Property – Bross (Spring Semester)

1) Nuisance

a) General Rule: A property owner can’s use his or her property in a way that interferes
with a neighbor’s use and enjoyment of their property

b) Defined: A nuisance is a:

i) Substantial interference

ii) With a protected use and enjoyment of land

iii) By conduct that is either

(1) Intentional and unreasonable or

(2) Negligent or

(3) Subject to strict liability (inherently dangerous)

c) “Interference”

i) Standard is pretty low, but has to be more than trifle or a mere inconvenience

ii) Can discuss cumulative affect over time

d) “Protected Use and Enjoyment”

i) Something a reasonable owner would expect to do with his land

ii) Generally not light/air/aesthetics

(1) Ancient Lights (only in England)

(a) Prescribes right to sunlight

(b) Americans are reluctant to protect this as a right because it interferes with
development

iii) Protected Use for Alternative Energy

(1) Why hasn’t energy use been protected before?

(2) Why should it be protected now? Have times changed?

(a) Individual freedoms (using the property as you wish)

(b) Value of energy source (sunlight)

(c) Societal interest (development v conservation)

iv) Jewett Case (pig farm): Protected right to do what a normal homeowner would do
(e.g. open a window)

v) Fountainbleu Case (Miami Beach Hotel): No protected right to light- generally need
an express easement, strict necessity

vi) Prah Case (solar panel) : societal interest in encouraging conservation

e) “Conduct that is either…”

i) Test looks at the conduct, not the nuisance

ii) Not all types of conduct must be present

 iii) “Intentional”

(1) If you mean to do the thing that causes a problem, then you are doing it
intentionally (so it isn’t an accident)

iv) “Unreasonable”

(1) Apply a ‘reasonable person’ standard

(2) Hypersensitive people are out of luck

v) “Negligence”

(1) Look at what is generally accepted for the industry and if conduct fell below
that

(2) E.G. car compactor with exploding gas tanks

vi) “Strict Liability”

(1) Inherently Dangerous-blowing something up

(2) Common Law or statute will define what someone is strictly liable for

vii) NOTE: usually cannot come to the Nuisance and then cry foul (may be possible in a
few circumstances where the neighborhood is changing)

f) Determining “Reasonableness”

i) CLEANF Analysis

(1) Character of the neighborhood

(2) Location of the claimed nuisance

(3) Effect upon the enjoyment of life, health, and property

(4) Activity’s economic importance to the area (level of impact vs. importance to
the community’s economy)

(5) Nature of the thing complained of

(6) Frequency of the intrusion

g) Spite Fences

i) Determination requires a useless erection

(1) Serves no purpose but to block light and air

(2) Even if done with malice, if its useful its usually ok.

(3) Strict Liability: don’t have to prove its “intentional and unreasonable” just that
its useless

ii) Views of utility

(1) Economic (e.g. billboard to advertise a hotel, bigger than the hotel next door)
– billboards block light but are economically important

(2) “yes or no” utility- either it is or it isn’t useful

h) The Ugly Factor- courts don’t “do pretty”

-if nuisance is just aesthetic, usually not enough by itself to be a nuisance

 -item doesn’t have to serve a purpose

-example: plastic trees in front of sign at NY World’s Fair

i) Definitions

i) Nuisance Per Se: a nuisance no matter what

ii) Nuisance Per Accidens: how you operate creates the nuisance, not that you
operate

iii) Public Nuisance: affects the public/ large number of people; interferes with a public
right

iv) Private Nuisance: affects only a few; interferes with a private right

j) Public Nuisance-factors to consider in determining if activity interferes with a public

right

i) Factors:

(1) Public Health

(2) Public Safety

(3) Public Morals- cant have like naked statutes

(4) Interference with use of public places

ii) If it is a public entity causing the nuisance, it is difficult to fight through the courts

(1) Can use the ballot box to fight

iii) Impact of Zoning Laws: Zoning laws state what is or is not a public nuisance- if
something is allowed by a zoning regulation it cant be a public nuisance

(1) Theory: if a public official has given permission then “the public” is saying it
isn’t a public nuisance.

(2) Practice gives deference to legislatures and city council to identify what is and
is not allowed

iv) However, if its doing substantial injury to a protected public interest (e.g. clean
water) then its probably weakened.-

Pollution

(1) Generally, pollution is always a public nuisance that can be enjoined

(2) Example: If a stream is polluted and the public uses the water it is a public
nuisance that can be enjoined

-the public interest in keeping its water clean is sufficient to satisfy the public
use requirement

(3) No prescriptive right to pollute can be acquired no matter how long conduct is
tolerated

v) Who can bring an action for public nuisance?

(1) Majority jurisdictions: must rely on public officials

(2) Most jurisdictions: if damages to you is different in kind than others (not just
degree) and you are uniquely burdened, then you can bring private action for a
public nuisance
 (3) Minority of jurisdictions: private individual can act as a “private attorney
general”

(a) Allows anyone to bring a public nuisance suit

(b) Justification-if its bad for the public we should let anyone bring an action
instead of waiting (only is seven states, including Colorado)

k) Private Nuisance

i) Prescription Allowed? Can prescribe a harm for a private nuisance (unlike a public
nuisance)

ii) Individual who brings the suit must have a property interest in the affected
property

iii) Can’t enjoin lawful activity before it happens on the basis that it might be a
nuisance. Must wait to see if it actually is a nuisance before bringing an action

iv) Coming to the nuisance

(1) Fact sensitive analysis- depends on the character of the area and the relative
importance of the nuisance. (e.g. even if the nuisance is pre-existing it may be
forced to stop if the area changes)

l) Remedies

i) Goal of nuisance remedies is balancing the right not to be interfered with and the
right to operate the industry that is causing the nuisance

ii) Permanent Injunction

(1) New York Rule: if you find a nuisance, automatically there is an injunction

(a) Because this is such a harsh penalty that automatically applies, it affects
the likelihood of court finding a nuisance

(2) Oregon Rule: Once you find a nuisance, balance the interest to determine what
type of remedy, if any, is warranted.

(a) East St. Johns Shingles- looks at the totality of the circumstances to
determine what is fair. Multi-factor analysis test is:

(i) Does the public value the nuisance more than it hates the nuisance?

(ii) Is the cost of the nuisance less than the cost of fixing the nuisance?

(iii) Did the person come to the nuisance?

(iv) What is the importance of the industry/cause of the nuisance?

iii) Delayed Injunction

(1) Defendant is given time to fix the nuisance

(2) Can result in more litigation (although it probably won’t because plaintiff will
have run out of money)

iv) Purchase Injunction (Damages)

(1) Occurs when plaintiff wants injunction but nuisance cost is small compared to
benefit of nuisance

(2) Defendant is allowed to buy an easement from the plaintiff to give the actor
right to act
 v) Injunction Conditioned on Payment of Permanent Damages

(1) Defendant makes one time payment to compensate plaintiff for past, present,
and future harm

(2) Remedies the problem of a delayed injunction by preventing further suits

(3) Annual damages-plaintiff can sue every year

vi) Indemnity (minority rule): plaintiff can get an injunction but has to pay for
relocation costs (Spur Industries/ Sun Valley case)

(1) This is limited to places where the nature of the area has changed

2) Trespass

a) Trespass and Nuisance mean different things

b) A trespass is an interference with possession, not enjoyment

c) Plaintiff doesn’t have to prove harm only that it happened because trespass is a strict
rule

d) Damage/economic effect does not matter: you have a right to use all of your property
all of the time so a trespass interferes with your possession

e) “Old Look”/Dimensional Test (majority rule)

i) Size matters- if it big enough to see, feel (Kaboom), taste, touch, or hear, and it is
on your property without your permission, it is a trespass

ii) Cannonball (Like if they shot it and it landed on ur property) is a trespass, invisible
particles are merely a nuisance

f) “New Look” Test (minority rule)- even invisible things can be trespass

i) Merges the idea of nuisance and trespass

ii) Look at the force of the thing-sound waves, molecules, etc..-and not the size

iii) Balancing test: social desirability of the defendant’s conduct with the invasion
on the plaintiff’s land

g) Takings and Externalities of Government

i) Generally, federal government is immune from nuisance. State, country, and city
immunity varies. In Georgia, state and county are immune but cities aren’t

ii) The question is whether the nuisance rises to the level of a trespass and if so, how
significant of a trespass

iii) A taking does not occur where actions of the government cause damage to the
property, but don’t actually invade the property (like airplane noise that is
vibrating windows)

iv) Three part test if the trespass is against the federal government:

(1) Is the interference targeted to particular properties?

(2) Does the interference destroy or nearly totally destroy the property right?

(3) Is the property right destroyed by planes flying below the FAA standard
(aviator easement) or abdication (can’t go there anymore)?

v) Alevizos- Class action suit against the Minneapolis-St. Paul airport because of noise
 The question was whether there was so much interference that it rose to the level
of a taking

Facts that were important:

- A direct and substantial invasion of property rights of such a magnitude to

deprive the owners of the practical enjoyment of the property, and

- Such invasion results in a definite and measurable diminution of the market

value of the property

- Court was willing to devise a new test based on its view of the purposes of the
taking clause

h) Advantages of Arguing Trespass (vs. Nuisance)

i) Best shot against industry and government-

ii) Don’t have to show that you were harmed-just that your possession of your
property was interrupted

iii) In Nuisance, it is difficult to prove before the activity has commenced. Trespass
has a much lower standard of foreseeability

iv) Longer statute of limitations in trespass-

v) Reasonableness doesn’t matter-no one is supposed to interfere with your right of

possession

i) On Exam:

i) Look for local, major industry creating an impact on the community and do a
nuisance analysis, an old-look trespass analysis, and a new-look trespass analysis

ii) Airport noise example:

(1) Nuisance: Sue the operator of the airport

(2) Old look: Are planes flying directly overhead below the FAA standard?

(3) New look: Talk about the rattling and vibrations in your home

Combo of nuisance and trespass

Property – Bross (Spring Semester)

3) Covenants
a) What are covenants?
i) Mutual agreements between landowners that attach to the land so that any
subsequent purchaser is bound by the first agreement
ii) These promises run with the land and bind new owners as promisors even though
they weren’t parties to the original agreement
This is very different than k law- you have to have the C to hold them accountable
Could be broad or narrow- like I cant paint my door…
iii) The benefit/burden is transferred automatically with the conveyance of the state
without the need for express assignments or delegation
b) Statute of Frauds
i) SOF applies so it must be in writing and signed by the original promisor
c) Definitions
 i) Affirmative Covenants-means you have to do something
ii) Negative Covenants-means you must refrain from doing something (also called
restrictive covenants)
iii) What is meant by “Runs with the Land and not the people”?
Different from a personal obligation because its an obligation of the land
Example: Every deed conveying lots in a subdivision contains a covenant providing
that only a two-story home can be built on the property. Chris owns a lot. If he wants
to build a one-story home, then his estate is burdened.
If Chris wants to prevent his neighbor from building a one-story house, Chris’s estate is
benefited by building the covenant.
d) Limits
i) Cannot violate law, statute, constitution- such as the case which said you couldn’t
sell your house to a black person. For a covenant to be enforceable- the courts
have to be able to say that you violated it.
ii) Must be enforceable
iii) Privity, Touch and Concern, Intent, Notice
Intent – to carry on?
e) Elements
i) Privity
(1) Horizontal Privity-relationship between two owners.
(a) Defined-This is the privity between the original promisor and promisee.
There must be some written understanding between the two
(b) Theories of Horizontal Privity
(i) Tenurial (English View)
1. Most restrictive view
2. To find privity, there must be a present/future interest relationship
between buyer and seller. ---- for ex a life estate and the other
person has a remainder
(ii) Simultaneous Privity/Massachusetts View-broader than the Tenurial
view
1. Encompasses and expands on tenurial privity
2. Requires simultaneous priviity
3. Both parties have an interest in the same piece of land at the
same time (e.g. future and present, concurrent, easement)
4. Easy to get around by creating an easement
(iii) Instantaneous Privity (Majority Rule)
1. A promise made during the transfer of land between the grantor
and grantee is sufficient
2. Privity signified by the transfer of the deed itself (created when
both parties are touching the document when one party hands it
over to the second party)
(iv) Promise Alone (Restatement 3rd-Emerging Approach)
1. Privity not necessary-parties simply agree (more like a K)
2. Can record covenant with deed even w/o sale of property
 3. Covenant must be in writing per S of F.
(2) Vertical Privity
(a) This is the privity between promisor and promisee and subsequent
purchasers
(b) Look at benefit and burden to determine if vertical privity exists
(c) Benefited Side
(i) Any possessory interest no matter how small entitles you to benefit of
the covenant
(ii) If you are benefited, you can sue to enforce the covenant
(d) Burdened Side
(i) Party must have succeeded to original promissor’s entire estate or
ownership interest
1. If it is a lease that you succeed to then you get everything left
under the term of the original lease. For a life estate, it would be
the estate measured by the life of the original tenant
(ii) The interest must be of the same duration
(iii) Have to have exactly what the person before you had in order to be
sued-if not, you’re not burdened, cant be sued.

(iv) Example: Elmer Fudd sells his interest to Daffy Duck, Fudd and
Daffy have vertical privity

ii) Touch and Concern

(1) Can’t be any old agreement- it has to do with the land
(2) Tests to determine if the covenant touches and concerns the land:
(a) Epstein’s Economic/No Limit Test
(i) Complete freedom of choice
(ii) Allows covenants that are completely pointless
(iii) Ex: throwing chainsaw over fence
(iv) No court has adopted this approach
(b) Bigelow/Clark/Neponsit Test
(i) Assessment of legal rights and increase/decrease in the value of the
land
(ii) Asks: is the benefited side (promisee) rendered more valuable? Is the
burdened side (promisor) rendered less valuable?
(iii) Circular
(c) Reichman Land Utilization Test
(i) Looks at the policy behind touch and concern
(ii) Asks: Does covenant add value? Does it make the highest and best
use of the land?
(d) Berger Test/Expectations Test
(i) Looks to the normal expectations of society. Asks: Is this a promise
that a reasonably prudent buyer would expect to run with the land?
Does it catch the buyer unaware?
 (ii) Works best with specialized communities
(iii) Looks at notice-with enough notice the test is always met
(e) Multi-Factor Test
(i) Considers whether the promise was correct on the day it was made
(like the nature of the covenant and duration). If it made sense at the
time of the creation, it is upheld
(ii) Infinite affirmative covenant usually struck down
(iii) Criticism- brings more uncertainty to the area
(iv) NY rule
(v) NJ rule
(f) Restatement 3rd
(i) Another multifactor analysis. Looks at circumstances at the time of
litigation.
(ii) Asks: Does this seem fair right now? How have things changed? What
is the current prevailing policy?
(iii) No court has adopted this approach
iii) Intent
(1) Must intend promise to run with the land
(a) Common Law (Spencer’s Case): When the subject of the covenant was not
in existence at the time the promise was made (e.g., the wall wasn’t yet
built), the common law required parties to say: “We intend this covenant to
attach to future purchasers.” It did not create a general rule that always
required explicit language rather than a totality of the circumstances
analysis.
(b) Modern View: Look at circumstances surrounding the transfer and the
language in the deed
(2) Affirmative Covenants and Intent
(a) Scrutinized more closely because requires action
(b) NY Rule (Miller): affirmative covenants don’t run with the land (extreme
minority view)
(c) Neponsit Dicta: Affirmative covenants do run with land
(3) Affirmative Covenants and Time Restrictions
(a) Balance affirmative effect with duration
(b) Court could interpret an affirmative covenant that doesn’t have a time
limit as not running with the land
(c) In Georgia covenants used to be limited to 20 years but that statute was
repealed.
iv) Notice
(1) Because of Statute of Frauds, all covenants must be in writing to be
enforceable
(2) Also allows successors the ability to find out about the promise
(3) Duty of inquiry- owner must check title to look for covenant
f) Enforcement-Damages can be at law or at equity
i) Can get an injunction (equity) to prevent someone from doing something
 ii) Or, seek specific performance (court tells person they must do what the covenant
requires of them)
(1) Used for land because land is unique by definition
-Contracts theory- can sue for damages at law
Property – Bross (Spring Semester)Q From Last Time:

Establishing Simultaneous Privity through Creation of an easement

-neighbors do not need reciprocal easements to establish privity

-An easement is only necessary to give the parties an interest in the same piece of land at the
same time and thus create the relationship between the parties. It doesn’t matter if the piece
of land in which they have the same interest is not the only piece of land that the covenant
attaches.

Example:

-Neighbors Allen and Bob want to create a covenant that would limit them to single family
homes. To establish privity, Bob gives Allen an easement that allows Allen to pick one rose
from Bob’s rose bushes each year.

-Bob and Allen are now in privity because they have an interest in the same piece of land at
the same time.

-They can now enter into a covenant that will affect both properties.

4) Equitable Servitudes-

a) Like covenants, equitable servitudes are promises affecting the use of land

i) However, equitable servitudes are only enforceable at equity

ii) Relief is generally in the form of an injunction or specific performance

iii) Two Major Theories

(1) Contract Theory: Land is unique so can get specific performance

(2) Equitable Easement Theory: action interferes with your equitable easement so
can get injunctive relief
b) Elements

i) Writing-Need a writing somewhere although it is a very loose standard. It doesn’t

require it be in chain of title

ii) Notice- Subsequent purchasers are bound only if they had actual or constructive
notice (could be inferred from area and circumstance)

iii) Intent-Prior parties had to intend to bind the subsequent parties

iv) Touch and concern- Can be a required element but not in every case

Exam Tip- Go through Covenants Analysis first because you have to talk about
touch and concern; then do the equitable servitude analysis and discuss the Tulk
case saying that you may not need this

v) Privity-No horizontal privity is required but there can be a vertical privity

requirement

c) Cases

i) Tulk: No privity between parties so the court used its powers in equity to enforce
the equitable servitude

-take away: Even where there is no privity, enforcement in equity may still be an
option

ii) Pratte: This case lowered the bar for what is needed by holding that an equitable
servitude does not need to touch and concern the land to be enforced in equity
(jukebox interest held to be equitably attached to the land) as long as there was
intent and notice

-other examples:

--Conservation Easements: promises that have no benefit in the land, keeps the
easements in gross

--Scenic highways: the government doesn’t buy all the land, just ‘scenic
easements’ to keep development from the view

d) Common Scheme
 i) The consistent character of a neighborhood is evidence of a common scheme

ii) This common scheme signifies intent and establishes notice

iii) Ideal evidence would be a building plan that is recorded (infer that this is the
writing requirement)

iv) More commonly, a combination of recording plat (the plat will reference the
covenant requirement) and uniform appearance

v) Many developers now work in ‘phases’ in order to bypass huge developments

being required to follow one common scheme

vi) In Georgia, as long as the builder owns one lot in the development they can
unilaterally change the scheme. Everywhere else, everyone must abide by the
scheme

e) Theories of a Common Scheme

i) Property Theory (Sanborn)-Property Owners wanted to build a gas station in a

residential neighborhood

(1) Idea of an implied negative reciprocal agreement evidenced by a common

scheme

(2) How it works:

(a) Allows a prior purchaser to enforce against a later purchaser

(b) Developer makes an implied promise to the first purchaser to make the
rest of the development in congruence (except in Georgia)

(c) Developer can only bind property he still owns so prior purchasers cannot
be enforced against

(d) Proof of the implied promise emerges overtime

(3) Purchasers should look for covenants (expressed promises) first before going
to a common scheme. It is better if the restriction is written down on every
deed.
 ii) Contract/Third Party Beneficiary Theory (Snow-Ice Cream at beach case)

(1) A covenant inserted in a subsequent grantee’s deed can be held to benefit a

prior purchaser (and thus burden them as well)

(2) Must show that parties who came before you are benefitting from a common
good

(3) Usually there’s good notice in these situations

iii) California Theory (Werner)

(1) Deeds are construed at the time the deed is delivered and there can be no
implied agreements. Any burden on the property must be in the deed

(2) Thus, no implied reciprocal agreements, easements, etc.

Exam Tip: Know all three theories of Common Scheme and discuss how facts
would play out under each

f) Covenants vs. Equitable Servitudes

i) Covenants are remedied at law and require: notice, intent, touch and concern, and
horizontal and vertical privity. On the exam, run through all these elements

ii) When the facts don’t support the existence of a covenant, but to allow the change
to occur would be unjust, look to equity for a solution (i.e., find an equitable
servitudes)

(1) The bar is lower to prove an equitable servitude exists

(2) You cant get damages but can get an injunction or specific performance

iii) One approach to delineating between Law (covenants) and equity (equitable
servitudes):

(1) Covenants attach to an interest in land and travels with the interest

(2) Equitable servitudes attach to the land itself and travels with the land
 (3) Because of this, an equitable servitude can be enforced against an adverse
possessor

iv) Modern Trend

(1) Be flexible

(2) Encourage administrative bodies to make decisions (folks with the expertise)
instead of judges and courts (since courts don’t want to be involved with
aesthetics)

Remember: land is unique by definition (equity will step in because money

damages are not an adequate remedy)

g) Defenses to Promises Respecting the Use of Land

i) Construe away the restriction- Construe language in the deed so that it eliminated
any restriction. “There is no restriction here because…”

(1) Defer to the administrative committee or architectural board as long as they

are in their scope of power and can prove their rationale

(a) Business Judgment Rule (BJR)- is the committee motivated by profit? Are
they neutral?

(b) Homeowners associations are not motivated by profit but are not
disinterested parties (do not meet BJR so no deference)

(2) Hanson v. Salishan- blocked view case

ii) Specific Performance

(1) Available because land is unique

(2) Hunt v. Delcallo- developer didn’t build driveways. The common scheme
turned the developers obligations into the purchaser’s obligations

iii) Laches/Waiver/Estoppel
 (1) Laches: Too much time has passed and the claiming party didn’t do anything
about it- sitting on their rights

(2) Waiver: Some action or statement waives the claiming party’s right to demand
enforcement

(3) Estoppel: Party against whom the claiming party wants to enforce has relied
on the belief that the claiming party wouldn’t enforce against them and done
something inconsistent with enforcement.

(4) Exam Tip: Discuss all three if you discuss one

iv) Statutory Defenses (Blakely v. Gorin)

(1) Statutes always prevail over common law (unless they are unconstitutional)

(2) Must follow statute- e.g. if only monetary relief is granted, then no injunction
in equitable servitude

v) Changed Conditions (Cordogan)

(1) Exists when enforcement would be unfair because times/conditions have

changed

(2) Can change covenants where changes have made them:

(a) Unreasonable, confiscatory, discriminatory; or

(b) Destructive of their original purpose

(3) Can only do if

(a) Change in character of neighborhood; AND

(b) Won’t cause damage to others

(4) Two theories for when the original purpose has been destroyed because of the
changed circumstances

(a) Majority view: original purpose has been destroyed when considered in
 light of the entire neighborhood

(b) Minority view: balance the hardship of enforcing the covenant on one
person with the needs of the whole

(5) Burden is on the one trying to get out of the restriction

(6) When the government removes the right to enforce an equitable servitude it is
a TAKING (higher burden of proof)

(7) Urban Renewal

-if its for public purpose then that’s a public use

(8) Note: If you brought about the change in condition you are ESTOPPED from
arguing against the restriction

h) Avoiding Restrictions- What developers do to prevent promises restricting the use of

land

i) Don’t put the specifics of a development in the covenant; have them written
separately so they may change

ii) Build in Phases

iii) Have a Statement of Purpose to hold up against any ‘change of condition’ claims

iv) Administrator to enforce rather than the noisy-neighborhood association

REVIEW:

1. Allen is a developer who owns a large parcel of land. He deeds Lot 1 to Bob. The
deed restricts Bob to using the land for residential purposes. Bob wants to build a gas
station.

Can Allen enforce against Bob? YES

If Allen sells his land to Charlotte, can Charlotte enforce against Bob? A: It depends. If
Allen and Bob intended the restriction to run with the land and all the other elements
for a covenant are satisfied, then yes, Charlotte can enforce
 -Allen sells Dave lot 2. The deed does not contain the same restriction re: residential
purposes. Dave wants to build a gas station. Can Bob enforce against Dave? A: Not
under covenant law because there is nothing the deed

-So what can Bob do? If Bob can prove a common scheme that all parcels in the
development were intended to be used for residential use, he gains standing to enforce an
equitable servitude that benefits his property. The common scheme creates an “implied
reciprocal negative restriction”

5) Zoning

a) Generally

i) Zoning is used to effectuate a plan for development

ii) The Standard Zoning Enabling Act (model legislation put forth by the federal
government in the 1920’s) requires zoning to be done in accordance with a plan,
but it doesn’t have to be in a written plan.

iii) States have passed Zoning Enabling Acts granting power from the states to the
cities to zone land.

iv) Zoning acts must advance a permissible state objective (health, safety, morals,
welfare). They don’t have to be the best method that advances a permissible
objective (rational relationship test)

v) Georgia

(1) Passes Zoning enabling acts for both cities and counties but theses were
removed from the books as being unnecessary after adopting ‘Home Rule’
provisions that superseded them.

(2) ‘Home Rule’ allows localities to make more specific rules that the state has if
the right to do so was expressly reserved in the original instrument

-one third of Georgia Counties don’t zone

vi) Procedure

(1) The local government must have written procedures saying how they will go
about zoning and the public must have access to the procedures

(2) Notice to affected parties is usually required for administrative decisions to

 prevent procedural due process problems. Notice could be signs, newspapers
notification etc..

vii) Court Review

(1) Changes (variances) to a plan that affect only a small group of people are
considered administrative and not legislative in nature. This makes it subject
to judicial review.

viii) Zoning v. Covenants- Zoning is about public issues while covenants are about
private issues

b) Historical Approach

i) Static End-State: how most municipalities approached zoning. If the land was
currently used a certain way (farming, industrial, etc..) then that is how it was
zoned.

ii) One Fine Day: designate sections of land as something and wait for it to fill in

c) Constitutionality

i) Police Power- state has the power to regulate for the general welfare (health,
safety, morals, and welfare) that is delegated (through enabling act or home rule)
to municipalities and used to create land use regulations

ii) Euclid- P’s land lost value because it was zoned residential instead of industrial

(1) Court declared zoning constitutional and that decisions would be struck down
only if clearly arbitrary or unreasonable with no substantial connection to
providing for the general health, safety, morals, and welfare.

(2) Recognized that government police power to zone is valid

(3) If a fundamental right is implicated, court will look closer

Example:

City Council is concerned with the cost of trash on the street

-legitimate state interest (health, safety, morals, welfare) ?

--Yes

-Based on evidence that leaflets being tossed on the ground are a huge part of the problem,
the city council create a “no-leafleting” zone making it illegal to distribute leaflets

--Is there a rational relationship between leaflets and trash clean-up?

--Yes

-Person ticketed under the ordinance sues claiming violation of 1st amendment rights

--Does Court strike down the ordinance?

---Most likely yes-there are other ways to accomplish this goal (e.g. more trash cans) than
limited 1st amendment rights Property – Bross (Spring Semester)

Municapiltiy cant trample on 1st amendment right.

6) Zoning (cont.)
a) The “Plan” Requirement
i) Unitary View (Dawson) (Majority View)
(1) Derive plan from how an area is zoned (zoning=plan)
(2) No separate document is necessary
ii) Planning Factor View (Udell v. Hass) (Minority view)
(1) Municipality doesn’t need a separate document but if they have one then the
court will give a stronger presumption for zoning changes that follow it
(2) In 70’s ALI said only towns with plans that are separate should be able to do
Planned Unit Developments (PUD’s)
iii) Planning Mandate (IDAHO) (current trend)
(1) Separate documents must be drafted and followed
(2) Usually obtained through other statutes or rewriting the enabling acts, not
through the original enabling act
(3) Mandate says if you have a plan you MUST follow it
b) Government Players
i) Elected Body (e.g., City Council or City Commission)
(1) Overseas zoning code
(2) Accepts/rejects amendments
(3) Approves candidates nominated by the executive (e.g., the Mayor). Similar to
the advise/ consent role of the Senate
ii) Board of Zoning Appeals/Adjustment
(1) Hears applications from individuals for variances and special exceptions;
interprets code
 (2) When evidence supports a board’s decision and a fundamental right isn’t
involved, courts will usually support the decision
iii) Planning Commission
(1) Makes recommendations for ordinances to the elected body
(2) Commonly drafts the comprehensive plan, considers requests for changes to
zoning definitions
c) Attacking Zoning—Neighbors
i) Nuisance Theory: the change in zoning damages property value
ii) Covenant Theory: no need to prove harm, just show that the rules were broken
iii) Private Attorney General: if a right of enforcement is specifically created in favor
of the individual who is protesting the zoning charge then they can bring a suit for
public harm
iv) Third Party Beneficiary: zoning change removes a benefit received under old
zoning standard
v) NOTE: Must have standing to challenge zoning ordinances
d) Attacking Zoning—Owners/Developers
i) Violates Fundamental Rights
(1) Individual rights are greater than community concerns
(2) Showing a zoning decision violates a fundamental right garners “strict
scrutiny” by the court
(3) Cases:
(a) Belle Terre- (college students couldn’t live together)- Ordinace was valid;
police power can be used to protect community values
(b) Moore v. City of East Cleveland- (Grandmother couldn’t live with her
grandchildren)- Fundamental right of sanctity of the family; could have
achieved the ends in a better way
ii) Variances
(1) Handled by the Board of Zoning Appeals
(2) Rational: provides flexibility since, when plan was created, it was impossible to
know all the potential quirks/best uses of property
(3) Fixes potential problems when there is a unique burden
(4) Meant to be used rarely but not the case in reality (in idealistic zoning..no
variances)
(5) Two Types
(a) Dimensional (lower burden of proof than “Use”)- underlying activity stays
the same
(b) Use-property is zoned one way and the property owner wants to use it a
different way (e.g., put a gas station in a residential neighborhood)
(6) Arguing for a Variance—Elements
(a) Unnecessary hardship unique to property. Aspects include:
(i) Physical Characteristics
(ii) Lot Value (has to be practically valueless)
(iii) Expense of conforming
(iv) Hardship was not self-inflicted
 (b) Uniqueness
(i) Land or building has to be different than that which surrounds the
property
(ii) Factors that are not unique
1. Difficulty in selling (Southland)
2. Inability to sell (Township Falls)
3. Less valuable
(c) Proposed use not contrary to public interest and will not adversely affect
surrounding property
(i) Southland: congestion leads to an increased chance of fire
(ii) Get neighbors on board with proposed use
iii) Special Exceptions (Conditional Use)
(1) Generally depend on the nature of the zone
(2) Characteristics:
(a) Ability to grant is built into zoning ordinance
(b) Something anticipated/already planned for
(c) Allowed after meeting certain requirements
(d) Use is already compatible with the area, just requires finding the right
location within the zone
(3) GOOD- show when the change is applied for
(4) BAD- can be used/abused to create loopholes
(5) Example: churches are usually compatible with residential use- as long as it in
the right location
(a) Although “Mega Churches” can be problematic: much larger than any
special exception anticipated but because of the federal Religious Land
Use and Institutionalized Persons Act, city’s will find it very hard to prevent
their construction
(6) Special Exceptions
-Because these are administrative actions, they are approved by Board of
Zoning Appeals
-Standard of Judicial Review
(a) Compare use that land is zoned for vs. use with special exception. Is it
good us for the land? Is it good for the zone?
(b) Burden: applicant must show that use is compatible. If they meet their
burden, government must show adverse effect if the use approved (prove
it is not in the public interest and will/does cause harm)
(c) Opposition must argue about inadequacy of the LOCATION and not USE,
because it is a use that was already anticipated
iv) Floating Zone
(1) Type of special exception created by language in the ordinance/plan for
certain kinds of developments
(2) Thus, they are amendments the plan anticipates
(3) Characteristics
(a) The development is wanted, but a location has not been chosen
 (b) No set location within any set zone (could be in multiple zones)
(4) Not “spot zoning: because the zone is in the ordinance
(5) Approved by the elected body (e.g., City Council, City Commission)
v) Amendments
(1) Defined: broad policy/general rule changes that require the approval of the
elected body
(2) Types
(a) Map amendments-change the boundary lines betweem zones
(b) Comprehensive Map Amendments- changes the whole map and
classification of zones
(c) Text Amendments-rewrites the written text in the ordinance
(3) Three Standards of Review Depending on Type of Amendment
(a) Legislative Amendments (changes done by elected officials)
(i) General policy changes that apply to entire plan/residents in general
(open class) are probably ok because there is a presumption of validity
(traditional view)
(ii) Burden on person asking to reverse that change violates the plan
(iii) Used in Georgia
(b) Amendments that amount to “Spot Zoning”
(i) Defined: a plot or area is treated differently than every other piece of
property around it
(ii) Presumption of invalidity-burden on the individual or government
trying to make a spot zone to prove its valid
(iii) To justify, must show
1. Change in the area (change satisfies a public need and this tract
best meets that need) OR
2. Mistake in the ordinance (comprehensive zone was based on a
mistake about the same area from the beginning)
a. Mass and some other states treat these as a conjunctive
requirement
(c) Quasi-Judicial Amendment
(i) Procedural and substantive rule changes by a zoning board do not
receive a presumption of validity because they are not a legislative
body (Fasano)
(ii) Application of a general rule to a specific person should have the
benefit of an impartial decision maker (judge)
(iii) Test:
1. Does this comply with the comprehensive plan?
2. Is this the best location?
3. Is there a public need?
4. Was there something about the situation that calls partiality into
question
e) Flexibility Devices to Address Density Requirements/Limitations
i) Developers can move density around to increase flexibility in land use
 (1) Owners can buy/sell density rights
(2) Average density of a project must meet rules (aggregate determination)
ii) Planned Unit Developments
(1) Generally: Similar to an amendment, but affects a whole area (considers
whole development and not whether individual lots meet zoning requirement)
(2) Approval:
(a) In early stages, approval is likely to be a floating zone decision so must
get approval from the elected body
(b) The finalizing of the plan more administrative and thus appropriate for
review by a body such as a Board of Zoning Appeals, analogous to site plan
approval in subdivision law
(c) If developer deviated from the plan, he is subject to an injunction, an
action for damages or even removal of the non- conforming structure
(3) Goals of PUDs
(a) Achieve flexibility (avoids cookie-cutter developments)
(b) Achieve mixed-use (e.g., Atlantic Station Development)
(c) Allow developer imagination/creativity
(d) Reduce need, allowance of variances
(4) Procedural Requirements to get permission to develop a PUD if ordinance does
not allow for PUD’s:
(a) Can do a text amendment (changes definition of zone categories) or
comprehensive map amendment (changes zone boundaries)
ON EXAM: Go through after zoning analysis so first look at ordinances to see if
PUD’s are allowed; then look at text of amendment to zoning ordinances; after
that do comprehensive map amendments; then, since it is a change, argue
someone would be harmed under one of the theories
f) Transfer of Development Rights
i) Development rights of one parcel transferred to another parcel so that second can
exceed development regulations
ii) Giving density (Lending Parcel) or taking density (Borrowing Parcel)
iii) Four Tactics of moving density
(1) Ordinance refers to the “aggregate of floor area ratio” within a project
(2) Ordinance allows for flexibility by granting bonuses for things like courtyards,
art, etc (e.g., Sears Tower)
(3) Ordinance allows for the density rights of two parcels owned by one person to
be combined
(4) Buy rights from property you don’t own and transfer to property you do own
(a) Argue transfer furthers a city goal like increasing the tax base
(b) Examples: D.C. Historical Society, Portland’s containment boundary
(c) Parcels don’t have to be adjacent to each other (NJ and NY sell farm
development rights to developers in the city). Also, can buy rights from
unusable land
7) Takings and Regulating Land Use
a) Government exercises its power to regulate believing it is using its lawful police
power. If court disagrees, will rule government action a taking
 b) Professor Wiseman’s Framework for Analyzing Takings Questions
i) Due Process Questions (Presumption in favor of the government for these
standards)
(1) Is the government’s goal legitimate? If so, there cant be a taking (Euclid)
-A legitimate goal is based on police power (safety, morals, and health and
welfare) or public use
(2) Are the government’s actions reasonably related to the goal?
(Belle Terre, Moore) (NOTE: pretty low standard)
ii) Takings Questions (see exaction q’s asked next week)
(3) Has a fundamental right been destroyed (per se taking)?
-It’s a categorical taking if a fundamental right (right to exclude others, right to
pass on the property, right to sell the property) is destroyed
(4) Is the public benefit greater than the private harm?
-Balancing test (factual inquiry- benefits vs. burden)
-In Georgia, private harm must be greater than public benefit (but not
significantly greater). Federally, private harm must be significantly greater
than the public benefit
c) Example: City of St. Louis v. Brune
i) Landlord did not want to provide hot water to his tenants
ii) Economic harm will be enough if there is not a good rational behind the ordinance
iii) Had this been a lead paint regulation, the ordinance wouldn’t have been a taking
(larger public benefit)
Property – Bross (Spring Semester)
8) Takings and Regulating Land Use (cont.)
a) Permissible Government Regulation
i) Public Trust Doctrine
(1) Government should protect certain natural resources (navigable waterways,
certain shorelands, etc) because it is in the public’s interest
(2) Purpose is limited to protection of navigation, fisheries, and-in modern times-
recreation.
(3) When land covered by PTD is conveyed, the use must continue to be
supportive of the purposes
ii) Law of Custom
(1) Public at large has determined/ agreed that the area is public land
(2) Almost like prescriptive easement by the public at large over time immemorial
(it has been treated like public land, even though it was private)
Oregon- used this doctrine to make dry sand line public
(3) Depends on the jurisdiction
iii) Prevention of Harm
(1) No one has a right to be a nuisance
(2) Owner not compensated because part of government police powers
(3) Sibson case: prevented development that would destroy the wetlands
(4) Since there is no talking, then “just compensation” is not necessary
 (5) This is based on Government as Regulator vs. Government as Harm Preventor
(6) After Lucas, “harm” being prevented must amount to a common law nuisance
(7) On Exam: argue both- government action okay because of public benefit or
preventing harm
b) Exactions
i) Exactions are conditions required by the government from a developer to get a
permit
ii) Not intended to prevent development, but to offset a new burden on the city
because of the development
(1) Can come in the form of land, money, or physical requirements
(2) Impact Fee vs. Tax: Tax you can ask for anything; Fees you must show a
connection between the extraction and the impact
(3) In Georgia, impact fees are not considered extractions
iii) Illinois Test (Pioneer Trust v. Mount Prospect)
(1) This problem is “uniquely attributable” to this development so you have to
pay
(2) Strictest test (see #2 of due process questions). Never used because so hard
to prove
(3) Ex. If the development at full capacity will lead to a school being almost full
then not specifically or uniquely attributable
(4) Illinois doesn’t actually use this test (they use Wisconsin test)
iv) Wisconsin Test (majority rule, Jordan)
(1) If the evidence shows a reasonable relationship between the need and the
development then it is OK
(2) Ask: What burden does this type of development generally result in?
-Example: 40 single family homes usually increase the burden on schools so the
developer should pay. Money MUST go to the stated purpose
(3) Much looser than the Illinois Test
(4) If the evidence reasonably establishes that the municipality will be required to
provide more land for schools, parks, etc. as a result of the subdivision being
built, then government can demand money or land
v) California Test (pro government)
(1) Loosest of All- “cost of doing business”
(2) If the government can make an argument for the requirement then it is
allowed even if the reasoning is very iffy- just have to show a loose nexus
(3) Example: A business park can be required to pay for public art
vi) Nollan Test
(1) Court looks for an “essential” nexus (similar but less strict than Illinois test)
vii) Dolan Case
(1) Rough Proportionality Test is similar to the Wisconsin test
(2) Looks at the relationship between the need (impact of the development) and
the exaction (nature and extent of the dedication)
(3) Money required compared to what is going to be done with it is also important
(4) Government’s rationale must be roughly proportionate to what they are doing
c) Regulation of Historic Buildings
i) A regulatory attempt to turn private property into public property is a categorical
taking
ii) Balancing Tests- government shouldn’t force people to bear a burden alone
(taking) which should be borne by all (compensation)
iii) Penn Central Test
(1) Consider public benefit vs. private value
(2) Calculate Economic Loss:
(a) Consider all other property they own together
(b) Count TDR’s in considering return on value

(c) Cannot consider value created by others- only look at value of particular
property
(d) Unique contribution- how does regulation interfere with reasonable
investment- backed expectations
iv) Lucas Test
(1) Deprived of any reasonable economic use of the property AND
(2) Imposition of new restriction that wasn’t there when you bought the property)
AND
(3) Rendered property valueless
(a) Land has to be w/o mkt value, not just w/o value to the owner because
cant use it the way they want to
(b) Transfer of Development Rights (Suitum): can defeat the Lucas analysis
because they will leave the property some value
v) Palazollo Test-
-If you don’t meet Lucas, must meet the Penn Central test which is less conjunctive
than the Lucas test
d) Eminent Domain

i) Federal Government is immune to nuisance suits but can be sued under the 5th
amendment which states it cannot take private land for public use without just
compensation
ii) Example: Planes
(1) Rule of what you owned used to be up to heavens down to center of the Earth
but courts determined “public right to use certain airspace (aviation easement)
based on public right to use navigable water (navigable easement)
(2) Violation of FAA Airspace= taking
iii) Separation of Powers Issues
(1) The court can’s appropriate federal funds by saying the federal government
has to pay for takings
iv) State Takings
(1) Poletown- still good law in most states
(a) Factory would increase jobs and tax base-ruled acceptable
(2) Rule in Michigan Now
(a) Extreme public necessity that affects the common good
 (b) Transfer to a private entity that remains accountable to public control
(c) Blighted areas within a comprehensive urban renewal plan
9) Landlord-Tenant Law
a) A lease is both a contract and a conveyance
i) Conveyance is for the right in the property
ii) Contract is for the thing rented
b) At common law, conveyance issues and contract issues operated separately and had
no effect on each other
i) Covenants were independent so failure to perform on one side did not excuse
performance on the other (so T failing to pay rent didn’t mean L could evict and
destruction of property by fire didn’t mean T could stop paying)
ii) Could get around by using determinate or conditional language
c) Modern View is that a lease is a blending of property and contract law
d) NOTE: Statute of Frauds applies (writing must identify parties, describe terms, identify
site)
e) Leases
i) Traditionally, standard form leases favored Landlords (LL) over Tenants (T)
(1) Distraint: LL could levy/ seize T’s property to pay back for rent
(2) Confessions of Judgment: Allows LL to hire an attorney to “represent” T during
an ejection hearing
ii) Legislatures responded by putting in place exemptions limiting the effect of these
clauses
iii) Waiver of exemptions: LL responded by having T waive protection from exemption
laws
-LL’s cant do this anymore
iv) Standard Form Leases
(1) Unconscionable because of unequal bargaining power T had to agree
(especially in cities where there were housing shortages)
(2) Contracts of Adhesion in cases where language was too complex for T to
understand
f) Types of Tenancies
i) Estate for Years- duration is fixed for x number of years, months, etc…
(1) Can be Estate for Years determinable, subject to a condition subsequent, etc.
ii) Estate from Period to Period: An estate which continued for successive periods of
time
(1) Notice is required to terminate the tenancy. If at common law T failed to move
out on a termination date, the LL had the option of holding him for an entire
extra period or treating the T as an occupant at sufferance
(2) Statutes in most situations have set uniform notice requirements that replace
the common law notice requirements
(3) The period of the tenancy is usually set by the regularity of the rent payments
unless expressly set
iii) Estate at Will- Can be terminated by either party.
(1) Many states have enacted statutes that protects T from unscrupulous
practices:
 (a) Proprietary Tenancies: the T is part of a co-op and has an ownership
interest in the building
(b) Statutory Tenancies: protect Ts that report housing code violations from
being evicted
(c) Rent Control: prevent LL’s from raising rents or evicting Ts in a rent
controlled building except under specific circumstances
(d) Cause Eviction statutes: limits all evictions to a specific group of causes
iv) Tenancy at Sufferance
(1) An interest that exists when a person stays on land when their legitimate
interest has expired
(2) LL doesn’t owe T anything- upkeep, etc.
(3) No adverse possession unless you “make it your own”
(4) Waiver, laches, or estoppel could apply-make the argument
g) Tenant’s Rights
i) Right of Possession
(1) Landlord is obligated to deliver legal possession to tenant
(2) English Tradition: Right to actual possession because LL is in best position to
ensure previous T has vacated, structure is habitable; also, T should get what
he bargained for
(3) American Tradition: Right to legal possession only (not actual possession). It is
up to T to kick out a holdover tenant. Only valid now in about ½ of American
jurisdictions

ii) Implied Covenant of Quiet Enjoyment

(1) Implied in every lease (commercial and residential)
(2) Can be violated in two ways:

(a) 3rd party asserts a title superior to the LL and evicts tenant (paramount
title)
(b) LL actions interferes with T’s possession (destruction of premises,
eviction)
(3) Conduct of other tenants doesn’t usually count unless attributable to LL
because he is either the source or is not enforcing lease restrictions against
other tenants

iii) Implied Warranty of Habitability

(1) Common law: caveat emptor
(2) Modern View (Javins) most leases are residential and city dwellers want the
entire package (roof, walls, ceilings, appliances, utlities, ventilation, and
sanitation)
(a) Warranty cant be waived in boilerplate language of lease
(3) Over forty states now impose some implied warranty of habitability
(4) For Conditions existing prior to entry
(a) If the condition was latent (hidden) warranty applies and lease is illegal
and LL cannot enforce any means of collection under it (Brown v. Southall
Realty)
(b) If condition was patent (apparent), depends on jurisdiction
 (c) If haven’t moved in yet, can terminate the lease
(d) If already moved in, can be a defense against paying rent, (except in
Georgia)
(5) For conditions existing after entry
(a) Case law indicates LL has a continuing duty to ensure premises are
habitable
(b) T must give LL time to cure
(c) T must continue to pay rent (either to LL or a court established escrow
account) but could deduct cost of repair from rent if notify LL prior to repair
-Can also seek damages or a reduction in rent
(d) If T causes defect, courts unlikely to impose duty to repair on LL
(6) Determining Habitability
(a) First look to housing code
(b) If not a code violation, try to show substantial danger to health or safety
(c) Type of building, rent charged can be factors
(7) Duty to Provide Secure Premises: rent charged can be a factor
(8) Remedies for Breach of Implied Warranty of Habitability

(a) Read lease covenants as dependent: T’s duty to pay rent and LL’s implied duty to
ensure premises are habitable read as dependent (vs. common law independent
view)

(b) Withhold rent: refuse to pay all or part until defect is cured (court may require rent be
deposited in an escrow account)

(c) Apply rent to cost of repairs: must notify LL. Amount must be reasonable and can’t
be paid from back rent

(d) Abatement of rent: request reduction in rent until defect cured

(e) Terminate Lease: If LL refuses to correct a material breach within a
reasonable time after reasonable notice, T terminates lease

(i) Duty to vacate: T has to vacate to claim right to terminate lease (must do so
before LL cures defect)

(f) Sue for damages: Measure of damages is difference between FMV of premises as
warranted and FMV of actual premises plus any special damages for discomfort or
annoyance (recover benefit of the bargain)
h) Landlord’s Rights
i) To be paid rent
(1) If LL evicts T for non-payment of rent, can chose from 3 options
(a) Accept surrender and find a new T (release previous T’s obligations)
(b) Re-let on T’s account (old T owes difference between previous rent and
current rent). New lease must be for same terms, market/reasonable rent
(c) Do nothing (sit back and sue). Old T is responsible for entire value of
lease
-Not available in many jurisdictions that require LL to mitigate damages
ii) To have tenant destroy property (reasonable wear and tear)
 iii) To have reasonable rule and restrictions observed
i) Types of Eviction
i) Actual Eviction
(1) T locked out by LL and no rent is due
ii) Partial Actual Eviction
(1) T is unable to access a portion of the space lease
(2) If caused by LL then T owes no rent (LL cant apportion his wrong) until T
regains access

(3) If caused by third party, T can decrease his rent by value lost (Fifth Ave. v. Kernochlan
street vault case)
iii) Constructive Eviction

(1) T is not able to inhabit the premises because of something attributable to the LL or a third
party with paramount title

(2) T must actually leave the premises within a reasonable time if he want to stop paying rent
(Dyett v. Pendelton- bawdy house)
iv) Partial Constructive Eviction
(1) Not a recognized eviction because cant stay on property and not pay
(2) T can seek rent damages under the implied warranty of habitability doctrine
(East Haven New York tenement)
j) Eviction Process
i) Summary Proceedings: allows for a speedy trial
ii) Self-Help: where landlord ousts tenant without court involvement
(1) Three Views
(a) No self help (created too great a potential for violence)
(b) Peaceable self-help (majority view): wait until tenant is out and change
the locks
(c) Reasonable force: common law allowed reasonably necessary force
(2) Problem: Potential for violence
(3) Clause In lease allows landlord to exercise self-help and most states enforce
these clauses
k) Tenant’s Defenses to Eviction
i) Eviction was illegal
ii) Eviction was result of LL violation of implied warranty of habitability
iii) Eviction was a result of LL violation of implied covenant of quiet enjoyment
iv) Eviction was Retaliatory
(1) Defined: Eviction as a penalty for certain acts of the T
(2) If T complains to government or landlord, any eviction or increase in rent
within one year is presumed to be in retaliation unless LL presents rebuttal
evidence

(a) Government can’t function if people are scared to report violations

(3) URLTA (Uniform Residential Landlord Tenant Act)

 (a) Adopted in most states
(b) Protects tenants from being evicted for: organizing

(c) Also gives the jury the right to determine rent based on LL violations

l) Destruction of Premises by fire, etc.: Modern view is tenant may terminate lease and stop
paying
m) Illegal Use of the Premises

i) Absent an agreement to the contrary, T can use premises for any purpose that is
not illegal
ii) Lease for an illegal purpose is unenforceable (if LL wasn’t in on it, courts will
consider factors such as how heinous the illegal use is, if all purposes are illegal,
whether act was always illegal, etc.
n) Frustration of Purpose: if events make it impracticable to carry out purpose of lease
and the LL knew of the intended purpose of the lease then it is unenforceable