WHAT IS PROPERTY

What is property?
a. Real propertyReal estate and land
b. Personal propertyEverything else
c. Should be alienable or transferrable from one to another
Property A Defintion
d. A bundle of rights
i. You can sell, use or destroy that which is your property
ii. However, all of the rights of property do not necessarily go
together.
e. Examples of having some rights but not others
i. You can give sex away and not sell it
ii. You can give children away
f. Things you can use but not sell
i. The street
g. Things you cant use or sell and you can keep other people from using
i. Endangered species
h. Property includes all rights that have value
There are several different definitions of property:
A JOB AS PROPERTY
To have a property interest in a benefit, a person clearly must have more
than an abstract need or desire for it. He must have more than a unilateral
expectation of it. He must, instead, have a legitimate claim of entitlement
to it. (Roth)
Board of Regents of State Colleges v Roth
i. Roth sued Board stating the his job was his property. Sued
based on 14th amendment violation that he did not have life,
liberty and the pursuit of property
ii. Justice Stewart stated that one must have entitlement to
property for it to be property
iii. The dissenting Judge Marshall stated that everyone is entitled
to a government job.
A DEGREE OR CAREER AS PROPERTY
Property is everything that has an exchangeable value or which goes to
make up wealth or estate
In re Marriage of Graham
The husband obtained his MBA during the course of a short
marriage. They got divorced, and now the wife wants to be

able to claim the degree as joint property and receive

payment. She supported her husband during his MBA
The husband won the judgement. The court sited case law
saying that licenses, etc are not divisible property. Good will
of a business is property however. If the wife sought
maintenance or alimony, the court notes she may have gotten
it because they would consider the fact that she helped put
him through school.
If his MBA was considered property, then it would be
divisible based on the Uniform Dissolution of Marriage Act
stating that marital property can be divided.
The court defines property as having exchangeable value or
transferability. They get their definition from Blacks Law.
The dissenting opinion was stated that the degree itself is not
property, however, the asset is the future income it creates.

Elkus v Elkus
The statutory definition of marital property does not mandate that it be an
asset with an exchangeable value or be saleable, assignable or transferable.
The property can be tangible or intangible. An opera career is property

The husband is suing the wife on grounds that her celebrity

status constituted marital property and it should be divided
upon divorce.
This was appealed to the Supreme Court and the husband
won
The court used Obrien v Obrien stating that a professional
career interest is marital property
New York case law stated that a degree is marital property
The court was looking at the Domestic Relations Law 236
defining marital property as property acquired during
marriage regardless of the form in which title is held. The
property may be tangible or intangible.

A NAME AS PROPERTY (p.766-769)

In its broadest sense, property includes all rights that have value.
Elvis Presley Intl Memorial Foundation v Crowell
A name is property
Rights of Publicitygive individuals control over the commercial use of
their names or images. If you imitate an artist, then in an advertisement,
the seller has appropriated the image of the celeb.
i. The phrase goods and chattels cannot be interpreted to include
computer time and services.

Commonwealth v. Lund
i. Computer time is not property
BODY PARTS AS PROPERTY(p772-77)
Moore v. Regents of California
Cannot claim a right of conversion of his cells. Only property can be
converted and his cells are not property. Cells cannot be property, nor
could the patented work that was done on them after they were extracted.
Legislature should decide this case because there is a moral and
philosophical dilemma and not a clear issue of law.
HOW IS PROPERTY ACQUIRED
A) Property rights by creation
1.
3 kinds of intellectual property
a. Patents
b. Copyrights
c. Trademarks

CREATION
Vanna White v Samsung: Publicity Rights are property to be controlled
by the person
She created her property rights and they were upheld to be
hers (her likeness).
In order to establish a claim for a right of publicity, can
allege:
o Ds use of Ps ID
o Appropriation of name or likeness which are used to
Ds advantage
o Lack of consent
Arguments for publicity rights
o Encourages creation
o Morally rights
BY PURCHASE(p485-490)
Property bought by misrepresentation of facts constitutes fraud
Stambovsky v. AckleyBuyer bought house without prior knowledge of
house being haunted
Caveat emptor applies only to the physical condition of property, and not
reputation. Caveat emptor is the buyer beware rule of law. It says that a
prudent person would establish an escrow account while assuring himself
that there were no problems with the product, which was a house in this
case. Under NY law, there is no duty for the vendor to disclose info about
a premises unless there is active concealment, or a fiduciary duty between
the parties.

BY FINDING (p. 747-51)

Property can be acquired by finding it.
a.
Lost propertyWhen the owner parted with it
unintentionally
b.
Mislaid propertyOwner parted with it intentionally and
then forgot about it (property goes to the owner of the
premises that the property was found on if the true owner
does not show up)
c.
Treasure TroveMoney intentionally buried a long time
ago Long enough that the true owner is dead. The finder
gets the treasure
d.
Abandoned PropertyWhen the true owner no longer
wants to own it. Belongs to the finder against everyone.
Benjamin v. Lindner AviationFound money in wing of airplane.
The money was mislaid property and belonged to the owner
of the plane. The reasoning follows that because it was
wrapped neatly, and hidden in an airplane wing. The owner
did not accidentally leave it in the airlane wing, but
intentionally placed it there.
BY GIFT (p751-753)
Property can be acquired by a gift.
a.
Elements of a gift
1. Intent: The sellers intention to give the gift. Giver
must have present intent.
2. Delivery: Distinguishes between present and future
promises.
3. Acceptance: So that you cant force something on
someone if they dont want it.
b.
WillIntent to transfer property after your death
c.
Inter-vivos giftTransfer of property from one living person
to another
Gruen v. GruenCase of father giving a piece of art to his son
without making present transfer. The son was given a remainder of
the painting. There was an offer and acceptance of the title of the
painting. The father retained a life estate.
BY ADVERSE POSESSION (p. 134-137)
Acquiring property by ADVERSE POSESSIONPossession is a very
important element to owning land. It is not just title.
Elements of adverse possession
1. Actual: actually be on the land. Gives the owner notice. Treat
property like you own it.

2.
3.
4.
5.

Exclusive: Not shared with the owner or public as a whole.

Open and notorious: Not in secret.
Adverse (hostile): Without the true owners permission.
Continuous: occupy the land at least as continuously as the true
owner would.
6. Run for statutory period: 10 to 20 years.
Nome 2000 v. Fagerstrom: Fagerstroms were living open and
continuously on land for 10 years. They built some structures. But, they
used the land as its intended purpose (camping, etc.) Court held they got
the portion of land they squatted on.
Typical cases of adverse possession (p155-158)
1. Color of title Defects in title
2. Border Disputes
3. Squatters
4. Cotenants
TACKING: Can add up time among adverse possessors in order to reach
the full statutory length needed if there is privity of estate.
Howard v. Kunto: In order to prove tacking, the defendant had to prove
that there was privity of contract between him and the previous owners.
Adverse possession requires that the land be used as the actual owners
would use it.
Adverse possession of personal property (p. 164-167)
Personal property can be adversely possessed, but the following rules
apply:
Discovery RuleStatute of limitations starts when the title holder
discovered or reasonably should have discovered where the stolen
property is located.
Demand RuleClock starts when the true owner demands the item.
OKeefe v. Snyder: Defendant claims clock started to run the minute the
paintings were stolen. Court agreed with P that she did not know where
the paintings were, and once she did, she brought suit within the statue of
limitations.
SHARED OWNERSHIP
P
A) The system of estates (p290-300)
1. Fee simple (absolute)Largest possible aggregate of rights in a
property. This can last forever.
2. Life EstateLasts for the life of the present holder and is
followed by either a reversion in the grantor (or heirs) or a
remainder in a 3rd party. (O to A for life, then to B Life estate to
A and a remainder to B)

3. Fee simple determinableends on the happening of an event and

transfers back to grantor or heirs. (O to A as long as used for
school purposes FSD to A and a possibility of reverter to O)
4. Fee Simple Subject to Condition SubsequentLike FSD, but
ownership does not transfer back right away. The grantor gets a
right of entry and can assert to take back property
5. Fee Simple Subject to Executory LimitationLike FSD, but it
gives the property to a 3rd party upon a condition, instead of back
to the grantor or heirs.
6. Leasehold3rd party has a remainder, but the grantor has a
reversionary interest which goes back to him when lease
terminates.
B) Rule Against Perpetuities (p317-327)
1. Invalidates future interests unless they are certain to vest or fail to
vest within the lifetime of someone who is alive at the creation of
the interest or no later than 21 years after her death.
CONCURRENT OWNERSHIP

CREATION (p. 334-35)

1) Tenancy in commonMost basic. Each co-tenant has a separate interest. They
can sell, give it away.
2) Joint tenantHave a right of survivorship. When one dies, the other
automatically gets a right of survivorship. Either one can sell their interest, but it
will dissolve the joint tenancy and revert to ten. in common if they do.
4 unities:
i. Time interest had to be created at the same time
ii. TitleAll must acquire title by the same deed/document
iii. InterestAll must have an equal share.
iv. PossessionAll must be able to possess the whole property.
If one of these 4 unities is disrupted, then the joint tenancy is dissolved.
By creating a joint tenancy, the property stays out of probate.
It used to save on estate taxes, but no longer.
3) Tenancy by the entiretyHas the 4 unities and there is right of survivorship.
Must be husband and wife. The ten by entirety does not allow one of them to sell.
They have to sell together. Terminated by divorce, death, or selling the property
together.
This shields the property from creditors. If A owes money to a bank, they
cant go after As share without Bs consent.. protection.
Each tenant has a right to possess the whole piece of property.
CASE: Kipp v. Chips Estate

PARTITION (p346-348)
If cotenants cannot agree on how to use the property, a partition is forced. Can divide
physically or selling it.
1) Partition in kind: Physical division of property by court.
2) Partition by sale: Have the property sold to the highest bidder and terminate
concurrent ownership.
Partitions in kind are favored by courts:
1. Because it is an extreme exercise of power to force a sale
2. Because it is easier for tenants on their own to reach sale agreements rather than
partition agreements. If they have to ask the court, is an indicator they cannot
reach a sale agreement.
Delfino v. Vealencis
Delfino and Vealencis are tenants in common. Delfino wants to build a residential
subdivision on the 20 acres, but Vealencis lives on the property and operates a small trash
container business in a small portion of the property. Court ordered a partition in kind.
LANDLORDS AND TENANTS

LEASES (p423-431)
1. Term of yearsLease that lasts for some fixed period of time. No notice needed
(Note: does not have to be for a year)
2. Periodic TenancyFor a fixed period of time, but continuing on for successive
periods (month to month, year to year). Notice of one period or one to two
months.
3. Tenancy at willNo fixed period. Lasts until landlord or tenant gives notice.
4. Tenancy at sufferanceWhen a tenant wrongfully holds over.
Berg v. Wiley
Landlord re-took possession of a diner he leased out to a restaurant. Berg was wrongfully
evicted. Wiley says lease was breached because of continued remodelling.
1) Landlord can retake possession of property if:
a. Landlord can legally re-take possession through breach of lease, etc.
b. Landlord re-takes peacefully.
Berg set the rule that you must go to court to re-take possession peaceably and cannot just
re-take. This is good for tenants.
SUBLEASES AND ASSIGNMENTS (p468-470)
L T T1
Assignment: If T1 takes all of Ts time.
Sublease: If T conveys less than the full amount of the term.
If assignemnt, L can sue T and T1. If it is a sublease, L can sue just T.

Theory of suing: L can go after anyone they are in privity of contract or estate with (if
they have a contract and privity of estate happens if one is handling land over to another).
In an assignment, L is in privity of estate with T1 because the property goes back to L
after the term of the lease.
Ernst v. Conditt
L (Ernst) T (Rogers) T1 (Conditt)
K for sublease/assignment from Rogers to Conditt. Conditt does not fulfill lease and he
wants to K to be called a sublease so L can only go after T. Court says this is an
assignment and L can after either, but L goes only after T1. Court wants to go with the
intentions of the party, which is assignment.
ABANDONMENT (p441-446)
If a tenants abandons the premises, the landlord may:
1) Terminate the lease automatically
2) Release the premises right away and sue for damages
3) Wait until the end of the lease and sue for the entire amount of rent owed.
Courts increasingly place a DUTY TO MITIGATE on landlords
Sommer v. Kridel
Lesse backed out of 2 year lease 2 weeks after lease signed. He waited for over a year
and sued for rent and did not try to re-let the premises. Court says he has duty to
mitigate.
Against mitigation: People would breach lease all the time and there would be extra
costs to being a landlord
For mitigation: Efficient use of housing stock to prevent vacancy.
IMPLIED WARRANTY OF HABITABILITY (p452-460)
If there is a breach of the warranty, the remedies are:
Tenant can leave the premises and stop paying (Rescind Contract)
Withhold rent
Repair and deduct
Sue for specific performance (injunction)
Sue for damages
Green v. Superior Court
Green withheld rent because he had a shitty apartment (collapsed ceiling, roaches, bad
plumbing, etc.). Court ruled that there was an implied warranty and he could withhold
rent until such time it is fixed.
If there is a leaky roof, you cannot get damages for the whole time is if left unfixed. You
may only get damages for the portion that is unliveable (# of rainy days, or % of apt.
unliveable)

RETALIATORY EVICTION (460-63)

Lanlords cannot evict in retaliation for something the tenant has done to them (brought a
suit, etc.). This could not exist until the implied warranty of habitability because there
would be nothing for the landlord to retaliate against.
If these evictions were allowed, people might not report health violations or violations of
implied w.o.h.
Under the Uniform Residential Landlord and Tenant Act, an eviction is retaliatory if it
comes within one year of a tenants action/complaint
Building Monitoring Systems v. Paxton and Lowder
The court decided that the landlord had evicted tenants because they were reporting
health code violations. Many courts, it says, say that a tenant can remain until the
necessary repairs have been made and the tenant can find other housing. This is not great
protection for tenants.
WASTE (p308-309)
Law of Waste:
Permissive waste: Letting things deteriorate.
Voluntary waste: affirmative acts to owners detriment. Trashing the place.
Small alterations (speaker wire holes) may not be waste. But, if it is difficult to get
apartment back to how it was, then it is waste. If there is material damage to the
property, then waste might be found.
History: Lease a plot of land with a forest. Tenant chops down trees to detriment of
owner.
2 common situations:
1. Landlord sues tenant for damages
2. Tenant sues landlord for security deposit and landlord uses waste as defense.
Law of Fixtures:
Item of personal property attached to real property. The fixture becomes part of the real
property. Ex. Installing a new sink, which becomes a fixture. Fixture belongs to property
when installed.
Rumiche v. Eisenreich
Eisenreich fixed the ceiling with material that did not meet the fire code, installed a new
light and switch, put a frame around a window and put a closet on the wall. The strongest
case is the ceiling. A ceiling is pretty major. The closet and window frame are weak
arguments. Court says the tenant, Eisenriech, wins because it would not be difficult to
get ceiling up to code, ant the landlord should have fixed the stuff himself anyway. The
landlord only wanted to evict because tenant was rent-controlled.

FAIR HOUSING ACT (p544-46)

Section 3603
Exceptions to 3604. Exempt from FHA if you are renting out a space in your living
space.
Section 3604
Discrimination because of race, color, religion, sex, family status, or national origin.
Handicaps are included now too.
Section 3607
Religious organizations are able to discriminate from sale, rental or occupancy of
premises and can accept only people of the same religion (jew in monastery)
Private clubs have same priveledge.
UNMARRIED COUPLE DISCRIMINATION
Mister v. A.R.K.
Whether Mister and others were discriminated from renting an apartment because they
were an unmarried couple living together. Main question is whether protection from this
discrimination is found in the Illinois Human Rights Act. Court says that refusal to rent
to single people does not who are unmarried does not violate the Act. Statute is unclear,
but this is how they interpret it.
Interpreting statutes:
Look to language first; Then legislative intent; then legislative history
EASEMENTS

CREATION (p170-74)
1) Easement appurtenantBenefits a particular piece of land. The persons property
that gets the benefit is the Dominant parcel, and the land the easement runs through is the
servient parcel.
2) Easement in grossBenefits a person. Ex. Power company running lines. Benefits
the power co. All the parcels the lines run through are servient parcels.
Easement appurtenant stays with the dominant parcel when it is sold. Easement in gross
stays with the person who originally owns the easement.
Common way to create an easement is by selling it.
Urbaitis v. Commonwealth Edison
Issue:
Whether Edison had an easement or a fee simple title to property in question.

This is an easement in gross. Court rules there was a fee simple. If just an easement was
shown, the it could be proven that it was abandoned and Urbaitis would get the land.
EASEMENTS AND LICENSES (p174-176)
Licenses are revocable whereas easements are not.
A license is not revocable if there is reliance (estoppel)
Holbrook v. Taylor
Case where there was a license to use a road going through a neighbors property. P then
built a house, in reliance on using the road to get to the house. Once they built the house,
and used the road for construction purposes (getting trucks in there, etc), the license was
revoked by D.
Issue: Where siginificant reliance is placed on an easement, is the servient parcel
estopped from barring access?
An easement is not revocable, but a license is.
Where there is sginificant reliance on the license, the licensor is estopped from revoking
the license. The license then becomes an easement.
PRESCRIPTIVE EASEMENTS
Prescription: Basically like adverse possession
Elements:
1. Actual
2. Open and Notorious
3. ExclusiveDifficult to enforce with easements
4. AdverseWithout permission
5. Continuous
6. Statutory period
If you give someone permission to cross your land (like erecting a sign), then they
cannot claim a prescriptive easement because it defeats adverse.
Courts relax the actual reqt: You actually had to be present on the land with adverse
possession. The path can shift, however, with prescriptive easements, the path can shift.
Courts relax exclusive reqt for PE. The public can share the easement.
Concerned Citizens v. Holden Beach Enterprises
Citizens kept using roadway as access to beach for many years. D erected barriers, etc.,
but they kept breaking through them. Court rules that the citizens use was adverse and
satisfies all the necessary elements of a prescriptive easement. Even though the roadway
kept shifting, court still said there was an easement.
IMPLIED EASEMENTS
Implied eastments:
1) Implied from prior use (Rusakoff)
2) Implied by necessity (Schwab)

Implied from prior use 3 requirements:

1) Common grantor Were the 2 parcels ever a single parcel?
2) Quasi-easement At the time the 2 parcels are separated, was one part being used
to benefit the other part?
3) Apparent, continuos, and reasonably necessary for the enjoyment of the dominant
parcel.
Rusakoff v. Scruggs
Residential development with a lake. Plots are sold off around the lake with a 20 foot
boundary between the lots and the lake. Scruggs purchases the lake and the 20 foot
boundary surrounding it. Scruggs tries to charge money for people to use the lake. Lot
owners claim they have an easement to use the lake. Court finds for an easement that
runs with the land.
Elements:
Common grantor? Yes, all part of the same tract.
Quasi-easement?Yes, before lots created, the real estate company used the lake
to sell the lots.
Apparentyes, the Scruggs could easily see it; continuousyes, still using it;
reasonably necessaryyes, they boat on the lake, have piers
Easement by necessity elements:
1) Common grantor
2) NecessityActually need to use the easement
3) Necessity existed at the time of the severance.
These easements show up when you have land-locked parcels. But, not every time you
have a land-locked parcel there is an easement.
Schwab v. Timmons
Landlocked parcel which made it difficult to get out to main highway. They were
bordered by Green Bay on one side and a bluff on the other. Court says there is no
easement by necessity. These types of easements are only if the grantee buys a parcel of
land that is landlocked. In this case, the grantor is claiming their land is landlocked, but
they created the landlock by selling a piece of their land which provided for highway
access.
Elements:
Common grantor? Yes, all land used to be owned by government
NecessityMaybe. They can climb bluff.
Necessity at time of severanceNo. They could still get out above the bluff.
COVENANTS
CREATION(p218-226)

Real Covenant:
1. Intend promise to be enforced by successors
2. Promise must touch and concern the land
3. Privity of estate
Equitable servitude:
1. Intent
2. touch and conern
3. Notice on the part of the successor of the agreement. Was the successor
notified or should he have known about the covenant.
Privity of estate in covenants:
1. Horizontal privity
2. Vertical privity
A ---|
|
C

B
|
|
D

For A and B to have horizontal privity, they must have a mutual interest in a parcel of
land. Neighbors do not have any mutual interest
Vertical Privity: Btwn A&C and B&D. A and C have vertical privity as long as C has the
same estate and land as A. They are not in vertical if they have different estates (Fee
simple v. Leasehold).
Every promise has a burden and a benefit:
Restricted person has a burden, and person placing restriction has a benefit.
For a burden to run to a successor must have vertical and horizontal
For a benefit to run to a successor, you only need vertical
Runyon v. Paley
Gaskins ----- Brugh
|
|
|
|
Williams
Paley
Restriction to not build condos on land. Runyons are just neighbors so they cannot
enforce, but Williams can enfore and not allow Paley to build condos because she
inherited the land from her mother (Gaskins)
Williams must show:
IntentCan show this

Touch and concernObvious. Restriction of what you can build on the land
Privity of estate: Yes. Vertical privity from Gaskins. She inherited it in fee simple.
Vertical privity btwn Brughs and Paleys. Both had fee simple
absolute.
Horizontal privity between Gaskins and Brughs. They are grantor
and grantee.
IMPLIED COVENANT FROM COMMON SCHEME (p253-258)
Where a common grantor develops plots for sale, the grantees, acquire the right to
enforce the covnants by implication. This restriction placed by the grantor runs with the
land. Even if it is not in the deed, it is implicit if it is in everyone elses.
Equitable servitude:
Intentintend that all parcels be restricted, even though it wasnt in deed.
Touch and concern
NoticePerson purchasing property has to know or reasonably should know about the
restrictions.
Mid-State Equipment v. Bell
Eubanks own property and decide to break up into plots with restrictions of single family
homes. They keep a small plot for themselves. They then sell their piece to the Hicks.
Nothing in deed to Hicks about restriction. Then, Hicks sell to Mid-State who wants to
use it for commercial use.
IntentDid Eubanks intend for restriction to run to their parcel? Yes. They numbered
it as such. Also, Eubanks wanted a residential development.
Touch and Concern: Yes. Restriction concerns the land.
NoticeCourt says they have constructive notice. If you go look at the land, it is
obvious that it is a residential neighborhood. But, restrictions not in deed.
TERMINATION (p.279-283)
Ways to termintate covenants:
1. All parcels come under common ownership
2. Release
3. Some covenants have restricted duration (most terminate this way)
4. Abandonment
5. Statute of limitations to bring suit against someone for violating a covenant may
expire.
6. EstoppelIf plaintiff and defendant are both violating covenant. So, P is
estopped.
7. Changed conditions
El Di v. Town of Bethany Beach
Holiday House Restaurant tried to get a liquor license. The people from the town tried to
enforce origianl covenants that these licenses were not allowed. Court rules that a change
of conditions allows them to get the license.

CONDOMINIUM CC&Rs
Nahrstedt v. Lakeside Condo Assn.
Condo owner owned cats and was restricted to have them under the CC&Rs. She said
this restriction was unreasonable.
Intent satisfied: The subdivision original developers intended for there to be no animals
to run with the land to all subsequent owners.
T&C: Yes
Notice: CC&Rs included in the deed and in the LA County Recorders Office. Now,
everyone is on contructive notice of the restrictions.
California added a 4th restriction to condos for an equitable servitude (reasonableness).
One court ruled that the restrictions in the actual CC&Rs do not have to be reasonable,
but anything created after by the board must be reasonable.
Nahrstedt was challenging the reasonableness standard. She said the pets did not create
any noise or smell or prevent anyone from enjoying their condo. Does the reasonablness
standard apply to her pets, or to the actual restriction. Supreme Court says you have to
look at reasonableness in total. The court says that if it was only reasonable as applied to
each individual case, then there would be way too much litigation.
Court holds that the restriction is still in tact and should hold. Who knows, maybe the
no-pets policy induced people to buy.
TRESPASS
(p27-29)
Invasion of someone elses personal or real property.

Ebay v. Bidders Edge

BE sent robots into eBays servers to search for auction items. They used 1% of the
bandwidth, and eBay sued to have them stop sending in these robots. Court ordered in
favor of eBay.
Trespass occurs to chattels when: there is an intentional interference with the possession
of personal property has proximately caused injury.
It must be established that: D intentionally and without authorization interfered with Ps
possessory interest and Ds unauthorized use resulted in damages.
BEs use was not authorized and taking 1% of bandwidth is interference.
NUISANCE

NUISANCE (p. 92-98)

Protects use and quiet enjoyment of property. Something that is offensive, physically, to
the senses and by this offensiveness makes life unconfortable: noise, odor, smoke, dust,
etc. Very similar to Trespass.

Deciding if something is a nuisance:

1) Location
2) Character/extent of the activity
3) Character/extent of harm to plaintiff
4) Priority (who was there first?)
5) Relative social value
2 kinds of nuisances:
1) Publicsomething that causes harm to the public as a whole.
2) Private
Oliver v. AT&T Wireless
Complaining about a cell site tower on the neighboring property. Their strongest
arguments are that it hums and makes noise. In addition the value of the property went
down. Defendants strongest argument is that it does not interfere with use and
enjoyment. They can still use the property just as much as always.
Court holds that it was not a nuisance. Just because it is not aesthetically unpleasing,
does not mean it is a nuisance. Must actually interfere. Dimunition in value does not
constitute a nuisance.
REMEDIES FOR NUISANCE (p. 105-113)
Outcomes from a nuisance suit:
1) injunction
2) no relief
3) damages
4) purchased injunction
Boomer v. Atlantic Cement
Facts: Residents in a community claim that a cement plant is a nuisance to their homes.
The court does not order an injunction for the operation to cease. Court rules that it is a
nuisance, but say shutting down the plant will not be economically equitable. Atlantic
has to pay permanent damages to residents to keep plant open.
Public policy issue: Shutting down the plant will be economically bad for the
community. People will be out of jobs, etc.
2 ways to protect environment:
Command and Control: Pollution above a certain level just will not do (injunctions,
etc.)
Market based regulationLet people pollute but make them pay.
ZONING
PLANNING PROCESS (p596-600)
1) Legislature gives power to the municipality to enact zoning
2) Zoning Code enacted by the local municipal agencies

3) Board of Zoning AppealsYou can appeal to them if you disagree with

zoning
4) Planning CommissionSet up to advise the town about zoning
Every state has a zoning enabling act that allows municipalities to pass zoning ord.
Richardson v. City of Little Rock Planning Commision
P wants to subdivide land that he owns and he wants to develop houses on them. Tried to
get approval of planning commission, but they turn him down. The commission said his
land was that his culdesace was too close to other land and there is marginal development
potential. Planning Commission exceeded its powers by going outside of the ordinance
by saying his property has marginal development potential. Court rules he can build.
NONCONFORMING USES (p607-609)
When zoning is enacted or made stricter, oftentimes a structure that is now nonconforming is allowed to remain.
Owners generally get a substantial period of time to shut down their non-conforming use.
If not, then:
1) It may be against their constitutional rights of no due process.
2) Must be given an amortization period, which gets around due process. This
gives them time.
PA Northwestern Distributors v. Township of Moon
Adult bookstore open. Town then held a zoning meeting and called the use of the
building as an adult book store was a non-conforming use. They wrote an amortization
clause that gave the bookstore 90 days to comply with the regulation (change business) or
change location. P claims that this violates the takings clause of the Constitution. It
supplies that the government cannot take property without just compensation. Supreme
Court rules in favor of P saying that 90 days is not long enough to recoup their
investment. They found the amortization clause unconstitutional.
Court says, in general, any amortization clause violates constitution. Even if the length
of time is 100 years.
They say that a non-conforming use can continue as long as it is not a nuisance, it is
abandoned, or it is extinguished by eminent domain.
Policy arguments:
People wont want to open businesses if they can be closed down too quickly.
Where do you draw the line (can someones house be taken from them?)
How long is a proper amoritization period.
Rays Stateline Market v. Town of Pelham and Joarosky
Once a non-conforming use is established, how much change is too much.
Facts:
A gas station is non-conforming in a residential neighborhood, but the gas station was
there before the zoning. The gas station wanted to install a new coffee counter and
change the sign out front, but keep the same size and dimensions. Jarosky lives across

the street and doesnt want this change. P argues that the change inside the building by
adding the coffee counter is not material or substantial change to the business. In
addition, changing the sign to say Dunkin Donuts is not material because the sign will
stay the same size and dimensions. Court agrees.
ZONING VARIANCES (p609-611)
1) denial would result in "unnecessary hardship" to the owner;
a. Hardship cannot be self-imposed
b. Hardship may not be found unless there is no economically viable use of
the property, or no ROI
c. Many states say that the property must be different in some unique way to
surrounding property such as a narrow plot, or odd shape or elevation
2) the need for the variance is caused by a problem unique to the owners lot (not
one shared by many lots in the area)
3) the variance would not be inconsistent with the overall purpose of the ordinance,
or inconsistent with the general welfare of the area.
Zoning Boards often grant variances if there is no dramatic change in the tructure and if
no one objects.
Zoning gets pushed more towards a standard than a rule to allow more flexibility.
Lang v. Zoning Board of Adjustments and Calabrese
Calabrese wants to build a pool on his lot. But, since his lot is irregularly-shaped, he
does not meet the standard that in ground pools must be set back 20 from each sideline.
In addition, a pool cannot be more than 10% of your backyard, and in his case it occupies
14%. His lot size was determined before the zoning ordinances went into effect. Zoning
Board granted the variance for him to build his pool, but made him put up a fence and a
shrub. Court agrees with zoning board and allows him to build pool because not allowing
him to do so would cause undue hardship Court says that his lot is irregular in shape
and size and not allowing him to build a pool is a hardship
SPOT ZONING/REZONING(p612-613)
A local legislative body can rezone a single or small number of parcels in an area.
Rezoning rarely done unless it serves a public purpose like creating jobs.
The change must also be in conformance with the comprehensive plan. (Fasano)
Legislative versus JudicialSome say legis and others say judicial.
Fasano v. Board of Commissioners and AGS Development
AGS needs to get a rezoning of a single family residential to a Planned Residential zone
so that they can build a mobile home park. The Board of County Commissioners (the
legislative body) approved the change. Supreme Court affirms decision. Judicial
decision.
Must show that:

a) there is a public need for the change and

b) that need will be best served by changing the classification of the parcel in
question.
Arnel Development v. City of Costa Mesa
Arnel wanted a spot zoning change to develop an apartment community. But, the
community circulated an initiative so that the city council would go against the zoning
change. The court determined that rezoning is legislative in nature, and not adjudicatory.
There are 2 goals in judiciary giving spot zoning:
Want to give local decision makers lots of flexibility.
Prevent local abouses of power (favoritism, political and social
connections). Involves more intrusive judicial power.
These 2 goals are in contrast with one another.
AESTHETICS
Stoyanoff v. Robert Berkeley, Building Commisioner
The Stoyanoffs have plans to build an unusual house on a very strict architectural
street. An ordinance was passed that allowed the City of Ladue to impose aesthetic
standards on the people who are building homes in the area. The city has an ordinance
which has set up an architectural board which decides whether a house meets the
requirements of the area.
The statute does not explicity call out aesthetics, so the ordinance that Ladue passed is
not allowed to do so, the Stoyanoffs argue. The town, however, counters the argument
by saying that enforcing aesthetics conserves the economic value of their homes. And if
P is allowed to build his house, their home values will fall. Court rules that the aesthetic
zoning in this case is allowed. Local governments can enact these.
HOUSEHOLD COMPOSITION
Limiting the number of unrelated adults that can live in one household.
Possibly stems from: Parking concerns, students in houses, noise, etc.
Village of Belle Terre v. Boraas (1974)Constitutional challenge to the rule. Rules no
part of the constitution violated by single-family ordinances.
Moore v. City of E. Cleveland (1977)City defined single family that prevented
grandmother from living with 2 granchildren. The court said it is unconstitutional to
define family so tightly.
Some states have held that single family zoning ordinances are unconstitutional re the
state
No real constitutional limitations on this zoning.
FHA provided no real basis either. None of the categories are any more likely to be
affected than anyone else.

In 1988, an ammendment to the FHA including handicapped people, made this difficult
because handicapped people typically live in group homes.
City of Edmonds v. Oxford House
Facts: Oxford House is a rehab center that wants to have a group home. But, there is a
local ordinance limiting the number of unrelated family members that can live in a
household to five. The Edmonds Community Development Code (ECDC) is this
ordinance enacted by the city.
Oxford House asks city council to make an accomodation. They claim this restriction is
unreasonableEdmonds claims that this is a reasoanble restriction regarding the max
number of arguments.
In FHA, handicapped is defined, and current alcoholism and drug addiction are not
handicaps, so it is inferred that recovering alcoholics are handicapped.
The language of the statute which states that any reasonable restriction on the number of
people living in a household is OK. Court rules that the FHA standard does not apply to
the statute in this case because more than five people who are related can live in a house.
EXCLUSIONARY ZONING (p588-590)
The use of zoning laws to exclude certain types of persons and uses, particularly racial
and ethnic minorities and low-income persons
A town may restrict the type of residential dwellings (not allow apartments or mobile
home parks, etc.). This keeps out poor people (and some blacks are poor, so some argue
it keeps them out too).
NAACP v. Mt. Laurel cases
The most important such cases are the two Mt. Laurel cases, in which the New Jersey
Supreme Court held that a town must allow its "fair share" of the regions demand for
low and middle-income housing. According to the Mt. Laurel principle, not only may
zoning not be used to keep out the poor, but affirmative measures must be taken by a
town to cause such housing to be built (e.g., density bonuses given to developers who
build some low income housing; cooperation with developers seeking federallysubsidized housing; allowing of mobile homes, etc.) Also, builders must be allowed to
seek site-specific relief (in which the court orders the builders parcel to be rezoned to
allow the particular project, if the court finds for the developer).
THE TAKINGS CLAUSE
PUBLIC USE REQUIREMENTS (p692-694)
Interpreted to mean that when the government wants to take property:
Must be taken for a public use
Must pay compensation to the owner.

Eminent domainGovernment can force a sale of everyones private property if it serves

a public purpose.
In order to take property, the government sues the owner of the parcel. The lawsuit is
called a condemnation proceeding.
As long as the taking serves a legitimate public purpose, it is OK.
Hawaii Housing Authority v. Frank Midkiff
Facts: Condeming large pieces of land so that the land will not be in the hands of only a
few landowners. This way, more people will own land. Court determines that this is a
reasonable public use of property, even though it is giving it to smaller, private
landowners. Public use in this case is more like a public purpose.
Poletown Neigborhood Council v. Detroit
GM wanted to build a plant. They threatened to move to another state unless a certain
tract of land was condemned and given to them. Detroit gave in and did it. This was
challenged as not being a public use. Majority said this is a public use by supporting the
economy of Detroit.
PHYSICAL TAKINGS (p. 649-657)
A permanent physical occupation is always a taking.
If its not permanent, it may not be a taking. Good arguments in Singer
Loretto v. Teleprompter Manhatten
CATV Co is runing cable across her roof and dropping them down into the apratments
across the front of the apartment. NY enacted a law that said landlords could not
interfere with CATV equipment installation on his premises, and that they could not
demand compensation from the tenant or the company for it. The court rules that this
physical occupation is permanent (permanent physical occupation), and that the landlord
deserves just compensation for the taking.
Precendent: US v. CausbyLow flying airlines are a taking
REGULATORY TAKINGS(p.643-648)
If a regulation goes too far, it is a taking.
Factors the court looks to in order to determine a regulatory taking :
1) economic impact on the claimantdimunition in value alone does not make a
taking
2) character of the governmental action (how important it is to have this regulation
to promote public good). Is this a substantial public purpose? Is this regulation
going to further that purpose? Whether a property owner is being singled-out or
are a lot of people being burdened? Is one person suffering for the benefit of
everyone, or is everyone suffering? If someone is singled out it is a taking.
3) The extent the regulation has interfered with investment-backed expectations.
Owners are not entitled to the most beneficial use of their property.
The most important are 1 and 3.

Penn Central v. City of New York

Penn Central wants to build a building on top of the train station.. But, the government
says that the station is a historic landmark and cannot be changed. Court holds that this is
not a taking. How do we tell if this is a taking?The real question is who should bear
the risk of the burden. The individual or the public? This is hard to predict.
Note: Regulations are generally not found to be a taking. You need a big economic
impact to do this. There have been big drops in values which still arent takings. AND
you need blatant singling out.
Anomalies:
A tiny physical invasion is always a taking, but a regulation that can wipe out half
of a propertys value, is often not a taking.
Only have to compensate if you go too far. If you go too far, you have to
compensate for everything. Whereas if there is just a small impact, then you get
nothing. But there are still impacts regardless.
TEMPORARY TAKINGS
"inverse condemnation" suit. Under such a suit, he may receive damages for the
temporary taking (temporary because the regulation is struck down by the court).
Year 1: RegulationZoning maybe
Year 2: Property owner brings taking suit
Year 3: Court rules that the regulation is a taking
Question: How do you treat the time between Year 1 and Year 3?
First English Evangelical v. County of LA
Church had a mountain complex. There was a flood which destroyed the buildings and
then the city passed an ordinance that banned building within the flood lines. So, they are
banned from building. The church sues and claims a taking.
If this is a taking, when do the damages start? The court held that damages start from the
time the regulation was enacted.
Tahoe Sierra
Kozinski dissent says this case went against First English
WIPEOUTS (p.661-671)
If regulation provides an owner with no economically viable use for his property, this is
a taking
Lucas v. South Carolina Coastal Council
Lucas purchased beach property before regulations about building on the beach. Now, he
is unable to build houses on his lots. Held: Court rules that this wipeout is a taking and

he must be compensated. If the state can show it is a nuisance, or interferes with other
property law, then he would have to compensated. Held: There is no taking if it is
deemed that the use of the property is unlawful or would be a nuisance.
DEVELOPMENT EXACTIONS (p686-689)
Demands the cities make with which property owners must comply in order to obtain a
building permit (if you build a development, must build a park, etc.)
Contract/Conditional Zoning--- A developer would propose to build something, and it
would be approved with conditions
Nolan
To not be a taking, the government must show the condition has something to do with
solving a problem created by the proposed building (must be a nexus). In this case, a
taking is found because allowing an easement to the beach just because you build a
bigger house is not proportional. Might be like extortion
Dolan
Wants to build a bigger store on her property. The city is concerned that there would be
more runoff from her property into the creek behind her property. Court imposes
conditions there must be a green area between her building and the creek, and a bicycle
path. The green area would be dedicated to the city. Court rules no rough proportionality
because a bike path cannot be determined to lessen traffic and the fact that there is a need
for a green area, does not mean it has to be transferred to the city.
Rough Proportionality Standard
In some states, there is a loose connection between the property and the required
dedication to the city. Other states require an exacting correspondence, and the
conditions must be directly proportional to the specifically created need. And still some
states require a reasonable relationship. This court says that there must be a rough
proportionality between the condition and the created need.
WHAT IS PRIVATE PROPERTY?
Phillips v. Washington Legal Foundation
Creation of IOLTA accounts, which hold funds for clients of lawyers. The interest off
these accounts was used by the state to fund public legal services. Two situations why
these funds are held: 1) sometimes lawyers are paid this way. 2) when payment is made
between parties, sometimes it is don e through lawyers. Court holds that interest on these
accounts is private property. Ultimately held not to be a taking, however, under Penn
Central. Court runs through standards.

TIMING
Palazzolo v. Rhode Island
P wants to build on his land, which becomes protected because the land is on wetlands.
1962-63proposes to fill all
1966proposes to fill part
1971Statute
1978P is now owner (although before it was owned by HIS company)
1983proposal to fill all
1985proposal to fill part
The complaint is about the statute denying him the chance to build, but in 1983 and 85,
the town said NO, you cannot build. They still may have given him permission in 1985,
so that is when his claim is ripe.
Ripe-- Has this person asked for enough. Does the court have a sense of the outer limit
of what he wants to do. In 1985, the town argues his takings claim was not ripe because
he could have asked to build something smaller and so on and so on.
TimingCan a property owner claim a regulatory taking on a statute that already existed
when he bought the property?
Some may argue that he had notice of the regulation and paid little for the property. The
counter to this though is then a taking would not be allowed to be claimed every time a
property changed hands (someone dies, or he gifts property to another, etc.).
Additionally, people who have the financial wherewithal to hold on to property have an
advantage because the statute may change, or a variance may be granted, etc.