Property Law Outline

Possession
1. How Possession is established
a. First in Time Principle (Pearson v. Post, Popov v. Hayashi, Ghen v. Rich, INS v. AP)
b. Judicial precedent
c. Industry custom- (Ghen v. Rich)
d. John Lockes Labor Theory- Reward for invested labor- (INS v. AP, Law of Accession- Manure
case, mix of materials v. labor)
e. Notions of fairness
f. Reliance- (Van Vaulkenburg v. Lutz, Local 1330 v. US Steel, Okeefe, Doctrine of agreed
boundaries)
g. Occupancy Theory- is this different from the First in Time Principle?- they are the same thing
h. Utilitarian Theory- (Smith v. Chanel, Cheney Brothers, Keeble v. Hickeringill, INS v. AP)
i. Constructive Possession
j. Personality Theory- developed by Holmes- persons roots sink in as time goes on (Charlies
shack in Van Vaulkenburg)
k. Discovery Principle- (Johson v. MIntosh)
l. Conquest Principle- (Johson v. MIntosh)
2. Popov v. Hayashia. Facts- Popov tried to get control of the ball, but people jumped on him and it fell out of his hand
and Hayashi picked it up
b. Rule- Where an actor undertakes significant but incomplete steps to achieve possession of a
piece of abandoned personal property and the failure to continue the effort is interrupted by the
unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property.Notions of Fairness
c. Conclusion- If both parties have sufficient possession then they must split the value
3. Pierson v. Post
a. Facts- Post was pursuing a Fox with his hounds on a beach when Pierson killed the fox and took
it away
b. Rule- you cannot claim possession without wounding, damaging, or trapping a wild animalJudicial Precedent
c. Dissent- if someone has made an effort to capture a wild animal, a freeloader should not come in
and steel the pursuers just rewards- Labor Theory
d. Conclusion- no right to possession of wild animals unless one does something to significantly
facilitate capture of the animale. Side Note- Sometimes its better to create a clear cut rule that could easily be applied to most
cases4. Standard v. Rule
a. Advantages of rules
i. Less litigation
ii. More clear cut
b. Advantages of standards
i. Rule may not comport with common understanding
ii. Flexibility/fairness- as the importance increases, you may want more flexibility
iii. The rule may not be able to anticipate all circumstances
5. Keeble v. Hickeringill
a. Facts- P setup a decoy pond to capture wildfowl. D intentionally tried to prevent P from
capturing wildfowl by hanging out at the pond and unloading his gun in order to scare the birds
away

b. Rule 1- theory of malicious interference with trade (similar to Popov case).

c. Rule 2- Abuse of right- an owner abuses her property right when she exercises that right with the
subjective intent of harming someone
d. Conclusion- If he had setup his own pond on his own property there would be no crime. Court
tries to promote economic efficiency and innovation to promote the social good- utilitarian
theory of property
e. Ways to regulate the disputei. Create a zoning ordinance
ii. Neighbors could bargain with one another
iii. Hickeringill could pursue a nuisance claim in torts
iv. Neighbors could contract with one another to limit their uses
6. Ghen v. Richa. Facts- Ghen kills the whale, but Ellis finds it and decides to sell it to Rich without report his
finding (breaking custom).
b. Rule 1- opportunistic possession would hurt a particular industry and should be prohibited
(utilitarian theory)
c. Rule 2- The custom of the industry is that the person to first harpooned it or fastened a line to it,
possesses it (Industry Custom)
7. Externalities
a. When a resource user engages in particular behavior that creates particular costs or benefits that
the resource user is not taking into consideration
b. Keeble was imposing an externality on Hickeringill by building a pond that took away the ducks
from Hickeringill's pond.
8. Custom
a. Good reasons to rely on custom include
i. Reliance/ expectation
ii. Business efficiency
iii. Based on Social norms and relationshipsiv. Out of the realm of jurisprudence
b. Custom may not be a good thing because
i. It might favor the status quo/ and the existing business elite
ii. It might stifle innovation/efficiency
iii. Custom favors market players not consumers (doesn't take third party interests into
account)
9. Animal Law as applied to Natural Resources
a. Fugitive resources- Oil, water, and natural gas are considered fugitive resources because they
wander from place to place underneath the ground
b. Rule of capture- the rule for the extraction of theses natural resources is essentially the same as
those used for animals (the rule of capture) because they are both able to move across
boundaries.

c. Forced Pooling- forces landowners to join their neighbors in signing an agreement to lease their
land to gas companies for gas extraction purposes
i. Forced pooling may be more economically efficient and environmentally friendly (less
wells)- this argument is supported by the utilitarian theory
ii. However, efficiency isnt everything, other factors to consider include how you value
wealth maximization, as well as competing values like privacy, dignity and property
rights
iii. Forced pooling can sometimes occur with approval of the owners of 25% of the land
10. Harold Demsetz
d. Three forms of ownership
i. Communal
ii. Private
iii. State
e. He claims that if a property is owned in common, then it is likely to result in more externalities
than if it is owned in private
f. Tragedy of the commons- with respect to commons property, society will act contrary to the
collective best interest of the group, even though the individual acts with their own self-interest
g. Other ways to limit externalities include
i. Small cooperative groups
ii. Governmental management
iii. Pro rata sharing
Adverse Possession
1. Elements of Adverse possession
a. Entry is required because adverse possession depends on a statute of limitations running against
a cause of action and entry creates a cause of action
b. There must be actual use to put true owner on notice
i. Howard- ordinary and typical use
ii. Petis and Ewing- 121
c. Entry must be sufficiently open and notorious that they would put reasonably attentive property
owners on notice that someone is on their property
i. Manillo- actual knowledge of minor encroachment
d. Use must be exclusive, meaning it cannot be shared and it cannot be by someone elses
permission
e. Entry must be continuous for the statutory period, but not literally constant
i. Howard- tacking and summer occupancy

ii. This may matter with successive true owners if the possession runs against someone who
only owns a life estate. If the true owner only owns the life estate, then there are going to
be complexities. A life estate is a willed property that allows someone to live in an area
until their death
f. Entry must be adverse and under a claim of right, or, as it is sometimes expressed, hostile and
under a claim of title
i. In CA, an added element of adverse possession is the need to pay property taxes for a
statutory period of 5 years
ii. Lutz- good faith
iii. Manillo- Maine Doctrien v. Conneticut Doctrine
2. Prescriptive Rights v. Adverse Possession
a. By adverse possession one may acquire the title or ownership and the exclusive possession of
land formerly belonging to someone else
b. prescription gives rise to rights of use, such as rights of way and other easements but title to the
land remains with the original owner
3. Van Vaulkenburgh v. Lutz
a. Facts- Lutz built a home and farmed a parcel of land that was purchased by Van Vaulkenburgh.
Vaulkenburgh and the part of the land he built his garage on, he did so by accident
b. Rule- without a good faith claim to the land, one cannot claim adverse possession
c. Conclusion- Lutz was successful in getting an easement on the land, but was unsuccessful in his
adverse possession claim. Lutz mistake was that he admitted during the easement trial that the
land belonged to Van
d. Possible solutions in the case
Lutz

Win

Lose

Property

Lutz gets land VV gets land

Liability

Lutz pay

VV pay

4. Three standards for adverse possession- the state of mind is determined by looking at the adverse
possessors actions
a. Objective standard- Intent is irrelevant
b. Good-faith standard- I thought I owned it
c. Aggressive Trespass Standard- I knew I didnt own it, but I intended to make it mine
i. Aggressive trespassers are sometimes known as squatters
5. Reasons for adverse possession
a. Punishing the sleeping property owner
b. Recognize the adverse possessors reliance on the property
c. Reward the person that makes the best use of the land
6. Claim of title v. Color of title
a. Claim of title is simply one way of expressing the requirement of hostility or claim of right on
the part of adverse possessor
b. Color of title, on the other hand, refers to a claim founded on a written instrument or a judgment
or decree that is for some reason defective and invalid
c. Sometimes claim of title alone wont do and color of title may be necessary to establish an
adverse possession claim
d. When you are claiming with a color of title, and you improve a small plot of the land, you get the
whole land. But if you have a claim to title, and you improve only a small part of the plot, you
only get that small plot
7. Constructive possession- actual possession under color of title of only a part of the land covered by the
defective writing is constructive possession of all that the writing describes
8. Manillo v. Gorski
a. Facts- Ds fence encroaches on Ps land and P wants an injunction to have D remove his fence

b. Analyze options- Maine Doctrine could have been used (A litigant needs to have an intent to
possess in order to establish adverse possession and it must be an intention to claim title to all
land within a certain boundary on the face of the earth, whether it shall eventually be found to be
correct or not (aggressive trespass standard)
c. Scope of holding- an innocent trespasser of a small portion of land should be allowed to keep the
land and pay for its fair market value if the land cannot be given up without great hardship
d. Interpretative technique- Connecticut Doctrine- Mistake makes no difference in determining
intent because entry and possession are sufficient to establish an intent to adversely possess
(objective standard)
e. Principle- No presumption of knowledge arises from a minor encroachment along a common
boundary
f. Factors analysis
i. The Maine Doctrine was perverse in that it punished innocent trespassers while
rewarding aggressive trespassers
ii. There is a degree of economic efficiency in not tearing down a wall that cost a lot of
money to put up
iii. The trespass was not open and notorious
9. Three equitable doctrines
a. Doctrine of Agreed Boundaries- if there is uncertainty between neighbors as to the true boundary
line, an oral agreement to settle the matter is enforceable if the neighbors subsequently accept the
line for a long period of time
b. Doctrine of Acquiescence- provides that long acquiescence (even though the time period may be
shorter than that called for by statute- is evidence of an agreement between the parties fixing the
boundary line (usually only for jurisdictions with long stator periods)
c. Doctrine of Estoppel- comes into play when one neighbor makes representations about the
location of a common boundary, and the other neighbor then changes her position in reliance on
the representation or conduct. The first neighbor is then estopped to deny the validity of his
statement or acts. Estoppel has also been applied when one neighbor remains silent in the face of
expenditures by another that suggest the latter's notion of the boundary's location
10. EXAM- list the elements of adverse possession and discuss sub-issues like the different elements of
claim of right
11. Schwartz v. Hoffman v. Moran Hypothetical- if Schwartz encroached on Hoffmans land and they
agreed to keep the land as is and Hoffman later sold her land to Moran, can Moran sue Schwartz for
trespass? No, because the doctrine of agreed boundaries applies to her even though she didnt make the
agreement
12. Howard v. Kunto
a. Facts- The Howards attain the deed to Kuntos home and try to seize the property.
b. Analyze options- court could have claimed a lack of privity, thereby preventing tacking, because
the Kuntos purchased the deed to a land which was not the one they were occupying
c. Scope of holding- possession of the land by the predecessor in privity with the present owner
plus improvements to the land constitutes a continuous possession
d. Principle- possession requires such possession and dominion as ordinarily marks the conduct of
owners in general in holding, managing, and caring for property of like nature and condition- in
this case, summer use is actual use for a summer home

e. Principle 2- tacking is permitted if successive occupants are in privity and privity is established if
the deed transferring the land was in the form of a contract- the purpose of privity is to reward
the legitimate purchaser
f. TRICKY POINT- if the law does not require a good faith claim of right, then it shouldnt require
a good faith privity
g. Analyze factors
i. There was no actual or constructive notice because the initial surveyor got it wrong and
the problem was visible
ii. Kuntos improved the land
iii. They were good faith possessors
iv. The Howards seemed deceptive in their action to seize the Kuntos land
h. Distinction- Buchanan v. Cassell stated that land adversely seized and included in a deed can be
tacked. Howard v. Kunto extends Buchanan to mean that land, not described in a deed and
adversely seized, can be tacked.
13. Disabilities and the Statute of Limitations- If a disability is in place at the time the statute of limitations
begins to run, the party with the disability will be given an additional 10 years to claim the property
Acquisition by Reliance in the Marketplace
1. OKeefe v. Snyder
a. Facts- P tries to recover a painting that was stolen from her nearly 50 years ago and on which the
statute of limitations has run
b. Analyze options- the court could have decided the case as dismissed because if it argued that the
statute of limitations accrues when the painting was stolen
c. Scope of holding- discovery rule acts as a limitation to adverse possession of stolen or lost
property that is not real estate
d. Principle- Discovery Rule- a cause of action will not accrue until the injured party discovers, or
by the exercise of reasonable diligence and intelligence should have discovered, facts which
form the basis of a cause of action- it does not apply to real estate
i. Applies on a case by case basis because requirement for due diligence may be greater as
the value of the goods increase
e. Analyze factors
i. The adverse possession was not open and notorious, requiring the discovery rule to
remedy the problem
f. Effects
i. Places the burden on the original owner to encourage owners to seek out their property
ii. Encourages good faith purchases from legitimate art dealers
iii. Discourages trafficking of stolen goods
g. Alternative Rule- Guggenheim Rule- removed the requirement for due diligence on the true
owner and claimed that accrual began when the true owner claimed the property
Reliance Interest in Property
1. United Steel Workers v. US Steel Corporation
a. Facts- the management promises the workers that if the plant becomes profitable, it will not be
closed. The workers, in reliance on the promise, were able to have the plant make a profit. The
management decided to close the plant anyway, and the workers tried to prevent the closure
b. Relational Notion of Property (Singer)- Instead of recognizing that the company had an absolute
right, the court should have recognized the companys relationship with the workers and their

corresponding right as consisting of a bundle of rights and privileges. Every right has a
complimentary duty and every privilege has a complimentary no right.
2. Questions Answered by the Professor
a. Assume A sells to B who sells to C. Can C tack the use of A, if A and B were in privity and B
and C were in privity? Yes.
b. Can you describe a scenario where an objective standard for a claim of right affects the privity
requirement of tacking? This is all hypothetical but the requirement of privity is really

about ensuring that good faith possessors are transferring their interest via a deed.
Privity ensures that hostile trespassers cant tack. But if youre in a jurisdiction that
doesnt care about state of mind then you shouldnt need privity to tack since the
doctrine of claim of right would be indifferent as to whether youre a good faith
possessor or a hostile trespasser.

c. Can you adversely possess from the government? Say, for example, I build a cabin in a state park
and occupy it continuously for the entire duration of the statute of limitations. Is it mine now?
You cant, generally speaking. There s a little blurb at the end of the adverse
possessor that describes attempts to adversely possess against the govt.

3. Whos Should be Making the Rules- Legislature v. Judiciary

Legislature

Judiciary

More time

Common law is a core judicial function

Resources

Not beholden to interest groups

Case facts don't bind

Promote non-majoritarian values

Expertise/capacity to study

Case by case adjudication may be superior to broad

statute writing

Democratic and more

accountable

Action-forcing

Interests represented may be

broader

More accessible

Legislature can overturn itself

The legislature can always overturn a law

General Principles of Intellectual Property- Acquisition by Creation

1. The main conflict in these types of cases is between the public interest in creativity and innovation and
the private interest in payment from work product
2. QUESTYION- If materials belonging to two different groups are mixed, who owns them? if the
materials are very valuable the owner of the materials owns the mixture, unless the labor substantially
increased its value, then the laborer owns the mixture (paint and canvas and painter)
3. INS v. AP
a. Facts- INS is accused of pirating APs news by copying news from APs bulletin boards
b. Relational Theory of Propertyi. Public- The news is common property and no one has a right to property after the
information has been published or made public. Therefore, one can take the news from a
newspaper and spread the information gratuitously
ii. Competitors- However, competitors have a duty to conduct their own business as not to
unnecessarily or unfairly injure the other. In which case, although there is no property
interest for AP as between them and the public, the property interest between them and
their competitors remain, because otherwise they would be unfairly injured
c. Holding- The form and content are not copyrightable as to the public, but the for is copyrightable
as to competitors
d. Analysis of Factors-

i. Labor Theory- AP expended labor, money, and skill to attain the news and INS is
benefitting from that without having to pay for the cost of it
1. Counter- AP might be forced to innovate
ii. Policy Argument- By stripping AP of their profit, INS threatens the entire news industry
(Ghen v. Rich- whaling will cease as an industry)
1. Counter- (opposite of Hickeringill where the court felt that competition would be
good- can be distinguished)- may lead to cheaper price, different type, better
quality for consumers
4. Cheney Brothers v. Doris Silk Corp.
a. Facts- P cant patent designs because they change every season, but he wants to prevent D from
imitating the most popular designs
b. Principle- You can exclude others from enjoying what you made, but you cant exclude others
from imitating it
c. INS v. Cheney Brothersi. Court notes that Cheney Brothers design probably wasnt original in the first place
ii. Whats at stake seems more trivial in this case
5. Smith v. Chanel
a. Facts- advertiser was telling consumers that their product was similar to a specific type of Chanel
perfume
b. Consumer Interests- imitation can be compared to the original to help the consumer make the
choice between the cheaper imitation and the more expensive brand name
6. White v. Samsung
a. Facts- White claims Samsung violated her publicity right by creating a robot in an advertisement
next to a wheel of fortune that appropriated her identity
b. Right of Publicity- a kind of property interest, assignable during life, descendible at death. The
property interest includes name, likeness, and other aspects of one's identity. The right of
publicity is rooted in the right of privacy
c.
Means of
Protection
Patents

Duration

Copyrights

Lifetime plus 70
years after death
Until abandoned
or made generic

Trademarks

20 years

Degree of
Justification
Protection
Most- monopoly First in Time;
Labor Theory
Second Most

Least

Provides
valuable info to
consumers

Notes
Nature cant be
patented
Need to be
creative- Feist
Can draw
comparisons

Reflections on Acquisition and Posession

1. Moore v. UC Regents
a. Facts- doctor used tissue samples from patients excised cells to create a very profitable gene line
b. Definition of Property- the essential element is dominion or the right of use, control, or
disposition
c. Reasons against Moores ownership
i. Labor theory- the doctor put in the effort to patent a cell line that is distinct from the cells
taken from Moore
ii. The doctor was relying on patenting lymphokines, which are common to everyone
iii. Utilitarian argument- You dont want to stifle research and innovation by forcing
researchers to discover the pedigree of their research materials

iv. Institutional competence- Legislature should decide whether patients deserve a portion of
the profits from cell lines derived from their genes
d. Reasons for Moores ownership
i. The spleen is really valuable and Moore provided the fundamental ingredient
ii. Personality theory- the spleen was a part of Moore
iii. Publicity/Privacy Rights- the spleen was unique to Moore
2. Right of transferability- requires the right to exclude and the right to include. Generally, courts are more
sympathetic to infringements on the right to exclude than on the right to include.
3. Jacque v. Steenberg Homes
a. Facts- D delivered mobile home over Ps land and against Ps protestations
b. Policy arguments
i. Society has an interest in protecting the rights of the landowner
ii. Society has an interest in protecting peoples trust in the efficacy of the legal system
c. Holding- Because nominal damages would not be enough to deter this type of behavior, punitive
damages are appropriate
4. State v. Shack
a. Facts- a health service provider and a lawyer entered Ps lands against Ps protestations
b. Hofeldian reasoning- the workers that the health service provider and the lawyer came to serve
had a RIGHT to that service and the farm owner has a corresponding DUTY not to prevent them
from accessing that right
c. Principle- necessity may justify trespass
d. Shack v. Jacque
i. The court in Shack chooses the right to health and legal services over the right to exclude
others. The court in Jacque chooses the right to exclude others over the desire for
efficiency
ii. When owners grant rights of access to others, they are not unconditionally free to revoke
those rights
iii. When people create relations of mutual dependence involving joint efforts, and the
relationship ends, property rights may be redistributed among the parties to protect the
legitimate interests of more vulnerable persons
iv. Property rights are distributed from owners to non-owners to protect interests, distribute
resources, and fulfill needs of vulnerable parties
The Right to Use and Quiet Enjoyment (Nuisance)
1. Morgan v. High Penn Oil
a. Facts- refinery emits gases 2-3 per week that make people sick. P seeks injunction against plant
b. Unintentional Nuisance v. intentional nuisance
i. The difference between the two is intentionality. Stated differently, it is knowledge of the
effects of a behavior, not the state of mind when the acts are committed
ii. Unintentional nuisance is rare, and usually only takes place when the harm occurs many
years after the fact (lead pain or asbestos cases)
iii. If the nuisance is intentional, then it must also be unreasonable
iv. If the nuisance is unintentional, then it must also be negligent or reckless or
ultrahazardous
v. An act is intentional if
1. Acts for the purpose of causing it
2. Knows that it is resulting from his conduct
3. Knows that it is substantially certain to result from his conduct
c. Did the court in this case rely on a threshold test or a balancing test?
d. Unreasonableness in nuisance has two definitions
i. Common law- rather than weighing the costs and benefits, the relevant inquiry is the
level of interference that results from the conduct--particularly, whether it crosses some
threshold point of liability

ii. Restatement- The gravity of harm caused outweighs the utility of the actor's conduct and
if the utility is greater, then the compensation would not make the continuation of the
business unfeasible (utilitarian theory of property)
1. Factors that determine the gravity of a plaintiffs harm
a. Extent and character of harm
b. Social value of use
c. Suitability of locality in question
d. Burden on the plaintiff for avoiding the harm
2. Factors that determine the social utility of plaintiffs conduct
a. Social value (jobs)
b. Suitability of location
c. Impracticability of avoiding harm
i. If the social utility of a defendants conduct outweighs the gravity
of the harm to the plaintiff, the plaintiff can still be compensated
unless paying damages would force the defendant out of business
ii. The Restatement only takes into consideration the plaintiff's unique
harms, while it takes into consideration all the benefits of the
defendants behavior, including to the community. The harms could
include harms to the environment, for example.
e. The Kos Theorem- Traditionally people think of nuisance as one party causing harm to another.
However, nuisances are reciprocal in nature. A is being a nuisance to B by playing the drums, but
B is being a nuisance to A by being present and restraining his drum playing. Also, with the
absence of transaction costs, it doesn't matter where you place the injunction because the parties
will bargain for the outcome.
i. However, settlements with multiple parties include higher transaction costs and the
possibility of a holdout
f. Intentional trespass v. Intentional Tort
i. Trespass is treated like other intentional torts, while nuisance is subject to inquiries
regarding reasonableness and amount of time
ii. Nuisance involves intangible things, while trespass involves tangible things
iii. Nuisance can be found in spiteful acts (e.g. building a fence or leaving garbage
somewhere near an opposing parties house)
iv. Courts care more about the right to exclude
2. Amphitheatres v. Portland Meadows- drive-in theater sued amusement parks for bright lights, court held
that nuisance law protects ordinary uses, not abnormally sensitive ones
3. Estancias Dallas Corp. v. Schultz
a. Facts- loud air conditioning prevented the house from being used for normal uses
b. Holding- court decides to grant an injunction, despite the fact that the apartment building had so
many other residents and the cost of preventing the harm was great.
c. Big Picture- When balancing interests, interfering with normal use plays a big role
4. Boomer v. Atlantic Cement
a. Facts- cement plant is causing cracks in peoples homes and respiratory problems from all the
dust
b. Courts options
i. Grant injunction, but postpone effect to give time for technological advancements
ii. Grant injunction, conditioned on payment of permanent damages
c. Targeting Individuals- it would be unfair to target a particular cement company when the
pollution is industry wide
d. Problems with permanent damages
i. May be paying for damages in the future that a party may not createii. Difficult to measure damages

iii. If a party receives damages, they might sell their property to someone else and future
property owners may not sue
iv. Maybe periodic damages are better, but they require a lot of transaction costs
5. Spur Industries v. Del Web Development
a. Facts- P cant sell his homes because of the odor and flies caused by Ds cattle feeder
b. Difference between private and public nuisance
i. Private nuisance- one affecting a single individual or a definite small number of persons
in the enjoyment of private rights not common to the public
ii. Public nuisance- one affecting the rights enjoyed by citizens as a part of the public, has
nothing to do with land
iii. Since the private nuisance is limited to a few people, the remedy is usually damages,
whereas the public nuisance affects a large number of people and deserves an injunction
c. Relief- when land developers bring residents to an agricultural area, they should pay for the cost
of the relocation of the agricultural activity because their actions are short-sighted and they are
profiting from it
d. Alternative Scenario- if a city naturally grows to border an agricultural land, a court finds no
fault with the city or developers and grants an injunction (The difference here is that the city did
not grow naturally?)
e. Coming to the nuisance defense- moving into a vicinity of a nuisance does not completely bar a
suit for damages or injunctive relief, but it is a relevant factor
f. Circumstances that bear upon whether something is unreasonable (Site Cases for these factors)
i. Whether there is interference with public health, safety, peace, comfort, or convenience
ii. Whether the conduct is proscribed by statute or ordinance
iii. Whether the conduct is of a continuing nature or has produced a permanent or longlasting effect
g. Four possible ways to resolve a nuisance
i. Abate the activity in question by granting the plaintiff injunctive relief (Morgan and
Estancias)
ii. Let the activity continue if the defendant pays damages (Boomer)
iii. Let the activity continue by denying all relief
iv. Abate the activity if the plaintiff pays damages (Spurs)
h. Right to farm defense- when residences encroach on farming areas, they cannot sue for nuisance
because there is a right to farm provision codified in a local statute
i. Problem with applying nuisance to environmental law
i. Nuisance litigation is expensive and complex
ii. Plaintiffs may suffer a small part
iii. Judges are ill-equipped to deal with cases involving scientific expertise
iv. Judges lack the political competence to make large-scale decisions
j. Potential remedies
i. Class actions suits
ii. Provisions of attorneys' fees to plaintiffs bringing suit in the public interest
iii. Special environmental courts
k. Answering Nuisance Questions
i. Private or Public Nuisance or trespass? (is the intentional or unintentional analysis the
same for both?)
1. Intentional
a. Threshold Test (Boomer, Estancias, Morgan)
i. Exceeds threshold
1. If the gravity is greater than the utility, enjoin
2. If the utility is greater than the gravity, damages
ii. Does not exceed threshold
1. Coming to the Nuisance

2. Right to Farm
3. Abnormally sensitive plaintiff
b. Restatement
i. Character and extent of harm
ii. Opportunity to abate
iii. Suitability of use
1. Gravity greater than utility
a. Enjoin
2. Utility greater than gravity
a. Is the harm serious? (Boomer)
2. Unintentional
a. Negligence
b. Gross negligence
c. Recklessness
l. The primary difference between the threshold test and the Restatement Test is that under the
threshold test, if the harm is not serious, the plaintiff can still be compensated for it
m. Think about remedies
i. Unquantifiable harms: willing to enjoin
ii. Multiple parties: unwilling to enjoin because parties may not settle
iii. Mandatory injunctions vs. prohibitory injunctions
iv. If you are thinking about making the plaintiffs pay, think about the practicality of that
happening
Takings
1. Kelo v. City of New London
a. Facts- state tries to exercise eminent domain to build new property and attract businesses
b. Principles
i. Can't take private land to give as private property to another
ii. Can't transfer private land between private parties for future public use
iii. Can't take with the purpose of bestowing a private benefit on a party
c. Public Usei. Open or usable by the public (narrow)
ii. Promotes a public purpose (broad)
d. Holding- in this case, economic development constitutes a public use
e. Deference- courts should defer to the legislature on whether something constitutes a public use
and how much needs to be taken to promote that public use
f. Precedent Cases
i. Berman v. Parker- transforming a blighted area into a well-balanced community through
redevelopment constituted a valid public use
ii. Hawaii Housing Authority v. Midkiff- redistribution of land to prevent oligopoly
constituted a valid public use. It doesn't matter that it was transferred to private
individuals.
g. Factors to exercise eminent domain
i. A state statute allows for the eminent domain
ii. A plan that shows that there was a lot of thought put into it
h. Reasons to defer to the legislature
i. It is a democratic decision-making process
ii. City governments may be more responsive
iii. Governments can pass statutes preventing eminent domain if they want
i. Three traditional types of land transfers
i. Transfers of private property to public ownership (as for road)
ii. Transfers to private parties such as common carriers who make the property available for
public use

2.

3.

4.

5.

6.

iii. Transfers to private parties as part of a program to serve a public purpose

j. Just Compensation- "compensation in the constitutional sense (market value) is therefore not full
compensation, for market value is not the value that every owner of property attaches to his
property but merely the value that marginal owner attaches to his property
Loretto v. Teleprompter Manhattan
a. Facts- law made it unnecessary for telecommunication companies to compensate owners of
apartment buildings for using their buildings to pass lines over
b. Rule- a permanent physical occupation by a third party authorized by government is a taking
without regard to the public interests that it may serve
c. Permanent means not removable
d. 3 types of distinctions
i. A permanent physical occupation- automatic taking
ii. A physical invasion short of an occupation- weigh to determine taking
iii. A regulation that merely restricts the use of property- not a taking
e. 3 rights in the bundle of rights
i. Possess- includes the power to exclude
ii. Use
iii. Dispose of- if the land is deprived of value, than the party has lost the right to dispose
f. Rule- whether something is a taking shouldn't depend on the size of the area permanently
occupied. The extent of the occupation should be used as a factor to determine compensation.
Hadacheck v. Sebastian
a. Facts- guy operates a brickyard in the middle of LA
b. Limitation on eminent domain
i. Cannot be unjustly discriminatory
ii. Cannot be arbitrary
c. Balancing test- The interest in public health matters more than the narrow business interest in
this case and therefore the government is justified in exercising its police power
d. Police Power v. Eminent Domain
i. Eminent Domain is the taking of land through compensation for the benefit of the public.
ii. Police Power is the taking of land without compensation to prevent harm to the public.
Harm to the public includes harms to: health, morals, security, general welfare
Pennsylvania Coal Co. v. Mahon
a. Facts- state passed a law that annulled a provision in peoples contracts that allowed a company
to mine for coal underneath their land.
b. Why it is not the exercise of police power
i. Caters to the narrow interests of some landowners
ii. Harm can be avoided with sufficient notice
iii. Landowners knew what they were getting themselves into with the contract
iv. Conceptual Severance- There are three rights in question: surface, support, and sub-soil.
If the state can seize and pay for surface rights, it can do so for the other rights
v. There is no Reciprocity of Advantage- When a burden exists on all to the benefit of all
c. Rule- property may be regulated to a certain extent, but if it goes to far, it is a taking
d. Rules from different cases
i. Loretto- permanent physical occupations are always takings
ii. Hadacheck- Nuisance-control measures are never takings
iii. Pennsylvania Coal- when governmental regulation of a use that is not a nuisance works
too great a burden on property owners, it cannot go forth without compensation
Keystone Bituminous Coal Association v. DeBenedictis- The statute preventing 50% of coal under
buildings from being mined did not work a taking, despite similarities to the Kohler Act, because its
purpose was not just to balance private economic interests, but rather to protect the public interest in
health, environmental quality and fiscal integrity (found a nuisance)
Penn Central Transportation Co. v. City of New York

a. Facts- the owners of Penn Central want to build on top of it, but the city wants to maintain it for
its historic significance
b. Positive Externalities- the market does not take into consideration all the positive externalities of
Penn Central, like the great view of the building from peoples apartments
c. General Analysis for Determining a Taking
i. The economic impact of the regulation on the claimant,
ii. The degree of interference with the distinct investment-backed expectations
1. A taking is less readily found when the investor had a sufficient amount of time to
realize his investment-backed expectation
2. Existing regulations may be factored into the price of an investment
iii. Character of the governmental action
1. A taking is more readily found when there is a physical invasion
2. A taking is less readily found when the regulation promotes the common good
3. Courts are more deferential with the right to use than the right to exclude
d. No Taking because
i. Reciprocity of Advantage- By becoming a landmark and being subject to preservation,
the owners of Penn Central get more income from the tourists that come to visit it
ii. Diminution in Value- there has not been a 100% diminution in value because the air
rights can be transferred, so it is still valuable
iii. Conceptual Severance- need to look at the building as a whole, not at just the air rights
part
e. General Welfare- Aesthetic value can be considered part of the general welfare
7. Lucas v. South Carolina Coastal Council
a. Facts- Council prevents Lucas from developing its plots because of threat posed by hurricanes
b. Functional Basis- the government could hardly go on if to some extent values incident to
property could not be diminished without paying for every such change in the general law
c. Rule- if a regulation denies an owner economically viable use of his land, resulting in a 100%
diminution in value of the property for its intended purpose, then there is a taking, unless there
are objectively reasonable and relevant precedent that would exclude those beneficial uses in the
circumstances in which the land is presently found
d. Affect on Precedent- This case qualifies Hadacheck because preventing a nuisance is no longer
an automatic exercise of police power
e. Total Taking Inquiry (when do we use this inquiry?)
i. The degree of harm to public lands and resources, or adjacent private property, posed by
the claimants activity
ii. The social value of the claimants activities and their suitability to the locality in question
iii. The relative ease with which the alleged harm can be avoided through measures taken by
the claimant and the government
f. Harm Preventing v. Benefit Bestowing
i. A government regulation is more legitimate if it is harm preventing, than if it is benefit
bestowing
ii. The newer the regulation, the more likely it will be found to be benefit bestowing
iii. Lucas argues that this law bestows a benefit onto nearby homeowners
g. Dissent
i. New rule prevents legislatures from evolving their definitions of nuisance
ii. Developers will be encouraged to create smaller plots to realize 100% diminution
8. Palazzolo v. Rhode Island
a. Facts- Ps lands were designated as wetlands and he was prevented from developing them
b. Unanswered Questions
i. When a legislative enactment can be deemed a background principle of state law or
whether those circumstances are present here
ii. Court avoids the question of what the value of the parcel should be measured against

c. Diminution in Value- The property as a whole (valued at 3.2 million) still has value because a
small portion of it can still be developed (the small portion is valued at 200k)
d. Limitation on Notion of Background Principles- the takings analysis is not limited to regulations
that existed before the acquisition of property. This rule would disallow claims by heirs or
successors and insulates government if the regulation is not challenged upon its enaction.
9. Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency
a. Facts- building moratorium in Tahoe prevented landowners from developing their lots
b. Severance- you cannot separate in time or space and must look at the property as a whole
c. Inverse condemnation action- claimant, rather than the government, institutes a suit alleging that
a taking has occurred and seeking recompense for it
d. First English Rule- if a government regulation results in a taking, then the government must pay
just compensation from the time the regulation first worked the taking until the time the
govrnment rescinds the regulation or changes it in such a way that no taking occurs (Tahoe
leaves this rule untouched)
e. Possible Forms of Compensation for temporary takings- fair rental value, option price, interest
on lost profits, before and after valuations and benefit to the government
f. Agins v. City of Tiborn- the language of a substantially advancing legitimate state interest is no
longer appropriate or relevant
10. Nollan v. California Coastal Commission
a. Facts- Nollans wanted to develop their beachfront property, but the state required an easement in
exchange for the building permit
b. Contrast to Traditional Takings Analysis- City's are issuing building permits and in the process
are exacting something in return for the permit that would normally be unconstitutional (why is
the analysis different because there is an existing structure?)
c. Permit- If the city had created an easement without a permit, then there would have been a taking
d. Principle- easements constitute permanent physical occupations resulting in a taking
e. Nexus Test- unless the permit condition serves the same governmental purpose as the
development ban, the building restriction is not a valid regulation of land use but "an out-and-out
plan of extortion"
f. Disconnect- the commission's goal is visual access, but the condition requires lateral physical
access.
g. Pruneyard Shopping Center v. Robbins- not a taking because the store was able to restrict the
times the solicitors were able to come onto their property
h. There would be no taking if the Nollans were denied a building permit because there wouldnt
be a 100% diminution in value
i. Big developers don't want to have a big fight with these types of regulatory agencies because it
would be difficult for them to have future developments and deal with those parties
11. Dolan v. City of Tigard
a. Facts- Ps building permit was made conditional upon his allotting the state some land for flood
control and traffic improvement
b. Reasons why this is a taking
i. Discriminatory- Didn't apply to the entire city, but conditioned on a specific building
permit
ii. Public v. Private- Didn't limit use, but forced her to give up land
c. Court's nexus standard- a rough proportionality between the government's actions and their
stated objectives
d. Burden- when creating conditional permits the burden is on the government to justify the
required dedication. The burden shifts when the city has a zoning ordinance, where the burden is
on the challenging party
e. The required nexus is lacking because the
i. Reason-City never stated why a public greenway is required for flood control
ii. Proof- City didn't demonstrate that their plan is likely to lead to their intended goal

iii. Right- In addition, this interferes with P's right to exclude

f. What if the city in Dolan asked for impact fees instead of the land. Does that impact fee
constitute a taking? The CA Supreme Court says yes it is subject to the same rough
proportionality analysis
12. Attack guide
a. Eminent domain
i. Is it for public use (Kelo)
1. Definition of public use should be deferential toward the legislature
2. Economic development is a public use because it is for a public purpose
3. What if it is private to private just to justify more tax revenue- open question
4. Can also have legislation that limits the power of municipalities to exercise their
power of eminent domain
ii. Was the compensation just (we don't really spend a lot of time on this- usually based on
fair market value plus expenses)
b. Regulatory takings
i. Permanent Physical Occupation (Loretto)- public interest doesnt matter.
ii. 100% diminution in value- (Lucas)
1. If there is 100% diminution in value then there is no reciprocity of advantage
2. Exceptionsa. Hadacheck- if you were exercising police power to prevent a harm then no
taking- Lucas undermines this because any government regulation can be
couched in terms of preventing harm
b. Nuisance/ Limitation on title- Palazollo- what happens when a property
owner buys a property with the challenged regulation already in placemakes clear that it is still possible to bring a takings challenge for post
adoption purchases
c. Background principles make the use unlawful (Lucas)
iii. Conceptual severance- you can sever when the background property laws create distinct
property interests
1. Penn Coal- legislatively created severed property
2. Tahoe- can't temporally sever for the most part (limited to moratorium)
3. Tahoe/ Penn Central- look at the parcel as a whole
iv. Penn Centrals Takings Analysis
1. Economic impact is important, especially the degree to which it interferes with
investment backed expectations
a. The court has sustained very large devaluations in economic value
(Hadacheck, Penn Central, Euclid)
2. Character of the government action
a. If it is an interference with the right to use, it is tolerated, but if it
interferes with the right to exclude, then there is a problem
b. Also, courts don't like parties being singled out
c. Exactions- building permit with individualized adjudication is conditioned on deeding land for
an easement or a fee simple
i. Is there an essential nexus between the exaction and the impact of the developmentNolan
ii. Is the exaction roughly proportional to the harm that the government is trying to offsetDolan
iii. Impact fees are an open question
iv. If it is a straightforward exactions test, then no need to analyze under Nolan and Dolan
1. If there is an exception of background principles under Lucas, then there is no
need for the Penn Central analysis. If it is the case that you can have a 100%
diminution in value, then you can have a diminution in value less than 80%. Only

stop the argument there if you have a slam dunk argument under one of the
exceptions, otherwise continue on to the Penn Central analysis
Estates
1. Important vocabulary includes
a. Estate- an interest in land which is or may become possessory and is measured by some period of
time
b. Testator (testatrix)- the legal term designating to whom the will belongs
c. Bequeathing- leaving personal property by will
d. Devising- leaving real property by will
e. Transferring- giving property during ones lifetime
f. Devisee- recipient of real property
g. Beneficiary/Legatee- recipient of personal property
h. Heir/Next to Kin- a person who inherits under statute after a person dies. No living person has
heirs, only heir apparent
i. Issue- descendants including children and grand-children
j. Escheat- to return to the state
k. Ancestors- parents
l. Collaterals- aunts, uncles, cousins, nephews, nieces, siblings
2. Will Substitutes
a. Trust
i. Trust- separates the burden of property management from the benefit of ownership.
Avoids probate
ii. Settler- person who establishes a trust
iii. Trustee- person who manages a trust
b. Life Insurance
c. Pension Beneficiary
d. Joint Accounts
3. Estate system concerns dividing property interests over time. NEED TO IDENTIFY THE INTEREST
AND ESTATE TOGETHER
a. Fee simple absolute or fee simple- as close to unlimited ownership as the law recognizes. It is the
largest estate in terms of duration and it may endure forever
b. Both future and possessory interests are legal interests
c. Doctrine of Waste- designed to prevent the present possessor from wasting the value of the
property so as to protect the future interest. However, the greater the present possessors interest
in terms of duration, the greater the freedom of using the property.
i. Affirmative waste- arising from voluntary acts that cause injury by substantially reducing
the value of the property
ii. Permissive waste- arising from a failure to act due to negligence
d. Numerus Clausus- requires that owners create only legally recognized property interests, which
have a standardized form. The effect is the restriction of freedom of ownership
e. Rule of Perpetuities- No interest is good unless it must vest, if at all, no later than 21 years after
the death of some life in being at the creation of the interest (duration of someone's life plus 21
years). Applies to contingent remainders, executory interests, and vested remainders subject to
open, not to reversions, possibilities of reverter, rights of entry
f. Life estates- fee simple for the duration of the devisees life, then reverts back to devisor
g. Reversion- the interest left in an owner when he carves out of his estate a lesser estate and does
not provide who is to take the property when the lesser estate expires- is inheritable and
transferrable
h. Defeasible Estate- it can terminate, prior to its natural endpoint, upon some occurrence. Designed
to control land and behavior by promoting forfeiture if a condition is violated
i. Fee simple determinable
1. Results in automatic termination of the interest upon a condition

4.

5.

6.
7.

2. Requires durational language

3. Possibility of reverter- can be transferred to heirs
ii. Fee simple subject to condition subsequent
1. Does not result in automatic termination, but requires the devisor to take action
2. Requires conditional language
3. Transferors Right of entry
4. Defense to right of entry includes laches
iii. Fee simple subject to executory limitation
1. A fee simple determinable or fee simple subject to condition subsequent with a
future interest in a third party (can you have a right of entry in a third party?)
2. Executory interest- any future interest in a grantee that is not a remainder is an
executory interest. If it cannot become a present interest at the natural end of all
prior interests simultaneously created, then its a future interest in a third party
that must cut off or cut short someone else's interest in the land.
i. Two types of future interests in a third party
i. Remainder- interest created in someone other than the grantor that is capable of becoming
possessory at the natural termination of a prior possessory estate that is created in the
same conveyance. It is primarily the interest that directly follows the life estate because
the life estate naturally expires. There are two types of remainders, contingent and vested.
Within vested remainders there are three kinds:
1. absolutely vested remainder (not subject to change and the person designated will
get it or his heirs will),
2. vested remainders subject to open (come out of class gifts- like if it is willed to
children or grandchildren- and the class can theoretically add more members),- if
you see a gift with "A for life and to A's children" and A has no children, it is a
contingent remainder, but when A does have children, it becomes a vested
remainder subject to open,
3. vested remainder subject to divestment or vested remainder subject to limitationthese are followed by executory interests
ii. Contingent remainders occur either
1. on the happening of an event that is not certain to happen
2. If remainder goes to a person who cannot be ascertained at the initial time of
conveyance
a. If you see a contingent remainder, it will be followed by an alternative
contingent remainder if it is given to a third party
Interests retained by the transferor
a. Reverter
b. Right of entry
c. Possibility of reverter
Interests created in a transferee
a. Vested remainder
b. Contingent remainder
c. Executory interest
If the first future interest created is a contingent remainder in fee simple, the second future interest in a
transferee will also be a contingent remainder. If the first future interest created is avested remainder in
fee simple, the second future interest in a transferee will be divesting executory interest
Line of Succession
a. No issue and spouse- spouse gets everything
b. One issue and one spouse- both get half
c. Two or more issue and one spouse- spouse gets one third and the remainder is split among the
children
d. If no issue or spouse, then ancestors get it

e. If no issue, no spouse, and no ancestors, then the collaterals get it

f. If there is no heir, then the property escheats
8. Concurrent Interests (as opposed to consecutive interests)
a. Tenancy in common- separate but undivided interest, don't need to own equal shares, but they
still have the right to possession of the whole. Tenancy in common can be conveyed at different
times and by grant or will. Does not carry with it a right of survivorship. Can be reached by
creditors before and after tenants death
b. Joint tenancy- requires four unities: time, title, interest, and possession. Can't exclude or eject the
co-owner. It carries with it a right of survivorship. When joint tenant dies, his share is divided to
the remainder in equal shares. Joint tenancy is not inheritable. A creditor cannot seize the interest
of the joint tenancy after the initial person's death.
c. Tenancy by the entirety- can only be created to husband and wife and couple's who are legally
allowed to marry. In a tenancy by the entirety, both parties need to convey. Will be destroyed by
divorce. It has all the same requirements of time, title, interest, and possession as joint tenancy.
(CA doesn't recognize this, because it has community property)
d. Community Property- Option is only available to married couples. Spouses own the property
50/50 and the approval of both is required to convey or transfer property. There is no right of
survivorship and a partys respective share of the property can be conveyed in a will. A tax
advantage includes receiving a stepped-up tax basis for income tax purposes when the property is
sold.
9. Riddle v. Harmon
a. Facts- Wife tried to destroy joint tenancy by conveying property to herself
b. Holding- in order to avoid using a straw man, a party will be allowed to destroy a joint tenancy
by conveying property to themselves
c. A person can also purchase property and convey it simultaneously to himself and another to
create a joint tenancy
10. Delfino v. Vealencis
a. Facts- Vealencis wouldnt sell her land to the Delfinos who sought to have it partitioned by sale
b. Two forms of partition
i. Partition by sale (typically through an auction)- frequently include one of the co-tenants
ii. Partition in kind or physical partition
c. 2 elements that must be present to partition a land by sale
i. Are the physical attributes of the land such that a partition in kind is impracticable or
inequitable
1. When there are a lot of parties, then the court chooses sale over physical partition
2. If the land is awkwardly shaped or disproportionate in some way, the court may
choose physical partition
ii. Would the interests of the owners be promoted better by a sale
d. Owelty- compensation after a partition designed to make appropriate adjustments. Reasons to
grant owelty include
i. Partition in kind results in one cotenant getting a more valuable part than the other
ii. Partition by sale yields a higher price than it otherwise would because one of the
cotenants made certain valuable improvements
e. Precedent Cases
i. Ark Land Co. v. Harper- Longstanding ownership and emotional ties trumps decrease in
economic value of the property
ii. Johnson v. Hendrickson- the land would be more profitable id sold collectively rather
than individually so sale by auction is warranted
11. Remedies available to cotenants
a. Partition
b. Ouster- requires a physical act that prevents a cotenant from entering

i. a cotenant cannot adversely possess against another cotenant without that adverse
possessor giving clear and unequivocal notice of their intent to possess
c. Accounting- determines who has spent what and what they should be credited for
d. Owelty
e. Contribution- requiring the other party to pay their share of taxes or repairs
i. If one party is living on the land and the other isnt, the one living on the land cant
recover contribution to the extent that it would be covered by fair market rent
ii. Improvements are discretionary cannot be sought as contributions. The improver bears
the benefit and the burden of the improvement by himself
12. Attack Guide for concurrent interests
a. What type of tenancy is this
b. What type of responsibilities and rights come with this tenancy
c. What types of tenancies are available if it falls apart
13. Property in Marriage and Divorce
a. In re Marriage of Graham- a degree is not considered community property because
i. It has no value on the open market
ii. It is not inheritable
iii. It is the outcome of years of education and hard work
iv. Cant be conveyed, assigned, or pledged
b. Mahoney v. Mahoney- a working spouse could receive reimbursement alimony
c. Anti-nuptial agreements tend to be upheld if the low-earning spouse was informed.
d. Cant contract away your rights to child support
e. 10 years is required for a partner to collect alimony
f. Migrating couples- once the property has been initially characterized, the ownership does not
change when the parties change their domicile unless both parties consent to the change in
ownership
14. Three ways the character of the property can be determined
a. Inception of right- the character of the property is determined at the signing of the contract
b. Time of Vesting- title does not pass to a party until all the installments are paid, and hence
remains community property
c. Pro rata sharing- the community payments purchase a pro rata share of the title
15. Migrating couples
a. Whether property is characterized in accord with the community property system or in accord
with the common law property system depends upon the domicile of the spouses when the
property is acquired.
b. Once the property has been initially characterized, the ownership does not change when the
parties change their domicile unless both parties consent to the change in ownership
16. Varnum- advantages in marriage that same-sex couples may be deprived of
a. Power of attorney
b. Intestacy statutes and an elective share opportunity
c. Tenancy by the entirety or community property
d. Immigration issues
e. Preferential tax treatment
f. Pensions, benefit programs, social security
17. How do forced share provisions work and what assets do they require??
Leasehold Estates
1. Three type of leaseholds
a. Term of years
i. Requires specific starting and ending dates
ii. Doesnt require notice of termination
iii. Requires a new document to be renewed
iv. Neither party may terminate without the other partys consent

2.

3.

4.

5.

b. Period tenancy
i. A lease for a period of some fixed duration that continues for succeeding periods until
either the landlord or tenant gives notice of termination
ii. Common Law: half a year's notice is required to terminate a periodic tenancy. Year lease
usually requires six months notice, but in most jurisdictions one month is enough
iii. For any periodic tenancy less than a year, notice of termination must be given equal to the
length of the period, but not to exceed six months
c. Tenancy at will
i. A tenancy at will is a tenancy of no fixed period that endures so long as both landlord and
tenant desire
ii. A unilateral power to terminate a lease can be engrafted on a term of years or a periodic
tenancy
iii. Generally disfavored because it causes a lot of hardship on the person that wants to retain
the tenancy
iv. Death of the landlord terminates the lease
Factors that determine the type of lease
a. Intent of the parties
b. Does the tenant have an exclusive right to possession
c. How much control does the tenant have over the premises
d. Are there specific dates set
e. Is the nature of the lease commercial or residential- we protect residential leases more
f. What difference would it make- a lease creates the landlord-tenant responsibilities
Difference between a sub-let and an assignment
a. An assignment is an assignment of the full interest left
b. Sub-let is for anything less than the full interest
i. Courts now allow suits for third party beneficiaries. Landlord can sue sub-tenant
ii. Statute of Frauds- all leases over a year have to be in writing
Kendall v. Pestana
a. Facts- Pestana did not want to accept the new sub-tenant without more onerous terms per his
ability to veto a sub-tenant according to the contract with the main tenant
b. Rule- the Discretionary power of the lessor to terminate the contract should be exercised in
accordance with commercially reasonable standards. Factors to consider include
i. Financial responsibility of the proposed assignee
ii. Suitability of the sue for the particular property
iii. Legality of the proposed use
iv. Need for alterations of the premises
v. The nature of the occupancy
c. Counter Rule- factors that don't qualify as valid commercial considerations include:
i. personal taste
ii. convenience
iii. sensibilities
iv. higher rent which was never part of the original bargain
d. Holding- the landlord did not have the right to exercise his discretionary power to exact more
money
e. Note- The CA legislature passed a law stating that if you are explicit about the discretionary
clause, then you can refuse to consent for any reason
f. Factors that favored Pestana
i. Reliance interest on current law
ii. The contract provision
iii. Subjectivity about who you want to do business with
Sommer v. Kridel

a. Facts- guy wasnt able to pay the lease and asked to be released, but the landlord refused and
sued him for two years of rent
b. Ps claim- P has an unlimited supply of available apartments and the landlord could potentially
make twice the profit by preventing D from escaping the lease and leasing to another customercourt claims this reasoning is flawed because every apartment is unique
c. Duty of landlord to mitigate damages
i. Burden of Proof- the landlord has the burden of proving reasonable diligence in
mitigating damages because he is in a better position to do so
ii. Factors that help prove the mitigation of damages
1. Offered or showed the apartment to any prospective tenants
2. Advertised it in local newspapers
a. The tenant may attempt to rebut such evidence by showing that he
proffered suitable tenants who were rejected
iii. Mitigation might result in a higher rent for the landlord or the ability to sue the existing
tenant for the difference in rent
iv. Most jurisdictions do not accept the releasing of the apartment as a surrender of the
premises
d. Holding- the landlord does have a duty to mitigate based on contract principles when the tenant
wrongfully vacates
6. Reste Realty Corp. v. Cooper
a. Facts- Ds office kept getting flooded so he vacated before the lease was up and P sued
b. Constructive eviction
i. Was there a positive act?
ii. Was there a provision in the lease that wasnt met?
iii. Were latent defects disclosed at the beginning of the lease?
iv. Did the landlord promise to repair something?
v. Were the common areas not being maintained?
vi. Is the landlord abating a nuisance on the property
vii. New Jersey Standard- did the landlord omit to do something he should have?
c. The implied contractual covenant of quiet enjoyment of land is a statutory creation that is not
present in common law. Without an implied or express covenant of quiet enjoyment, can a tenant
claim an omission by the landlord?
d. Precedent for constructive eviction
i. Higgins v. Whiting- failure to supply heat as covenanted in the lease so that the apartment
was unlivable on cold days
ii. Anderson v. Walker Realty- clogged drains that cause offensive odors and danger to
health
iii. White v. Hannon- landlord knowingly permits another part of the property to be used for
lewd purposes
e. Illegal Lease Doctrine- if you moved into an apartment and there were housing code violations at
the time you entered into the lease, you could pay the landlord less in rent
7. Hilder v. St. Peter
a. Facts- D withheld 5000 because her place was a slum, even though she didnt move out
b. Warranty of habitability- (gets raised when someone is evicted for non-payment of rent)- in the
rental of any residential dwelling unit an implied warranty exists in the lease that the landlord
will deliver over and maintain, throughout the period of the tenancy, premises that are safe, clean
and fit for human habitation
i. Cannot be waived (although in some circumstances it may be waived if bargaining power
is equal)
ii. Applies to oral and written contracts
iii. It covers latent defects and patent defects, but not defects caused by the tenant
iv. Property does not need to be abandoned, unlike constructive eviction

v. Exception- Doesnt apply to single family residences, long-term leases, commercial

leases, and casual leases by non-commercial landlords
vi. Landlord must be notified of the defect and given reasonable time for repair
c. Determining whether the warranty of habitability has been breached
i. Does the defect violate a building or housing code?
ii. Does the defect impact the health or safety of the tenant?
iii. Has the landlord been notified?
iv. Minor violations of building codes are not a breach
d. Possible Remedies available to the tenant
i. Seek damages for paid rentii. Pay the difference between the value of the dwelling as warranted and the value of the
dwelling as it exists in its defective condition
iii. Withhold rent- shifting the burden of suit on the landlord
iv. Seek punitive damages when the landlord, after receiving notice of a defect, fails to repair
the facility that is essential to the health and safety of his or her tenant
v. Rescission of the lease
vi. Reformation- rewrite the contract with a lower rent
vii. Specific performance- sue to fix problem
viii. A schedule for housing violations
ix. Relocation costs
e. 4 doctrines
i. Implied warranty of habitability
ii. Constructive eviction
iii. Quiet enjoyment
iv. Illegal leases
f. Questions on page 502
8. Fair Housing Act
a. Excluded Groups- religious organizations, private clubs, and single-family housing
i. However, it will apply if these organizations are renting more than three homes or are
using a professional real estate agent- Does this exception apply to both religious
organizations and private clubs?
b. FHA bars discrimination based on race, gender, color, religion, handicap, and familial status
c. Dont need to show intent to discriminate, a discriminatory impact is enough
d. Prevents discrimination in renting, selling, advertising, and financing
e. The 1866 Civil Rights Act differ from the Fair Housing Act in that it
i. Only pertains to racial discrimination
ii. Does not deal with discrimination in services, facilities, and advertising
iii. Doesn't require discriminatory purpose or the shifting of the burden of proof
9. San Fernando Valley v. Roommate.com
a. Facts- website allows people to find roommates based on sexual orientation, gender, and family
status
b. Reasons FHAs prohibition on discriminatory advertising doesnt cover roommates
i. History- Congress meant to give protected classes housing opportunities, not to get
involved in the personal arrangements between two people
ii. Logical- if Congress would allow exceptions for single-family housing, it would allow
exceptions for roommates
iii. Statutory Construction- when in doubt, avoid construing a statute that would create a
conflict with the constitution. In this case, it might create a conflict with the 1st Amend.
And the right to privacy
Law of Servitudes
1. Two major types of servitudes
a. Easements- (a limited interest in someone elses property) - affirmative and negative

2.

3.

4.

5.

i. Appurtenant- easement benefit tied to land

1. Dominant tenement- the property that enjoys the use of the easement
2. Servient tenement- the property burdened by the easement
ii. In gross- easement benefit tied to individual
1. Servient tenement
b. Covenants
i. Covenants enforceable at law
ii. Covenants enforceable at equity
Two minor types of servitudes
a. Profits- common wealth
b. Licenses- an oral or written permission given by the occupant of land allowing the licensee to do
some act that otherwise would be a trespass (revocable whereas an easement is not)
Main type of affirmative easements include
a. Express easements
b. Easement by estoppel- Holbrook, Dalton doesnt recognize it
c. Easement by prescription- Othen
d. Easement by necessity- Othen
e. Easement by implication- Van Sandt
Notes on easements
a. Negative easements are not very common, but may include things like preventing your neighbor
from blocking natural light
b. An easement holder cannot bring a possessory action against a third party- e.g. ejectment or
trespass
c. There is a general policy of avoiding the encumbrances of the land with invisible easements that
are not express or written out
d. Need a definitive path to grant an easement because courts do not want to open up all the land to
trespass
Holbrook v. Taylor
a. Facts- Taylors build house and require Holbrooks road to access the house
b. Easement by prescription- permission, in the context of an easement, defeat diversity. You can
claim that the servient tenement acquiesced to the use, but never gave permission
c. Rule for easement by estoppel normally the change in position that triggers application of the
rule stated in this substection is an investment in improvements either to the servient estate or to
other land of the investor
d. Revocability of easement by estoppel- the license cannot be revoked, until the licensee has
recouped his costs, or if the servitude is compromised because the original reason for the
servitude no longer exists
i. if the dominant tenement and the servient tenement come into the same ownership, then
the easement is extinguished
e. Reasons why there is an easement by estoppel
i. The appellees have used the road to get to their home from the highway
ii. The road was used to help build their $25,000 house
iii. The road was improved by the appellee
iv. Appellee cannot leave his home without using the roadway
f. Alternative possible remedies
i. Give property interest to Holdbrook and have him pay Taylor the damages
ii. Give the property interest to Taylor and have him pay Holdbrook the damages
g. Notes for exam
i. List the possible remedies and be creative with them
ii. Explore policy questions
h. Benefits of express easement
i. Makes sure parties are serious

ii. Doesnt encumber the land with invisible easements

iii. Eliminates fraud
iv. Prevents litigation
i. Benefits of easement by estoppel
i. Not everyone knows an easement has to be in writing
ii. Not something appropriate for neighborly relations
iii. There may have been a great deal of reliance
6. Van Sandt v. Royster
a. Facts- P discovers that there is a sewer running through his property and tries to prevent his
neighbors from using it
b. Easement by implication
i. Easement by implied grant- owner sells land and grants an easement over his land
ii. Easement by implied reservation- owner sells land and reserves an easement over the
sold land- higher burden to show implied reservation than to show implied grant
c. Quasi Easement- uasi easements are created when the quasi dominant tenement is conveyed to
another party, if the quasi easement is of an apparent, continuous, and necessary characteri. if apparent and visible are not synonymous, what does apparent mean?
d. Reservation by implication- ordinarily, a grantor cannot reserve a right if they convey an
absolute interest in property. However, a reservation by implication may exist if it is strictly
necessary
e. Elements necessary for finding an easement by implication
i. Unity- Existence of a prior quasi easement on a commonly owned lot
ii. Division- Severance of the land creating an servient and dominant tenement
iii. Necessary- The type of necessity required by the jurisdiction
1. Strict necessity- there is no other way to reach the land
2. Reasonable necessity- uses that would otherwise lead to disproportionate effort
and expense
iv. The extent to which the parties knew of the easement
v. Restatement Factors (whether the claimant is the conveyor or the conveyee, whether
reciprocal benefits result, the manner in which the land was used prior to the conveyance)
f. Easement by necessity- Easement is necessary to the enjoyment of the claimant's land and the
necessity arose when the claimed dominant parcel was severed from the necessity- is an
easement by necessity a sub-factor of an easement by implication? Wouldnt you need to find an
easement by necessity in order to find an easement by implication?
7. Othen v. Rosier
a. Facts- Hill sold land to Othen and Rosier and others and Othen needed to drive through Rosiers
land to access the street
b. Easement by estoppel- no easement by estoppel because Texas does not recognize one
c. Implied Reservation- there is an implied reservation of a right of way when an owner sells land
and renders himself landlocked. However, that implied reservation does not exist in the absence
of privity between the conveyer and conveyee
d. Easement by prescription- defeated in this case because use was not exclusive and road had a
gate which indicates that permission was granted
i. Claim of right
ii. Continuous use (not possession of land)
iii. Open and notorious
iv. Actual use
v. For the statutory period
vi. Exclusivity- may mean that claimants right to use the land was not dependent upon a like
right in others
1. In easement cases, the two elements that are contested are exclusivity and claim
of right

2. Owner may disrupt adverse use by giving owners written notice of his intent to
dispute
e. Holding- unity is defeated because the land purchased by Othen that rendered him landlocked
did not contain a quasi easement over the land he is now claiming an easement over
f. Notei. in some states, a landlocked owner can condemn an easement and pay the servient
tenement damages.
ii. In the absence of such a rule, the landlocked owner will have to negotiate for an easement
or seek an easement by necessity
iii. Government cant have an easement by necessity because it has the power of eminent
domain
iv. Are all beaches in CA accessible from the water to the mean high-tide line?
8. Three doctrinal requirements necessary to sue a party in restrictive covenants
a. Notice
b. Intent to bind
c. Touch and concern the land
9. Easement vs. Indefeasible Possession
a. Easement remedy- damages, injunction, or enforcement of a lien
b. Indefeasible fee remedy- forfeiture
10. Shelly v. Kramer
a. Facts- homeowners created a racially discriminatory restrictive covenant
b. The court is able to argue a EPC violation even though this is a private action because the
covenant can only be enforced by the state
Zoning
1. Why have zoning?
a. Protect land value (favored by property owners)
b. Nuisance law addresses harms after they occur, not before
c. Tries to separate uses that come into conflict with one another
2. Two different types of zoning
a. Use zoning
i. Creating districts and regulating the type of use in each district
ii. Highest use is single family housing
iii. Lowest use is the dirtiest, including industrial use
b. Area zoning
i. Creates space between homes- setback requirements
ii. Height requirements
3. Ways to get out of zoning ordinance
a. Variance- two things you need to sustain a variance
i. Exceptional and undue hardship, making the property unusable if you don't get it
ii. It won't be detrimental to the area
1. Some jurisdictions require the consent of neighbors for a variance
2. You can also try to get a conditional use permit- is a conditional permit a
variance?
b. Statutory exception
c. Sue to invalidate the ordinance
d. Get a zoning amendment
4. Village of Euclid v. Amber Realty Co.
a. Facts- the city separated the land into use, height, and class zones
b. Judicial deference- as long as the legislative judgment is fairly debatable, the court will uphold
the ordinance
c. Police Power- the citys power to pass zoning ordinances comes from the states police power,
which the state delegates to the cities through an enabling statute

5.
6.

7.

8.

9.

d. Holding- Because there isnt a specific challenge, but rather a challenge to zoning in its entirety,
the ordinance will be sustained
Districts are graded from highest use (single-family) to lowest use (harmful industry). Cumulative
zoning allows higher uses to build in lower use areas, but not vice versa.
2 possible arguments against zoning that could have been made in this case
a. Whether the police power could be exercised to zone property without depriving the plaintiff of
substantial due process of law
b. The severe reduction in value of the plaintiff's land by the zoning ordinance effected a taking of
plaintiff's property, which cannot be done under the 5th Amendment
City of Ladue v. Gilleo
a. Facts- city restricts the posting of signs on ones property
b. Precedent Cases
i. Linmark- homeowners couldn't place for sale signs and the court declared that the
ordinance was restricting people's first amendment rights
ii. Metromedia- ordinance promoting traffic safety and aesthetic interests could justify
zoning ordinance, but the specific ordinance was unconstitutional
iii. Vincent- court upheld ordinance that prevented the posting of signs on public property to
avoid visual clutter
c. Two problems with the ordinance
i. Under-inclusive- because the city may be favoring one side of the debate
ii. Over-inclusive- because the city is inhibiting free speech through a medium that is cheap,
unique, and not easily replaceable
Village of Belle Terre v. Boraas
a. Facts- city doesnt allow more than three people who arent related by blood to live together
b. Precedent
i. Berman v. Parker- can use police power to get ride of slums, but can't use it to make the
community more attractive
ii. Seattle Trust Co. v. Roberge- can't have zoning ordinance that subjects people to their
neighbors selfish motives
c. Legitimate city concerns include: overcrowding, traffic, health, safety, morals, general welfare
d. Conflict: Right to association and right to privacy. Simultaneously over and under inclusive
e. Holding- the city has a legitimate interest in preventing urban problems arising from other forms
of dwelling
f. Note- Court strikes down a law that tries to define the family narrowly????
Southern Burlington County NAACP v. Township of Mount Laurel
a. Facts- poor people are being kept out of the community by zoning ordinances that limit the
number of occupants in a house and create large tracts of property, which increases the cost of
housing and simultaneously increases property values and lowers property taxes because there is
a lesser demand on public services and more valuable property to tax
b. Areas of attack in a zoning problem
i. Euclid- deference to legislature
ii. First amendment issues, substantive due process, right to association- Rommate.com
iii. Fair Housing Act- don't have to show intentional discrimination, discriminatory affectscountered by a reasonable business justification
c. The state is exercising police power through zoning. In exercising the state power, the city must
uphold the interests of the state. This includes considering regional interests when making local
decisions.
d. Circumstances that permit limited development
i. Environmental or ecological concerns
ii. You are a developed community
e. Holding- developing municipalities must zone for affordable housing