wounded or trapped, counts for capture

b. Finders:i. When someone finds something does it belong to him, the TO, the land

upon which the object was found, etc?ii. Constructive possession under which a person is deemed to be in

possession of things of which he is unaware is important in this iv. Conquest Theory (a la Johnson v. M’Intosh)

1. Discovery gives title to the discoverer (as long as that is a European country)2. Rights of original inhabitants not completely disregarded – they are left with right of

occupancy with no power to dispose of soil at their own will3. Possession does not equal power to convey

v. The King’s Prerogative and the ratione soli (In property law, it is a justification for assigning property rights to landowners over resources found on their own land):

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1. The right to take free animals was vested in the king alone.2. Private franchises to take game are seen as grants from the king.

vi. State Ownership of Wild Animals and the Constitution:1. We have game laws, ratione soli, and even private franchises. 2. Legislatures in states have assumed property rights as justification for making laws

regarding animals. a. Geer v. CT:

i. State’s right to regulate on the basis of both the king’s prerogative and of the civil law concept res nullius belonged in common to all the citizens of the state.

1. After Geer Supreme court doubted state ownership of game justifies game laws and preferred to justify on the basis of police power.

3. Pollock and F. Maitland: a. Why does our law protect possession?

i. Interest of public orderii. One can’t disturb possession without being guilty of some injury

iii. Must protect ownership (but ownership is difficult to prove); easiest way then is to protect possession and prove that

iv. Merely taking possession of something gives you rights over itb. Pierson v. Post

i. Rule: In order to sustain a cause of action based on property by the occupation theory, one must have actual possession. In order to have possession of ferae naturae, you must deprive the game of its natural liberty, rendering escape impossible.

ii. Pierson killed and carried away the fox that Post was actively pursuing with hounds on unpossessed and uninhabited land. Pierson saw Post and knew the fox was being hunted.

iii. Holding: Court held that Post lacked property in fox to sustain trespass.iv. Majority opinion (Tompkins):

1. Discussed possession of the Fox, argued that occupation theory leads to this holding2. Policy argument – discussed the effort to curb litigation in pursuit cases, as to rule for

Post would cause a “fertile ground for quarrels”v. Dissent (Livingston):

1. Discussed interference in the hunt, knowledge of the chase. Argues that labor theory should have been emphasized.

2. Policy argument - discussed the fact that foxes are bad, so we should award fox to Post to encourage people to hunt and kill foxes – reflection of change from judges regarding common law as a set of immutable principles “discovered” by judges to a malleable tool that could be employed to achieve society’s policy goal.

vi. Mistakes:1. Post’s lawyer allowed court to narrow the question to whether Post had sufficient

property rights to the fox to sustain action against Pierson, NOT interference in the pursuit

2. Post originally sued in case (tortuous interference w/pursuit of fox) but upon appeal did not except to the fact that the court treated the action as one in trespass (crucial issue is whether Post had possession of the fox). He allowed the case to become about possession.

a. Mistake because harder to argue occupancy than interferenceb. Mistake because property in the fox is not what Post was really angry about; he

was angry about interferencevii. Important Terms from this case:

1. Suit in trespass – “Injury to Possession”a. Required plaintiff to show that the defendant intentionally or negligently acted so

as to inflict a direct, forcible injury to the plaintiff’s person or to property in his possession

b. Plaintiff must allege prior possession or right to possession

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2. Trespass on the case – “Substantial Harm, not Possession”a. When defendant’s acts were not immediately injurious but injury was indirect or

consequent, orb. When defendant had a duty to act but failed to do so, orc. Where injury was to property not in the plaintiff’s possessiond. Developed as an action where one of elements of trespass action was missinge. To sue in case, plaintiff did NOT have to allege prior possession, only that

defendant had a duty, that defendant breached the duty, and that the breach resulted in substantial harm to the plaintiff

viii. Sources of Law1. Statutes considered first

a. None that court knew about, plus problems re: receiving colonial statutes2. Common law considered next

a. NY common law (BINDING) record was meager at that time – things not recorded

b. British common law (PERSUASIVE)i. Court cited Keeble v. Hickeringill and distinguished it because action in

that case was for maliciously disturbing defendant’s employment and defendant clearly had possession (untrue and misapplied)

3. General wisdoma. Bracton and Fleta, Blackstone – all talking about Justiniansb. Pufendorf, Grotius and Barbeyrac because they were leading authorities of

Roman law, and we were looking to Roman law. Also, natural law scholars were looking at these

i. Barbeyrac and Locke - man has a natural right to those things which he acquires by his labor from the common stock of goods which nature has provided.

1. They would be for Post.ii. Pufendorf and Hobbes - there is no natural right to property which one

has seized, but agreement or positive law establish that right. Must have physical control over property.

iii. They would be for Pierson.4. Customs - Couldn’t go with this b/c there was no proof of custom on record

a. Livingston’s opinion looks to Committee of Sportsmen, who are experts about the custom of sports

5. Policya. In dissent, said we should do anything we can to encourage hunters to get foxesb. In majority, said that conferring ownership rights based on sight and pursuit

would increase lawsuits and that a clear and simple rule helps w/enforcement6. Common sense

a. This case is silly and court is looking for a way out, and Pierson’s lawyer gives the court a way out with Justinian

ix. Was this result unavoidable?1. No because Justinian was not binding in NY

a. Policy could lean other wayb. Custom could lead other wayc. Keeble v. Hickeringill shows alternate outcome

2. No because Justinian deals with wounding, not “caught in pursuit” issue3. No because Justinian didn’t make rule on this because of precedent. He just found that

theorists were all over the place on the issue and he decided to rule because he is the emperor

4. No because could have looked to natural law tradition:a. Puffendorf believes that state power doesn’t have standing over things that state

can’t have physical control over (Hobbes)b. Barbeyrac goes to Locke, saying Post did the work so should get the rewards

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x. What was the case really about?1. Fundamental social conflict – Pierson was a Puritan who thought hunting was bad2. Judges wanted to move towards Continental (not British) authorities b/c American

Revolution3. Judges were looking for a peg on which to hang their hat and look smart, and Pierson’s

lawyer gave them that with Justiniansc. Keeble v. Hickeringill

i. Rule: You cannot maliciously interfere in a legitimate enterpriseii. Keeble had decoy pond and Hickeringill, meaning to ruin Keeble’s prospects, sounded a gun to

frighten the birds away. The birds were never settled in the pond, but frequented it.iii. Holding: Keeble does have a cause of action because of Hickeringill’s malicious obstruction to

employmentiv. Reasoning:

1. Action lies in doing damage to a man’s property in 2 ways:a. In respect to a man’s privilegeb. In respect to a man’s property

2. Action does not lie in legitimate competition scenarios (i.e. where new school opens up next door to an old one).

a. But, it does lie when a competitor maliciously interferes with one’s ability to compete

v. Policy Holding Pushes:1. Bringing goods to the market – preventing a noncompetitior from interfering with an

enterprise so that more goods ought to be provided to the market2. Public Policy:

a. If H drives ducks awaynobody wins. No ducks in the dinner table. What H did was unproductive.

b. If they saw the Keeble decision what would’ve happened in Post?i. Can’t maliciously interfere with lawful action to produce public good.

3. Labora. Heavy emphasis in Keeble on this is how he made his livingb. Takes a lot to produce a decoy pond.

vi. Notes:1. This case is incorrectly distinguished in Pierson v. Post, where the court says in Pierson

that the Keeble ducks were clearly in possession of the plaintiff2. This wasn’t really about a private franchise, it was one of foundational cases of fair vs.

unfair competition3. This case raised the level of sport to something that is seriously deserving of judicial

attentiond. Commonwealth v. Agway - sovereign’s property interest in the ferae naturae within its borders

i. Rule: A sovereign does not, absent explicit legislation to the contrary, have a property interest over ferae naturae within its boundaries to justify its bringing suit for trespass over damage to that property.

ii. Nutshell:1. The state has the power to regulate the taking of game under its police power, by which it

prevents conduct harmful to the public2. State has police power over the fish but does not own them; thus the state cannot collect

damages when the fish are killed3. Ferae naturae not subject to property until reduced to possession4. This case focuses on differences between private law and public law

a. Private law is about ownershipb. Public law is about sovereign power state has

iii. The Commonwealth of PA brought suit in trespass to recover damages for the value of thousands of fish and minnows killed by pollution from defendant’s property. The fish were in a state of freedom in PA waters.

iv. Reasoning:

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1. PA did not assert a property interest by way of possession, but instead claimed that its property interest derived from its being sovereign and proprietor of all wild game within its boundaries

a. No cases support this2. PA draws a parallel to cases validating its right to impose regulatory measures to preserve

wild game, in which cases the game is called “property.” The court reasons that this wording is not conclusive, as the cases in regulating game did not turn on the State’s possession of the game but instead on its ability to regulate

3. There was an existing fish statute that limited damages to $1000 and purporting to be the EXCLUSIVE remedy, so court couldn’t give another remedy

v. As a result of this case:1. The State has authority to draft regulations concerning the fish and PA responded to this

case by changing the statute to state that the Commonwealth DID own the fisha. Although SCOTUS says you can’t do this, statute hasn’t been challenged

vi. Mistake of this case:1. Language/concepts court COULD have used:

a. Importance of idea of State as a trustee of resources for the people in its boundaries (according to the PA Constitution)

i. In polluting the lake, the factory was interfering with PA fishermen’s legit enterprise, so state should be able to recover value of fish in the stead of fisherman

2. Should have said that by putting pollution in water, you interfered with our activities (a la Hickeringill), not you KILLED MY FISH (a la Pierson)

e. Johnson v. M’Intosh - titles conveyed by a subjugated peoplei. Rule: If a country has been acquired and held under conquest and the property of the great

mass of the community originates in that conquest, the subjugated people are protected as peaceful occupants but deemed incapable of transferring absolute title to the others

ii. Johnson claimed land by purchase and conveyance from Indians while M’Intosh claimed land by patent grant from the U.S. They didn’t have actual possession b/c Revolution

iii. Holding: The government can grant lands, subject only to the Indian’s right of occupancy. The Indians do not have the right, however, to convey the land to individuals, so M’Intosh has valid title

iv. Reasoning:1. Looks to historical implications:

a. Conquest gives title. By conquest, Euros claimed limited sovereignty over Indians.

b. Europeans exercised and enforced the right to grant soil despite Indian’s possession.

c. After the revolution, Great Britain relinquished all claim to government, proprietarial and territorial rights of the US.

d. The US then had clear title to all lands, subject only to the Indian right of occupancy

2. If the conquered people assimilated and became as one with the conquerors, their rights to property should remain unimpaired.

a. Native Americans insisted on remaining separate peoples, so their rights to property are impaired

3. Question of jurisdictiona. Conquest gives title that the court of the conqueror cannot deny…respecting the

original justice of the claim. The court’s jurisdiction was founded on conquest so if they denied rights of conquest, would be undermining court’s own authority

4. Policy considerationa. If plaintiff prevailed, would have been disruptive to the policy of quieting titles,

as many titles granted by the US would have been upset5. Occupation theory does not hold here because:

a. If we say Indians owned land, all hell would break loose

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b. M’Intosh never occupied the landc. The way the Indians occupied the land isn’t occupation w/in the meaning of the

theory – they were wandering huntersd. Indians are not occupants now – they lost occupation through conqueste. Had Indians accepted U.S. rules, title would’ve been accepted. Western countries

get together and cut a deal that basically says finders keepers.f. Courts can recognize the occupation theory only to the extent that that

recognition does not involve a conflict with the acts of the sovereign on whom the power of the courts is had.

g. Non-intercourse Proclamation - said don’t go beyond the Appalachians. Cour didn’t use this to make it invalid because people were pissed off about this proclamation (issue contributed to Revolution)

6. By purchasing land from Indians, Johnsons put themselves in same category as Indians and made the purchase governed by Indian law. Now, there’s no Indian law so no purchase

7. Indians didn’t have concept of property ownership (just hunting rights) so they couldn’t have bought/sold it

8. Mechanism by which conveyances take place are matters of positive law, not natural law9. Discovery gives title to people to discover the land

a. This is an agreement between the nations of Europe and doesn’t include the Indians

v. As a result of this case:1. Johnson v. M’Intosh has been interpreted to say Indians have no rights except what

Congress allows and he didn’t mean it to go that farf. U.S. v. Percheman - examines titles conveyed to an assimilating people by a treaty

i. Rule: Spanish conveyance is deemed valid for two reasons:1. A treaty was used in which it was expressly provided that property rights of the

conquered people would be protected. That treaty becomes the law of the land and of the sovereign

2. Spanish were permanent w/intent to assimilate into the US people, so their rights to property unimpaired

g. Differences between Percheman and Johnson/M’Intosh decisionsi. Permanent vs. non-permanent

1. Type of occupancy: Indians are hunters and gatherers; Spanish are agriculturalii. Occupancy Issues:

1. Occupancy by Native Americans is not titled and recognized by the court2. Occupancy by Johnson/M’Intosh must be recognized by title3. Spain is sovereign nation so title is recognized

iii. International Law Principles – who’s in/out of club?1. Discovery principle in Johnson justified b/w of the law of nations: all white folks agreed

and are in the club. Native people are not2. If discoverers get lands from others in the club, private title to land are unaffected

iv. Treaty1. Principle of interpretation – when there is a language issue, you should understand the

treaty based on the language where the word wouldn’t be ambiguous and interpret it in favor/language of the people it affects

2. Courts aren’t supposed to be the enforcers of treaties, but Constitution says treaties are the law of the land, and courts interpret law of land

4. Actions to Recover Real Propertya. Definitions and Terms

i. Jus tertii – “right of a third party” - when D shows that a third person has a better right to title than plaintiff

ii. Seisin - “sitting on land;” legal possession of land; the possession of a freehold estate by the owner

1. By the 12th c. seisin was virtually identical to actual possession.

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2. Disseisin was a simple ejectment from the land. iii. Actions at common law for dispossessed possessor

1. Novel Disseisin – He was seized himself and defendant disseized plaintiff w/in short time2. Mort d’ancestor – person bringing this action has to be heir in law – has to be seized after

possessor dieda. For when between time ancestor died and the heir came on, an abator snuck on

the land3. Writs of Right – Residual action use when others don’t fit4. Eventually these died because got the same result with less procedure – too hard to prove

you own itiv. Personal actions of ejectment

1. Action of ejectment (14th c.): alleged force and arms, resulting, like all trespass, in money damages.

2. Lawyers saw it was more advantageous to have clients enter land, lease to a friend, leave the land, and wait for the friend to be ejected by the possessor; then sue.

3. Action of Trover- common law action for the recovery of damages for the conversion of personal property.

4. Action of ejectment made other real action dissipate.a. Developed as remedy for the leaseholder who could not bring real actions b/c no

seisinb. Remedy at law is money damages, which doesn’t put leaseholder back into

possession5. By 1600, ejectment allowed in equity, requiring specific performance

a. By 19th century, this becomes available to the freeholder through fictionalized ejectment

b. In addition to recovering for possession in ejectment, also get mesne profits which are the rental value of the property plus any reduction in its value for waste or injury

6. Problems w/ejectment:a. Does the plaintiff have absolute title?b. The defense (jus tertii) of requiring proof of absolute title is not allowed in the

U.S. and better relative title is sufficient (Tapscott)v. Actions to recover damages

1. Trespass – injury to possession2. Trespass on case – duty breached that resulted in harm3. Trover – someone found your chattel and sold it

vi. Actions to recover possession1. Replevin of chattels2. Ejectment

a. Originally an action of a possessor (not owner)b. Eventually became method for trying title

vii. Jus tertii defense – just show that third party is true owner1. Tapscott got rid of this, never allowed today in actions to recover possession, only

occasionally allowed in actions to recover damagesviii. Betterment – if someone in good faith makes improvements, then if someone comes to take land

back, the owner has to pay the possessor for the value of the improvementsb. Possession versus ownership:

i. Historically, the two were closely relatedii. Ownership is title

1. About people who can go to court and can argue that no one has a better claimiii. Possession is proved by showing physical control and the intent to exclude othersiv. Why do we protect possession?

1. Efficiency - possession/ownership is so complicated that it’s often true that we are actually protecting ownership even if peaceable possessor can’t 100% prove it

2. Prevents a stronger person from ousting a possessor, thus disturbing peace and order

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3. Facilitates trade in the possessed object b/c buyer can rely on seller’s possession4. Gives effect to the expectations of a person who has asserted a right in a thing until

another person comes along w/better right5. In case of wild animals, protecting possession rewards them for making a useful item

available to society6. Easy and efficient way of allocating resources, even if that allocation is arbitrary

c. Tapscott v. Cobbs – Established Doctrine of Relativity of Titles in Real Propertyi. Rule: As a general matter, the jus tertii defense is not available. The law protects a

peaceable possession against everyone but the true owner. Relativity of titleii. Lessee of Cobbs brings suit to eject Tapscott, who had no title to the land. Cobbs had no title to

the land but has a claim to the land akin to Mort d’ancestor, as her mother had been in possession prior to her death.

iii. Holding: The plaintiff may recover land based on the relative strength of their title as compared to that of an intruder

iv. Reasoning:1. No jus tertii - you cannot just prove that a plaintiff can’t bring an action for ejectment by

showing that the true title lies in another person. You must, instead, establish why your title is superior to theirs

a. We decide based on the 2 parties in question, not just in abstract about who gets title to the land

2. A dead person seizes heirs – that’s the reasoning behind the validity of Mort d’ancestor3. Policy: to allow the jus tertii defense would invite disorderly scrambles for possession

and insistence on slight defects in titlesd. Winchester v. Stevens Point

i. Rule: Permanent damages to property may not be recovered unless plaintiff is able to prove absolute title / true ownership

ii. Winchester’s land was flooded as a result of a dike built by the City of Steven’s Point. She sued the city to recover damages done to property (mesne profits action). She did have possession and a paper chain of title but had a minor defect in her deed.

iii. Holding: Because her deed was faulty, Winchester could not recover mesne profits for the damages done to the case, as damages would have to be permanent because the city cannot be forced to remove the dam

iv. Case differs from Tapscott because:1. Winchester undertook to prove ownership, which was necessary because she wanted to

be compensated for permanent and FUTURE damages, not just past damages2. Policy against double recovery – city should be protected against having to pay these

same damages again if person w/true title later step forward and recover seisin3. The city was not an intruder, but a sovereign – eminent domain issue4. If someone alleges in complaint that he owns the property but is able to prove only prior

possession, it has been held that A’s suit against B for damages must fail because A has failed to prove ownership

v. Problem with this holding: 1. Despite fault in deed, it was obvious she had equitable title, and she should have been

compensated in some way.a. Even if the deed isn’t 100% amazing, it would be good enough to show transfer

of title in equity court2. City should have issued a condemnation action in which to compensate her for the

damages to be done to her property3. Winchester was basically bringing an action that did not exist at that time: inverse

condemnation (take and then pay)5. Adverse Possession

a. Backgroundi. 1623 – parliament passed Statute with statute of limitations set at 21 years

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ii. Now - if w/in the number of years specified in the state statute of limitations the owner of land does not take legal action to eject a possessor who claims that land adversely to the owner, the owner is thereafter barred from bringing an action in ejectment

iii. Once the statute has run and the owner is barred from suing in ejectment, a NEW title is thereafter formed in the adverse possessor

iv. After the new title has been created, the adverse possessor may transfer their title in any usual manner (deed, will, intestacy to heirs), but they CANNOT record their title until they bring an action to quiet title

v. Because a new title is created, the adverse possessor is not in privity with the prior owner – no easements, covenants, etc. applicable

vi. Before running of the SOL period, adverse possessor still has possessory title, better than everyone but the true owner

vii. In recent years, there has been a tendency to reduce the time period from 21 years b/c:1. We don’t have much unoccupied land anymore, so we should be maximizing it2. It’s easier to give notice to the original owner nowadays3. Now there is much more rapid turnover on land (don’t stay on a property for generations

anymore)b. Policy justifications for adverse possession

i. Actual possession is easiest way of determining where present title liesii. Punishing shortfallings of true owner – laches

iii. Rewarding the merits of the adverse possessor: rewards those who have been using the land actively and productively

iv. Honors expectation of those with actual interest in the landv. Ballantine

1. Helps to quiet titles asserted openly and consistently2. Provides proof for meritorious titles3. Corrects errors in conveyancing4. Wouldn’t want to protect adverse possessor with no good faith claim to ownership

vi. Holmes1. Possession makes land an extension of person, so protecting adverse possession protects

the person2. To quiet men’s titles3. Looks more to the defendant’s/possessor’s reliance interest4. Doesn’t just protect the good guy

vii. Patton1. About the avoidance of suits – we don’t want to take up time of courts with stale suits2. More about owner3. Public provides assistance and infrastructure so if you can’t take care of it reasonable

soon, why should public help?viii. When policies conflict, there is not much consistency in statute or court decisions so the results

are not predictablec. Disability of owner

i. Being underage or insane prevents SOL from runningii. Disability must occur when the cause of action begins (not afterwards)

1. If someone goes crazy AFTER AP entered, still can have APiii. SOL begins 10 years after disability is goneiv. Varies by state (England used to include prisoners, e.g.)

d. Five Elements of Adverse Possessioni. Actual vs. nonexistent or constructive

1. Constructive Possession – having color of title to whole land but possessing only some smaller part means you constructively possess the whole thing

ii. Continuous1. Possession must continue uninterrupted throughout the statutory period

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2. Requires only the degree of occupancy and the use that the average owner would make of the particular type of property, so can be continuous even w/considerable intervals absent from property

3. Can be inherited, passed on, conveyed, etc.iii. Exclusive

1. Possession is defined by the right to exclude others2. Total exclusivity is not required (per Peters), but must be type of possession which would

characterize an owner’s usediv. Open and Notorious

1. Gives notice to landowner of a claim of dominiona. The types of acts sufficient to warrant notice must be appropriate to size,

condition, and locality of land2. Typically includes necessity of paying taxes, which is statutory necessity in some states

v. Hostile and Under Claim of Right1. AP must claim to hold land as if an owner2. Cannot be permissively using land, leasing land, or in any way admitting subordination to

the true owner’s title3. Some statutes say claim of right necessitates some color of title, but not required in all

states4. Behaving like you have permission may estop you from running out SOL5. Normally, life tenant cannot adversely possess against a remainderman, unless he or she

does something that gives notice that he or she is holding adverselye. Peters v. Juneau-Douglas Girl Scout Council – clarifies hostile, continuous, and under claim of right

requirements of adverse possessioni. Rule: The key to the hostility requirement is actual occupation of land without the

permission of the owner, despite any actual title in the landii. Rule: Continuity of possession is not a strict necessity of adverse possession, but continuity

of possession must be assessed in light of the way a true owner would use the landiii. Rule: Exclusivity is not a strict necessity. Occasional trespasses upon the land by third

parties do not generally interrupt continuity, so long as adverse possessor is deemed to have held possession of land for himself and not another and allows occasional trespass as a normal owner would on that land

iv. Peters and his family had been claiming and using the land for 63 years, but the true owner was Girl Scout Council.Peters made improvements on the land and used it seasonally. Other campers and clammers had periodically used the land as well.

v. Holding: 1. Peters was deemed to have adversely possessed the land2. It was important to juxtapose his earnest efforts to quiet his title in the land by even going

to the record owner to inquire about the title, while the Girl Scouts had only demonstrated continuous disuse of the land and laches

f. Belotti v. Bickhardt - Continuity by tackingi. Rule: One adverse possessor may tack their period of adverse possession to any periods of

adverse possession by predecessors in interest, so separate periods of adverse possession by sequential possessors in privity may be combined to defeat the SOL

ii. Bickhardt’s predecessors in interest had built land overreaching the boundaries of land owned in title by Belotti’s predecessors, and Belotti sued for removal of the infringing portions of the building. There were issues of deeds because some past deeds included the building but the deed to Bickhardt was just for the lot, didn’t mention the building.

iii. Holding: Because Bickhardt’s predecessors had all been in privity of estate, their periods of adverse possession of the infringing portion could all be combined by tacking, and so they had acquired that portion of the land by adverse possession

iv. Reasoning:1. Bickhardt and predecessors had possessed in good faith, relying on a faulty map.2. True owner can only convey what they have, and in this case, that was a cause of action

for ejectment

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3. Although deed did not show it, there was intent to transfer the building as a wholev. Notes on this case:

1. Even w/o adverse possession, in modern law, a mistaken improver of land who improved in good faith may be entitled to some equitable relief – keep encroaching property and give TO some payment, for example

2. Privity of estate – a possessor voluntarily transferred to a subsequent possessor either an estate in land or physical possession of the land

a. Tacking Rule: Tacking cannot be applied if an adverse possessor acquired land by ousting a prior adverse possessor, as the transfer would not be voluntary and privity would not exist

b. Adverse possession is maintained and transferable as long as there’s a legit transfer of possession from possessor to possessor

g. Hohfeld and Adverse Possession

i.ii. The position of the adverse possessor:

1. Right of possession – against everyone but the TO. Everyone else has a duty to stay off the land

2. Privilege of use – against everyone but the TO3. Power to run out the statute – can cancel TO’s rights.

a. TO has power to eject, can bring mesne profits action of ejectment, but must avoid statute of limitation.

b. TO is liable to have the statute run out against him4. Power to convey – AP can convey to AP2, who has power to get what AP1 has.

Everyone has the liability to accept possession.a. Tacking – conveys right and power of the AP to boot the TO

5. Disability – if TO has conveyed a life estate and remainder, AP is disabled if he runs out statute on life estate

iii. Position of true owner1. Right as regards to the whole world2. Privilege to hold land without being disturbed3. Power to convey4. Immunity to takings of anyone5. Liability to adverse possessor if he runs the statute

iv. Keeble in Hohfeldian terms1. Hickeringill has a duty not to maliciously interference w/Keeble’s hunting. Keeble has a

right not to be interfered with2. Keeble has a privilege to hunt ducks. Hickeringill has no right to stop him3. Keeble has power to change duty that others have to stay off by inviting them4. In case of emergency (fire, saving child), common sense takes over5. By the end of the case, there is a very narrow right attached to Keeble privilege to use the

land – the right to not have another drive away his business for no good reasonv. Pierson v. Post in Hohfeldian terms

1. Because no property, no rights, just privilegesh. Adverse Possession problems:

i. OW(le)C(rdr.), then W leaves & AP enters1. As soon as life tenant dies, the cause of action starts again.2. If AP enters before W dies and it hasn’t been 21 years after W’s death that C brings the

suit, C wins

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3. Separation into life estate and remainderment must occur before the AP lands on the property.

ii. AP enters, then O W(le) C (rdr.)1. What TO conveys is subject to power AP already has to run out statute in 20-year period.2. W was only given a cause of action until the AP is ejected.3. If W (or C upon W’s death) does not bring an action for ejectment within 20 years, AP

will get the propertyiii. AP(1 yr)W(lp)C(rdr)

1. AP conveyed power to run out the statute2. If TO sues after the 20 year period, TO is out of luck because you can tack possession3. Continuity is broken if L.P. doesn’t maintain possession4. If W conveys to someone else, she can only convey the life estate she has.

iv. O (bad le) W (rdr C)1. W enters for 21 years, then dies, leaving the estate to her second husband and C sues.2. In the end, the second husband will get the land. Since the life estate was faulty, W is

adversely possessing against C. C doesn’t have possessory or paper title, but he does have remainder rights. If he does not assert those rights for 21 years, he loses

3. On the other hand, some say T is estopped from raising the SOL issue b/c of the behavior of W. W thinks she has a life estate but is actually the AP and ends up having the whole property unless estopped by TO who reasonably relied on it being a life estate.

v. O TO1 and TO21. TO1 and TO2 are cotenants, so both have right to possession of the whole2. Scenario: TO1 actually lives on the property and 21 years later tries to sue TO2 under

adverse possession3. To start the statute, TO1 has to send TO2 a registered letter or make it dramatically clear

that he is possessing hostilely.6. Possession or Ownership – What is it worth?

a. How can property be protected?i. Damages:

1. If correct action is case, plaintiff has burden of proving:a. Actual harm to his propertyb. Legal duty on defendant’s partc. Wrongful act in breaching that duty

2. An owner out of possession can’t bring trespass on the case, but now in many states you can sue for dispossession and damages in one action

3. Types of damages:a. Mesne Profits – fair rental value that you would have gotten had you been in

possessionb. Prospective Damages – how the wrong affects the potential use of the landc. Restitution Damages – reward to balance out unjust enrichment

ii. Injunction:1. Equitable in nature2. Only applicable when there is no adequate remedy at law (i.e. only if nuisance is

continuous or repeated and threatens permanent or irreparable injury3. Court has great deal of discretion in granting or denying

a. Concept of “weighing the equities”b. Comparative injury doctrine – what are relative damages between parties

iii. Self-Help1. Permissible remedy in expulsion of trespassers

a. Owner is warranted in using only such force as is absolutely necessaryb. Warranted by immediate necessityc. Exercised with caution to avoid breach of peace

b. Geragosian v. Union Realty Company - to remove trespassing structures when no harm causedi. Rule: Generally, an owner of land is entitled to an injunction for the removal of trespassing

structures EVEN IF no intention to encroach, EVEN IF comparative injury to other party

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is great, EVEN IF encroachment is slight and relatively minor and EVEN IF the encroachment is not interfering w/use of the land and would never interfere with use of land. BUT, this rule might not be applied if:

1. Plaintiff is estopped2. Plaintiff has exhibited laches3. Plaintiff has refused to consent to acts necessary to the demanded removal

ii. Theatre’s third-floor overhanging fire escape and underground pipe encroach on neighboring land. Encroachments were mistakes, and SOL hadn’t yet expired when they were discovered. There was some crazy history there too – candy cart, family connections.

iii. Holding: Normally in equity when there is trespass or obstruction, the plaintiff is entitled to injunctive relief. There is no reason to take this case out of that general rule, so G must remove encroachments

iv. Title to real estate protected by specific performance rather than a sum of money which represents its value

v. Why wasn’t action in ejectment brought:1. You can’t use ejectment because sheriff doesn’t own a wrecking company2. You need remedy in equity which operates in personam and has power from threat of

contemptvi. If monetary damages were given, two ways for calculating them:

1. Plaintiff’s loss – retroactive vs. prospectivea. Retroactive damages would be mesne profits – i.e. what the owner would have

gainedi. In this case, that’s nothing

b. Prospective Damages – argues that encroaching interferes with potential future of use the land

i. But in this case, that’s only garages, pretty much nothing2. Defendant’s gain

a. Defendant gained nothing from the wrongb. Would gain $4300 from not needing to remove the drain pipe

vii. Case didn’t have to go this way:1. Doctrine of Relative Hardship could have been applied in equity – defendant’s hardship

greatly exceeds plaintiff’s benefit2. Value of G’s land was less than the cost of moving the pipe and no harm was caused.3. Evidence of bad faith (candy stand)4. Estoppel – Vartigian built the theater and Geragosian is his step-brother – this is not a

coincidence5. Unclean hands – equity takes no shit6. Waste - Rebuilding the perfectly good pipe would waste resources.

viii. Effect of granting an injunction is a bilateral monopoly:1. Granting injunction gives plaintiff possible $4300. He need only sell an easement to

defendant.2. They’ll negotiate between $1 and $4299, which are negotiations with unpredictable

results and no court intervention. (Choase)3. Injunction will likely result in misallocation b/c theatre doesn’t have the money and

parties know each other’s breaking pointsix. Why did court hold as it did?

1. Court doesn’t want to give defendant government-like eminent domain powers.2. Land is unique.3. Justices were mostly Yankee establishment and plaintiffs were easily sympathized with

Armenian immigrantsa. Justices didn’t want to appear racist/prejudiced

4. Bank involved seemed to be somewhat evil so court may have not wanted to lean towards them

5. This case is really about the candy standc. Peters v. Archambault – to remove encroaching structures when substantial harm being caused

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i. Rule: Extension of Geragosian’s Rule of injunction to a much larger encroachment that is doing substantial harm to the property. There are possible exceptions:

1. Unlawful encroachment has been made innocently, and the cost by the defendant would be greatly disproportionate to the injury to the plaintiff from its continuation

2. Substantial rights of the owner may be protected without injunction3. Injunction would be oppressive and inequitable

ii. P had a survey of their land performed shortly after they moved in and discovered that A’s house was encroaching on their land for almost 10% of their property.

iii. Holding: A must remove the part of their house that is encroaching their land, even though this will result in having to completely demolish their home

iv. Reasoning:1. There are accurate registration certificates of both lots and there was no suggestion in

either that A had any rights in P’s land.2. Court says plaintiffs entitled to receive whatever was shown by the land registration

certificate as belonging to their grantor, unencumbered by any registered prescriptive easement or encroachment.

v. Dissent:1. Doctrine of relative hardship - it is extreme to issue an injunction that will require them

to tear down their house2. Points to laches on part of defendant’s predecessors since house has been encroaching in

full view for almost 20 years3. Here, defendants would be able to pay money damages, as opposed to Geragosian where

there was no actual harm done and so money damages.d. Lee v. Edwards

i. Rule: Subterranean cave is property of owners of land above it.ii. Facts and Background:

1. This case involved 3 separate trips to the Court of Appeals. Interlocutory appeal meant the court had to decide who owned the cave before they decided the remedy

a. Lee v. Edwards 1928 – Lee sues for damages, an accounting of cave profits and an injunction against showing people on cave under his land. Survey ordered.

b. Edwards v. Sims 1929 – Writ of Prohibition against trial judge. Judge sets cave boundaries

c. Edwards v. Lee 1932 – Appeal to fix boundariesd. Edwards v. Lee’s Administrator 1936 – Damages awarded

2. Writ of prohibition - tactical error because that made the court consider the question of ownership independent from question of what remedial consequences follow from joint ownership

a. Suing a judge is badb. Super high standard is bad – erroneous judgmentc. Edwards puts himself in a position where he looks like he has something to hide

and doesn’t want facts to come out, and equity takes no shitiii. Holding: Gave restitution damages for use of caveiv. Theories of Cave Ownership Discussed:

1. Accession – title to subsurface resources is connected/accedes up to the surfacea. Segmented – used in mining rights. Draw a line from the surface boundaries to

the center of the earth and divide up ownership that way. WINNER!b. Joint – everyone whose land is above the cave owns the cave jointly.

i. No one party may enjoin the group from useii. Every party with an interest can use the cave and they must share the

profitsiii. Problem: disagreements mean public loses

2. Res Nullius – until someone finds and makes use of the cave, it belongs to no onea. Mouth Owner – belongs to person who can get access to itb. Explorer – belongs to person who found it and discovered it

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3. Regalian Rights – unexplored resources belong to the state and are allocated out according to public policy

a. This is the theory that ultimately prevailed – the government had to pay money to exercise its ultimate right

v. Arguments for and against:1. Mining cases – segmented accession rule, which court argues for

a. Similar because undergroundb. Differs b/c miners take things, whereas Edwards took nothing

2. Air rights analogy – dissent argues for joint accessiona. Similar because Edwards removes nothing and Lee isn’t disturbed and can’t

access caveb. Differs b/c planes leave no mark, whereas Edwards made paths

3. Psychology – Lee is more likely disturbed by things down below than by planes overhead4. Expectations – When you buy land in coal mining country, you wonder whether there is

something valuable under your feet and you consider this with your purchase5. Policy – affirming rule from mining cases preserves coal industry6. Policy – dissent says segmented accession removes incentive to develop cave,

a. Counterargument - maybe easement would suffice for incentivevi. Damages

1. Loss to plaintiff – None. 2. Benefit to defendant – Lee’s portion of net profits – recovering unjust enrichment from

trespassa. A tortuous user of another’s property is under a duty of restitution for the value

of the benefit thereby conferredb. Suit in tort – Action that gives you retrospective damages, returning you to

position where you were before the torti. Action being trespass to land, damages would be mesne profits, which

for the cave is nothingc. Suit in Assumpsit – Action with pretended contract whereby you promised what

you gained from wronging med. Waiver of tort – sometimes common and even modern law allows you to waive

tort action and instead sue in assumpsit to recover the amount that the wrongdoer gained from her wrong

i. Works for trespass to chattels but NOT trespass to land3. Faulty logic used – Court argues that trespass for mesne profits is basically restitutionary

action, meaning you should give restitution when there’s no rental value for computing mesne profits.

a. Doesn’t work – restitution is in assumpsit but there was no assumpsit or botched K here

b. Court draws analogy with trade secret (when you steal someone’s trade name or secret, that’s a classic case for restitution) – that doesn’t work since Edwards made all the effort here

vii. Edwards should have hired a surveyor and bargained for an easement from the beginning (Choase)

1. Would have been less amount because of taking into account risk of failure2. He didn’t do this so court decided to give the MAX Lee could have gotten (a third of the

cave) - extremea. Burden of proof should have been more on plaintiff to prove damagesb. Edwards’ success and hard work wasn’t acknowledged – perhaps venture

wouldn’t have been as successful w/o Edwardsviii. What is the case really about?

1. The government had condemned the cave and gave $396k, which is on the table to be divied up

2. Property injunction is inefficient, misallocates resources, especially in case like this where there is no harm to plaintiff

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7. Property You Can’t Touch – TMCa. Intellectual Property and Labor Theory

i. With intellectual property, right to exclude is different1. When you use my intellectual property, I have lost nothing

ii. Locke’s theory1. Focus goes on Locke’s notion that you should give legal protection to that with which

someone mixed her labor2. Reward the inventor and the author

iii. Constitutional basis1. Constitution gives Congress power to “promote the progress of science and useful arts,

by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” (Article 1, Section 8)

2. Limited monopolies are given to encourage people to produce useful science and artwork3. No specific Constitutional basis for trademark, for which Congress derives authority

from its power to regular commerceiv. Patent v. Copyright

1. Patent gives strong protection for short time2. Copyright gives weaker protection for longer time (fifty years after author’s death)

b. International News Service v. Associated Pressi. Rule: When the rights of one competitor are liable to conflict with the other, each party is

under a duty to conduct its own business so as not to unfairly or unnecessarily injure the other.

ii. AP and INS are keen competitors who report news. INS pulled non-copyrighted news stories from AP’s early bulletins on East Coast, transmitted them to West Coast, and used same facts for its stories

iii. Holding: Court granted an injunction on INS using AP’s news until its commercial value as news had passed

iv. Reasoning:1. At the time of this case, there was no copyright for something unless you sent it to the

register of copyrighta. There was no violation of actual copyright in this case. Facts can not be

copyrighted, only their unique expression, and INS was only using the facts that AP gathered.

b. Also, nothing was sent to register of copyright2. AP also sued for unfair competition.

a. The court applies an idea of quasi property – even though no idea of property rights exist between AP and the public, they do have a quasi-property claim as between their competitors

b. Basically, when your rights or privileges may conflict with another person’s, your business operation cannot unnecessarily or unfairly injure the other’s business

c. Rooted in labor theoryv. Holmes’ Concurrence:

1. Understands this case like trademark law – when your business operation injures another through misrepresentation where you take credit for the other’s work

a. Misrepresentation works to injure reputationb. More about plagiarism than unfair competition

2. Thinks requiring that INS credit AP for their source would be sufficient remedyvi. Brandeis’s Dissent:

1. Reluctant to interfere with a legislative scheme2. Says law encourages pursuit of competition

vii. Similarities w/Keeble v. Hickeringill:1. INS is interfering with one’s privilege to use his property to benefit

a. No right to stop someone from exercising privilege2. But for Keeble, only malicious interference sufficed for the tort

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a. Here, the interference wasn’t maliciousb. Here the facts remained useful whereas in Keeble, nobody got the ducks

c. Feist Publications v. Rural Telephone Service Companyi. Rule: When a work is copyrighted, only those portions original to the author are protected.

ii. Rule: A competitor can use the same facts to create a compelling work, so long as it doesn’t take the same selection and arrangement (or other original traits)

iii. Rural is a public utility providing telephone and directory services to KS communities. Feist publishes directories of a larger regional area and are in competition for yellow page advertising. They used some of Rural’s numbers w/o consent because Rural refused to share.

iv. Holding: The phone book as such was not copyrightable because its arrangement was not original and only contained facts.

v. Reasoning:1. Facts are not copyrightable.2. Compilations of facts are copyrightable as long as they feature an original selection nor

arrangement3. To qualify for originality, work must be independently created by the author and contain

some element of creativitya. Derives this notion because Constitution uses the word “writing” within which

courts interpret the meaning “authorship” from which you get originality requirement

4. Anti-trust lawa. District court held that Rural was trying to extend its monopoly over the phones

to be over directoriesb. Seemed like Rural trying to extend its licensed monopoly in a non-monopoly

areavi. Different from INS v. AP

1. Feist - public utility2. Feist - using the copyright act, which wasn’t used in INS3. Feist - not dealing with unfair competition issue in this case4. Copyright Law was automatic (no registry required)

vii. In the background was division among circuits, among most of which the labor theory was winning (“sweat of brow”)

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8. Part II – TRANSFER OF OWNERSHIP

9. Conveyancing (Deeds)a. Conveyancing Process Today

i. Contract – begins with contract to sell and buyii. Money – purchaser obtains financing, possibly w/mortgage

iii. Title insurance or assurance – vender seeks to insure or assure his titleiv. Deed – deed passes hands, financing docs and title assurance or insurance docs exchanged

b. Statute of Fraudsi. Leases for less than 3 years from making do not have to be in writing

ii. Requirements:1. Name of grantor and grantee2. Description of property3. Words of conveyance with present passage of interest4. Signature in writing from grantor5. Requirements are not explicit. If requirements are not met, estate at will keeps quiet title

until a true owner asserts his superior interestiii. Real estates not put in writing and signed by parties have the force and effect of estates at will

(can be thrown off) only (not the lease). Why is it better to be tenant at will? Good as opposed to trespasser.

iv. SF not only applies to freeholds but it also applies to leases of a longer than three years and contracts for the sale of lands, testaments, wills, changes in will, sale of goods for $500 or more, etc.

c. Metzger v. Miller – Taking grant out of SOF by intent to convey and reliancei. Rule: The necessary writing to get out of Statute of Frauds does not have to be a formal

contract but can consist of several documents taken together, so long as the writings show a meeting of the minds sufficient to create a contract

ii. D’s mom lived in Germany, and he moved from Sac to take care of it when it was devised to his mom. He contends that his mother sold him the property for consideration, so Alien Property Custodian cannot take it. He had a group of letters which implied the grant

iii. Holding: Combination of letters written to Meltzer by his mother could satisfy the statute of frauds. One letter had description of property, one had words of conveyances, etc.

iv. Reasoning:1. If the words used show an intent to convey, then they are sufficient for that purpose2. In this case, reliance was also present, as Metzger had moved from Idaho in reliance on

mother’s promise to convey the land3. Court was lenient b/c:

a. Circumstances – war accounted for not having formal deed written outb. Alien Property Custodian was trustee, but there was huge controversy w/that

officec. Even if no conveyance, there’s an explicit promise and good case for reliance, so

plaintiff would probably have gotten the land anyway; this may have influenced court’s ruling.

4. Note: Today most state have eased the formal requirements for a valid deed. Thus, as in the principal case, courts will generally uphold a deed, despite its form or language if it is sufficient to exhibit the grantor’s intention presently to convey an interest in a particular tract to a named grantee. That means that the effective language of conveyance can be contained in a writing that is not labeled a “deed” but “joint venture agreement” or “affidavit” or in a letter.

d. Hayes v. Hayes – Taking parol gift out of SOF by estoppel/part performance (p. 365)i. Rule: To take a parol gift out of the State of Frauds, there must be acceptance and

performance constituting detrimental reliance

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ii. Father wrote letter to son which seemed to be a parol gift, but he kept the actual title. Son made improvements, bought adjoining property. Son died, and father tried to convey title to others, bringing an action for ejectment of the widow.

iii. Holding: Because it would be a manifest injustice to eject widow, the parol gift is taken out of the Statute of Frauds

iv. Reasoning:1. Courts may take parol gifts out of statute of frauds by estoppel or partial performance2. Court employs double estoppel:

a. TO is estopped from raising Statute of Frauds defense because of unconscionability (widow had worked the land, they had lived there, etc.)

b. TO is estopped from questioning whether there was an oral gift because of detrimental reliance.

3. Court looks to find actions by son that showed he thought of himself as the true ownera. Paying taxesb. Buying adjacent property

4. Adverse possession barred b/c this was initially a permissive estate at will. e. Formalities in Deeds:

i. Signing and Sealing. 1. Over 2/3 of states today no longer require that a “deed” be sealed, exceptions frequently

being made for deeds of corporations.ii. Attestation.

1. Wills have to be attested (signed by witnesses) as required by statutes. iii. Acknowledgement.

1. This consists in the maker of the instrument appearing before a public official, usually a notary, and stating that the instrument is “his free act and deed” or words to that effect. Notary records the occurrence.

iv. Recital of Consideration. 1. Since a conveyance may be a gift, proof of consideration is not required to validate the

transaction but is a good idea. v. Revenue Stamps:

1. Most states require their own revenue stamps via statutes. vi. In order that a deed be effective all states require that it be delivered, but what constitutes delivery

is a matter of some ambiguity. 1. Parramore v. Parramore (Fla. Dist. Ct. 1978)): transfer could be action w/o spoken

words or vice versa.2. Intention is allowed to predominate in this area

a. It’s been held that the intent necessary to effectuate delivery must be the intent of both the grantor and the grantee (acceptance)

3. Barker v. Nelson (Ark. 1991): delivery of a photocopy of the deed sufficient esp. when grantor retains present possessory estate.

f. Delivery and Recordingi. A deed is not effective to transfer an interest in land until it has been delivered by the grantor

1. Although physical transfer of deed is compelling evidence of delivery, the crucial factor is the intent, not what physically happens to the deed

a. Provides outward manifestation of intentb. Protects the grantorc. Provides visible, objective evidenced. Proceeds historically from livery of seisin

ii. Delivery on Condition, Escrow, and “Relation Back”1. A deed directly delivered to a grantee cannot generally be subject to a condition, but a

deed can be delivered in escrow with attached conditionsa. With delivery in escrow, delivery generally occurs at second delivery, when

escrow agent delivers deed to grantee2. Doctrine of Relation Back – In escrow cases, courts will sometimes find that the date of

actual recording can relate back to the date of delivery to an agent in escrow

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a. This is a fiction created by law and applied only where equity and justice requireb. When grantor dies after first delivery - the grantor dies before the condition is

performed, his death would, if the doctrine of “relation back” were not employed, operate as a revocation of the escrowee’s authority to make a valid delivery to the grantee upon subsequent performance.

iii. Types of recording Statutes: not required for validity of deed, but perhaps for effectiveness against certain people

1. Recording is a statutory system designed to provide title assurance, but you don’t have to use it

2. If you don’t use it, you can end up being the victim of fraud by seller3. Recording statutes reverse common law priority of first in time where they exist, but

where they don’t exist, common law prevails4. Race (LA and NC) – As between successive grantees to the same land, priority is

determined solely by who records first. It doesn’t matter if they knew about other grantee or not.

5. Notice (50% of states) – A subsequent bona fide purchaser prevails over a prior grantee who fails to record only if he had no actual or constructive notice of a prior claim at the time of the conveyance

a. Constructive Notice – You are held to have notice of what you would have discovered by a reasonable inquiry into the property and a reasonable search of the recording statute. If first conveyance is recorded, but you didn’t check, you lose.

b. Inquiry Notice – you have notice of what reasonable inspection of land (dropping by, knocking on door, etc.) would have shown

i. Where A actually possessed the land, then B had inquiry notice6. Race-notice (50% of states) – In order for a subsequent purchaser to win, he must both be

without notice and win the race to record7. Example: O conveys to A, not recorded; O then conveys to B, recorded

a. No statute (common law) – A wins since you can’t convey what you don’t have anymore

i. Common law priority says first in time’s stronger in rightb. Race statute – B wins, assuming he gave valuable consideration EVEN IF he

knew about Ac. Notice statute – B wins if he can prove he didn’t know and passes valuable

consideration that B can provei. Good faith purchaser of value w/o notice takes priority over the previous

one, regardless if they recordd. Race-Notice Statute

i. A wins unless B records, if no notice is given.ii. If B records first with no notice, B wins

8. Ends up being the same almost all the time b/c if one records, anyone after them is deemed to have constructive notice b/c it’s in registry.

g. Micklethwait v. Fulton – escrow deed wrongly recorded too earlyi. Rule: If an escrow deed, wrongfully recorded before conditions are met, is relied upon by a

third person, the initial grantor is estopped from claiming it is not a valid deedii. Micklethwait made a deed of conveyance to her daughter, to be held in escrow. Her son-in-law

acquired the deed and recorded it, then used it to receive a loan. The loan was breached, and creditors (Fulton) now come to take property

iii. Holding: The deed, because it was actually recorded and then relied upon by Fulton, cannot be retracted, even though it was mistakenly filed

iv. Reasoning:1. Here, both parties were innocent and Court must find which is more blameworthy for the

loss.a. Find Micklethwait more blameworthy b/c her poor efforts to keep the deed from

being filed constituted “culpable negligence”

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b. Between two innocent persons, the one whose carelessness caused the problem should suffer

2. Policy – if the court had ruled against the bank, many innocent depositors in the bank would have had to bear the brunt of this loss

3. Policy - recording statute is to be a reliable record, and innocent third parties dealing w/record owner have a right to be guided by the terms and provisions of the recorded deed

v. Case could have come out the other way:1. If the courts had found that the creditors should have had inquiry notice that Micklethwait

was the owner of the property2. If the deed was not accurate (i.e. if the son-in-law forged it), Fulton would have lost it,

even with the reliance factorh. Hood v. Webster – one person made escrow to one deed then another deed to other = Relation Back

appliesi. Rule: If a deed was given and held in escrow, and subsequent purchasers buy and record

another deed before the escrow conditions are fulfilled, then (if equity requires) prior grantee can relate his recording back to the date that the deed was given to the escrow agent so he will prevail on the prior deed

ii. Hood conveyed property by deed in escrow to her brother in law in 1913 (at behest of her deceased husband). She then conveyed the same property to her brother, who promptly recorded. There was evidence that the deed in escrow was conveyed with certain requirements in escrow, and these were not fulfilled by the brother-in-law.

iii. Holding: Doctrine of Relation Back is applied so that Hood can claim the prior deed, even though he was not first to actually record.

iv. Reasoning:1. BOP - Subsequent purchaser has the burden of proving that was truly a purchaser in good

faith and had no notice of prior escrow and that he gave valuable considerationv. Could have gone other way:

1. Donahue think this should be analogized to Micklethwait and that Websters were an innocent third party so Hood should have the burden of proving that the Doctrine of Relation Back must be applied to avoid inequity.

2. Relation Back is an equitable claim and only applicable when justice requiresa. There is evidence Hood had not performed his promises agreed to in escrow

document so courts could have remanded case to see if he had fulfilled his part of the bargain

3. Nephew who recorded help out with farm, so there’s argument for reliance (like in Metzger case)

10. Estates and Future Interestsa. Overview

i. Tensions about absolute ownership, and this tension is in the power to convey in estates in future interests

1. To exercise power, have to limit other’s powerii. Absolute ownership has never existed in common law

b. Present Estates: Freehold Interestsi. Present (seisin term) Estate (not tenancy) in Fee (inheritance characteristic) Simple (type of

inheritance) Absolute (not subject to contingency)ii. Fee Simple – a fee that may be inherited by the holder’s heirs

1. The most unrestricted estate and that of longest duration2. G A and his heirs

a. A has the fee, heirs have an expectancy (a hope)b. Words of purchase – identify person in whom the estate is being created (A)c. Words of Limitation – identify the type of estate being created (“and his heirs”)

iii. Life Estate – one which lasts for the lifetime of the person1. G A for life.

a. A has a present life estate, which ends in A’s death

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b. G has a vested reversion in fee simple absolute2. Life tenant has duty not to commit waste, and committing waste could result in forfeiture

a. Three waste sorts: affirmative, permissive, and ameliorativeiv. Reversion – a vested future interest in the grantor/devisor, expressed in the grant or devise or

implied when the grantor devisor fails to convey the entire interest that he/she has1. When holder of a vested interest transfers only part of that interest, the reversion is the

interest which remains in the grantor2. D A for life.

a. A has a life estateb. D’s heirs have a reversion, which is a future interest of possession at the point of

the grant (reversion in fee simple absolute, subject to no conditions other than life estate

v. Principle of Conservation of Estates or Arithmetic of Estates – if you grant less than what you have, you retain what you didn’t give up

vi. Defeasibility – grant/devise subject to a restriction1. Fee Simple Determinable – Fee simple which automatically comes to an end when a

stated event occurs or fails to occura. Once named event occurs, reverts to grantorb. Grantor has possibility of reverter – right to retain title if event occursc. SOL begins running when condition occurs, if Grantor or Grantor’s heirs do

nothingd. Ex. G A so long as no boozee. Employs language of duration – “so long as… until… during… provided that” f. Not subject to Rule Against Perpetuities, but some states have enacted a Statute

of Limitation to this2. Fee Simple on a Condition Subsequent – Fee simple which does not automatically end

when the event occurs, and the grantor retains a right to enter the property and take it back, but that doesn’t occur until he affirmatively exercises that right

a. G A, but if booze on property, G shall have right of entry/power of determination. Or G A and his heirs, on condition that there is no booze

b. Not subject to Rule Against Perpetuitiesc. If a Grantor grants a fee simple on a condition subsequent, but includes nothing

about the right to re-enter, it is turned into a Fee Simple Absoluted. Employs language such as “but if…upon the condition that”e. SOL begins running when power of termination is exercised

3. Fee Simple Subject to Executory Limitation – provides for the estate to pass to a third person upon the happening of the stated event

a. Subject to Rule Against Perpetuitiesvii. Granting/Devising

1. For devising, instrument becomes effective only when devisor dies2. Devisor writes a will that gives A something. A only has an “expectation,” not a legal

interest3. We don’t talk about legal heirs, called “presumptive heirs” until a person dies because:

a. They get nothing until a person diesb. Person could make will before thenc. The presumptive heir could die before the devisor dies

viii. Storke v. Penn Mutual Life Insurance – confusing conditions subsequent/f.s.d.1. Rule: If ambiguous language is used, Court prefers the fee simple on condition

subsequent to the fee simple determinable2. 1889 deed said that parties “covenant and agree that no saloon shall be kept and no

intoxicating liquors be sold or permitted to be sold on said premises” and “in case of breach in these covenants, said premises shall immediately revert to the grantors. The language was ambiguous – was it a fee simple determinable or a fee simple on a condition subsequent?

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3. Holding: The court held that this language created a fee simple on a condition subsequent, so Penn gets to keep land.

4. Reasoning:a. Policy reasons – court prefers absolute and vested interests, as they have more

control.b. Equity can supersede the reserved right of entry because of laches, so condition

subsequent provides more quieted and absolute titlesc. When a deed creates a fee on a condition subsequent, the grantor must reserve an

explicit right of entry or the condition will be ignored. Storke did not explicitly reserve the right of entry.

i. Even if they had reserved that right, they would be estopped by laches – SOL had run

ii. Court won’t provide missing right of reentry, since equity won’t aid forfeiture

d. Estoppel could be a factor:i. Storke had waived similar conditions on many other owners’ properties

that they had originally granted so could be estopped b/c of reliancee. Doctrine of Changed Conditions might also apply - now neighborhood had many

pubs5. Donahue Notes:

a. By any fair reading, this would have been read as a fee simple determinable, but courts construe it as a fee simple on a condition subsequent

b. The courts do this because have want to have more control and they have more control over a fee simple on a condition subsequent

c. Future Interests11. Interest 12. Alienable? 13. Devisable? 14. Descendible?15. Reversion

(always vested)

16. Y 17. Y 18. Y

19. Possibility of reverter

20. N 21. N (?) 22. Y

23. Right of entry 24. N 25. Y 26. Y27. Vested

remainder28. Y 29. Y 30. Y

31. Contingent remainder

32. N 33. Y 34. Y

35. Executory Interest

36. N 37. Y 38. Y

i. Grantor:1. Reversion – fills any gaps

a. Always a vested interest2. Possibility of reverter – follows fee simple determinable

a. Generally implied3. Right of entry – follows fee simple subject to condition subsequent

a. Generally not impliedii. Grantee

1. Remainder – takes effect when preceding estate naturally expires; gives a present possessory estate in one transferee and no-possessory estate in another transferee by the same instrument

a. Vested – no precedent conditioni. Becomes possessory when preceding estate naturally expires

ii. Descendible, devisable, and alienableiii. Remainder Indefeasibly Vested – remainder which is certain to become

possessory – “remainder in A and his heirs”

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iv. Vested Remainder Subject to Open – when one or more existing persons are certain to have possessory interest but there remains a chance that others will share the interest – “to A for life, remainder to B’s children and their heirs”

v. Vested Remainder Subject to Complete Defeasance – remaindermen exists and interest is not subject to a condition precedent, but it cannot be said with certainty that his interest will become possessory – “to A for life, then to B for life” – B could die before A.

b. Contingent – precedent conditioni. Becomes possessory when preceding estate expires plus other

condition(s)ii. When contingencies are unfulfilled, remainder exists alongside reversion

subject to divestment, the contingent remainder’s vestingiii. Can become vestediv. A gift to the heirs of a living person is always a contingent remainder b/c

don’t know who heirs are until time of that person’s death1. Ex. G A for life, remainder to A’s children (where A has no kids

yet)2. Contingent upon children’s birth3. Vests at birth of a child4. Interest in child would then be vested subject to open

2. Executory interest – cannot take effect when preceding estate naturally expires (otherwise would be a remainder)

a. Springing executory interest – estate to take effect after the date of the conveyance

i. And his heirs on the date of A’s marriage to Bb. Shifting executory interest – cut short a prior estate that had not naturally

terminatedi. G A and his heirs, but if the premises are ever used for other than

residential purposes, then to B and his heirs1. Fee simple subject to an executory limitation in A2. Shifting executory interest in fee simple in B

3. Class Giftsa. Class gifts are indefinite, made to all members of a class, i.e. “to A’s surviving

children”b. Can obtain new members if A is still alivec. Rule: If no one qualifies as a member of the class when the life tenant dies,

we wait to close the class until there is no more possibility of people entering the class. If someone does qualify for the class at the death of the life tenant, we give the land to them and close the class, excluding all others

b. Browning v. Sacrison – intent and confusing interests in deedsi. Rule: The intent of the conveyor, if at all distinguishable, is held to decide what interest was

created. All factors in the document must be given weight in determination of this intentii. Facts and Background:

1. A deed was given with an ambiguous right of survivorship. K gave a life estate to A, remainder to F&R, or of either be dead, then all to the other.

2. F died before A but after K, and court had to decide if he had a vested interest (meaning the “dead” referred to being dead at the time of K’s death.

3. If he did, it would have passed to his wife.4. If the court held that he had to survive A, then his interest was not vested and R would

get the entire interestiii. Holding: Held that F had to survive A, so he never had a vested remainder, and the widow got

nothingiv. Reasoning:

1. Presumption of early vesting

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a. If given two options in an ambiguous documents, Courts usually pick the one that would result in the earliest vesting, as that makes land more alienable and quiets title early

b. Here, though, they looked at other evidence in the document to determine the intent

2. Other circumstances in the will showed that the intent was to create a condition of survivorship of A

a. Also could have used other clause in the will that lower court thought relevant which said “at the time of my death” which would have brought the above problem, so this tells use nothing

3. Temptation to rewrite this is strong, especially since Kate Webb probably didn’t write it anyway – that is a problem

v. Early vestment rule:1. Good because if a later interest vests, the more likely it is to violate RAP2. Bad because means immediate family not going to benefit and more remote relative will

benefit39. Rule Against Perpetuities - rule against remoteness in vesting

a. Definitions and Guidelinesi. Definition - No interest is good unless it must vest, if at all, w/in some life or lives in being at the

effective date of the instrument plus 21 yearsii. Effective Date:

1. Inter vivos deed is effective upon delivery2. Devise is effective at time of death of testator

iii. Analysis is made at that time w/o regard to what has actually happened by the time the lawsuit takes place

iv. Measuring lives are implied and expressed1. Cannot be too numerous to determine whether they’re alive (can’t be “the oldest of all of

the relatives of Queen Elizabeth)2. Lives in being means it is a natural person alive when interest was created.3. Measuring life need not be a beneficiary under instrument - can be anyone, provided

they’re identifiable and somehow connected with vesting or failing.Like someone’s parents

4. Child in gestation can be measuring lifev. Applies to:

1. Contingent remainders: O →A for life, remainder to first son of A to reach age of 25 and his heirs

a. If A does not have a son who has reached age of 25, then it’s contingentb. A could have son after conveyance and then die right afterwards, and that son’s

interest would vest later than lives in being plus 21 yearsc. Remainders vest when there is no precedent condition save the preceding estate

naturally expiringd. If it’s vested subject to divestment, it’s fine, although the divesting interest may

not be fine2. Executory interests: O→city so long as it complies with conditions, then to A and B and

heirsa. Possible that gift to A and B would not vest until after lives in being plus 21

years, so it’s voidb. When executory interest is voided, the fee once limited becomes a fee simple

absolutec. For RAP, executory interest does not become vested until it is possessoryd. Exception is where executory interests are a term of years (i.e. G grants to A for

200 years, remainder to B)vi. Must be NO possibility of violation of rule, and this includes special presumptions:

1. Fertile octogenarian – Rule assumes any person, regardless of age and physical condition, is capable of having children

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a. T→A for life, then to A’s surviving children for life, then to surviving children of B.

b. B is an 80-year-old woman, but it’s conceivable she could have another child and that child would take in violation

2. Unborn widow – Rule assumes interest created and based on “widow” of X must fail because X could marry someone born after interest is created, and she could live longer than 21 years after the death of X

a. In 1995, T→A for life, then to A’s widow, then to the issue of A’s widow who survive them.

b. A is married to B, then separates, marries C, who was born after 1995, and she lives 22 years after A’s death

3. Precocious toddler – Rule assumes child could bear children at any agea. To B for life, remainder to such of B’s grandchildren living at my death or born

within five years thereafter as attain 21.4. Slothful Executor – Rule assumes probate of will could take more than 21 years.

a. D→to such of my lineal descendants who are alive at the probate of my willb. Some states have overruled this approach

vii. Class Gift – each member of class must have interest vest or fail w/in the lives in being plus 21 year period

1. T→A, then to A’s surviving children who attain the age of 25.2. Another child could be born after T’s death, and all other children could die before T is

four. T takes at 25 in violation of the rule,so gift is invalid to all children3. All or nothing – if gift is invalid for one, gift invalid for all

viii. Application of Rule to trusts:1. Where spendthrift trusts are legal, spendthrift provision cannot last longer than

perpetuities period.a. Spendthrift provision says beneficiaries cannot alienate their trust, among other

things2. Regarding irrevocable trusts, irrevocability feature cannot last longer than the perpetuities

perioda. Normally revocable during settler’s life but irrevocable until their end after the

settler’s death3. Charitable Trusts are, for the most purposes, not subject to RAP.

a. Can be made in perpetuityb. Charitable conditions on fee subsequent okay forever as well, as long as it’s

between two charitable organizationsix. Grants/Devises to grandchildren

1. Grants to living person’s grandchildren violate the rulea. G grants to A for life, remainder to A’s children for life, remainder in fee to A’s

grandchildrenb. Void because A could have children after grantc. Rule was invented to combat this grant

2. Devises to living person’s grandchildren oka. D devises to A for life, remainder to my children for life, remainder to my

grandchildrenb. Valid because no more children after deed’s effective date, D’s deathc. Adding “when 21” stretches the rule all the way out.

x. Fee Simple Determinable/Springing Interest Mistake1. Most common violation is “G grants to A so long as the land’s used for residence

purposes, remainder to B”2. Saying “so long as A uses land for residence purposes” would be fine b/c would be fee

simple determinable3. Saying “and this must happen within B’s lifetime” would also solve the problem b/c

would put limit on it.4. Future interests in third parties following a fee simple determinable are void under RAP

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xi. Modern Approaches to Rule:1. “Wait and see” Approach – if interest actually vests within lives in being at the time of

creation plus 21 years, the fact that things might have worked out differently is irrelevant2. Allow reform of an invalid interest (cy pres) to correct violations of RAP to approximate

most closely the intention of the creator of the interest3. Allow the envelopment of a trust into a long-term gross (usually 90 years)4. Exempt trusts from the rule

a. In order to attract banking businessb. Donahue thinks this is bad b/c general way of how generations and families work

are the same, and great granddad shouldn’t have that much power over future generations

xii. Policy arguments for the rule:1. Economic

a. You should not remove property entirely from market forcesb. Hold-Out Problem: You should not have interests that will become effective long

from now, since that produces persons whose interest has very little present value but substantial hold-out value

c. Dividing up the interest among many folks means gathering them together to convey in fee can prove difficult and costly

2. Prevents Dynasties Argument3. It’s really about intergenerational potential conflict

a. Should be able to benefit people you know, can see, not future generations forever

4. Compelling modern argumentsa. Rule strikes fair balance b/w present generation’s wish to tie up their property

and future generation’s wish to do the sameb. Generally, society’s better off when its property is controlled by its living rather

than its dead members. Thus, the rule prevents too much dead hand control.b. Ryan v. Beshk – confusing remainderments and RAP

i. Rule: Intention is not what by inference may be presumed, but what is expressed by language itself (Contrast with Abbott)

ii. D devised a life estate to R “provided she should not marry again” with remainder to 2 brothers and 1 sister and niece “if they be living at time of marriage or death of R – share of any (1) that dies goes to his/her executor to be applied as if part of the estate

iii. Holding: Second remainder void, so everyone who died before R reverted their interest back to D.iv. Reasoning

1. It seems the intent was to create vested remainders subject to a life estate or the marriage of R, but court held that it created contingent remainders with the condition of survivorship.

2. Too remote b/c “executor” – will could be executed more than 21 years after death of measuring lives

v. How to avoid the result1. Say “the share of any deceased shall be distributed according to the way he or she shall

decides in his or her will or according to normal intestacy rules.”2. Or say “if he be deceased, to his heirs at law or to be distributed by his will”

vi. Since no perpetuities problem with the first interest (B, C, D, E), but just in second interest, why does court spend opinion talking about whether B, C, D, E is vested or contingent

1. B/c if it’s vested, then the following interest is an executory interest and void under RAP an they have f.s.a.

2. If contingent remainder, not vested and subject to RAPvii. General rules in practice about what we do when an interest is held void under RAP – what do

you do next?1. Interest in property goes back to whoever had last interest2. Reversion is there if you have contingent interests3. If no reversion and you had an executory interest, you have fee simple absolute

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4. If it is a contingent remainder with an alternate contingent remainder, implies a reversion that will take effect if a contingent remainder is not fulfilled

a. If both contingent remainders are bad, then there is a reversionc. Brown v. Independent Baptist Church of Woburn – reverter and RAP

i. Rule: Possibilities of Reverter are not subject to the RAP.ii. D (l.e.) H (rdr.) Independent Baptist Church (IBC), so long as they promulgate present faith

and remain a church, but if church dissolves (rdr.) 10 legatees in equal shares. Residue to legatees, except IBC. Church dissolved in 1939, legatees sued

iii. Holding: Legatees got to take landiv. Reasoning:

1. (1) The executory clause was held invalid for remoteness, as it could have become possessory long after 21 years had passed;

2. (2) IBC had a fee simple determinable, and when they dissolved the church D’s possibility of reverter became active (b/c executory clause was void under RAP); and

3. (3) D’s possibility of reverter had passed with the estate elsewhere in the deed to the named legatees. Possibilities of reverter are not subject to RAP so the legatees still took.

4. Executory interest is gone, and church is gone so they can’t expand f.s.d. to f.s.a.v. Result could have been avoided:

1. Could interpret interest as fee simple on condition subsequent.a. Right of entry not specifically reserved, court wouldn’t imply one, given state’s

law.b. Storke case suggests this method; shows you can push language almost any

direction.2. Could have gone to heirs of Sarah Converse, not legatees

40. Concurrent Interestsa. General Info:

i. Less unity today than there was at common law, even though this type of conveyance is very, very common

ii. Have to really do something dramatic to get adverse possession when there is cotenancyiii. Majority of corporate property is held in concurrent interest. iv. It arises with any gift or devise to a class of people when there is more than one member of the

class and it necessarily arises upon intestate succession when there is more than one member of the group of closest degree of kinship to the deceased intestate.

v. Presumption of creation: G to A, B, and C1. At common law, conveyance to more than one person presumed to be a joint tenancy2. At modern law, conveyance to more than one person presumed to be a tenancy in

commonb. Joint Tenancy

i. “To A, B, and C, as joint tenants, not as tenants in common, with right of survivorship”ii. Each tenant owns undivided share with right of survivorship.

iii. Right of survivorship (jus accrescendi): when one dies, other(s)’s get his interest. Upon the death of one of the joint tenants his share passes not to his heirs but to the other joint tenants, the last surviving joint tenant obtaining the whole solely

iv. At common law, four unities requirement; tenants must make their interest:1. at the same time,

a. Whether they vest simultaneous2. by the same instrument (title),3. with identical interests (interest) (must acquire at the same time, by the same interest,

with an equal share), and4. with equal right to possess whole property (each jt must possess an undivided interest in

the tract) (possession)v. Severing any unity severs the joint tenancy and creates tenancy in common.

1. Alienation thus severs joint tenancy to create tenancy in common2. State legs. have also sought to abolish the four unities requirement

vi. Creation:

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1. Presumed by common law for any conveyance to two or more non-married persons.2. Today disfavored – have to use super express language to create

vii. Avoids probate, since no need for title change when tenant dies; partionable.viii. Possible to have joint tenancy with less than whole property.

1. Possible for jt to sever the tenancy by conveying moiety (half-interest in an estate) to a third party or to one of his cotenants. Conveyee then is a tenant in common.

ix. Straw conveyance would be if A wants tenancy in common instead of joint tenancy, so A could convey to X, then get X to convey back to A

1. Principal of Western law that when you’re in cooperative arrangement like this, you can always get out

x. Problems when a single person wanted to change the title so it was now in themselves and their spouse: G conveys to G and A as joint tenants

1. Intention is to create joint tenancy2. Common law – Problems with this:

a. Unity of time – won’t work b/c G had it beforei. When G grants to himself and A, no unity of time b/c G already had it

and A just moves inb. Only creates tenancy in commonc. How do you do this? Straw conveyance

c. Tenancy in Commoni. “To A and B as tenants in common”

ii. Each tenant has undivided interest in the property.iii. One unity (possession) still applies: each tenant must have equal right to possess the whole.iv. No right of survivorship: when one dies, her heirs or devisees get her interest.v. Tenants can have unequal shares or different types of estates.

vi. Alienable and partionable.vii. Presumed by modern law for any conveyance to two or more non-married persons.

d. Tenancy by the Entiretyi. Basically joint tenancy, but with two main differences:

1. Only for married couples, and 2. No severance by only one party

ii. Presumed by common law for any conveyance to two married persons.iii. Divorce terminates it, creating tenancy in common (most states) or joint tenancy (the others)iv. Effectively partitionable, given Married Women’s Property Actsv. Recognized by only about half the states

vi. Right of survivorship and 4 unities still must be obeyede. Tenancy by Coparcenary

i. At common law, the descent of land to two or more persons (usually women, granted the prevalence of primogeniture) created the hybrid of tenancy by coparcenary.

ii. Coparceners were regarded as a unity and could sue and be sued jointly. No right of survivorship. iii. Dist. Charac- they could force the division of the jointly-held land by a procedure known as

partition.iv. Today all types of concurrent interest, except tenancies by the entirety and community property

are partitionable both in kind and by judicial sale. f. Tenancy in partnership

i. Technically didn’t exist at common lawii. Uniform Partnership Act, in force in most American jurisdictions, creates a legal tenancy in

partnership in “partnership property,” which has the following characteristics:1. All property originally brought into the partnership stock or subsequently acquired by the

purchase or otherwise, on account of the partnership, is partnership property2. Unless the contrary intention appears, property acquired with partnership funds is

partnership property3. Any estate in real property may be acquired in the partnership name. Title so acquired

can be conveyed only in the partnership name.

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4. A conveyance to a partnership in the partnership name, though without words of inheritance passes the entire estate of the grantor unless a contrary intent appears.

g. Statutes and Concurrent Estatesi. All create some ambiguity (even when it seems clear)

ii. New Hampshire – Every conveyance or devise of real estate made to 2 or more persons shall be construed to create an estate in common and not a joint tenancy unless it shall be expressed therein that…shall be joint tenants, clear intention, etc.

1. You don’t have to do TOO much to put it back into joint tenancy if you want to2. This is not the case in every state (some states say you HAVE to use the exact statutory

language, otherwise you won’t get joint tenancy)iii. Case of Jules and Georgina T. – “to X and Y and to the survivors of them” and then the

addendum and warranty clause says “to them, their heirs and assigns”1. Basic proposition on deed interpretation – subsequent clauses after the granting clause

cannot contradict what is in the granting clausea. If granting clause is clear, what’s in addendum and warranty clause couldn’t

override itb. But, if unclear, what’s in addendum and warranty clause can clarify what is in the

granting clause2. Since granting clause here unclear, went to other clauses, and created tenancy in common

iv. How would we do this right? What language would create joint tenancy between them that is fail safe, regardless of what the statute says?

1. “To A and B as joint tenants, not as tenants in common, with right of survivorship”a. This is based on IL statute, which is one of the toughest about going back to the

common-law presumption (strong statute)b. If you do this in MI, you’ll create is concurrent life estates with alternative

contingent remainders in the survivori. Difference b/w the two is that you can’t sell your interest (which would

make it a tenancy in common, not a joint tenancy) – deprives the joint tenant of the power of severance – no power of getting out

h. Economic relationships among cotenants – situation’s messy and uncertaini. If one ousts another, the ouster must account for profits, etc., but nobody know what “ousting”

means.ii. When there’s mere occupancy, viz., no ousting, then occupier need not account.

iii. For income-producing property, the cotenants must share the profits.iv. Reimbursement for what cotenant puts into the property.

1. Only the carrying charges require each cotenant’s contributions2. When one cotenant makes improvements, that was her choice.

v. Partition brings these issues to the table.1. All cotenancies (save maybe that between husband and wife) are partitionable

i. Holbrook v. Holbrook - how courts construe joint tenancy in jurisdiction where it is abolishedi. Rule: In jurisdictions where joint tenancies have been abolished, Courts construe language

intending to create a joint tenancy as creating concurrent life estates with indefeasible contingent remainders in the life tenants, vesting in the survivor.

ii. Facts: Bertha and Will had a settlement of their property which said “the parties shall be and become joint tenants with right of survivorship in the property.” They both executed a quitclaim deed to Anderson. Two months later they divorce. Anderson then quitclaims back to both of them describing them as “joint tenants with right of survivorship and not tenants in common.” Will then conveyed to his nephew Holbrook an undivided one half interest in the land in question. Will died. Decree declared wife sole owner of property

iii. Holding: Conveyance to nephew voidiv. Reasoning:

1. Oregon did not allow joint tenancies, and the Court chose to interpret them as creating joint life estates with alternative contingent remainders in the survivor. So, ex-wife acquires full interest in property

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2. In this way, Oregon effectively created a joint tenancy with no severability (much like a tenancy by the entirety).

v. Purpose of conveyance: it’s a security provision for the wife so she gets the estate (he can sell but she gets half; but if he dies; she gets it all). BUT you can sever the joint tenancy, which he did.

1. Williams had intended to sever joint tenancy by conveyance to his nephew2. He knew he was dying (and hadn’t known this at time of divorce), and he’s trying to

deprive his divorced wife of at least half the property by severing joint tenancyvi. Problem is that OR had conflicting laws on the books about if joint tenancies abolished, and they

were ratified at same time so both valid1. So, the grant created concurrent estates for life w/contingent remainders in the life

tenants, the remainder to vest in the survivor (basically, creates equivalent of common law joint tenancy except for the power of severance)

a. Judge doesn’t want to subject divorcee to the possibility that divorced husband will be able to severe it and deprive her of half the settlement (when given choice b/w no severing and making it a tenancy in common)

vii. According to Donahue, judge did a good job:1. Basically remade this thing into something that lawyer should have done to start off with

(make it something that could not be severed, that is not subject to power William Holbrook would have had, had OR had a joint tenancy)

2. If joint tenancy, survivor has no guarantee that he/she will get the whole property3. Basically, Justice wrote better divorce settlement for Mrs. Holbrook than lawyer did –

he’s helped by the OR statuteviii. Why did OR abolish joint tenancy?

1. ‘Probably Probate Court Clerk’s Protective Act of 1860 – the characteristic of joint tenancies is that it allows you to avoid probate b/c title passes automatically upon the death of one of the joint tenants

2. Most jurisdictions not as extreme – OR is only jurisdiction besides some of community property states that don’t have joint tenancy at all

41. Marital Estatesa. Common law stuff we’re not responsible for, but a big change was Married Women’s Property Act.

i. Gives a married woman the right to own and transfer property, form contracts, and sue and be sued as if she were single woman

ii. Abolished jure uxoris completely, and abolished curtesy initiate to the extent that the husband retained an interest in the rents and profits of his wife’s property.

iii. Curtesy consummate still exists in modern law when the wife predeceases her husbandiv. Does not abolish dower; most states allow both the wife and husband each to choose between

dower and an elected share in the deceased other’s property; where dower was retained, the husband and wife could both get dower; and where dower was abolished, the husband or wife could receive an elected share in the other’s property.

b. If G grants to A, and A is a man married to a woman (B), law has nothing to say about this unless:i. Divorce

1. Usually the property is subject to equitable distribution/apportionment2. Judge has discretion in determining who gets what and title on the property is not super

relevantii. Death

1. Some protections for spouse so they can’t be completely disinherited in most states2. In intestacy, general rule is that spouse gets set proportion (1/3 if children, ½ if no kids)3. If there is a will:

a. Will gives more to spouse than intestate share: ok and very commonb. Will gives less to spouse than intestate share under intestacy laws

i. Surviving spouse can get that estate plan remade to bring him/her up to closer to intestacy share

ii. W/in UPC, about elective shares and augmented estates and it depends on the length of the marriage

1. UPC is standard of best practice

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2. How figure out if spouse’s elective share has been satisfied – total up augmented estate (incl. property that avoids probate) and unaugmented estate (probate property that doesn’t pass by will or another automatic fashion), takes into account everything that will pass upon death

3. Other legatees get the short end of the stick hereiii. Non-UPC not care about length of marriage and not worry about extra-

probate transactionsiv. Alternative is to allow spouse to renounce everything from will and take

intestate share insteadiii. One goes bankrupt

1. C-L jurisdictions – creditors can take the property in that spouse’s name2. Community Property jurisdictions – some doubt over the ability of creditors to take

property to satisfy a debt of one spousec. Tenancy by the entirety and Married Women’s Property Act

i. Tenancy by entirety (in addition to the 4 elements) requires the unity of marriage at the time of creation.

1. If the grant is “to A and B” and A and B were married an entirety will arise2. Final divorce decree terminates this and the parties are thereafter tenants in common,

normally w/each spouse getting one half3. Unlike jt, it can’t be severed so as to partially defeat the survivorship interest of the other

spouse. In order to fully convey entirety property, both spouses must join. 4. 21 jurisdictions where is still def. exists—problem is to determine how married women’s

property acts affect it ii. Entireties and Creditors:

1. Estate by entirety immune when separate creditors of tenants (husband/wife too)iii. Entireties and Planning:

1. Survivorship feature deprives original cotenant from exercising control over the management and disposition of the subject of the tenancy after his death.

d. Community Propertyi. Modern civil law recognizes communal ownership of property by husband and wife, and it exists

in: AZ, CA, ID, LA, NV, NM, TX, WAii. Principle - whatever is earned by husband and wife during their marriage is a product of their

joint efforts and should belong to them jointly. Property before marriage or gifts etc. are their own. Anything earned by spouse is community property though.

iii. Joint management and controliv. General rule: surviving spouse is entitled to one half of the community property, the other half

passing according to the will of the deceased spouse or in default of will according to the appropriate statute for intestate succession.

1. W/o will, usually dying half disposed of in way similar to C-L states, except no more goes to the surviving spouse

v. In case of divorce1. Each gets half

vi. There is something of a move towards community property, even among C-L jurisdictions b/c it’s more predictable

e. Beal v. Beal – intent of parties in creating a concurrent estatei. Rule: The original intent of the parties and inferences from the factual setting control

property distribution. If they intended to enter into a joint financial act, then they each hold equally.

ii. Facts: Beals are a divorced couple. Oregon did not allow joint tenancies, so the Beals set it up “as husband and wife” to try to get a tenancy by the entirety. Ms. Beal moved out after two years. Mr. Beal then brought a quiet title action to determine parties’ interest in the land.

iii. Holding: The Court determined that the intent of the parties in entering into a joint financial act was to share the property equally. They give Ms. Beal one-half of the rental value for the time

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she was barred from the house and couldn’t enjoy it. They also held, however, that she had to pay ½ of the house payments.

iv. What’s really going on in this case?1. Partition action – woman in cotenancy didn’t want to be in it and court has to decide how

much the ex will have to pay to buy her out, OR put the house up for sale and then who gets what

v. De facto spouses1. Majority says they’re de facto spouses2. Court leaping to get at this issue b/c there is no joint tenancy in OR

vi. What is the holding (that each has an undivided ½ interest) really say?1. He has to compensate rental value when she wasn’t there2. She has to compensate for the mortgage payments he made after she left3. He has to compensate for the difference in down payment4. While living together, we assume it’s a wash5. After she moves out, there’s some cross-compensation

vii. How does the court justify doing something different than was on the title to the property?1. Resultant trust – proposition that where you have title to property that is nominally equal,

power of equity court to adjust this existsviii. Ends up not half bad compromise

42.Part III – Landlord-Tenant

43. Landlord-Tenant Basicsa. For the last thirty years, landlord-tenant law has undergone major changes

i. Moving focus from property to contract provides catalyst for change.1. Donahue thinks that’s off and that we should look for justification in policy since

property isn’t really K as traditionally understood ii. Much of the change has been statutory, illustrated by judicial opinions which introduced the ideas

and the legislatures subsequently passing legislation to back the ideasb. Conceptual pairing: Pro-Landlord Past when landlord-tenant was governed by property law. Pro-Tenant

present landlord-tenant is governed by contract lawc. L/T relationship

i. Grant from fee owner to tenant of right to possession for a period of time reserving an interest in the land expressed in money that we call rent.

ii. Since the leasehold is less than infinity, there’s something left over 1. Reversion of the landlord (more precisely, fee subject to a term of years)

iii. If rent is expressly reserved (normally is) the L has retained an interest in the land, also called a rent, and could, at least at common law, enforce that interest by seizing chattels on the land by a process called distress or distraint.

1. In the absence of a reservation the T’s liability to pay rent is probably personal only, but even if no mention is made of rent, the common law gave the L an action for the reasonable value of the leasehold known as assumpsit for use and occupation, which lay unless it was clear that the leasehold was granted to the T gratuitously.

2. Grant could be for fixed term (term of years or any fixed term week or month) or it can be for a specific period renewable automatically unless L (or T gives notice not to renew [almost always week to week for rooms/ month to month with apartments/ and year to year for agriculture)

3. Tenancy at will - most legislatures say 30 days notice is required (equals month to month tenancy)

4. Lease accompanies grant and contains contract elements. T makes a contractual promise to pay the rent (lease); lease normally gives the L right to terminate (of entry) to forfeit grant if rent isn’t paid. Even if lease doesn’t say it, most states have statutes.

5. Sometimes gives forfeiture right for tenant breaching other covenants—more common with commercial leases than residential ones.

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6. Common law and every jurisdiction relieves T of obligation to pay rent if L evicts.a. Problem is when L has done something to effectively evict thenconstructive

evictions 7. Prior to reform, T couldn’t withhold rent if L broke any covenant other than possession

[eviction]. iv. Summary Proceedings

1. When tenant doesn’t pay rent, landlord can recover possession through summary proceedings, usually occurring in court designated for this

2. When tenant assigns remaining time in lease to another, the original tenant remains liable for rent to the landlord—called liability of a surety—the new lessee being liable to the old one; this reflects contract theory prevailing over property theory, under which the assignee would likely be liable to the landlord.

3. Previously the tenant’s defenses were quite limited44. The Statute of Frauds and Creation of Tenancies

a. Statute of Frauds – any leases for more than three years must be in writingi. American statutes require a writing for leases that last more than one year

ii. If fixed term and option to renew last more than one year, then majority of courts hold that the terms are added together

iii. If periodic tenancy is less than one year, no writing is requirediv. Closer to contract law than a conveyance of fee simplev. People generally do not know if SOF is violated. If it is, and tenant takes possession, tenancy at

will is created. If tenant pays rent, periodic tenancy is created in most statesb. Landlord’s Duties

i. To deliver possession at the beginning of leaseii. Not to interfere with the tenant’s quiet enjoyment

iii. To provide habitable premises1. This was not a duty under common law, but courts today (especially in residential

tenancies) find a duty imposed by an express warranty, implied covenant, or a statutory duty)

c. Types of tenanciesi. Term of or Estate for Years – any estate for a fixed period of time

1. Term must be certain. It can, however, be cut short2. No additional notice of termination is required3. Term is freely alienable and may pass to legatees by will or intestacy4. “To A for 99 years” doesn’t violate the rule against perpetuities because tenant’s

interests are vested from the start. Most states permit such long leaseholds, common in commercial leases.

ii. Periodic Tenancy – tenancy which continues from one period to the next with no fixed expiration, subject to cancellation by either party within statutory period

1. Continues indefinitely until terminated2. Can be created by express agreement, but is normally created by inference

a. Lease w/no stated durationb. Invalid lease, but period used usually on that’s in void leasec. Arising from holdover

3. Like the term of years in every way except that there is no fixed expiration period. iii. Tenancy at will – tenancy which has no stated duration and may be terminated at any time by

either party1. At common law, no notice for termination is required2. Terminates automatically upon death of party or conveyance by landlord3. Not alienable4. Rarely created on purpose. Rather they are normally the result of an unsuccessful attempt

to create something more: If tenant enters in good faith under void lease, courts often deem him a tenant at will so he won’t be liable for trespass unless landlord gives him notice to quit

iv. Tenancy at Sufferance or Holdover Tenancy – when a tenant holds over at the end of a valid lease

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1. Hardly a tenancy at all. 2. Never created consciously but used to describe the tenant who holds over after the end of

his terma. When the tenant stays past the tenancy’s termination, landlord has option:

i. Treat tenant as trespasser and eject him, orii. Hold him for another term.

3. Common law took a strict view and allowed landlord to bind for even one day holdover, now a reasonable time is mandated before a landlord can exercise his option.

4. Modern courts are more lenient and recognize extenuating circumstances45. Implied Warranty of Habitability

a. Lemle v. Breeden - Doctrine of Constructive Eviction leading to Implied Warranty of Habitabilityi. Rule: Where a person is forced to abandon their leasehold (constructive eviction), the lessor

is held as having breached his Implied Warranty of Habitability, and can sue for restitutionary damages

ii. Lemle moved into nice place in Hawaii, but discovered at night that it was infested with rats. He then left and sued to recover his deposit

iii. Holding: Court holds that the rats were a violation of the implied warranty of habitability, which allows Lemle to rescission and restitution

iv. Reasoning:1. Doctrine of Constructive Eviction – landlord didn’t physically evict the tenant, but he did

something to deprive them of enjoyment and use of the premisesa. Tenant must vacate the premises before he receives damages. As in Javins,

though, this may not always be possible. For this, court added Warranty of Habitability, which is a contractual view of landlord-tenant, allowing for damages, reformation, and/or rescission of a contract

2. Contractual Analysis:a. Leasing property is a contract which needs consumer protection, so the implied

warranty issue comes upb. The tenant had a legitimate expectation that the premises would be habitable, and

he was dupedv. What’s really going on?

1. Donahue says that Lemle’s expectation about rats might not have been legitimate in Hawaii, where beaches are covered in rats. This holding was maybe just about protecting tourism

vi. Why was this a breakthrough from the common law?1. It was b/c court takes a not surprising holding (already available for short-term furnished

leases and turns it into something quite different b/c of verbiagea. Court says common law conceptions of a lease and the T’s liability for rent are

no longer viable (caveat emptor: which would say only if there were fraud or mistake in the initial transaction would the lessee have a remedy and in the absence of statute it was generally held that there was no implied warranty of habitability and fitness)

b. Analogizes landlords and manufacturersi. Court says Hawaii will move landlord-tenant law into warranty realm of

products sold, like manufacturingii. Inadequate opportunity to inspect

1. Tenant has disadvantage relative to landlordiii. Legitimate expectations unmet

1. Notion that tenant was dupedb. Javins v. First National Realty Corp. - public law standard for covenant to repair implied in lease

i. Rule: Part of a landlord’s implied warranty of habitability is a covenant to repair, so violations of warranty might occur even after a tenant moves in and the tenant is then justified in withholding rent

1. Moves away from habitability issue toward public law standard

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ii. Tenants who had been living in housing refused to pay rent, premising their refusal on a number of violations of the DC housing code that had arisen after their rental agreement

iii. Holding: A covenant to repair, or fix defects of a residence, is implied in the leasehold contract, and the tenants, as damages, could have their rents reduced.

iv. Reasoning1. Traditionally a warranty of fitness refers to the condition of property at the time of

conveyance. Here the tenants were still living in the apartments, so there was no constructive eviction

2. The covenant to repair is not contract law, as is the warranty of habitabilitya. It is an equitable remedy implied-at-law (implied covenant)b. Nonwaivable

i. Housing code sets the standard for housing, and that is what constitutes habitability, even though the code was pretty far from reality

c. Judge introduces this in the name of contract but it’s NOT3. Policy arguments:

a. Housing market has changed – people aren’t just leasing land, they want a place to live an we need to protect expectations (K-language)

b. Tenant isn’t jack of all trades; more efficient for Ls to do it b/c they have the money and the permanent interest in the property

c. Required by the code at the commencement of the lease (D says this is most important)

d. Shouldn’t be a waivable right b/c of the difference in bargaining power and the code

e. Poor housing is detrimental to the entire societyf. Landlords have long-term interest in property, and the repairs they do are

investments4. Possible remedies

a. Rescission and restitution: tenant can vacate and terminate lease and then collect damages for the breach

b. Tenant can withhold rent and bring code violations when the landlord sues to evict for non-payment

c. The tenant’s rent might then be reduced by the difference b/w the market value and the actual value

d. Specific performance: Make the landlord repair and make the tenant pay full rent.e. Apply a number of other statutory remedies

5. Lemle v. Jaminsa. Expectations of the parties

i. Lemle seemed like more of a misunderstanding, with hugely frustrated expectations

ii. Javins – probably didn’t really expect upkeep1. Once you start saying you don’t care about what the contract IS,

you move into non-contractual area that doesn’t care about agreement of the parties

b. Different remedial situationi. Javins - after withholding rent the tenant remained, whereas in Lemle the

tenants did not remain, and for this we have easy contract law solution—rescission and restitution.

c. Landlord’s obligationi. Here violations occurred during the lease, whereas in Lemle, the trouble

was from start.ii. Where we get standard of what L has to provide isn’t from expectation of

parties but in Housing Codesiii. Ct doesn’t enforce illegal Ks

d. Not contracti. Here we have housing code violations, not contract one

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e. Different arguments from Lemle: i. repair cov. vs. warranty ii. non-waivable iii. calculation of rent owing

6. This is more about status relationship than contractsa. Status rules are applied, called such since they apply because your landlord or

tenant, with the offered justification:7. Competing views at play

a. Imposing on landlord obligation to repair while depriving revenues (allowing tenant to withhold rent) means that landlord lakes money to make repairs, meaning that the very people in need will have less and more expensive housing

v. This isn’t really about contracts1. This is courts creating contracts and enforcing contracts the parties didn’t agree to, by

saying they will not enforce an illegal K a. Some say there’s no justification than this, others say it is justifiable in some

situations2. Seems more like penalty than contractual remedy b/c often not contract-market

differential since the contract may have been for sub-standard housingvi. How do we usually let these things work themselves out?

1. Let the market do it and market tells us:a. There are people willing to or who have to live in these conditions

2. Why isn’t the market working?a. Housing shortageb. Asymmetric bargaining situationc. There are people who will pay thisd. Public law enforcement of codes weak

vii. Effects of Javins1. Most recent statutes imposing a warranty of habitability are applicable to all residential

leases, but only to residential leases.2. Implied warranty in Javins extends to latent defects also. No doubt either about the

continuing obligation to repair—which is part of the warranty as defined in Javins and its progeny—to defects arising after the beginning of the period of the lease.

3. Most decisions following Javins have agreed that the implied warranty can’t be waived, directly or indirectly. Other courts have said that the warranty at least can’t be waived as to code violations.

4. Most judicial decisions are agreed that insignificant code violations are not violations of the warranty of habitability.

5. Most courts have concluded that a violation may occur whenever the premises become uninhabitable whether or not th\e code is violated.

6. B/c courts following Javins all speak the language of contracts, T may maintain a contractual action for damages or seek specific performance.

7. Most Ts have attempted to use breach of the warranty as a defense either to an action for rent or more often, to a summary eviction action based upon nonpayment of rent. Virtually all the decisions following Javins, have agreed that the T may remain in possession, withhold rent and obtain, in a summary eviction action, a determination of the amount to be abated b/c of the breach.

8. Several different approaches have been used to determine the amount of rent abatement (or damages):

a. None of these approaches fully authorizes full rent withholding, i.e., remaining in possession with no obligation to pay any rent, unless the damages as calculated above exceed the rent due.

b. Generally agreed that T may also recover foreseeable incidental and consequential damages.

c. A few cases have said that damages for emotional distress might be allowed in egregious cases.

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d. A number of courts have allowed T to recover damages for personal injuries caused by breach.

c. Ackerman Analysis – economic effects analysis of warranty of fitnessi. About changing laws to achieve goal of bringing housing up to code

1. `Worries that if you raise costs, they will be passed on to the consumer and then some will drop out of market

ii. Says that rents will not increase with implied warranty of habilitability, nor will supply of low-income housing decrease

iii. Conditions under which Ackerman analysis will work:1. Inelastic supply of housing at the margin2. Elastic demand at the margin (raise price, folks drop out, lower prices, folks come in) -

doubtful3. There are a significant number of marginal tenants who will be affected4. All units are earning rent – wrong5. Code enforcement does not improve landlords’ ability to price discriminate – wrong6. Code enforcement will not shift the demand curve – doubtful (i.e. gentrification)7. Transactions costs are relatively low (can easily drop out of housing market and come

back in) – not realisticiv. Empirical evidence is mixedv. The moral point is that the tools to go after bad landlords will give tenant more power

vi. It’s more of an income distribution issue – not villainous landlords, but people just can’t afford good housing

d. What has happened in the housing market over the last 40 years or so?i. Substantial increase in quality of housing since WWII

ii. No substantial increase in incomes of poor peopleiii. Maybe issue is more about income distribution than quality of housing

46. Rent Controla. Introduction:

i. Rent control treats provision of public housing as if it were a public utility.1. Huge disincentive to building new housing and for tenants to relocate locally

ii. A landlord under a rent control ordinance cannot evict a tenant at the end of a term and rent to a new tenant at the market rate.

1. A tenant’s lease must be renewed unless there is a good cause for evictioniii. Although constitutional in general, rent control ordinances must provide a landlord with a just

and reasonable return on her property.1. If it does not allow a landlord to profit under changing economic conditions, it constitutes

a confiscatory “taking” in violation of the Takins Clause of the U.S. Constitutioniv. Rent control has typically been a wartime or postwar thing.

1. Temporary emergency natures made them held constitutional. 2. Since early 1970’s new movement began

b. Pennell v. City of San Jose – rent control and takingsi. Rule: A Rent Control that includes a hardship of tenant factor is held Constitutional as

bearing a relation to a legitimate and rational policy that the legislation is free to adopt: protection of the poor, and welfare of housing concerns.

ii. Facts: San Jose has an ordinance to control rent in which housing officer considers 6 objective factors and then the hardship of the T (if the L wants to raise it over 8%). Pennell argued that a reduction like this, beyond the market value, is a takings under the 5th and 14th amendments

iii. The arguments:1. Taking argument

a. The hardship factor’s unconstitutional as applied, for to the extent that you consider hardship factor to reduce number gotten after considering other factors, you’re taking.

b. Response:i. Though officer must consider the hardship factor, (a) she need not for

that reason reduce the number, (b) nor has this ever happened.

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c. Ripeness - Court doesn’t decide hyposneed to see specific facts, application and results

i. Nothing had yet been taken and takings can only be dealt with on a factual basis

2. Due Process but not takings argument – statute unconst.a. Argument: the hardship factor’s unconstitutional on its faceb. Response: given the evil the legislature was facing, this isn’t outside their power

i. State has the ability to regulateii. If you have a supply-demand problem, state can control prices as long as

it doesn’t impose too much iii. Price control is only unconstitutional if arbitrary, discriminatory, or

demonstrably irrelevant to policy3. Equal protection argument – legitimacy of state goal unconst.

a. Argument: the law impermissibly distinguishes between landlords with hardships tenants and those without them

i. Certain landlords are being singled out b/c they happen to have hardship tenants and thus have to bear the burden

b. Response: This isn’t about the landlord, it’s about the tenanti. Distinguishing b/w landlords is ok b/c it is done to ensure that

individuals not suffer unreasonable hardshipc. This is about whether or not the state goal is legitimate

i. Court says it’s legit state goal and can be adopted in rent control ordinance

iv. Holding: Rent control is not unconstitutional, as it is part of a policy that the legislature is free to adopt: protection of consumer welfare

v. Dissent:1. Statue is facially unconstitutional. Public burden has to be born by the public.2. Scalia said this violates the Equal Protection clause b/c landlords are forced to shoulder

the burden of welfarevi. Importance of this case

1. Previous rent control SCOTUS cases were all war-time, and some had argued that peacetime rent control was not something you can do

2. Court says it’s too late to say that housing is different than other things the state price-regulates

c. Braschi v. Stahl Associates Co. – rent control and “family”i. Rule: This ordinance allows rent-controlled apartments in NYC to pass to members of the

decedent’s family, an in this context the word “family” includes a same-sex partner living in the apartment.

ii. Braschi was living with Blanchard (same-sex partner) in a rent-controlled apartment. Brasci had nursed Blanchard through his illness, they’d shared bank accounts, etc. Upon Blanchard’s death, landlord tries to evict Braschi, claiming he is a mere licensee and not a tenant of record. NYCCR didn’t allow eviction of family members when the T dies, but it doesn’t define family members. So court has to decide if family includes this situation.

iii. Holding: In the context of eviction, family includes life partner.iv. Reasoning:

1. Definition shouldn’t be defined rigidly; should be found in the reality of family life. Reasonable conclusion that leg wanted this too

2. Rent stabilization is different from rent control; former is less onerous burden on property owner so provisions from one can’t be imported to another. (Sullivan)

3. This def is consistent w/both aims of rent-control laws: protection of individuals from sudden dislocation and the gradual transition to a free market system

4. Objective examination of parties should be test. (here, families knew each other, addresses, mail, bank accounts, wills, etc).

v. Why could this have come out the other way?

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1. NYC was moving from rent control to rent stabilization (a less stringent form of rent control that gradually moved market prices to real fair market value.

2. In the rent stabilization statute, life-partners explicitly would not have qualified as family, so Donahue argues that they shouldn’t here.

a. He argues that RC should be more restrictive b/c we want to move people out of RC and into RS

vi. Dissent: focuses on practical differences of figuring out now who is really in that class. Maybe legislature wouldn’t have overruled it and the judiciary would have to decided case by case. Structural arg.- leg should do this not courts.

vii. Why did this decision happen?1. The Court was anticipating the legislature.

a. Two other cases saw expansion by legislaturei. Sullivan – Court interpreted narrowly that RS not to include family

members, then legislature passed statute and list of family membersii. Hudson – Court ruled narrowly that sister could be kicked out, then

legislature overruled and included siblingsb. So in this case, court decided not to be narrow and open things up

i. After this decision, the legislature revised the statute to accept the Braschi decision’s definition of family, and they tried to solve dissent’s argument by listing 10 factors to decide if relationship is sufficient

c. Should court have done this?i. Yes b/c whole judicial issue is to consider what lawgiver would have

done in this situation and court is going by what legislature was indicating

ii. No b/c legislating from bench

47.Part IV – Private Control of Land Use

48. Nuisancea. Limits on the use of land resulting from property interests of another

i. The inherent limits on the fee simple absolute 1. In trespass but not nuisance a Defendant is liable whether or not he causes substantial

harm; in a nuisance a Defendant may not be liable even if his conduct causes substantial harm provided it is adjudged reasonable.

2. In trespass, but not nuisance, conduct sure to cause an invasion of P’s land can produce liability for all resulting harm whether or not it or any harm was foreseeable.

3. In trespass, the plaintiff seeking an injunction may be less troubled by a balancing of the equities.

ii. The consequences of being a nuisance1. Most modern nuisances are brought in equity.2. In a typical nuisance suit there are at a minimum two possible outcomes:

a. Total denial of relief based upon a conclusion that no nuisance exists (conclusion that’s possible even if D’s land use is causing P appreciable harm)

b. Issuance of an injunction ordering D to cease his objectionable activity coupled with a damage award to compensate P for injury suffered prior to its effective date.

3. Difference b/w trespass (deals w/right to possession; also injunction is more automatic here) and nuisance (deals w/right of use)

b. General Nuisance Info:i. Hierarchy of values in traditional nuisance law

1. Government land use top2. Non-offender has priority over offender

a. Prefer residential over industrial, then agricultural in the middleii. Today most courts called upon to enjoin a nuisance will engage in some sort of balancing of the

interests of P, D, and general public. 41

iii. It is common in encroachment cases to distinguish b/w willful and innocent trespassiv. Injunctions awarded private parties never provide complete assurance that a polluter won’t

continue to pay claims rather than control pollution. If controlling pollution is impossible or very expensive, it’s quite likely that D will negotiate a settlement (more likely when fewer Ps involved)

v. Assuming equities may be balanced, the typical nuisance suit complaining of an existing condition presents the court with three major options:

1. It can conclude that no nuisance exists, which leaves P bearing the full cost, if any, of the incompatibility of uses

2. It can find that D’s activity is a nuisance for which damages must be paid but hold that an injunction is not appropriate; or

3. Grant an injunction coupled with a damage award to compensate P for injury suffered prior to its effective date

vi. Damages can be awarded:1. Either for losses suffered to date (effect on rental or use value of P’s property or specific

losses of crops or value of personal discomfort or injury) leaving P to sue for later for subsequent installments if the nuisance continues or

2. The court may determine that that nuisance is permanent and calculate the award on that basis.

vii. Injunctions can be different too:1. Ct. may direct D to take specific steps to reduce the harm caused by his enterprise

without shutting them down directly (could happen indirectly)2. Court can set performance standards, vague or specific, forcing them to come up with

techniques for compliance3. It can order them to shut down if other two aren’t sufficient. 4. Court can grant D a period of grace to come up with a solution or liquidate the operation5. Or grant a compensated injunction where P pays D for ceasing to create the nuisance 6. Factors that fail to persuade a court to withhold injunctive relief may cause it to choose a

limited injunction that allows a degree of actionable nuisance to continue. c. Elements of Nuisance:

i. Possessory interest, andii. Affirmative act that interfered with “use and enjoyment,” and

iii. Substantial and unreasonabled. Coase

i. We normally think of one party causing harm instead of joint liability or causation, but it takes two. Take one property away and we don’t have a problem.

ii. Coase’s prediction of what will happen in a world w/o transaction costs:1. Doesn’t make any difference where the law puts the liability (irrelevant)2. When there are incompatible uses, one is more valuable than the other3. The person w/the use that is more valuable will pay the other to move4. You will get to the economically efficient result of wealth maximization

iii. But, we are not in a world of zero transaction costs so legal liability can have an effect1. Will misallocate resources b/c it will be too expensive to get it right2. So judges should try to figure out what is wealth maximizing and enforce that so it gets to

the right resultiv. How doesn’t it work?

1. We don’t live in a world of zero transaction costs2. Even if parties are able to negotiate and figure out values, the difference b/w values will

be up for negotiation and then we have same concern as Geragosian and cave case (one-sided bargaining)

3. These situations do result in a deal most of the time but not always and person who has right usually ends up on top (you don’t actually get the same result)

4. If we put liability on person to whom it matters to move they’ll be more likely to break. If there’s no surplus the notion that they’d pay wouldn’t apply (applicable only right at the margin)

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5. Over time this transfer would affect distribution of income which would ultimately affect allocation of resources.

v. Theory and problems w/Coase’s analysis1. Hobbes theorem – even if there are no costs, private bargaining to redistribute costs will

not achieve efficiency unless there is an institutional mechanism to dictate the terms of the contract

a. There is no way to predict what will happen w/one-on-one bargainingi. There’s no market

ii. People will walk out and there won’t be consensus2. Assuming $0 transactions costs, we’ll get efficient allocation, but it won’t be the same if

you change the liability rule b/c there’s an income shifta. This will change the demand structureb. If liability rule is always the same, different sides don’t demand the same things

out of bargainingvi. Consequences for the law

1. Coase argues that since we don’t live in a zero transaction cost world and we are worried about resource allocation court should figure out where the greatest value is then we’re mimicking the result of that fictitious world.

2. Counter arguments:a. Maybe we should worry about where surplus goesb. P couldn’t set price even if they were willing to sell (their value might be more

than market price)c. 45 million in Boomer plant (huge waste to shut it down); decision should have

been made before it was invested e. Boomer v. Atlantic Cement Co. –injunction not always required in nuisance

i. Rule: When there is a large disparity of economic consequences b/w allowing the nuisance and granting an injunction to bar the nuisance, the court has the power to condition the injunction on equitable grounds.

ii. Facts: Cement Co. was polluting the air. Neighbors of the factory sought an injunction. Lower Courts had denied the injunction but required payment of damages up to the time of trial, which would allow Ps to sue to recover every few years.

iii. Issue: Can Ct. grant injunction where there is a nuisance and damages but an economic disparity b/w the consequences of the injunction?

iv. Holding: The Court grants an injunction but conditioned it on payment of permanent damages (present discounted value)

v. Reasoning:1. The plant complied w/public regulations on pollution, so was not a public nuisance or

done in bad faith2. Allowing Ps to recover every few years is extremely inefficient

a. General rule: “Where a nuisance is of such a permanent and unabatable character that a single recovery can be had, including the whole damage past and future resulting therefrom, there can be but one recovery

3. In determining whether to grant the injunction, the court balanced the equities:a. Economic detriment to injunction much greater than cost of damages ($45

million v. $185k)b. Gross inefficiency/waste will result if this plant is shut downc. No idea how many others are being affected by this plant and court isn’t cutting

off other damages from other people, city, etc.4. What cuts in favor of the plant?

a. They already have state-of-the-art technology and are doing their bestb. Huge investment, 300 employees, benefiting manyc. Air pollution problem is multi=-causation and it’s not fair to blame them fro all

cement plants everywhered. Area had been zoned for industrial already, and there are safety regulations that

the plant is complying with

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e. At that time, didn’t seem like there was a measurable impact on health5. This ruling pretty much forced an easement upon the air of residents (bad), but the

issuance of an injunction is less permanent than an easement6. Alternate arguments:

a. Pollution itself is an inherent “bad” and so should not be protected in equityb. Even the tiniest public interest should be protected from even the largest public

interestc. Pollution is a problem widespread across the country, so this one company

shouldn’t have to answer for damages of the industry as a whole7. This Ct. goes further than the lower courts

a. Grants damages for present and future harm caused by D’s operations (not just past damages) AND granted injunction if they didn’t pay

i. Form of enforcementii. Said that they were ranting an injunction, but if they made payment, the

injunction was essentially “bought off” vi. Dissenting argument: This is a private taking, like using reverse condemnation for private use,

and that’s not constitutional1. Court didn’t bother addressing this2. The opposite argument is that closing down the plant would do the same3. But there is no constitutional right to an injunction

vii. Coase would like the result of this case49. Overview of Agreements to Control Land Use

a. Types of private controli. Easements

1. An interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose

2. Unlike a lease or license, an easement may last forever, but it does not give the holder the right to possess, take from, improve, or sell the land

ii. Profits1. A servitude that gives the right to pasture cattle, dig for minerals, or otherwise take away

some part of the soil.2. May be either appurtenant or in gross.3. An easement to go on the land and take what is to be removed is implicit in a profit. The

rules applicable to easements generally apply to profits.iii. Covenants

1. A promise made in a deed or implied by law, especially an obligation in a deed burdening or favoring a landowner

2. Can be appurtenant or in gross3. Rooted in contract

iv. Equitable servitudes - “easement by necessity”1. An easement created by operation of law b/c the easement is indispensable to the

reasonable use or nearby property, such as an easement connecting a parcel of land to a road

v. Licenses1. Permission to go on the land belonging to the licensor2. Revocable at the will of the licensor3. Licenses can become actual easements

b. In Hofeldian terms, non-possessory interests in land relates to privilege of use b/c it limits privilege of use of possessor

c. For economic efficiency, it is considered more efficient when there aren’t too many hands in a propertyi. Thus, there are biases against these interests

50. Easementsa. Definitions and Rules

i. Easement – a grant of interest in land that entitles a person to use land possessed by another1. Not subject to will of possessor

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2. May be created by conveyanceii. Types:

1. Appurtenant Easementa. Easement intended to enhance the value of other land owned by the holder of the

easement and to pass with the land upon conveyanceb. Benefits its owner in using another piece of landc. Land encumbered is a servient tenement and land benefited is dominant tenementd. Appurtenant easement attaches to the dominant tenement and passes with ite. Appurtenant easements are favored. If an instrument creating an easement is

ambiguous, courts generally construe it as creating an easement appurtenant to the land, as the scope of an appurtenant easement is more easily determined and the owners are more easily defined

2. Easement in grossa. An easement w/relation to other land. Merely gives its owner the right to use the

servient landb. Is usually assignable if the parties so intendedc. No dominant tenement, just personal to one party

iii. Types of use1. Affirmative easement – permits holder to actively use grantor’s property and probably

reduces grantor’s scope of usea. Classic example - having right of way, like the driveway easementb. Affirmative easements not only create scope of use questions for the holder but

also for the owner of the servient estate for he must avoid uses incompatible with the rights he has conveyed

2. Negative easement – passively enjoyed. The owner of this interest can prevent owner of servient tenement from doing some act on his own land

a. Generally restricted to easements of air, light, water, ways or roads, support and fences

b. Grantee has a right to prevent owner from doing something (same thing w/negative covenant where owner promises not to do something)

iv. Importance of Notice1. A conveyance of the servient estate to a bona fide purchaser w/o notice of the easement

can cause its extinction at least where it has not arisen by prescription2. If it is recorded, this generally counts as fair notice

v. Possessory vs. Non-possessory interest1. Possessory – corporeal interest or tenement, or “uira in re sua,” meaning “rights in his

own holding.”2. Non-possessory – incorporeal interest or tenement, or “uira in re aliena,” meaning rights

in something that belongs to another.” Person doesn’t have a right to possession of land (but some of these effectively deprive grantor of possession)

vi. Dichotomies of labeling process:1. Ambiguous instrument – which category should it be in

a. When eminent domain is taken, does non-possessory interest person get compensation?

2. Easements v. Covenants (below)vii. Easement v. Covenant

1. Easement – Grant of property right, no promissory language. 2. Covenant – Promissory language in it for landowner to do or not to do something and

language to bind subsequent people3. Third restatement would eliminate this distinction4. Negative covenant is the same as negative easement - gives the easement or covenant

holder the right to prevent the burdened property’s owner from doing something5. Affirmative Covenant - gives the covenant holder the right to compel the burdened

property’s owner to do somethinga. Opposite of affirmative easement

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6. Instruments that give the holder nonpossessory right to do something almost always classified as giving easements, whereas those that give the right to compel another to do something almost always classified as covenants.

b. Creation of easementsi. Creation by express grant

1. Must pass the SOF a. If not, it is generally interpreted as a license.b. Exceptions to the SOF include fraud, part performance, estoppel, easements by

implication and prescription, and easements lasting less than one year2. When it is unclear whether the grantor intended to grant an easement or fee simple, an

easement is evidenced by:a. Grant of limited useb. Grant for a limited purposec. A grant of an identified space w/o clearly marked boundariesd. Sale for less than the fair market value of a fee simple.

3. If formalities required for easement aren’t met; something lesser is created. Adherence to the reqs can still fail to produce one if the transaction shows the parties intended a lesser interest.

4. Words “reserve” (easement) and “except” (fee estate) used to be indicative but today it’s doubtful courts would rely on this

5. Traditional word for easement: “grant.” Most courts today would look towards parties’ intent.

ii. Creation by implication1. This is an exception to the SOF, and so a written instrument is not necessary2. Standard doctrine to say that even if deed not prescribe specific easements on specific

roads, etc., if the description of the lot in the deed makes reference to the plat, we’ll imply that the person who owns the property also owns easements over the roads/alleyways/parks

3. Implied easements are limited to two kindsa. An intended easement based on an apparent use existing at the time the servient

tenement is separated from the dominant tenement.i. 99% of easements by implication are created this way, resulting from

dividing property.ii. Types:

1. Plat easements (most common) implications from a pictureiii. Preexisting “quasi-easement”

1. Court will frequently say that where someone (e.g.) owns a piece of property and has gotten to their property by a path, and they divide the property so the path is one side and house is on another, that the road being there constitutes a quasi-easement

2. Requires original unity of title b/w tenements3. By reservation, reserved a benefit for the original owner.

Required strict necessity4. By grant, gives benefit to a new owner. Required only

reasonable necessityb. An easement by necessity

i. If there is no other way to get in and out of property, as in a landlocked situation, the court will imply an easement of necessity.

1. In such a case, some states even relax the requirement of prior unity of title and therefore grant a private right of eminent domain

ii. Access by water is generally not sufficient to make reasonably effective use of the property

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iii. In some cases, the court denies granting an easement by necessity to a party who voluntarily caused the access problem, so that estoppel is warranted against them

iii. Creation by prescription1. Similar to adverse possession. Usually requires:

a. Open and notorious useb. Adverse and under claim of rightc. Continuous and uninterrupted throughout the requisite period

2. The same SOL as a state uses for adverse possession applied for prescriptive easements3. A permissive use can change to adverse if the person performs acts that reasonably

should put the owner on notice that the user is claiming a right to use the land. There is usually a presumption of permissiveness among neighbors

iv. Creation by estoppel or part performance1. Applies to oral easements as it does in other interests (like Hayes v. Hayes).

c. Waldrop v. Town of Brevard – covenant or easementi. Rule: A covenant or agreement may operate as an easement if it is necessary to give it effect

to carry out the manifest intention of one of the partiesii. 1938 Town buys property from Shipman and deed says it’s understood they’re buying it for waste

without limit as to time or quantity etc. Shipman then sold other parts of the land to families including the Waldrops. Waldrop, who did not have that deed w/the easement in it in his direct chain of title, purchased adjoining land and then sued for nuisance

iii. Holding: The Court says that the words in the deed form an affirmative easement to maintain a nuisance, even if not expressly worded that way.

iv. Reasoning:1. The importance in this case lies in the Court’s easement/covenant distinction

a. If it were deemed a covenant:i. The burden of proving a covenant lies on the person seeking to enforce it

(Town).ii. The presumption is against a covenant

iii. The Doctrine of Changed Conditions might have applied in equity1. The neighborhood has really grown up around the dump site, so

the effects of the nuisance might have become exasperated enough for the Court to grant the injunction in equity.

2. But this doctrine only applies if the changed conditions occur outside of the immediate disputed vicinity

iv. Notice Argument:1. The general holding is that to enforce a covenant in equity, it has

to be in the direct chain of title. A subsequent purchaser of land that is restricted by a covenant is not bound by the covenant if he had no notice of it. He is deemed to have no notice of the covenant if it is not in his direct chain of title

2. So, Waldrop would have wonb. If it were deemed an easement:

i. The burden of disproving an easement lies on person trying to deny it (Waldrop)

ii. The presumption is in favor of an easementiii. Easements are not subject to the doctrine of changed conditionsiv. Easements are subject to the recording act, and this easement was

recorded.1. So, T wins

2. Easement is affirmative (allowing Brevard to do something otherwise prohibited) and appurtenant (being specific to particular piece of property which town bought, the servient tenement being the whole remaining 115 acres)

3. Town didn’t have many other options

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a. They got permission, anticipated the need for the dump, recorded the covenant in advance, etc.

4. The language in the deed looks like a covenant but fits nicely w/affirmative easement, and if it’s an easement, Town is off the hook

a. So court made it come out this wayd. Petersen v. Friedman – what is included in easement

i. Rule: The subject of an easement does not have to be explicit, but the Court can extend its application as it sees fit to achieve the intent of the easement

ii. Facts: In the Bay Area, Peterson had an appurtenant easement of light, air and view. Friedman had a tv antennae p that Petersen claimed was in violation of the easement

iii. Holding: the Court upheld the easement as an equitable servitude that tv antennae were held to be in violation of an unobstructed view.

iv. Reasoning:1. CA Civil Code had a limit on the types of negative easements (light, air, support, and

flowage of artificial streams) that could be enforced in order to protect the servient tenement

a. Light and air could encompass “view” logicallyb. Defendant argues that because antennas did not exist when instrument was

drafted, the language cannot apply; court does not buy this.c. View’s the important thing, not the manner obstructed, and the well drafted

language could not have been more clear about this.d. B/c the classes of negative easements were closed, the court applied this as an

equitable servitude2. What would a modern court do?

a. A modern Court would still enforce this easement, but would have likely enforced it as a negative covenant to give it more discretion over whether to allow it given norms of antennae construction

i. Doctrine of Changed Conditions3. This is a negative appurtenant easement

e. Cox v. Glenbrook Co. – scope of road easement and original intenti. Rule 1: An appurtenant easement will be allowed to be used and maintained to the extent

that it fulfills the original intent of the creators.ii. Rule 2: If its use is extended so that it exceeds this intent and encroaches on the subservient

tenement, it will be deemed “surcharged.”iii. Facts: Glenbrook was a resort in Tahoe, and Cox is the developer who bought the adjacent

property and wanted to create residential community and needed to use Glenbrook’s road b/c the property was landlocked. Prior owner has right-of-way that was very informal, when no subdivision had been planned. Now Cox wants to expand and widen the one-lane road to allow for the planned community.

iv. Holding: Full right of use was granted by Easement, but Cox cannot widen the road b/c it would be encroaching beyond the easement’s specification.

v. Reasoning:1. Court says that the owner of an easement may prepare, maintain, improve and repair the

way to promote the purposes of its creation, but may not cause undue burden on the servient estate, nor unwarranted interference w/the independent rights held by others.

2. Doctrine of Changed Conditions does not apply, as this is not a covenant.3. Surcharge – overuse of an easement. If an easement is deemed overused, so that its

scope has been unfairly widened by the dominant tenement, the court can issue an injunction to its expanded use and may invalidate the easement

4. Although the grant says “full right of use over the roads,” the court struggles with the fact that in 1938, the parties did not contemplate this type of use, so court held that it means what the parties meant at that time, but the Doctrine of Changed Conditions was not available

a. Use Doctrine of Appurtenance – presumption of appurtenancei. Common – if you can interpret an easement as being appurtenant, you do

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ii. B/c if you tie the benefit to a particular piece of land, that generally gives you a limit on scope

1. Can’t use it other than to benefit the land2. If you make the easement personal, it could be sold and turn into

a whole new operation (Quill could sell to lumber company)iii. Gives you some idea of what the parties had in mind at the time b/c they

knew the pieces of propertyiv. Doesn’t work in this case b/c the appurtenance is appurtenance to a very

large piece of property, and it was divided up into a bunch of lots1. Usually would give you limit on scope, but not in this case

b. Rely on the easement saying “roads as now located” and interpreted that to mean that the easement was for the width of the road at that time

i. Was only enough to let one car throughii. Can’t make it any wider than it is now

iii. Protecting owner of burdensome tenement5. Whether a subdivision can coexist with a resort can’t be determined right now - ripeness

issue/cop-outa. Court will decide the width issue but not the overuse within the same width issueb. The idea that you can overuse an easement to such an extent that you can say the

original intent was violated and can get injunction or forfeit through surchargec. B/c they say it’s like takings – is fact-specific and we’ll cross that bridge when

we come to it6. This decision by the Court mandates that the two parties negotiate. Now, Cox will

probably pay Glenbrook to widen the road, or will just divide the land into less parcels so that the road doesn’t need widening.

f. Waldrop/Cox/Petersoni. The vast majority of easement cases are about this issue – same issue in broad sense of term

1. Easement made good sense at time it was entered into, conditions have changed, Doctrine of Changed Conditions not available, so how do we figure out what the scope of the easement was, when we know the parties didn’t contemplate what actually happened

a. The world changed in these cases – TV antennas weren’t around at the time one of easements was made

ii. The way that the court approaches the problem is different1. Waldrop makes use of categorical rules – determines it’s easement and not covenant and

as a result, lack of notice irrelevant, Changed Conditions irrelevant2. Peterson uses contractual approach

a. Look at what the parties said, since they were very specific about what they would/wouldn’t allow

3. Cox uses some categorical rulesa. Appurtenance – doesn’t do itb. Easement originally covers widthc. Then essentially says within this framework, you guys should be able to deal

with thisd. Cox seems a little like a Choasian approach – rather than sticking one of the

parties w/a legal liability, kind of makes the parties figure it out in terms of which parties have which value

i. Increasingly an approach courts are taking in business litigationg. Cooke v. Ramponi – when license becomes easement

i. Rule 1: Where a licensee has entered under a parol license and has detrimentally relied on that license, the license becomes irrevocable and the licensee will have a right of entry upon the lands of the licensor for the purpose of maintaining his rights under the license.” – Doctrine of Equitable Estoppel.

ii. Rule 2: The license will continue for as long a time as the nature of it calls foriii. Rule 3: You can get out of SOF by estoppel or part-performance, like Hayes

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iv. Facts: Cooke bought land while state owned Ramponi’s land. The only roadway permitting access from a public highway crossed the state’s land. Cooke asked state permission to use this road before developing their land, and this use was not objected to. Cooke improved the road. State conveyed land to Foster who then conveyed to Ramponi, and Ramponi refused to bear cost of improvements and said Ps could do what they wanted, though. Cooke paid for upkeep and improvements, and then Ramponi barred roadway.

v. Holding: Court held an irrevocable parol license (like an easement) by estoppel and part performance.

vi. Reasoning:1. Cooke had had a license, from each successor in title, to use the road and had relied on

the continued license before developing their land and in paying for the road’s upkeep2. Ramponi had benefited from C’s expenditure, so there’s an “unjust enrichment” problem3. This case is like Hayes v. Hayes, allowing an oral agreement to be taken out of the SOF

and ripen into a fee interest by detrimental reliance and part performance.4. Court more likely to apply Doctrine of Equitable Estoppel here b/c they were landlocked

w/o use of roadvii. What Doctrines involved here?

1. Changed Conditions can’t be used b/c not on easements2. Implied easement

a. UNITY OF TITLE: A requirement of this is unity of title – the problem has to be created by the fact that someone had a big piece of land that didn’t have a problem and created the problem by dividing the land and separating one of the pieces from the road

i. No proof of unity of title, so not classic example of backlot sale b. PRESCRIPTION: CA has short adverse possession statute, so they were

probably there for the prescriptive period, but you can’t use adverse possession or prescription against the State

c. PART PERFORMANCEi. Used to take an oral transaction out of the statute of frauds

ii. It’s not entirely clear that you do have an oral transaction thoughd. EQUITABLE ESTOPPEL

i. Basically, court WANTS to estop the State but they couldn’t b/c only Legislature can authorize the sale of state property, not a hospital administrator

ii. So, since the State won’t lose the property, they use estoppel against Ramponi

iii. The issue is whether you can estop someone from fighting an easement that he clearly never agreed to simply b/c he allowed them to do some maintenance – pretty strong estoppel

51. Covenantsa. Covenants Running With The Land – contractual promises that are binding against one who later buys

promisor’s land, and enforceable by one who buys promisee’s land. Covenants in gross are quite common (personal).

i. Affirmative Covenant: I promise to do x on my land.ii. Negative Covenant: I promise not to do x on my land (much the same as a negative easement)

b. Example: 21 year lease from Spencer and wife To Si. At time lease was granted, S made promise to Spencer and wife that S would build a wall on the

property that was being leased.1. S assigned his term to J (Assignee 1) and J assigned term to Clark, who ended up being

the defendant in the case b/c wall still wasn’t builtii. Requirements for a covenant to run AT LAW with the land

1. INTENT: Covenantor intends that successor be bound, and in Spencer’s case, the Court said that where covenant concerns something not yet in existence, it must explicitly refer to “assigns”

a. This has been abolished in most jurisdictions

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b. If intent is unclear, court will look at the purpose of the covenant and all surrounding circumstances to ascertain parties’ probable intention

c. SOF applies: Must be in writing and signed by the covenantor2. TOUCH AND CONCERN: Covenant must “touch and concern” the premises

a. Test 1: Touches and concerns if it has to do with something physically on the land (i.e. building a wall)

i. Covenant that “I won’t put a drugstore on this land that competes with the drugstore next door” - ? not sure if that’s physical about the land???

b. Test 2: Covenant touches and concerns the land if it affects the property owners’ relationship as landowners

c. Problem is that it’s circulard. Affirmative covenants have been held generally to not run w/the land for policy

reasons (liberty problems – making someone do something)i. Covenants not to compete are not binding on a successor because of

general notions of free market.e. Clark Test – if promisor’s legal relations to land in question are lessened, burden

of covenant touches and concernsf. Third Restatement View:

i. This fact is not really a serious obstacle anymore. Everything should be allowed unless it contravenes public policy

ii. Restatements says what’s really going on is whether or not we want this covenant to be passed on from generation to generation, and we should just face that this is a public policy check on the covenant

3. PRIVITY OF ESTATE: the person who has inherited or bought the land must own the exact same interest as promisor. Remainderman has obligation/privity b/c he has the fee

a. Vertical privity – successor are not bound unless they hold estate or interest held by promisor at time promise was made, or estate or interest corresponding in duration to estate or interest held by promisor

i. Ex. Lessee is not bound by promise of a landlord who holds in fee simpleii. Not generally an issue now

iii. Acquisition by adverse possession breaks privity b/c it creates a new titleb. Horizontal privity – b/w original promisor and promisee. Grounds for

controversyi. Donahue thinks this is gone and we don’t need to know it for exam

c. In most jurisdictions, the burden of the covenant will run at law only if there is both vertical and horizontal privity.

i. The running of the benefit generally requires only vertical privityiii. Requirements for Covenants to Run with the Land in Equity – Law is total mess so Equity

intervenes1. Less formality necessary2. Touch and Concern exists, but is not strict (e.g. this is a public policy concern). Neither

the benefited nor burden must be physically attached to a piece of land.3. Privity is not required and is substituted by Notice. There MUST have been notice to

enforce in equity.4. There are no intent requirements5. The Doctrine of Changed Conditions applies.6. There are still some situations in which enforcement at law is the only possibility

a. Classic example is covenant to pay money (i.e. covenant to pay HOA fees)i. If properly drafted, the covenant to pay money, if breached, will result in

lien that will get dealt with in courts of equityb. Since Doctrine of Changed Conditions is equitable, not legal doctrine, it’s not

clear that if you seek legal enforcement that the DCC will applyiv. Options for Courts to manage a covenant in perpetuity:

1. Read the restriction narrowly

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2. Confine the duration of covenant to duration of purpose of the covenant.3. Construe it as “for a reasonable time”4. Employ equitable bars to relief

a. Estoppelb. “Unclean hands”c. Acquiescenced. Lachese. Relative Hardshipf. Changed Conditions

v. Who can enforce?1. When the benefit’s personal to the promisee, third parties (think neighbors) cannot

enforce2. When developer burdens one lot and holds the benefit appurtenant, he benefits only the

area lots he still owns, not the ones he already sold—unless a common plan existsc. More Easements v. Covenants

i. Vocabulary1. Affirmative Easement – allows holder to do something on the burdened land2. Negative Easement – allows holder to prevent owner of burdened land from doing

something3. Negative Covenant – promise by owner of burdened land not to do something4. Affirmative Covenant – promise by owner of burdened land to do something

ii. How concepts related1. Negative easements and negative covenants are almost the same2. Affirmative easements and affirmative covenants are almost opposites

iii. Conceptually, either benefit or burden in easement or covenant could be appurtenant or in gross1. For easements, there’s strong constructional preference to interpret them as appurtenant

iv. Drafting1. You can theoretically draft any easement as covenant, and vice versa

d. Charping v. J.P. Scurry – benefit running with land and intenti. Rule 1: Restrictive covenants are disfavored, require clear indication that the parties

intended for the covenant to run with the land.ii. Rule 2: The burden of proving the original grantor’s intent is on the person now trying to

claim a benefit from the restrictive covenant.iii. Rule 3: When benefit is personal and it is released, that is the end of the obligation,

regardless of whether or not burden runs w/land. iv. Bottom line: Court holds that the covenant can’t be enforced by J.P. Scurrey and Company by

Charping. Also can’t be enforced by Townsend b/c she released it.1. Charping must prove intent to make the benefit of the covenant run with the land2. There is no express intent by the deed3. Would have been enforceable by Townsend if she hadn’t released the covenant b/c there

was mutuality, consideration, etc.v. Facts: Townsend had two parcels, one that contained five unimproved lots. She sold these five

lots with a restriction that their development be limited to four lots. She sold the other property to Charping but he did not find out about the restriction until the closing, and the restriction was not mentioned in his deed. She then modified J.P.’s deed to increase the restriction to six lots. C sued to enforce 4 lot restriction, arguing that Townsend intended this restriction to run with the land.

vi. The presumption is against finding a restrictive covenant that runs, so the Court deemed this a personal covenant between Townsend and J.P., which could be modified. Person enforcing must come up with positive proof that she intended to benefit to run

vii. How would we decide this nowadays?1. We’d go to court of equity; no issue of notice b/c it’s recorded and you’re required to

look at the deed that gives your predecessor title. No question that burden will run. viii. Majority opinion in this case is somewhat out of the mainstream

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1. Lot of courts would infer intent that benefit of covenant runs w/the land on the basis of these facts

ix. Dissent: argues that because the covenant obviously benefits the landowner and obviously burdens the neighbors, and indeed does not really affect Townsend, that means the covenant must have been intended to run with the land, not with Townsend

1. Wants a presumption of appurtenance2. The covenant change is of no use to Townsend, so she can’t release it. That is valuable to

the guy actually living there3. When you have covenants that really touch and concern the land (w/o question) that will

affect the benefited property and burdened property – the more the covenant touches and concerns the land, the less you have to have express words saying the intent is that it runs with the land

x. How could Townsend have manifested a clear intent for the benefit of the restriction to run?1. Explicitly stated “assigned” and described property2. Make a “common plan”

a. Where there’s a common plan, courts assume there was intente. Streams Sports Club v. Richmond – personal benefit assigned to third party

i. Rule 1: The benefit of a covenant can be made in gross (so can be personal)ii. Rule 2: This benefit can be assigned to someone (successor in interest) who does not own

any of the land involvediii. Sports Club is successor in interest to owner of club and developer of condos. Sports Club

claimed a lien which it sought to foreclose against the owner of a condo who refused to pay the dues to the sports club. We assume the sports club does not own the land.

iv. What’s going on in this case:1. The person w/whom she made the deal can enforce the lien, so how could Sports Club

come in and enforce the agreement that the original condo owner made w/the developer?a. Assignment - Somehow the contractual rights that the developer acquired got

assigned to the Sports Clubb. Third Party Beneficiary Doctrine – Developer can make contract with condo

owner and say a third party can enforce itv. Reasoning:

1. If a K is entered into for the direct benefit of a third person he may sue for its breach. Even where the holder of a benefited land is the one who may enforce a covenant a successor to the owner’s interests as the real party in interest may likewise enforce a recreational covenant.

2. A covenant to pay fees, giving P a lien on property for unpaid fees, runs with the land.vi. Issue/reasoning attempts:

1. There was no consideration – can’t use this b/c it was part of the whole “getting the condo” deal

2. Tries to go for unconscionability – but this doesn’t look like oppressed person casevii. Successful argument:

1. Argument that did work for her – ¾ of the condo owners can get together and amend the condo declaration

a. Condo declaration was amended to say you don’t have to belong to the sports club

2. Sports club got all pissed off b/c they said there’s no consideration for this argument that ¾ of condo owners can get together to amend the declaration

a. But court says there was consideration b/c the whole condo agreement was consideration on both sides – all part of the same deal

viii. Not owning the land but enforcing lien:1. Van Sant and Rose – property theory in response to the idea that if you don’t own the

land, you can’t enforce the contract, Van Sant and Rose gets around the “you don’t own land in the area” problem by saying that the land that they own is the interest they have in the burdened land

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a. Right to enforce the promise is an interest in the burdened land which is held by the person who has the benefit, w/o regard to whether they own land anywhere else

b. Very free interpretationc. So if we think this, it doesn’t matter who owns the land, if Sports Club assigned

something to the developer, etc.d. This will not apply in every jurisdiction

2. English case that says you can’t hold benefit of covenant unless you own property in the area has been severely criticized

a. But Van Sant and Rose which is opposite has also been severely criticizedb. Most courts require something more but maybe not as much as English case

3. Drafters by and large usually find some kind of way in getting around ita. Neponsit – Although homeowners association does not own any land, those who

comprise the association own land in the area.b. You can develop according to a common plan in which all other owners in the

area have got the right to enforce the covenanti. More common way this is done

52. Common Plansa. What are the uses of the common plan?

i. To demonstrate intent of two kinds:1. Intent that the benefit of the covenant should run (to get rid of Charping problem)2. Shows what land is intended to be benefited by the covenant (all land w/in common plan

area)ii. To allow people who bought property in the development to enforce the covenant against people

who bought property in the development prior to them1. Can be used to create notion that the benefit was intended to run to those people even

though they bought prior to the covenant or prior to the time that the lot was a separate lot and had covenants on it

iii. When developer stupidly doesn’t extract the covenants in one of the deeds1. They are missing from one of the deeds and so the person who purchased the land did not

promise anything2. To impose covenants on people who themselves didn’t covenant and whose predecessors

didn’t covenant3. Idea that first deed out included burdens so when he sold subsequent land, he was selling

land that was already burdenedb. Example: Warner v. Graham – common plan when there is no evidence of one

i. In Riley case (below), where they’re trying to figure out what the doctrine of Warner & Graham really was

ii. Rule: When there’s no written indication of the common plan when the obligation arose, then the court will not assume that the parties intended to benefit the subdividers land such that the benefit would go to subsequent purchasers

iii. P brought quiet titles against everyone to see if there was anyone who could enforce these so he could put up commercial establishments

iv. Court says none of these people can enforce this covenant1. Perhaps all of them could have enforced it had there been a common plan

v. Problem is that he didn’t say in the first deed out that there was a common plan and there was no indication anywhere that there was a common plan

1. Court focused on proposition that if you’re going to have a common plan, not only does developer have to know it at time of first deed out, but person who is the first purchaser has to know

a. Must be joint intention of both partiesc. Riley v. Bear Creek Planning Committee – common plan and recording

i. Rule 1: Even if the purchasers had notice of the common plan, if it was not recorded until after the conveyance to them and it was not mentioned in their deed, it does not pass the SOF, and so they are not bound by its restrictions.

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ii. Rule 2: From the recordation of the first deed in which a common plan is laid out and restrictions are noted (and not until that recordation), every other parcel conveyed afterwards is bound if w/notice, even if there is no mention in their deed.

iii. Facts: Before they purchased the property, plaintiffs received copies of the written restrictions, but their deed did not contain the covenants and was recorded before the declaration because the title company made mistake and didn’t file them before first deed came out. Plaintiffs nonetheless conducted themselves in accordance with the restrictions for years. Restriction says that you cannot build without approval from planning committee. Plaintiff built snow tunnel without permission.

iv. Reasoning:1. No language in deeds referred to common plan.2. Intent of grantor to formulate plan does not govern.3. Deed must be construed as of time it was given.

v. Dissent: 1. Riley conducted himself in accordance with the plan and had actual knowledge of it, even

though it wasn’t in his deed.2. He shouldn’t be able to violate restrictions b/c they were omitted from his deed by

mistake3. Potential implications that dissent is worried about, which may or may not happen:

a. Estoppel - court says no estoppel b/c SOF doesn’t allow you to raise an estoppeli. Thus, this case could cast doubt on Cooke v. Ramponi b/c in that case,

they granted easement by estoppel (course of conduct over years)ii. In Hayes, we said standard way to take something out of SOF was part

performance and estoppel – all of this cast into doubt based on what’s going on here.

vi. Statute of frauds issue1. Riley interpreted Werner as about statute of frauds such that even had court known that

parties talked about a common plan that would not matter because some written proof was required.

vii. Cooke/Ramponi v. Riley/Bear Creek1. Overruled Cook v. Ramponi?

a. Cooke allowed escaping the statute of frauds by estoppel or partial performance.b. Here there was probably evidence for partial performance, but not for estoppel.

viii. Parol Evidence Rule in this case:1. Ds want to intro evidence showing there was notice of the covenants and that there was

oral agreement2. Presumption that agreement is completely integrated in land is VERY strong (usually

elaborate formal contract in a deed)a. PER would tell us that you can’t use parol evidence to change the fundamental

nature of the agreement to add a whole slew of covenants that aren’t there in the contract itself

53. Termination of Covenantsa. Introduction

i. Merger – if the same person comes to own both the benefited and burdened land, covenants and easements merge into the fee simple and cease to exist.

ii. Equitable defense to enforcement1. Estoppel – benefited party may be estopped from enforcing the covenant if (1) she

behaves such as would lead a reasonable person to believe that the covenant was abandoned and (2) the burdened party acts in reliance thereon

2. Relative hardship – when the defendant’s hardship’s great and the plaintiff’s benefit’s small, a court may deny the defendant an injunction—not persuasive defense when a clear right to the covenant’s benefit exists.

3. Changed conditions – area conditions have changed enough that it’s impossible to secure in substantial degree the covenants’ benefits. Most courts require (See Camelback):

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a. Change outside subdivision must affect all lots, orb. Substantial changes must have occurred within the subdivision itself.c. Very hard to win ond. If you apply the no benefit rule, means that in order to upset the original

arrangement, you have to show that the value of not having the office building there is zero and that could lead to a huge efficiency problem

4. Abandonment – the burdened party cannot escape liability to an affirmative covenant by simply abandoning the land.

5. Release - benefit-holders can grant written release, which must be recorded; all benefit-holders must join. Benefit-holders who attempt release but fail because not everyone joined may be estopped from enforcing the covenant later

6. Rescission - landowner can execute document rescinding the covenant if everyone with standing to enforce the covenant joins

7. Unclean hands - you cannot violate a covenant and at the same time enjoin another for violating the same one. But your minor infraction might not foreclose suing for your neighbor’s major one

8. Acquiescence - plaintiff property owner passively endures many violations in the area. Envisions that enough violation has occurred already that enforcing the covenant in this one instance would serve no purpose. Acquiescence in just one covenant’s violation won’t prevent enforcing others

9. Laches - person with standing to enforce waited too long such that the defendant would suffer due to the delay alone

10. Eminent domainb. Ginsberg v. Yeshiva of Far Rockaway - constitutional questions on restriction (religion)

i. Rule 1: Restrictive rights ARE property rights. They are not subordinate to the rights of subsequent purchasers. A restrictive covenant will be enforced as long as the object and purposes for which the restrictions were imposed is still being served, if the buyer bought with notice.

ii. Rule 2: However, a restrictive covenant can be held void if it is found to be an unreasonable restraint on alienation or over-reaching a constitutional limitation

iii. Yeshiva bought land w/notice that it was restricted to single-family residences, and with notice of Ginsberg’s intent to enforce that restriction. Yeshiva began operating a religious school on the premises and claimed that it would be a violation of the constitutional guarantees of religious freedom to enforce the restrictive covenant.

iv. Holding: The covenant is valid.v. Reasoning:

1. So long as the area retains a valuable residential status that would be adversely affected by a school, the restrictions are valid.

2. Plaintiffs who bought their land on reliance of the restrictive covenants can’t now be helpless to protect themselves

3. Constitutional Argumenta. The 14th Amendment says that no state can deprive a person of property w/o due

process.b. This is a private covenant, not a state-imposed onec. Shelley v. Kraemer barred racially discriminatory covenantsd. The school could not argue that there was nowhere better suited for the church to

go, or that this lot was particularly best-suited for a schoole. Covenants are enforceable against religious institutions such as churches

i. Most cases on this have to do w/zoning and not private covenants4. Doctrine of Changed Conditions

a. In order to defeat the covenant in equity, proof must be shown that the “character of the area has so changed as to defeat the object and purposes for which restrictions were imposed.”

b. Some value could still be derived from the residential status of the neighborhood which is being disturbed by the noise, traffic, garbage associated w/the school

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5. Doctrine of Unclean Hands a. Ginsberg, too, is breaking the covenant, as he is using his home as a doctor’s

officeb. One who seeks equity must do equityc. Donahue argues that this sort of use is good for public policy and would not

change the character of the neighborhood so is generally tolerated6. Estoppel

a. The doctor had not imposed the covenants against another church who had turned one of the lots into a parking lot.

b. This doesn’t necessarily matter. Just b/c the owner agrees to one violation does not mean that he has to agree w/all violations.

c. If you acquiesce to a particular violation you may be estopped from preventing identical violations, but this was a different violation of a different character

c. Camelback Del Este Homeowners v. Warner - covenants and changed conditionsi. Rule: So long as there is any benefit left to be derived from the restriction, the restriction

will not be repealed.ii. Camelback had restrictive covenants against commercial development. One side of the

neighborhood borders very busy road. Warner bought bordering lots with notice of the restrictions but wanted to build business building and tries to get the restriction repealed.

iii. Holding: The restrictive covenants are enforceable.iv. Reasoning:

1. The subdivision must be looked at as a whole for the doctrine of changed conditionsa. Where residential character of the entire neighborhood remains intact, the court

will not release fringe lots from the restrictive covenantsb. Fringe has to be gatekeeper/buffer zone when you have a residential area and the

border part of it borders on a busy street – Doctrine of theBbuffer Zone2. Just b/c a lot may be more valuable if it can breach restrictions is insufficient to warrant a

breach of 3. Policy: Residential homeowners who purchase, rely on and abide by restrictions must be

protected.4. Warner’s hardship is not considered reasonable here b/c he knew of the neighbors’ intent

to enforce the restrictions before he spent all of the money on the developmentv. No Benefit Rule

1. Court: We’ll enforce agreements unless there’s no benefit. So long as value to residents of maintaining a residential property is more than zero we maintain. Courts generally follow this.

i. Coase would want court to pay a little more attention to the economic arguments.

54.Section V – PUBLIC CONTROL OF LAND USE

55. Regulationa. Introduction – Zoning law

i. Zoning and acceptability1. Zoning can be acceptable even if it results in a decrease in land value for the owner,

provided it’s not arbitrary and is done for safety, health, and general welfare2. Zoning law can be arbitrary and unreasonable on its face, or as it applies to a particular

persona. If you oppose it on its face and don’t have a specific argument that it has been

unreasonable to you, court will only consider it on its face3. If the court can find an acceptable, legitimate reason for zoning, it will be approved

substantively, even if that wasn’t the argument that was put forth by the legislatureii. What is looked at in determining validity of zoning ordinance?

1. Under the modern interpretations of substantive due process, as spelled out in the more coherent decisions, four questions must be answered:

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a. What the regulation involved is really trying to dob. Whether this is a legitimate aim or public policy; and further, where this stands in

the hierarchy of social valuesc. Whether the regulation involved may reasonably be regarded as one possible way

to promote such a policyd. Whether the burdens imposed on the property owner are reasonable, or are out of

all proportion to the public benefits involved2. At the same time, it’s said that legislative motive is irrelevant to the validity of a zoning

ordinance. 3. It’s commonly asserted that the property owner attacking a zoning ordinance has both the

burden of persuasion and of producing evidence showing its unreasonableness. This amount in many cases to the insurmountable burden of proving a negative, i.e., that every conceivable purpose which might be imagined for the act (not just those mentioned by the legislators whether formally in a preamble or in unofficial discussion) would fail to support it.

4. These provisions do not have much predictive power. Some state courts are strict, and some are tolerant of ordinances

iii. Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause

iv. When doing exam analysis, ask whether body who made the ordinance had the authority to do so1. Towns must first be given the power to zone by a state enabling act

v. Standard State Enabling Act - framework today in all 50 states w/slight differences1. About police power and finding the constitutional line b/w police power and vested rights

a. Something the states have, not federal government, and the states give it to the cities/villages, delegating general planning power to local legislative bodies

2. Section 1 - Land-use control must be justified by “police power,” the state’s regulatory power for promoting health, safety, morals (unsure), and general welfare (unclear).

i. Health and safety- very specific, ex. nuisance law for health or fire hazards, traffic controls for safety

ii. General welfare- totally elasticiii. Morals- for 18 c. and 19 c. Americansbrothels and casinos (sex and

gambling) (there have been movements away from this with notions of privacy and conflicts with the first amendment)

3. Section 2 - Must zone by district, given language “uniform for each class or kind of building throughout each district.”

a. Can’t “spot zone!”4. Section 3 - Reiterates police power of public purposes and says zoning must accord with

a “comprehensive plan.”a. Notion that vision needs to be behind it, an idea of the whole and how it all fits

together5. Next sections provide for a mechanism by which the zoning ordinance would be

established: legislative body has to give notice, hearing, zoning commission to be established.

6. Section 4 - Hearing and 15-day notice requireda. Minimum procedural requirements

7. Section 5 - Change and amendment processa. Provides for 3 ways in which a zoning ordinance can be changed once adopted:

i. Legislature can amend itii. Special exception: situation in which the zoning ordinance contemplates

from the beginning that one size may not fit all; tend to be in control of quasi-judicial body (some sort of board) to provide for review by courts

iii. Threats that if zoning ordinance was applied to this particular lot, the effect would be so severe it could be unconstitutional—called variance, could go to board or other.

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8. Section 6 - Zoning commission, intended to be non-political, must hold hearings and recommend zoning plans for the town, must do report

a. Use expertise of non-political folks that know about this stuff9. Section 7 - Board of adjustment, often called board of zoning appeals

a. How to deal w/particular problems w/particular pieces of land w/in districtb. Appeals from denial of license to buildc. Can grant special exceptions from zoning rules for hardship/design needs as

shown10. Not in standard act, but most states have a Concept of Non-Conforming Use

a. Zoning is prospective, doesn’t change existing usevi. Nuisance

1. Affects the general public, as opposed to only particular individuals2. Must cause substantial harm caused by irrational and unreasonable conduct or by conduct

that is negligent or abnormally dangerous3. A nuisance is any act which interferes w/public’s right to quiet enjoyment of life and

property4. A nuisance may be merely a right thing in the wrong place.

b. Town of Preble v. Song Mountain – public nuisance and zoningi. Rule 1: In evaluating whether to enjoin a use b/c of public nuisance, the court weighs the

harm done to the public’s rights to quiet enjoyment with the good derived from the use.ii. Rule 2: Zoning has to be done a particular way, and if it’s not done properly, it will be

struck down, even if the goal of the zoning is acceptable.iii. Song wants to have a rock festival. Preble sought to bar this occurrence by its zoning ordinance,

but the ordinance was invalidiv. Issues:

1. Was ordinance enacted in accordance with the law?2. If it’s valid, does concert violate it?3. If it’s valid, does it deprive Song of property without due process?4. Does concert constitute a nuisance?

v. Holding:1. No, N/A, N/A, Concert proposed would be nuisance and should be enjoined but court

won’t ban all concerts. The harm done to the public rights by the concert would outweigh the good derived from the event, so the court enjoins the concert as a public nuisance.

vi. Reasoning:1. The zoning ordinance here was invalid, as Song sustained the burden of proving that the

zoning was made w/o a comprehensive plan.a. The court is concerned w/spot zoning – passing a zoning ordinance targeted at

limiting a specific person’s useb. There were problems with the map, hearing, and some general indications of

jiggery pokery2. Court applied common-law public nuisance argument, even though that’s not what the

case was about, b/c that’s what the legislative body was trying to do w/the zoning3. Towns have a lot of leeway in determining and getting rid of nuisance

a. Goldblatt v. Town of Hempstead – SCOTUS said that a town could not specifically ban quarries, but it upheld an ordinance that they would have to cover them up every night to prevent danger to children from falling in. They went out of business, so the ordinance got rid of the quarries indirectly.

vii. Town couldn’t have gotten rid of all rock concerts w/zoning ordinance or with an ordinance banning all concerts

1. Doctrine of Non-Conforming useviii. What else could town have done?

1. Passed an ordinance banning a huge rock concert, or a gathering with 30,000 people in one space, etc.

c. Village of Euclid v. Ambler Realty – new zoning ordinance and due process

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i. Rule: For an ordinance to be unconstitutional, its provision must be clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare. This is so even if the ordinance results in a decrease in land value for the owner

ii. Ambler’s land fell w/in zoning limiting use when new zoning was passed. His land would be worth much more as industrial, but is zoned for resident. He claimed the ordinance violated 14 th Amendment and seeks injunction.

iii. Holding: The zoning did not violate due process. End in view did justify the general rule of the ordinance; they have power to exclude industry from residential parts

iv. Reasoning:1. The power of states to authorize regulation of property use by zoning laws and the power

of local government to enact such laws are valid uses of the police power to regulate human affairs so as to promote health, safety, welfare and morals.

2. The exclusion of commercial building was held to bear a rational relation to the health and safety of the community.

a. Segregation of types of buildings increases safety b/c of less traffic, etc.3. As applied to the appellee, provisions could be arbitrary and unreasonable, but Ambler

challenged the ordinance on its face, instead of by its applicationa. They were unable to make arguments about how they specifically were affected –

no specific COAv. Euclidian Zoning:

1. Cumulative zoning with highest use as residential then some commercial added in some areas then those two plus some industrial one other areas

2. Use, height and area restrictions seen triangularly, where the districts are cumulativea. E.g. U1 is residential (most preferred), and U2 is residential and business , U3 is

residential, business, and industrial, etc.3. Good b/c hierarchy of values are expressed4. Majority of American zoning ordinances are like this, so it would be hard to change this5. Donahue not like this too much b/c hierarchical values of this in contradiction with

Coasian notions of it take two to make a nuisance vi. Ban on light commercial and apartment houses in residential districts is ok

1. Apartment houses are parasites (there goes the neighborhood)2. Apartment houses cut off light

vii. How does the court address the fact that some industrial and light commercial are not a nuisance?1. Court says that the zoning ordinance does not have to be precise, and if we catch a little

more than we need to in a category, it’s okviii. What does court say about regional planning?

1. Said it doesn’t matter the Cleveland is right there b/c Euclid has separate zoning power and doesn’t have to take Cleveland into account

ix. Town ended up caving into economic pressure1. GM plant there now2. Coase would like this

d. Nectow v. City of Cambridge – unreasonable zoning as appliedi. Rule 1: A valid ordinance might be held unconstitutional in some aspect, or as it affected an

individual plot, so an ordinance might be valid in general but invalid as applied to a particular lot.

ii. Two years after Euclid, SCOTUS took look at zoning where it seemed not to make any sense, and said that this is not ok

iii. Just struck down the ordinance as it applied it Nectowe. Pierro v. Baxendale – zoning out motels and hotels

i. Rule 1: So long as the legislative classifications are not arbitrary or capricious they will be sustained

ii. Rule 2: An ordinance is entitled to the presumption of validity accorded all legislative acts.iii. Rule 3: If the wisdom or rationality of the classification is debatable it should be sustained

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iv. Facts: Palisades Park zoned out hotels and motels in residential districts. Ps wished to build motel and their application was denied. They could have appealed it but did not, and they argued that the ordinance against motels was invalid on its face.

v. Holding: Borough had a right to permit boarding and rooming houses and exclude motels in residential zones

vi. Reasoning:1. Motels could be differentiated from boarding and rooming houses

a. The view that they were different was reasonable.b. Communities could reasonably exclude them totally if they had certain

characteristics2. The duty of selecting particular uses which are congruous in residential zones was vested

by the Legislature in the municipal officials rather than in the courts 3. Motel LOOKS commercial, traffic problems, etc. so there is a legitimate purpose in not

allowing them in residential areas4. Court doesn’t look at the REAL reason they made a distinction, we just look to see if

there is a legitimate reason, and if so, it’s oka. Court is free to determine rational basis on its ownb. Every once in a while, you’ll get a judge saying this is NOT what they were

considering so it’s not ok5. Legislature’s actions are presumptively valid until proven unreasonable, arbitrary, or

capricious vii. Dissent - Palisades Park really wanted to keep shady business out, but you can regulate this

instead of zone it out.viii. Court avoids dealing w/issue of total ban on hotels (which was in version 2 of the ordinance)

1. Town is close to Ft. Lee and Ft. Lee has hotels2. Courts generally get uncomfortable with this b/c there ought to be space in town for

everythingf. State ex rel. Stoyanoff v. Berkeley – zoning for aesthetic purpose

i. Rule: Courts will not substitute their judgments for the legislative body if the result was not oppressive, arbitrary, or unreasonable and did not infringe upon a valid preexisting nonconforming use.

ii. Respondents wished to build pyramid-shaped house in nice neighborhood. City set up Architectural Board to approve plans, seeking to avoid “unsightly, grotesque structures, detriment to the value and welfare of surround property and to the general welfare of the community.”

iii. Appellants argument: 1. No standard of uniform rule by which to guide the board 2. City acted in excess of statutory powers granted by city; creation of board not authorized

by enabling statute; it’s an unreasonable exercise of the police power based on only aesthetic values; and it’s invalid as a unlawful delegation of legislative powers to the board

3. Argument is that nuisance control has to affect more than just sense of sightiv. Reasoning:

1. Decreasing property value and thus taxes is a sufficient public purpose2. City had a comprehensive plan, and considerations were directly related to the general

welfare of the community as allowed by the enabling act. 3. Aesthetic factor was not to be considered alone.4. It’s not arbitrary where the purpose is general welfare to the community so the ordinance

is valid.v. What are the issues here?

1. Aesthetic Purpose:a. Can aesthetics be taken into account in zoning? It’s not in enabling act. b. Case says that you must show some general welfare interest—here, property

values—not have only aesthetic grounds.2. Enabling act does not authorize such an ordinance

a. Architectural control commission created which isn’t in statute.

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b. City delegated power unlawfully to the board—ct. got this right by rejecting it as standard.

3. Nor does the enabling act authorize the review boarda. Ladue got this authority b/c they say the legislature allows for zoning Board of

Appeals, and historic preservation usually uses special legislation to do this4. Serious issue about what legislature had in mind when they authorized the city to zone

g. Mt. Laurel Cases (I, II, III) – racial divide and zoningi. Historical Setting

1. Radical racial divide in NJ at this time2. In this case, land use regulation by defendant attacked b/c low and moderate income

families are excluded3. Huge growth in NJ/NY and big concerns about environment and overbuilding

a. 80% of NJ was suburban, and 80% of the suburban areas are whiteb. 85% of urban households are Black or Latino

ii. Summary of Holdings:1. Police power includes general welfare and we have to take into account everyone. Behind

this structural argument: not inherent police power in town—it’s delegated by the state therefore they have to take into account state as a whole.

2. Mt. Laurel I (1975)—there is an obligation to be open to low- and moderate- income housing; town doesn’t have to build it, but needs to provide the opportunity to.

a. Regulatory scheme must allow Mt. Laurel to accept fair share of state’s low-income families. Local authorities are delegates of state power and must protect general welfare of the states, so town must adopt amendment to rectify problem.

b. Bottom line – every authority w/zoning power in NJ has obligation to zone in a way to make low-income housing possible

3. Mt. Laurel II (1983)—the courts will enforce this obligation by special proceduresa. “We mean it”b. Establishes a sort of regulatory agency w/judgesc. Creates builder’s remedy where builders can sue town if they believe the town

won’t let them in.4. Mt. Laurel III (1986)—the courts will defer to a legislatively-established commission

to enforce the Mt. Laurel obligationa. Legislature passed a “Fair Housing Act.” Court decides that it’s constitutional

even though it gets rid of builder’s remedy and moves all current actions into administrative agency.

iii. Mt. Laurel 1 Obligation: DPC, Equal Protection?1. By emphasizing how N.J. differs from the feds on the latter, court seems to be suggesting

that it’s equal protection (wealth as prohibited classification)a. But when it gets through it seems to be a notion of relationship to the general

welfare. We thus do not get involved in the question of fundamental interests or suspect classifications.

2. The argument that doesn’t rest on Equal Protection involves an interpretation of police power (general welfare)

a. They have to consider the welfare of people OUTSIDE the municipality b/c municipality’s power comes from the state.

b. The court says they’re interpreting NJ’s state Constitution, not the Federal Constitution (so SCOTUS can’t overrule)

3. Why does court get involved?a. Like Preble case, those who need protection in this case don’t vote in Mt. Laurel

and they’re the ones being kept out. Thus, court kind of acts as an advocate representing their interests.

iv. Mechanisms of Mt. Laurel 21. Must raise level of housing for resident poor.2. Realistic opportunity for fair share of present and prospective poor without regard to

whether the area is “developing”. Deference to the State Development Guide Plan.

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3. Proof of fair share in numeric terms.4. Three specialized judges.5. Affirmative steps must be taken, e.g., tax incentives.6. Both low and moderate housing.7. Just least cost housing won’t do.8. Builder’s remedies.9. One trial and one appeal.10. Long-term obligation and phase-ins.

v. What did court do to combat massive disobedience in ML2?1. To avoid dealing w/each individual litigation and writing the ordinances themselves, they

set up procedural requirementsa. Court can do this b/c they have the power to adopt procedural rules for the courts

to deal w/specific problems, and NJ court takes this power liberally.2. Procedural rules adopted:

a. Assignment of judges so no luck of the draw w/these casesb. Handle delay problem by saying each case gets one trial and one appeal, w/no

interlocutory appeals3. Substantive requirements

a. Requiring each city take fair shareb. Requiring affirmative steps to provide incentives for low-income housingc. Builder’s Remedies – e.g. if you build one low-income housing unit, you can

build 4 regular unitsvi. Mt. Laurel 3 Holding

1. Delay does not make the Fair Housing Act unconst when the delay is designed to allow the development of a State Development and Redevelopment Plan.

2. Moratorium on builder’s remedy not unconst where limited, and it was never part of the const law b/c it was a remedy, not a const. requirement

3. All cases must be transferred unless transfer would preclude the building of housing. (“Manifest justice” strictly construed.)

a. Judges aren’t good at making law and are happy to let legislature do this (it’s their job)

4. Some think ML3 was a retreat b/c judiciary was in the doghouse, politicallyvii. What have other states done?

1. NJ is not the only state to have gotten into this business, although NJ is the only state that has carried it so far

2. Few states have done builder’s remedy (allowing them to get court order for permit b/c town isn’t meeting its Mt. Laurel obligations)

3. Some has gone as far as ML1, but not 2 or 3viii. What’s happened since then in NJ

1. W/in towns, you could buy/sell up to 50% of your fair share of low-income housing, so everything stayed very segregated

2. Now there is more regional planning around transit centers, not just evening out low-income housing in all towns

ix. How does this play out at federal level?1. At federal level, they are looking narrowly at racial discrimination

a. By and large, you do have to prove intent to discriminate on basis of race2. Equal Protection Issues

a. Dealing w/what counts as single family w/ordinances that exclude non-related people from sharing house

i. You can discriminate in favor of families generally but can’t use zoning to define what a family is

56. Regulation or Takings?a. Overview:

i. Ripeness

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1. A land-use challenge is not ripe for review until there is a final decision about what uses of the property will be permitted

ii. Purpose v. Method1. Purpose for land-use regulation not that limited2. Purpose for takings very limited

iii. Successful takings argument1. Perfectly okay ordinance irrationally applied to a particular piece of property (Nectow)2. Perfectly reasonable ordinance applied so as to deprive a property of all its value (Mahon,

Lucas)3. As applied, there isn’t sufficient corresponding benefit to the landowner, who’s thus

being made to bear too much of the public cost (Armstrong, implication of Penn Central)iv. Takings with no physical invasion are called “regulatory takings.” They are takings basically

because they hit people very hard.b. Penn Central Transportation Co. v. NYC

i. RULE: A regulatory takings occurs when a government physically invades a property or when there is a frustration of distinct investment-backed expectations, denying all economically beneficial or productive use of land.

ii. NY City under NY state enabling act adopted a law allowing them to designate particular buildings as historic site. They have a hearing where they allow people to be heard, then they designate it historic. They have remedies to appeal when they want to change property and can transfer development rights to other properties. Penn Central opposed its designation b/c it wanted to develop the area above Grand Central and submitted a proposal for a huge commercial building above Grand Central. They didn’t seek judicial review of the denial.

iii. Issues:1. Can a city, as part of a comprehensive program to preserve historic landmarks and

historic districts, place restrictions on the development of individual historic landmarks—in addition to those imposed by applicable zoning ordinances—without effecting a “taking” requiring the payment of just compensation?

2. Specifically, is the application of NY’s law to Grand Central “taken” its owners property in violation of the 5th and 14th amendment?

iv. Holding: Application of the law wasn’t a taking. Restrictions imposed are substantially related to the promotion of the general welfare and not only permit reasonable beneficial use of the landmark site but also afford appellants further opportunities to enhance not only the Terminal site proper but also other properties

v. Reasoning:1. What did SCOTUS use?

a. Causby – airspace takings case where U.S. Air Corps put air base next to chicken farm and chickens freaked out, farmer out of business and had to get compensation

i. Held that if government engages in trespassory invasions, must pay youb. PA Coal Company v. Mahon – regulation can go too farc. Goldblatt – some people have to take one for the team when on the physical harm

side of the spectrum (quarry and expanding neighborhood)2. Penn’s arguments:

a. Takings argument – by not allowing us to build up, the government is taking our land w/o compensation

i. Court says takings principle doesn’t divide property into strips (conceptual severance) and you have to look at the property as a whole

ii. There’s no physical invasion in this caseb. Significant diminution in value – Euclid

i. Just diminution isn’t enough1. Euclid allowed 75% diminution2. Goldblatt allowed 100%

c. Decision to make building “historical” is arbitrary and subjective

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i. Court says it’s no more arbitrary and subjective than anything else we do, and architectural historians are doing it, so it’s not randomly chosen people (expertise issue).

d. It’s discriminatory or reverse spot zoning: a land-use decision which arbitrarily singles out a particular parcel for different, less favorable treatment than the neighboring ones

i. No b/c city has a comprehensive plan where everyone benefits, including Penn Central

e. There are no uniform restrictions on all buildings but rather different restrictions on particular buildings, and Penn says they’re being hit especially hard

i. Court says zoning laws often affect certain parties more, and you have to take the bitter w/the sweet

f. Government took this for strictly government purposei. Court says they’re not doing this for a city purpose

vi. Brennan says categorical arguments won’t work b/c you have to take a look at the totality of the case and strike a balance

1. This is evident by the fact that Brennan doesn’t stop at Penn’s argument and goes on to say that even if all of these things are not present, we still have to look at factors to see if this goes too far

vii. Two categories of Takings (according to Penn)1. Physical Invasion

a. Taking occurs when government physically invades property (and destroys present use)

2. Frustration of distinct investment-backed expectations (denial of all economically beneficial or productive use of land

a. A regulation is invalid if it denies owner of all investment-backed expectationsb. For Penn Central, “too far” (from Mahon) means denying all investment-backed

expectationsviii. Test of Penn Central to decide if a regulation is a takings: consider these factors:

1. Regulation’s economic impact2. Its interference with reasonable investment-backed expectations3. Government action’s character

ix. Post-Penn Central1. Andrus v. Allard: Prohibition of transactions in preexisting avian artifacts is not a taking2. Loretto v. Teleprompter Manhattan: Requiring landlord to allow cable installation on his

property is a taking (the fact that the law results in physical invasion, no matter how minimal, seemed determinative)

c. Summary of Public Land Use Regulationi. Relatively little is certain

ii. Series of dichotomies: regulation may be invalid on its face because of purpose (little of this restriction now, some purely aesthetic restrictions) or method (way it’s done impinges on other constitutional values; D: Mt. Laurel, E. Cleveland)

iii. Challenge to specific categories that ordinance creates on its face (Pierro)d. The 1987 Tetralogy

i. Keystone Bituminous v. DeBenedictis1. Mining close to land can collapse surface. Statutes that required companies to leave

some coal in land, even if they owned it, are constitutional as allowed by Goldblatt.2. Court held that the combination of the purpose of the statute and its impact on the coal

owners are not sufficient to prevail in a facial attack on the statutea. The anti-subsidence laws only required miners to leave an additional 2% of the

coal in placeb. Overrules Mahon, except that it doesn’t (Mahon still good law, but its holding is

not)3. Dissent focused on

a. Mahon – saying it wasn’t dicta

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b. Characterization as nuisance exceptionc. 100% takings of support estate from miners

4. Michelman: This case seems to say the government can go a lot further in regulation when it’s trying to stop legislatively-declared harms than when it’s trying affirmatively to get the landowner to confer benefits on the public

ii. Hodel v. Irving1. Indian Land Consolidation Act provided for escheat w/no compensation to tribe for land

held be deceased members that would otherwise pass by devise or descent. Held unconstitutional

2. Unanimous opinion, emphasizing importance of passage of property at death3. Paranoid planner says this adds another absolute to the right to exclude

a. Michelman says that here the power to dispose of property at death was not merely regulated but totally denied

iii. First English Evangelical Lutheran Church v. County of Los Angeles1. County denied all buildlng permits in flood-plain area, and this was taking. Plaintiff

could seek damages for this2. Where county denied landowner possibility of building permit, landowner had a cause of

action when he sued for damages b/c, even if he won, he was deprived of the use of his property during the interim period

3. Paranoid planner says now you can’t pass regulation w/o fearing dire consequencesa. Michelman says that this matters only for those who pass unconstitutional

regulations and that situations have arisen where totally denying building permits was allowed

iv. Nollan v. California Coastal Commission1. Permit to build on beachfront property was denied unless public right of passage was

granted2. Held unconstitutional, with SCOTUS saying the city could deny a permit outright, but it

couldn’t condition grant of permit on something that is unrelated to what the building landowner sought to build

a. There has to be a rational nexus b/w the condition exacted by the city and the legitimate government interest to be served

b. There must also be rough proportionality b/w the burden on the property owner and the benefit the city gets

3. Paranoid planner: This means Planned Unit Developments are unconstitutionala. Michelman – Nollan may stand for the proposition that regulation of property

will be subjected to an intermediate scrutiny for rationality. On balance, citations of Loretto and Kaiser Aetna suggest that we are dealing here w/the peculiar talismanic force that SCOTUS attaches to direct physical invasion

v. These cases make clear that there is a relationship b/w regulation that is challenged on grounds of DPC or on grounds of takings

1. Case can be ok on DPC but be a taking b/c impact on particular landowner2. Idea that somewhere along the line, an individual being required to give up too much for

benefit of public3. Idea of nuisance exception

a. There is a category of cases where you can justify HUGE impact and have it not be a taking if you’re shutting down a nuisance

4. Unconstitutional conditionsa. There are some kinds of conditions you can’t do (i.e. we’ll give you this permit if

you give up right to free speech)57. Total Deprivation of Value, Nuisances, and Taking Title w/Notice of the Regulation

a. Lucas v. South Carolina (SCOTUS 1992) – total deprivation of valuei. RULE: As long as the use sought of land is not a nuisance, where land is rendered valueless

by regulation, compensation must be paidii. Lucas bought two parcels of beachfront property for development. After he bought them, South

Carolina passed a law that barred him from building on the property. Lucas sued under the V and

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WIV Amendments, claiming the law rendered his property valueless and hence constituted a taking and that he was therefore entitled to just compensation.

iii. Holding: landowner totally deprived of value must be compensated, unless the regulation serves to reinforce a huge background principle

1. For SC to prevail, it must identify background principles of nuisance and property law that prohibit the uses Lucas now intends in the circumstances in which the property is found.

iv. The distinction b/w harm-deferring and benefit-conferring regulations is so malleable as to be meaningless

1. Deprivation of value (whether total or partial) is dependent on the denominator (how much of the land you’re looking at)

v. Dissents/concurrences: Implausibility and Proportionality argument1. It’s difficult to objectively determine when a property has been deprived of ALL

economically valuable use2. In any case the trial court’s conclusion that Lucas’s property was completely deprived is

almost certainly erroneous, so the court is deciding a hypothetical case3. When it’s 100% takings, we give 100% compensation, but when it’s 95% takings from

regulation, we give $0 - wtf4. Concerned about maintaining flexibility, shouldn’t rely on common law of nuisance in

18975. Some cases we allow near 100% takings (Mugler)

vi. What does this have to do w/Coase? (negotiation)1. Scalia acknowledges that nuisances are products of joint causation and law line b/w

benefit conferring and harm preventing is toughvii. Fractination – he had the whole development everywhere so they’re really just taking 2 plots of

all the rest he hasb. Palazzolo v. Rhode Island (SCOTUS 2001)

i. RULE: Acquiring property after regulation doesn’t bar a claim that the claim is a takings.ii. RULE: Look at investment-backed expectations (Penn Central) to see if there was a 100%

takings. If not, no takings (Lucas was very narrow)iii. P owns piece of wetlands property that he obtained title to in 1978. In 1971, RI had passed the RI

Coastal Resources Management Program, which designated property like P’s a protected “coastal wetlands” on which development is limited. After gaining title (and having title transferred form a corp owned only by him to him personally), he tried several times to fill his property and build on it, but couldn’t get a permit b/c his purpose did not satisfy the new standards for obtaining a “special exception” to fill a salt marsh (compelling public interest). He sued, saying it was a taking

iv. Holding 1: The case is ripe1. B/c they applied for 2 different special exceptions and you could tell he’d never count as

the “special exception” for what he wanted to do (categorical exception)v. Holding 2 – Acquiring property after regulation doesn’t bar his takings claim

1. O’Connor says this is really about investment-backed expectations and should be considered in light of Penn Central

2. Whole point is that as long as a regulation is in effect, there’s a takings claim, and you can get the regulation overturned and get compensation for the time the regulation was in effect

a. Even future generations have a right to challenge unreasonable limitations on the use and value of land

vi. Holding 3: There wasn’t a 100% deprivation of value1. This is the court’s way of saying Lucas was confined to is facts and won’t come up again

until hell freezes overvii. P’s conceptual severance argument doesn’t fly

c. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agencyi. Facts: 32 month moratorium on building in a large area.

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ii. Held: Not a taking. 32 months are not a categorical taking. There is no conceptual severance for time.

58. The Meaning of Public Usea. Kelo v. City of New London (SCOTUS 2005)

i. RULE: Economic development is a valid reason for eminent domain provided it is done in furtherance of a legitimate public purpose.

ii. RULE: A court should consider whether a redevelopment plan constitutes a taking, not on a piecemeal basis (by individual property), but rather in light of the entire plan

iii. City of New London created development plan to boost city’s tax base and revitalize the city. They sought to condemn P’s property in order to implement the plans. The properties were not blighted, just condemned b/c they happened to be in the development area. P’s sued, claiming city’s proposed condemnation was not for a “public use” as required by the Fifth Amendment

iv. Issue: Does an economic development taking qualify as a “public use” w/in the meaning of the Takings Clause of the Fifth Amendment?

v. Holding: The city’s condemnation of P’s property constitutes a valid taking b/c it was done in furtherance of a legitimate public purpose (revitalization).

vi. Reasoning:1. The city’s determination that the redevelopment area was sufficiently distressed to justify

a program of economic rejuvenation is entitled to the court’s deference and the court will not investigate the degree of certainty that the expected benefits of the development plan will accrue.

2. A gov’t can’t take property from a private party for the sole purpose of transferring it to another private party, even though the first party is paid just compensation

a. But, they can transfer property from one private party to another if the transference serves a “public purpose”

3. The definition of public use in this context is not a literal one, really means public “purpose” (benefit to the public)

4. A taking is constitutional as long as it is “rationally related to a conceivable public purpose”

a. Public benefit can’t just be pretextual or incidental5. Seemingly relevant factors in determining the constitutionality of a taking of private

property to be given to another private party in furtherance of a public purpose:a. The comprehensiveness of the planb. The thoroughness of deliberation that preceded the plan’s adoptionc. Whether the taking confers purely economic benefits or confers other benefits as

welld. Whether there’s been a legislative determination that municipality is depressed

vii. Concurrence (Kennedy)1. Worried about favoritism/corruption/motives of legislators

viii. Dissent (O’Connor)1. You need something more than economic benefit to justify a taking2. Worries that under the majority’s holding all private property is now vulnerable to being

taken and transferred to another private owner so long as the legislature believes the new owner’s use will be more beneficial to the public

3. Says majority’s holding destroys the distinction b/w public and private usea. Nearly any lawful use of private property can be said to generate some incidental

benefit to the public4. Says fallout from this decision won’t be random

a. Poor communities will suffer, rich and powerful will benefitix. Dissent (Thomas)

1. Court is replacing the “public use” clause w/a “public purpose” clause2. Can’t rely on “negative inference” to justify the taking

a. Negative inference of “can’t take for public use w/o compensation” is “can take for private use w/o compensation” – doesn’t make sense so it HAD to mean something else

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3. If we went with his opinion, you’d have to overturn a BUNCH of previous casesx. Relevant SCOTUS precedent

1. Hawaii Housing Authority v. Midkiffa. Court held HI regulation that took private property and gave to others to break up

island-wide oligopoly constitutionali. Difference in HARM

1. HI – the use of land was harmful, and it’s kind of punishing this2. Kelo – the use of land was not harmful

ii. In HI, by taking the land, the problem is solved, but in Kelo, taking the land does not solve the problem

2. Berman v. Parkera. Non-blighted department store in a blighted neighborhood was demolished as

part of a neighborhood rejuvenation projecti. Difference: Neighborhood in Kelo is not blighted

xi. Connecting Kelo and regulatory takings clause1. With actual taking (like Kelo) government is able to do more b/c it’s actually paying for

the taking (as opposed to regulatory takings, where there’s been no compensation)2. Perhaps the “public purpose” power is broader than the “public use” power

a. There’s nothing about “public use” in the Due Process Clausexii. Following Kelo, many states passed laws saying private property can be taken for private use

only if the property is blightedxiii. Lurking in the background is the fact that compensation does not fully compensate

b. Regulatory Takings and where we are todayi. Land use regulation can be invalid on its face

1. Purpose – b/c of what it’s trying to doa. Little left of this argument - as long as a conceivable public purpose can be seen

by the court, striking it down is not likely to work2. Method – b/c way it’s trying to do it

a. Discriminatory method is not okb. Various regulations dealing w/family and privacy not good – can’t define family

through regulationii. Challenging specific categories that ordinance creates

1. Is a challenge “on is face”2. State making irrational distinctions

iii. Unsatisfactory and unpredictable b/c the court makes decisions that don’t make sensec. Takings and Property Theory (Ackerman) – looking scientifically at the “why” of these decisions

i. Two methods of determining whether a regulation constitutes a taking1. Utilitarian

a. Does the regulation benefit society generally?2. Kantian

a. Like utilitarian, but adds requirement that no one be made worse off by the regulation

b. Looks to the totality of the effect of the regulationc. Has to take into account the benefits a person who bears the cost of a regulation

gets (i.e. building through yard bad, but could guild gas station there)i. Not only specific benefits but also benefits one gets from living in

ordered societyii. Additional factors to take into account

1. Separation of powers: judicial deference to the legislature v. judicial activisma. Kantian judges more likely to be activist on this front b/c legislature more likely

than judges to submerge the individual’s interest to the collective interests, and judges have to look out for the individual

2. Process costs – we can’t always determine where benefits/costs lie and if we could, we can’t always adjust based on these process costs

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a. Sometimes a regulation cannot be justified b/c the costs of accomplishing it are too high

b. Neither the legislature nor judges are likely to be able to absorb process costsc. Maybe legislators in a better position to determine process costs b/c the

legislative fact-finding process and resources different, more contact w/publiciii. The law is far from thinking about things in these terms

1. Legal conception of property is miles away from the benefits we talk about under utilitarian/Kantian analysis

2. Behind legal conception is the social conception of property, which corresponds w/legal conception

3. Legal and social conceptions can dividea. Ex. Planes going above property

i. Socially, no one thinks this is a trespassii. Legal says this is a trespass but came up w/laws about why it’s ok

b. Both are far from analysis under Donahue and Ackermanc. The legal justification on a taking can have little difference in terms of effect

i. Taking b/c a justified reason, or not a “complete” taking but almost complete taking still feels the same to the person being taken from

4. The way we privilege certain expectations and call them property and our intimate association of property w/tangible things is way different than Util/Kant analysis

59.Section VI – THE WHAT AND WHY OF PROPERTY

60. Utilitarian Theorya. Bentham

i. Where does property begin?1. Property is a creature of the state

ii. What is property?1. Property is nothing but a basis of expectation, the expectation of deriving certain

advantages from a thing which we are said to possess that is going to be supported by law2. A strong and permanent expectation of this type can result only from law

iii. Expectation1. By creating property, the legislature creates expectations which shouldn’t be undermined2. The legislature must respect expectation in order to increase overall happiness

iv. Happiness1. When legislator does not contradict the expectation, he produces happiness; when he

disturbs this expectation, he always produces a proportionate sum of evil2. Although property is what legislator says it is, once he says it, he’s doing the only

Benthamite no-no if he goes back on it3. Zero sum game in property situation (take away one person’s property and give to

another, produce happiness for one and equal evil for another)a. Problem: the notion that you’re ALWAYS imposing proportionate sum of evil

seems that it can’t be truev. Who is he fighting against?

1. John Locke – natural lawa. Thought origins of property related to labor and that the idea of property

antedates the stateb. Bentham says this is full of it – property doesn’t exist w/o law and you can’t have

law w/o some kind of formal governancevi. Ultimate goal of legal system is maximization of black box of happiness, utility, etc.

b. Demsetz (morality, legality, and wisdom of redistribution)i. How has he changed theory?

1. By talking about the value of the right of property2. Ultimate goal of the legal system is to maximize wealth

ii. Origin story: incentive to build private property comes from commerce70

1. Before, there was communal ownership of property: 2. The fur trade happened, which dramatically raised the value of the animal skins and

therefore led them to partition property so they could contain externalities3. Put limitations on amount of animals that could be hunted, otherwise everyone would

hunt them all and they’d die4. Private ownership is one way of avoiding this from happening b/c then the owner has to

balance the immediate benefit from future costsiii. Private ownership internalizes externalities (costs) at a lower price and creates better incentives to

utilize resources more efficiently than does communal ownershipiv. Private ownership of property is always more efficient than communal ownership and thus leads

to the best wealth-maximization1. Different goal than Bentham

v. The goal for the legislator should be to avoid intervention unless the transaction costs are so high the voluntary solutions will not take place

vi. Is not concerned about the initial distribution of land/fairness1. Just wants an initial distribution and he’ll get to maximization of wealth from that point2. He imagined that somehow, in a society of communal ownership, everyone would end up

with a certain piece of the piea. Highly unlikely

c. Shelley v. Kraemer (SCOTUS 1948)i. RULE: State enforcement of a racially restrictive covenant constitutes state action

prohibited by the 14th Amendmentii. Black couple bought land that was under a racially restrictive covenant. Plaintiffs (other

landowners) sued for enforcement of the racially restrictive covenantiii. Holding: By enforcing the restrictive covenant, the state is acting and denying D’s rights to

purchase real property, thus violation the 14th Amendment’s guarantee of equal protectioniv. Reasoning

1. But for the active intervention of the state courts, D would have been free to occupy the property in question w/o restraint.

2. Zoning to cause racial segregation is unconstitutional3. Congress’s power to prohibit discrimination under the 14th Amendment is limited to state

action, but private action is worthless unless supported by the state4. State action to enforce restrictive covenant constitutes a substantive acoommodation of

that covenantv. Relevance to Demsetz/Bentham

1. Property is a creature of law, and law is a creature of the statea. Therefore, the distinction the CR cases made cannot be maintainedb. Took SCOTUS more than 100 years to catch up with Bentham’s insights

2. Bentham says there’s no law w/o a government, and the notion of purely private action is thus ridiculous, doesn’t exist

3. Anything that is dependent on law is state action, according to Benthama. doesn’t go this far

vi. Implications of Shelley1. There’s seemingly no limitation on the Court’s notion here that state action may not

support private discrimination, which runs counter to the property right to exclude2. Barrows v. Jackson (SCOTUS) also held that awarding of damages for breach of a

racially restrictive covenant violated 14th b/c was just as much of a state action as granting an injunction

3. August O’Bacon of Macon gave a park to Macon for the use of the white residents only, and city continued to maintain it

a. Georgia SC said the property had to go back to the heirs of Senator Bacon and SCOTUS basically affirmed that

4. Fairly unsettled line61. Personality Theory

a. Hegel

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i. The act of willing is what establishes property in an object1. This process of actualizing the will in the external world is the way in which a person

realizes the freedom of his will2. Private property, therefore, is a necessary institution, for through it people achieve

freedom3. Therefore, if you take it away, you’re diminishing the individual personality4. Back to property being a natural right

ii. Justifies unequal distribution of property by saying some people’s wills are bigger than othersiii. Why state can regulate property

1. The property rights of individuals are always subject to higher classes of right, to the general will in whatever way it be manifested, such as the state

a. The general will is bigger than the sum of all the individual wills2. The function of the state (general will) is to ensure that each individual will is realized to

its fullest state, so the state may regulate property only to promote the greatest amount of freedom

iv. There is a limit in the Hegelian theory, and the limit is the Kantian notion that people have to be treated as ends, not means

b. Reich – Government Largess as Propertyi. The protection of property is a surrogate for the protection of the individual

ii. Property performs the function of maintaining independence, dignity, and pluralism in a society by creating zones w/in which the majority has to yield to the owner

iii. Property is not a natural right but rather a deliberate construction by societyiv. Main point – Government largess should be afforded the same protections as private property

1. Rights to largess should be vested, especially w/respect to benefits like unemployment compensation, public assistance, and old age insurance

a. Only by making such benefits into rights (into property) can the welfare state achieve its goal of providing a secure minimum basis for individual well-being and dignity in a society where each man cannot be wholly the master of his own destiny

2. Government largessa. Money, benefits, services, contracts, franchises, and licenses distributed by the

government to the public3. For Reich, the minute you call something property, you get Due Process – constitutional

protection over it that goes along with ita. Property isn’t just about land, it’s about legal protections

v. Reich believes people are being thwarted in their efforts towards freedom b/c the government may revoke largess w/o compensation

vi. Reich like an Hegelian b/c he doesn’t like that the government can jerk people around on the government programs

1. Protection of property is surrogate to protect individual, and if there is no protection, individual is diminished

c. Flemming v. Nestor (SCOTUS 1960)i. RULE: Due process interposes a bar only if the statute manifests a patently arbitrary

classification, utterly lacking in rational justificationii. Nestor was deported for being a Communist in the past (although at the time he was a

Communist, it wasn’t illegal). US law deprived those deported for Communist membership of their accrued Social Security benefits

iii. Holding: Social security benefits are not an accrued property right, so the law doesn’t constitute a taking. There was a rational justification, so no DPC violation

iv. No takings violation1. Social Security requires flexibility and boldness, and it can even be revoked

v. No substantive DPC violation1. It cannot be said that the law lacks a rational justification

a. Since Nestor will now be living abroad, he won’t be spending money in the US

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b. It’s not irrational for Congress to say the public purse won’t be utilized to contributed to the support of those deported for Communism

vi. No procedural DPC violation1. This was not a punishment, so you don’t need procedural due process of a full judicial

trialvii. Dissent:

1. The law constitutes a taking, violates due process (b/c arbitrarily revokes SS benefits from a narrow class of people) and is an ex post facto law b/c when Nestor was a Communist, it was legal

2. The Court is telling SS beneficiaries that the federal government is merely giving old citizens something for nothing and may stop whenever it please, but this isn’t right

3. Hohfeld:4. Prior to statute, Nestor had a right to his SS benefits (b/c gov’t had a duty to pay)

a. Thus, the issue in this case is what kind of power Congress has to change/abridge that right

5. Where we are today:6. Recent due process cases have tended to confirm the notion that interests which would

not qualify as “property” under the takings clause may still be sufficiently like property that the state cannot deprive an individual of them w/o some kind of due process

62. Economic Theory - Marxa. The essential condition for the existence and power of the bourgeoisie class is the formation and

augmentation of capitali. Wage-laborers under this system are exploited as capital-producing entities and given just enough

to continue workingb. Communism seek to abolish private property b/c such property is the means through which the

bourgeoisie class gains its power to oppress the proletariatc. Laborers should become the ruling class, abolish private property, and destroy all class distinctions

i. Only then will the free development of each person be the condition for the free development of all

d. How Marx is Hegeliani. Marx wants to take property from the individual will and place it into the general will

ii. Marx has some of same assumptions of Hegel (property as will and wills not being realized)e. How Marx and Demsetz disagree

i. Marx is extremely concerned w/the initial distribution of resourcesii. Demsetz is concerned w/how we use resources already distributed

iii. Demsetz wants individual ownership b/c it’s the least cost system, and Marx wants collective ownership b/c is realization of everyone’s will

f. Marx and Lockei. The abolition of property is important b/c Locke’s theory of property no longer exists

1. The people who own property aren’t the ones who are doing the work. They are just getting poor people, who don’t own property, to do the work for them, and those poor people just get paid for it

63. The Right to Excludea. State v. Shack (NJ SC 1971)

i. RULE: If you have people living on your land who are entitled to government services, you can’t exclude from your land the people who are trying to provide those services

ii. RULE: Private or public necessity justifies entry onto lands of another.iii. Ds entered on Tedesco’s private property to aid migrant farm workers Tedesco was housing.

Tedesco refused to allow Ds to meet w/the workers in private and Ds were arrested for criminal trespass. Ds were employed by nonprofits funded by a governmental agency.

iv. Holding: Within the meaning of the trespass statute, there was no trespass b/c ownership of real property where migrant workers live does not include the right to bar access to governmental service available to migrant workers.

1. Thus, no trespass w/in the criminal statutev. Reasoning:

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1. The unique position of the migrant workera. If they were to enforce the property rights that the owner wants the state to

enforce, they would be depriving migrant workers of their recourse to the state as a protective agency

2. The element of necessity – the only way you can get at these folks is by visiting them on private property

3. Constitutional issues in this case that are not addresseda. Free speech issue – Defendants have a right to talk, and they’re being prevented

from exercising their free speech right to speak to these workersb. Supremacy Clause

i. Migrant worker programs and money for legal services comes from the federal government and so state can’t set up barricades to implementation of federal programs

ii. When conflict b/w federal and state law, federal law trumps stateb. Pruneyard Shopping Center v. Robins (SCOTUS 1980)

i. RULE: The state can create property rights and interpret their constitution more narrowly than the federal constitution based on those property rights.

ii. RULE: In CA, in a large shopping center, the owner does not have the right to exclude people from exercising free speech, so long as the speech is not obstructive.

iii. Privately owned, huge shopping center prevented students from distributing pamphlets about the UN and Zionism. It sought an injunction to keep them from coming back. CA SC interpreted CA Constitution to say that a person has a free speech right in a shopping center, so long as the speech is not obstructive.

iv. Holding: The state can create property rights and interpret their constitution based on those property rights.

v. Reasoning:1. The right to exclude others is not fundamental to use or economic value of property.

a. Investment-backed expectations not at stake here b/c students aren’t interfering with money-making

2. Takings argument:a. Free speech rights of people who want to do things in shopping center and

property rights of the shopping center who have right to exclude whoever they want

i. SCOTUS has said right to exclude trumps right to free speech in privately owned shopping center

b. SCOTUS case doesn’t bind CA b/c CA can define property differently if they want

3. States rightsa. This case is about states’ rights, not civil rightsb. A state has the power to create rights not mentioned in the U.S. Constitution

4. Side issues in this casea. Having decided that this is not a taking, then there’s still the question about

whether it’s a denial of due processi. No b/c for denial of due process, have to be pretty complete regulation

(fixing prices of milk)b. Free speech issue – right of owner’s free speech, and his right to say nothing

about certain issuesvi. Blackmun and Marshall (core and penumbra)

1. The exercise of a shopping center’s right to exclusion does not lie at the “core” of property rights guaranteed by the Constitution; rather, it falls w/in the penumbra of those rights

2. There is really no privacy interest here – they want it to be a public place3. They’ve already opened this up to everyone, and having done that, they can’t restrict free

speechvii. Federal Constitutional background of Shack:

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1. Marsh v. Alabama: SCOTUS reverses trespass conviction of JW who tried to distribute literature without a permit in a company-owned AL town open to the public

a. Still good law2. Logan Valley: Shopping mall may not enjoin peaceful picketing of a labor union

a. Court found the mall to be the functional equivalent of the business district of the company-owned town in Marsh (mall was open to the general public)

b. No longer good law (SCOTUS later said case should have rested on NLRA, not the balance between free speech and property rights)

3. Tanner: Shopping center allowed to prohibit distribution of handbills opposing the Vietnam War (all of shopping center (except streets) were privately owned)

a. “Property does not lose its private character merely because the public is generally invited to use it for designated purposes”

64. Course Summarya. Three questions this course has been about:

i. What have you got? (Pierson)ii. How can you use it? (Edwards)

iii. How do you transfer it?b. Property system can take any values we choose to put in, system also allocating tangible and non tangible

resources. c. Western property law moves towards ogglomeration and this tendency to put exclusive rights to possess,

use, convey in ownerd. 2 absolute privileges of use can’t exist near each other

i. My power to convey can’t be absolute unless I condition the way conveyee behaves, in turn limiting their absolute right to convey

e. Western property notion of individualism has to recognize that this includes a bunch of individual interests.

65. Anglo-American common laws in force, including66. Quia Emptores 67. Gives all freehold tenants the right to transfer their land without

the lord’s consent. Dictates the rule against direct restraints on alienation. Northwest Real Estate v. Serio contained title whith said that the land shouldn’t be sold or rented without the grantor’s consent (1929), but the court disallowed this restriction as repugnant to the fee simple.

68. Statute De Donis 69. Abolished the fee simple conditional and made the fee tail possible.

70. Statute of Uses 71. Created executory interests, essentially, by recognizing springing, shifting and resulting uses.

72. Statute of Wills 73. Gives fee simple owners the right to devise their land, and provided that if the fee simple owner does not devise his land and dies with no will, his heirs inheret the fee simple.

74. Statute of Frauds 75. Requires for land conveyances:(1) name of the

grantor and grantee,

(2) description of property,

(3) word or words of conveyance that indicate the present passage of an interest, and

76. (4) the grantor’s signature in writing.75

77. Married Women’s Property Act

(1) Gives a married woman the right to own and transfer property, form contracts, and sue and be sued as if she were single woman.

(2) Abolished jure uxoris completely, and abolished curtesy initiate to the extent that the husband retained an interest in the rents and profits of his wife’s property.

(3) Curtesy consummate still exists in modern law when the wife predeceases her husband.

(4) Does not abolish dower.

78. (5) Most states allow wife and husband each to choose between dower and an elected share in the deceased other’s property; where dower was retained, the husband and wife could both get dower; and where dower was abolished, the husband or wife could receive an elected share in the other’s property.

79. Grant or devise to two or more

persons creates a tenancy in

common unless otherwise specified.

80.

81. Destructibility of contingent

remainders has been abolished.

82.

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