Property

Bundle of Rights the right to use, to possess, to exclude, to transfer

or sell.

Both tangible and intangible stuf

The Property Restatement describes property as including the
powers, privileges, and immunities that a person enjoys.
Who or what entity has the right in question. (Possession)
What is the right? (4 dimensions of property below)
Theory, Space, Stringency/ Enforcement, Time
Rights Theory Why do we have rights to property?
To what space/ thing/ idea is the theory being applied to?
When was this protection granted, how long will it endure, and
when will it change or end?

Acquisition by Discovery
Johnson v. MIntosh

Court declares that conquest has vested title in the US that is

superior to the title of the Indians.
Issue: a case of competing titles, in which one title needs to have
quiet title.
Holding: Court ruled for the United States saying that the US
discovered the land.
Chief Marshall states that the English can take the land from the
Indians because the English were Christian and the Indians were
aboriginals. (Solves the problem of How can you discover
something that has already been discovered?)
Natives were merely occupying the land because they were not
sovern like the English, so the English conquered them.
Overall point of the story First in time over the property.
Civilized person first in time.
**This is a case rationalizing after the fact to serve a
fundamental end.
Lockes Labor Theory What is built by a person is his property

Acquisition by Capture
Post v. Pierson

Court declares that a hunter must either trap or mortally wound

a wild animal before he acquires title to it.

Both opinions agree on first in time.

Majority pursuit is not enough
Policy, if mere pursuit was enough it would be very difficult to
determine who was the first to persue and because it makes
efficient use of the property.
Dissent Go to the other hunters to find the custom
The fact that the land was not owned by either of the parties
makes a diference, like in Keeble from Keeble v. Hickeringill

Ghen v. Rich

Court declares that title to a wild animal is acquired when the

hunter apprehends the beast in accord with the custom.
This case goes to custom of what 1st possessor means (protects
certainty)
The bomb lance gave the person who found the whale notice
that the whale was possessed by someone else.
The whale hunter put in the work Locke labor rule
Why follow the custom in this case?
It is so well known in that area, it should be followed
No one would whale hunt if there was no certainty of receiving
the benefit to the action
If the Hunter does all that is possible (thats notice and custom)
Hunter takes for his own

Keeble v. Hickeringill

Court declares that an individual may not maliciously prevent

another from capturing wild animals in pursuit of his trade.
There are 2 public policy reasons:
o Every man should be able to use his land as he sees fit as
long as the use is lawful
o The practice of the trade creates wealth
Takeaway Competition is okay, but not disturbance/
interference on the property. (protects a landowners rights
against trespassers)
The exceptions to capture the good faith possessor or the AP.
Constructive Possession control or domino over a property
without actual possession or custody of it. Natural Resources
2

and animals the owner of a piece of land has lawful possession

of either that is on his land.
Fugitive resources in there capture have to have certainty that
the labor will pay of.
Malicious interference is to go with trade, not sport. Keeble was
interfering with sport (so just for fun) whereas in Hickeringill
there was interference with trade (livelihood).
Sport doesnt have a vested interest, but trade does. You want
to maintain certainty in trade so that the business lives on.

Acquisition by Creation
Intellectual Property

How do you define originality

Can anyone be a first possessor of an idea?
Interest in nurturing individual creation v. public use.

International News Service v. Associated Press

The SC declares that newly printed news is protected from

copying
This case is understood as attempting to encourage the creation
of property.
where there is a clear issue of fraud, in that one tries to pass of
goods as their own, then the court will find that there is a
taking of the intellectual property.

Property in ones person

Moore v. Regents of the University of California

Court declares that excised body parts are not ones own
property.
The Plaintif had a rare disease and the defendants, his doctors,
ran tests and took a lot of labs in which they profited of of.
The defendants did this without Moores knowledge or consent.
The court ruled that the plaintifs cells and genes are apart of his
person and there has to be consent to take them.
The court said that the doctor has the duty to disclose the extent
of his research and economic interests in a patients body parts.
But the body parts are not such that they can be converted
under the Tort theory of conversion.

Adverse Possession

a way title is acquired with SOL (usually as an affirmative

defense)
SOL that eventually bars the owner of property from suing to
recover possession from one who has wrongfully entered the
property. A property owners cause of action against a wrongful
possessor of it is known as the action of ejectment.
Assumption that owner of prop. knows what is happening on that
prop. helps to quiet longstanding questions of title quieting
issues as it relates to ownerships of property (mainly on the
boundaries).
Three ways to acquire title
o Conveyance from owner (deed)
o Devisement (will) or by intestate succession (law)
o Adverse possession (affirmative defense)
Even though adverse possession seems contrary to notions of
property law, the public policies of adverse possession are:
o the economic benefits of using property instead of leaving
it to waste
o punishing a non-attentive owner/owners who lazily fail to
respond when put on notice that someone else is using
her/his prop.
o providing incentives for someone to take care of something
they own
o helps to quiet longstanding questions regarding title and
boundary disputes.

Elements of AP (ACEHO)
o Actual (as opposed to constructive) occupation: Entry
needs to constitute trespass; must be a physical entry on
the property. You must have an actual trespass.
o Continuous: Must be using the land for a statutory period
as a reasonable owner would use it; there must be
continuous use of the land. (i.e. summer homes sometimes
are sufficient because show seasonable use (a pattern of
yearly use even if less than full year). But if you leave it
without the intention to return, then the clock goes back to
0 years.
o Exclusive- have the property exclusively without sharing.
o Hostile adverse occupation of part of someones land you
are on someones land that enables them to bring
correctional action and bring a trespass suit against them
you are a trespasser.

o Open and notorious: If you have owner who is watching

over prop., you would be able to see that someone is there,
does not permit you to trespass at times when the visible
owner is not around.
Tacking: When an adverse possessor adds the time s/he has
possessed the property to the time her/his predecessor has
possessed.
Claim of right or color of title:
o Claimonly get what you physically hold or use;
o Coloryou get all that is in the deed, even if youre not
using it all.
If you have a color of title (a written document) and
you are using any portion of what is described in that
deed, then you are holding the entire tract. But if
there is no written document, then you hold the
portion in which you actually possess. Not the entire
tract. A claim of right is when someone says, I am
here, I am staying.

Mannillo v. Gorski

Possession need not be knowingly and intentionally hostile, but it

must be notorious enough to give the true owner actual or
constructive notice of the encroachment.
Here the court was focused on the Adverse/ Hostile element
Old Rule: Had to deliberately take the land but this rewarded
negative behavior.
New Rule: Whether it is a mistake or not, it doesnt matter, it
happened, and the outcome is the same.
Hostility is an objective test
Also focused on Open and notorious point
Rule: Intent is not required for the hostile element of adverse
possession; however in this case, the encroachment was not
adversely possessed because the 15 inches was not open and
notorious as required under the 5 elements of adverse
possession.

Lutz v. VVs

In order to acquire title by adverse possession , possession must

be actual, it must under claim of title, and the land must be
either enclosed or sufficiently improved.
The court ruled that the Lutz didnt improve the land, they just
had junk on the land
The use didnt conform to the typical way the land is used in the
surrounding areas.

The rationales of AP
If someone makes use of land, that use can trump other interest
in that land in other people.
Forces people to maintain their land.
AP is justified because of the expectations that it produces in the
possessor.
There are sources of possession other than by title. (AP and Gifts)
A goal of property law is to promote honesty. If the possessor
honestly believes that the property is his, he may be eligible to
receive title to it.
Policy: This protects purchasers and the system.

Acquisition by Gift

To make a gift personal property, the donor must have transfer

possession (hand over the property) to the donee with the
manifested intention to make a gift to the donee.
For a valid inter vivos gift to be efective between donor and
donee, the donee must show three things:
1)a clear and convincing intent in the donor to transfer the
object to the donee;
2)the donor, most of the time, must actually deliver the object
to the donee; and
3) the donee must accept the object (usually presumed). See
Gruen v. Gruen.
For a causa mortis gift:
1) an intention to make the gift;
2) delivery of thing given
Intention may be inferred from the facts attending the delivery. (what
the donor said or did); also must be clear that he knew what he was
doing and that he intended a gift (coherent). Newman v. Bost
Requires an expectation of death and the donor cannot reserve
control over the item until death(invalidates the gift). Title of the gift is
not absolute until death.

Elements

Donor has to intend to give

Delivery
Donee has to accept that gift.

Delivery
To be efective must be a present interest to transfer; any
testamentary disposition is not efective.
Actual Directly give the gift
6

Symbolic Give something symbolic of the property (bag of

earth)
Constructive Give something that assess the gift (a key)
o (Constructive or Symbolic is only acceptable when physical
delivery is impossible Newman v. Bost)
o A gift given in the present time gift.
o A promise of a gift at a later time future interest.
o The possessor has the rights to the gift until he gives it up.
o Intent is the first element that has to be present
o Writing is the best way to show a manifestation of
intention.
** Both intention and delivery must be present. **
The diference between I give you my watch. and I will give you my
watch.

Newman v. Bost
o Court makes is more difficult to give gifts: Symbolic delivery is
NOT allowed.
o Intention and delivery are necessary. Without both there can be
no gift, throws out symbolic delivery.
o Policy: Encourages people to right wills. Also there are the
competing policy goals of to protect owners from being
defrauded v. free alienability of property.
o The modern rule however, looks to intent.

Gruen v. Gruen
o a party may give a future interest in chattels as a gift
while reserving a life estate in himself.
o Intent was shown through a letter.
o Acceptance was shown

o Because the painting was so valuable

o And because the son held onto the letters for as long as
he did.
The court said that the delivery that is required is the delivery
that is best under the circumstances.
o Because the son only had a remainder interest it would
have been silly for the father to deliver just to take the
painting back for his enjoyment.
If there are no instructions then an estate passes through
intestate.
There is a distinction between ownership and possession.
o Possession is a part of the bundle of rights of
ownership.
The interests in the object can be divided between
the father and son.
Father has current possession and the son has
ownership

Possessory estates & future interests

Nature of Estate

Future Interest involved

Type of Estate

Language

Grantor

Third Person

Fee Simple
Absolute

to A or
to A and her heirs

None

None

Life Estate

to A for life

Reversion

Remainder or
Executory
Interest

Term of Years

to A for X years

Reversion

Remainder

Fee Simple
Determinable/
Subject to an
Executory
Limitation

to A so long as
while
during
unless
until

Possibility of
Reverter

Executory
Interest

Subject to a
Condition
Subsequent/
Executory
Limitation

to A provided
that
on condition
but if

Right of Reentry or
Power of Termination

Executory
Interest

1. Interests retained by the transferor, known as:

a. Reversion

b. Possibility of reverter
c. Right of re-entry
2. Interests created in a transferee, known as:
a. Vested Remainder
b. Contingent remainder
c. Executory interest

Reversion

the interest that is left after subtracting what the transferor originally had;
specifically a future interest in land arising by operation of law whenever
an estate owner grants to another a particular estate, such as a life estate
or a term of years, but does not dispose of the entire interest. Life Estate,
Term of Years, Fee Tail.

Remainder

Future interest arising in a third person.

1)-If a grant is to A for life, and then to B Bs future interest is a
remainder.
Vested Remainder - 1) it is given to an ascertained person and 2) it is
not subject to a condition precedent (other than the natural termination of
the preceding estates).
Not subject to Rule against perpetuities **UNLESS IT WILL VEST**
FROM SONG
Indefeasibly Vested Remainder 1) Can be created in and held only be
ascertained person; 2) Must be certain to become possessory on
termination of the prior estate (i.e. no conditions will operate to prevent
the remainder from becoming a present interest); 3) Must not be subject
to being defeated or divested; 4) Must not be subject to being diminished
in size.
o Ex. O to A for life, and on As death to B
Vested Subject to Open a remainder created in a class of persons is
vested if one member of the class is ascertained and there is no condition
precedent. (ex. O gives to children and only one child is alive.)
Vested Subject to Divestment cut of or end the current possessory
estate; the vested remainder can be divested by condition subsequent

Conditions Subsequent and Precedent

Condition subsequent O: to A for life, and on As death to B; but

if B predeceases A, on As death to C (vested subject to divestment)
o Terminates a possessory or vested interest
Condition precedent O: to A for life, and on As death to B if B
survives A. (contingent remainder)
o Transforms a Contingent remainder into a vested remainder.

Executory Interest

a future interest in a transferee that can take efect only by divesting another
interest.
In order to become possessory must:

o
o

1) divest or cut short some interest in another transferee (this is

known as a shifting executory interest), or
2) divest the transferor in the future (this is known as a springing
executory interest

Contingent Remainder

permits the transferor to let future events determine who is to take the
property upon the life tenants death.
o 1) Given to unascertained person or
o 2) it is made contingent upon some event occurring other than the
natural termination of the preceding estates. (subject to condition
precedent)
Subject to Rule against perpetuities

Rule of Destructibility of Contingent Remainders (nowadays is

abolished)
A remainder in land is destroyed if it does not vest at or before the
termination of the preceding freehold estate. Ex. O: to A for life then to
the heirs of B
Under the Rule would revert to O when A died.
Under the Modern Approach would revert to O until B died and
had heirs.

Rule in Shelleys Case

When one instrument gives a live estate to A

the remainder was limited to the heirs or the heirs of the body
of A
and the freehold estate and remainder were both legal or both
equitable
the purported remainder in As heirs becomes a remainder in fee simple

Doctrine of Merger

-When the life estate and the next vested estate in fee simple come into the
hands of one person, the lesser estate is merged into the larger. (cannot have
any intervening conveyances??)
Ex. O conveys Blackacre to A for life then to As heirs

Doctrine of Worthier Title

A remainder limited to the grantors heirs is invalid, and the grantor

retains a reversion in the property.
Ex. O to A for life then to Os heirs

Rule Against Perpetuities

An interest must vest unless it will fail within 21 years
the life of a being at the creation of interest..

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Only three interests are subject to the Rule Against Perpetuities

Contingent Remainders;
Executory Interests,
Class Gifts
APPROACH
1. Classify the interests and identify the contingent (not vested) interests in
the grant
2. Sort through the possible measuring lives and choose the appropriate
measuring life (closes class).
3. Ask if it is possible whether the interest will vest (if at all) after the time of
the life-in-being plus 21 years.
All the RAP requires for an interest to be valid is that, under any and all sets
of circumstances, the interest either vests or fails to vest within 21 years of a
life in being at the creation of the interest.
RAP Reform Four different methods.
(1) The first approach to reform departed from the common law Rule by
focusing on actual rather than possible facts existing at the end of the estate
preceding the future interest in question.
(2) The second stage proposed the method of specific statutory repairs
designed to avoid purely technical violations by altering the common law
conventions in certain specific circumstances.
(3) Third stage is to maintain statutes that authorize or direct courts to
reform a disposition in a way that avoids any perpetuity violation while
efectuating the transferors intent as nearly as possible.
(4) Wait and see Rather than invalidating an interest at the time of its
creation on the basis of the what-might-happen test, we wait and see
whether a contingent interest actually vests within some permissible vesting
period.
- Two step analysis
- (1) If the unvested interest is valid under the common
law Rule, that is the end of matter, and there is no waiting.
- (2) If the interest is invalid under the common law Rule,
the second step gives the interest a second chance.
The interest is valid if in fact it vests or terminates within the permissible
vesting period. If it is still in existence and not vested at the end of that
period, then it is invalid.
Uniform Statutory RAP
- Use of flat 90 year permissible vesting period.
- If at the end of 90 years following the creation of the interest, the interest is
still in existence and unvested, it is invalid.

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Concurrent Interests p 343-375

Ownership is divided among two of more persons in the sense

that they have consecutive rights of possession.. what is earlier..
I own now you own later
o Results in possessory and future interests, not coownership
Two or more persons have concurrent rights of present or future..
we both own now
5 types of concurrent interests (only need to know 3)
o tenants in common
o joint tenants
o tenancy by the entirety

Tenants in Common

Separate undivided interests in the property

o Descendible
o Divisible and alienable (deed or will)
o No survivorship rights between tenants in common
Each tenant owns the undivided share of the whole

Joint Tenants

Have the right of survivorship

Regarded as a single owner
Hold by moieties
Each owns the undivided whole of the property, this being so
when one joint tenant dies nothing passes to the surviving joint
tenants
o The estate simply continues
4 unities
o 1) Time
the interest of each JT must be acquired or vest at
the same time
o 2) Title
all JTs must acquire title by the same instrument or
by intestate succession or other act of law
o 3) Interest
All must have equal undivided shares and identical
interested measured by duration (sometimes ignored
by courts can be 1/3 and 2/3s)
o 4) Possession
each must have a right to possession of the whole.
One JT can voluntarily give exclusive possession to
the other.
** if four unities do not exist then it is a tenancy in common
12

** some jurisdictions allow if JT was intended and 4 dont exist

if the four unities exist at the time the JT is created but are later
severed, the JT turns into a TIC
JTs can change their interests into a TIC by a mutual agreement to
destroy one of the four
o Or judicial partition

Tenancy by the entirety

Must be husband and wife

4 unities plus 5th (marriage)
surviving tenant has the right of survivorship
hold by one person not my moieties can only convey together
only exists in less than half of the states
terminated by divorce

At Common law is favored of TIC because courts do not like to

make land smaller. If ambiguous it will become a JT. Today the
presumption is abolished today unless at JT is express it will
be a TIC. Cant even just say jointly.

Severance of Joint Tenancies

Riddle v. Harmon
A joint tenant can unilaterally sever a joint tenancy
without the use of an intermediating 3rd party
(strawman) by conveying his or her property interest to
herself
Old rule - at common law, delivery of seisin required 2 people
and a person couldnt create joint tenancy in herself so a
strawman was used, so
The troubling aspects of giving away a conveyance to the
straw party is that there is a certain unfairness because a
party of this joint tenancy survivorship can unilaterally destroy
this survivorship.
Holding: The purpose of the grant was to sever the joint
tenancy prior to her death. Court did not uphold severance. If
the severance was from W to a 3rd person and not back to
herself, then it would have been valid. It would have destroyed
the 4 unities and each H and W would each own a tenancy of
common.

13

Harms v. Sprague
a mortgage does not sever a joint tenancy, and the
surviving joint tenant take the interest of a deceased
joint tenant withoutbeingencumberedbythemortgage.
Mortgage:aloanwhereyouuseyourlandascollateral.Whenyouhavea
mortgage,youhave(1)anote(personalpromisethatyouwillpaytheloanwith
interestandinacertaintimeperiodpromissorynote),and(2)deedoftrust/
mortgage(whichsaysthatthebankownsyourpropertyuntilyoupaythemwhat
youoweaconveyancefromtheborrowertothelenderthatlookslikeadeed)
TheliendoesNOTseverthesurvivorship.
Thisisfairb/cthesecuredpartyhasabilitytodeterminelimitedinterestin
property.Tosayotherwisewouldcauseharmtofuturetransactionsofthiskind.
Titletheory:Ifitdoes,thenJointtenanthastransferredhisinterestinthe
property.(Title=propertytransfersubjecttodefeasance,historically;e.g.,
whenyoupaythedebt,thetitlereturns)Whentitleisseveredjoint
tenancyissevered,sounderTitleTheoryofMortgagesthejointtenancyis
destroyed?
Lientheory:Ifitdoesnt,thenthereisjustalienontheproperty,justa
claimagainstit,notaninterest.(Lien=onlyanactualsaleofproperty
seversJointTenancy.)JointTenancyremainsintact.
Usingthelientheory,thecourtfoundthatthemortgagegivenbyonejoint
tenantdoesnotseverthejointtenancy.Thusinthiscase,thesurviving
tenant,ownedthepropertyinitsentirety,unencumberedbythemortgage
lien.Thelienwasextinguishedatthedeathofthemortgagor.Hadboth
partiessignedthemortgagethentherewouldhavebeenadifferentresult.
(thisdebtextinguishingonlyhappensinsomejurisdictions)

Partition

Concurrent owners might decide for any number of reasons to

terminate a cotenacy.
If they cannot decide how to sever the tenancy then there can be an
equitable action of partition.
The action is available to any joint tenancy or tenant in common;
however, it is unavailable to tenants by the entirety (married
tenants).
A partition by sale (sell the property and divide the money)
Partition in kind (part the property down the middle).

Delfino v. Vealencias
A partition by sale should only be ordered if the physical
attributions of the land in question are such that a partition is (1)
impracticable or inequitable, and (2) the interest of the owners

14

would be promoted by a partition by sale. Partition in kind is the

preferred method.
Policy: Done to promote fairness between the parties

Benefits and Burdens of Co-Ownership

Spiller v. Mackereth
In the absence of an agreement to pay rent, a cotenant in
possession is not liable to his or her cotenants for the value of his
or her use and occupation of the property unless there is ouster of a
cotenant.
Ofthefourunitiesofconcurrentownership,possessionisatissuehere.
This case represents the common law view in majority of
jurisdictions: Absent ouster or agreement, one cotenant is not
able to collect rent from the other. There is a minority view
that established liability for rents on a continued occupancy
after a demand to vacate or pay rent.
Rule: Before a cotenant can demand a rent the joint tenant must
have been ousted from the property
***Generally,cotenantsdonothaveafiduciaryrelationshipwitheachother

Leaseholds: Landlord Tenant Law p 441

Title Insurances
Tenant Duties
Duty to repair return in original condition but wear and tear
Duty to pay rent Landlord may evict you or sue you or relet the
property
o Landlord must try to relet first (courts like)
Landlord Duties
Landlord must show that tenant defaulted
Waste
Voluntary messing shit up
Involuntary not fixing shit
Ameliorative not even really waste
Fixtures
Lights and stuf
Removal would damage property
3 parts
15

o 1) Annexation (actual or constructive)

o 2) Adaptation of the thing to the use or purpose of the
premises to which it was annexed and
o 3) Intent to be a permanent part of property
Parties can privately agree to fixtures
o Default is that they pass with land
Absent an agreement the tenant can remove installations as long
as it doesnt cause substantial harm to premises
Tenant has burden of proof to show fixture does not cause
substantial harm to premises
Duty to Repair
Must repair damage
Inside normal wear and tear
Minor v. major repair (probably would be around $2000)
Landlord duty to repair
Duty to repair common areas
Areas exclusively under landlords control
Latent defects that he knew or should have known about and
tenant has no knowledge about
Security Deposit
Not for payment of rent
For wear and tear
Landlord tenant law is stacked toward landlord side in WV
Tenants abandonment
Leave during lease period
Tenant relinquishes possession of premise and fails to pay rent
Implied ofer of surrender
Surrender
Act of tenant terminating before scheduled date
Can be an agreement or not
Conveyance from tenant to landlord for unexpired termination of
lease.
Landlord accepts by express assent
Landlord duties
Implied warranty of habitability residential leases and is non
waivable
Implied covenant of quiet enjoyment commercial and
residential, fundamental promise that tenant has a right to quiet
use and enjoyment without interference by landlord.
Duty to deliver possession
Implied covenant of quiet enjoyment
See case below

16

Village Commons, LLC v. Marion County Prosecutors Office

Plaintif rented basement
Water damage and water intrusions
4 years left $380,000
landlord wants unpaid portion of lease
tenant says they have been constructively evicted
Constructive evictions breach of quiet enjoyment by showing
you have substantial interference, notice, and must leave in a
reasonable amount of time (abandonment or surrender)
Actual eviction conduct that physically excludes tenant from
property (total or partial)
Legal duty to act contractual (in the lease implied or express);
or, duty imposed by the law (statute or regulation).
Lease covenants are independent of duties (one party must
perform duties independent of the other party landlord doesnt
put in fire alarm, tenant must still pay rent
Public policy for quiet enjoyment protection from wrongful
eviction, also no fear of interference
Most leases today have a clause about quiet enjoyment
Wrongful action by landlord breaches quiet enjoyment
Actual Eviction
Physically cannot use space
Constructive Eviction
breach of quiet enjoyment by showing you have substantial
interference, notice, and must leave in a reasonable amount of
time (abandonment or surrender)

Implied Warranty of Habitability

Unlivable for the ordinary person

Does not need to be a term in a lease and applies to oral and
written leases
SOF applies when the lease is more than a year
Under the IWH, the LL will maintain a safe and clean environment
fit for human habitability.
This is in every lease
May be broken through municipal codes
Damages diference between value of the living and value with
defect plus personal discomfort
Punitive damages if wanton and willful fraudulent breach.

Hilder v. St. Peter

House is very yucky

17

Court talks about IWH traditionally the leasee took the premise
in whatever condition it was in and the LL did not have to fix it
unless there was an express condition.
o Modern theory city living has changed things, people
today arent as adapted to fixing things themselves and
therefore it should fall upon the landlord. Modern leases
are about contracting for a place to live, not just for the
property itself.

The Law of Nuisance

Sound, light, smells, etc.

Part tort and part property
Private v. public
o Private efects one private party (i.e. afecting a
neighbor)
o Public efects a public area (i.e. a whole neighborhood)
May be broken by noise ordinances in zoning codes
o For instance, you cant sue someone because they have a
noisy dog
Elements
o Substantial harm
o Unreasonable: no eggshell victims, reasonably prudent
person standard.
o Intentional
Burden on defendant v. benefit of plaintif
o Gravity of harm dust particles v. flaming dust particles
o Extent of harmbad lighting v. no lighting
o Suitability cement plant in residential neighborhood
o Social value we might really need a certain factory
o Suitability of conduct to the character of the locality
o Impracticability of preventing or avoiding location
Spectrum of nuisances

Morgan v. High Penn Oil Co.

Oil company emitted nauseating gases throughout a
neighborhood.
Brought suit for private nuisance.
Oil moved for compulsory nonsuit
Is oil liable for nuisance even though the partys conduct did
not rise to the level on negligence?

18

Yes. An action for private nuisance may be maintained even

though the party producing the nuisance was not negligent.

Nuisance Spectrum
Immunity balance Per Se
Per Se intent, always wrongful, high risk and undesirable
o Certain actions and activities are always nuisances, also
statutes
Accidental nuisance
Act and surrounding act that it occurs in
Not illegal in and of itself, but due to activity and location where
its taking place. Wouldnt be a nuisance except under the
circumstance
Abatable nuisance
A nuisance so easily removable that the aggrieved party may
lawfully cure the problem without notice to the liable party such
as over hang tree branches
*If I own a piece of land next to a clif and B owns home adjacent and I
start mining and cause his prop to sink lateral and subjacent support
right
Coming to the nuisance (can be a defense)
Building a house next to a cement factory and you knew it was
going to be bothersome but you go anyway.
Courts still do the balancing test but they still know that went
there on purpose.

Estancias Dallas Corp. v. Shulz

o Air conditioning causes stress
o Home value without noise 25k, with noise $10k
o Damage of $15k
o Quiet enjoyment destroyed here
o Goes against restatement (Restatement is economical analysis)
Boomer v. Atlantic Cement Co.
D operates a large cement plant.
Neighboring land owners brought suit alleging injury to property
from dirt, smoke, and vibration emanating from the plant.

When should the court award refuse injunctive relief for

an environmental nuisance suit?
A court should refuse injunctive relief when there is a large
disparity in economic consequences of the nuisance and the
injunction.
19

Individual property owners are seeking specific relief from a

single plant operation.
Threshold question is whether the court should resolve the
litigation between the parties as equitably as possible or whether
this private litigation should be channeled into broad public
objectives.
Efective control of air pollution is a problem far from a solution.
Amelioration of it will depend on technical research and require
massive public expenditures.
o A court should not try to do this on its own as a by-product
of private litigation.
o Judiciary is not prepared to lay down and implement an
efective policy for the elimination of air pollution.
o Therefore, if the damage to Ps is not unsubstantial, an
injunction should follow.
One alternative is to grant the injunction but postpone its
effect until a future date to allow the D to eliminate the
nuisance.
o However, it is unlikely that in 18 months there is going to
be new technology that would allow this. Plant would just
be shut down.
Another option is to grant the injunction unless the D
pays permanent damages to Ps which would compensate
them for the total economic loss to the property present
and future.
o Court chooses this option.

Spur Industries, Inc. v. Del E. Webb Development Co.

o When the public develops land in the vicinity of a public
nuisance, the action creating the nuisance must be ceased by
the party responsible for its creation, however, said party is
entitled to compensation.
o Plaintif was developing a retirement community for senior
citizens on land it purchased adjacent to after knowing it
was a cattle farm
o raised of cattle.
o Webb Development brought suit against Spur because it
argued that the smell from the cattle operations was a
nuisance, and should be enjoined.
o Is there a nuisance?
o Maybe, development wins but they still have to leave
for money
o When the public develops land in the vicinity of a
public nuisance, must the action creating the nuisance
be ceased by the party responsible for its creation?
What to know
20

Types of damages
Public v. private
Scale of nuisance

Laws of Servitude
Profit

Someone gives you right to enter your land and remove

something from the land
Hunting, fishing, remove coal, etc.

Covenants

Equitable servitude
o Relief in equity injunction
Real covenant
o Relief in law damages

Easements

PING-Prescription, Implication, Necessity, Grant

Non-possessory right to use and/or enter onto the real property
of another without possessing it.
A may enjoy over the land of another, B
Helpful for pathways
Generally requires a written instrument signed by the party to be
bound thereby (deed or grantor) (reservation)
o Usual exceptions to fraud
o Part performance
o Estoppel easement is unused and the servient estate
takes action in reliance of termination
o Easement may be created by implication or by prescription
Prescription implied easements granted after the
dominant estate has used the property in a hostile,
continuous and open manner for a statutorily
prescribed number of years. Does not require
exclusivity (diferent than adverse possession)
Generally only for affirmative easements
Common Law courts 4 types of easements
o Right-of-way
o Easements of supports
o Easements of light and air
o Rights pertaining to artificial waterways
o LASSlight, air, support and streamflow
Affirmative easement

21

o The right to use anothers property for a specific purpose

o A can drive their cattle over the land of B
Negative easement
o The right to prevent another from performing an otherwise
lawful activity on their property
o A cannot block the view of B by putting up a wall
o Must have a common grantor
Dominant estate
o Aka dominant tenemant
o The land gaining the benefit
Servient estate
o The land granting the burden
Public v. private easement
o Public easement grants easement for a public use, public
gets access over a parcel owned by an individual
Appurtenant easements
o Gives right to whomever owns a parcel of land that
the easement benefits
o Transferable
o Not owned by an individual but a land
o Courts prefer this because the benefit stays with the land
which generally makes sense and makes the land more
valuable
In Gross Easement
o Gives right to some person without regard to
ownership of land
o Benefits and owned by an individual or a legal entity
o No dominant tenemant
o Not assignable or inheritable
o Alienable or inalienable
Today are freely transferable to a third party
Divisible

Willard v. First Church of Christ, Scientist

o Genevieve McGuigan owned two adjacent plots of land in
Pacifica, California.
o A small office building was located on one plot, and a parking lot
on the other.
o McGuigan allowed the to use her lot during church services.
o McGuigan eventually sold the lot with the office building, but
retained ownership in the parking lot.
o Soon thereafter, the purchaser (Peterson) of the office building
sought to resell said building.

22

o He found a buyer, Donald and Jennie Willard (plaintifs),

who wished to also purchase the parking lot.
o Peterson agreed to sell both lots, which required him to
purchase the parking lot from McGuigan.
o McGuigan sold the land to Peterson, but in the deed,
created an easement for the Church to use the property for
parking during church services.
o Peterson then recorded the deed, and ten days later, sold
both lots to the Willards.
o The Willards discovered this easement several months
later, and brought an action to quiet title on the property.
The trial court ruled in favor of the Willards.
o The Church petitioned for certiorari to the Supreme Court
of California.
o A grantor reserve an interest in the land to be granted, for use by
a third party
o The Church is entitled to use the parking lot during church
services because McGuigan created an easement for the
Churchs use when she sold her land to Peterson. A grantor may
reserve an interest in the land to be granted, for use by a third
party.
o McGuigan reserved an interest for the Church when she sold the
lot containing the parking lot to Peterson.
o The deed containing this interest was properly recorded by
Peterson, thereby giving the Willards notice of its existence.
o The Willards should have known that they were taking the
lot subject to the easement.
o It is also clear that the Church uses the lot for parking
during church services
o the Willards cannot argue that they are prejudiced by this
easement.
o Since McGuigan properly created an easement allowing the
Church to use the parking lot during church services, the
Church may continue to use the land as it has been. The
judgment of the court below is reversed.
Stranger to the deed rule
Modern Authority
o An easement can be created in favor of a third party
o Common law cannot be reserved for a third party
Reservations and Exceptions
o Easement can be reserved for a third party
o Reservation is a provision in a deed creating some new
servitude which not did exist before as an independent interest.
o Exception a provision in a deed that excludes from the grant
some preexisting servitude on the land.
23

Licenses

Allows someone to go on your land and do something.

Ex: a movie theater license to go watch a movie on their
property
No consideration needed
o Implied, not writing
o Custom or conduct
Lease v. license
o Writing required for lease but not license
Writing for an easement for over a year
Oral and completely revocable.
Non-exclusive use

Holbrook v. Taylor
The Holbrooks () owned a road and granted permission to a
nearby mine to use it.
Mine closed, the Holbrooks built a tenant house on their property
and granted the tenants permission to use the road.
The Taylors bought a tract of land next to the road and built a
house on the land.
The Holbrooks granted the Taylors permission to use the road for
the machinery, material, and other activities necessary for the
construction of the house and general improvements to the land.
After the house was built, and by permission of Mr. Holbrook, the
Taylors widened the road, put in a culvert, and covered the road
in gravel at significant cost.
Soon after, a dispute arose between the Holbrooks and the
Taylors regarding use of the road.
When they could not resolve the dispute, the Holbrooks built a
steel cable across the road to prevent the Taylors from using it.
The Taylors instituted this action to remove the cable and for a
declaratory judgment that they have the right to use the road.
May a landowner revoke permissions to use and make
improvements to his land if the licensee relies on the
permission to use and make costly improvements to the
land?
No. Once a landowner has induced action on the part of a
licensee by giving the licensee permission to use and improve
the land, and that use and improvement results in considerable
expense to the licensee, the landowner does not have the right
to revoke the license.
o Revocation of the license under these circumstances would
constitute unjust enrichment for the landowner.

24

o The Holbrooks initially gave the Taylors permission to use

and make improvements upon the road and, relying on this
permission, the Taylors incurred considerable costs
maintaining and improving the road and building their
house.
o As a result, the Holbrooks may not revoke their permission
and the Taylors are entitled to continued use of the road
under the theory of estoppel.
The license remains irrevocable to the extent reasonably
necessary to realize upon the expenditures
Court can give injunction, damages, or nothing.

Estoppel easement is unused and the servient estate

takes action in reliance of termination

When a property owner misrepresents the existence of an

easement while selling a property and does not include in the
deed to the buyer an express easement over an adjoining
property that the seller owns, a court may step in and create an
easement.
Doesnt need to be in writing
Party A will rely on party B to use an easement
Elements needed?
o Need consent to use of servient estate
o SE owner knows or should have known that the DE will
materially change position
o DE holder substantially changes his position by investing in
improvements
o Some courts dont recognize this and make it an
irrevocable license

Van Sandt v. Royster

An easement can be implied from the circumstances
surrounding the conveyence of the land, including the prior
use of the land.
1. Necessity of the Easement- An owner should know that seweage
has to be drained.
2. The probable expectation to use the easement knew that
sewage was draining somewhere
3. Would it have a disproportionant efort or expense on the part of
the user not to use the easement the defendants would have had
to pay to have a new sewage line redrawn.
o An easement will be implied in favor of a grantor for
sewer pipes running under the grantees land, because

25

o
o

o
o
o
o
o
o
o
o
o
o
o

the grantee is charged with notice, as the existence of

such pipes is apparent even if it is not visible.
Plaintif owned three plots of land.
On the easternmost plot, Bailey built a house and connected it to
the public sewer system by pipes running under the other two
lots. In 1904, Bailey sold the westernmost lot to Jones by general
warranty deed. Jones knew about the sewer and connected his
own house to the line.
Eventually Joness lot was conveyed to Van Sandt (plaintif).
Meanwhile, Bailey conveyed the center lot to Murphy by general
warranty deed, and Murphy built a house and connected it to the
sewer line.
This house was eventually conveyed to Royster (defendant).
In 1936, Van Sandts basement flooded with sewage.
Van Sandt investigated and discovered sewer line under his
property.
Nothing in any of the conveyances or visible on the land
indicated the presence of the pipes.
Van Sandt asked Royster to stop discharging sewage across the
land.
Royster refused, and Van Sandt sued.
The trial court found for Royster and enjoined Van Sandt from
interfering with Roysters use of the pipes. Van Sandt appealed.
Will an easement be implied in favor of a grantor if the
existence of pipes running through the grantees land is
not mentioned in the conveyance or visible to the eye?
Yes. An easement is a right to use someone elses land.
o An owner cannot have an easement in her own property,
but the phrase quasi-easement is used when a landowner
uses one part of her property to benefit another.
o The part that benefits is the quasi-dominant tenement; the
part that is used is the quasi-servient tenement.
o When the owner conveys the dominant tenement, the
easement goes with it, so long as the easement is
apparent, continuous, and necessary.
o Authorities are split on whether the grantor retains the
easement if she conveys the quasi-servient tenement.
o Most American cases hold that an easement by implication
will only be created out of strict necessity.
o The factors for determining whether the parties intended to
create an easement by implication are:
(a) whether the claimant is the conveyor or the
conveyee,
(b) the terms of the conveyance,
(c) the consideration,
26

(d) whether the claim is made against a

simultaneous conveyee,
(e) the extent of the necessity of the easement,
(f) whether reciprocal benefits result,

(g) how the land was used before the conveyance,

and
(h) how much the parties knew about that use.
An easement that benefits either the grantor or the
grantee may be implied if necessary for the enjoyment of
land.
Necessity includes cases where the property could be used
without the easement, but only with difficulty and expense.
If the usage of the easement was apparent, that supports
the claim that the easement exists. Moreover, the fact that
pipes are buried and not visible does not mean that the
easement is not apparent. Here, the easement for the pipe
was necessary for the use and enjoyment of the other
parcels.
Jones knew about the pipe when he bought the land. Van
Sandt conducted a thorough inspection before he bought
the house. Van Sandt saw the modern plumbing and knew
the lines had to drain into a sewer.
The easement was apparent, and Van Sandt is charged
with knowledge of it.
The trial courts judgment is affirmed.

o
o
o

o
o

Easements by prior use

o The theory and requirements of easements implied from a prior
existing use.
o Aka quasi-easement
o Three requirements
1. Severance of title to land initially undivided
2. Apparent, existing, and continuing use of one
parcel at the time of severance
apparent use should know
3. Reasonable necessity for the use at the time of
severance
tends to establishes that parties had
reasonable grounds to expect that the
conveyance would not terminate the right to
continue the prior use
difers fro absolute necessity
usually means that alternate access cannot be
obtained without a substantial expenditure of
money or labor.
27

o the graveyard right implied right of relatives of a

deceased person to cross private property for the purposes
of accessing the cemetery
o implied reservation v. implied grant
reservation distinguishes between an easement
implied in favor of the grantor (strict necessity)
(texas and ny)
implied grant one implied in favor of a grantee
(reasonable necessity)
o if the Dom Ten. And the Ser. Ten come into the same
ownership; the easement is extinguished all together.
Will not be revivied by a severance

Termination of Easements

Grant this easement ends in 10 years

o Grant condition: you may use this road as long as the dom
estate is a church
Prescription a new prescriptive easement, using it in an
adverse way
Implication
Necessity find another way to go, unnecessary
Merger if DT and ST come into same property easement is
terminated

Othen v. Rosier
o Aneasementcanbeimpliedfromnecessitybasedonthecircumstanceor
byproscriptioniftheusewasadverse.
o Othen is apparently land locked by Rosiers property.
There is a lane that allows Othen to get to his land by
way of the lane. The road becomes blocked of and
Othen files suit.
o Othen loses because the court says that there is no
easement by necessity because there was another way
for Othen to get to his property, however it was longer
and less convienent. Had there been no other way for
Othen to get to his land then there would have been an
easement by necessity.
o This land lock problem had to exist at the time that the
deed was conveyed, and Othen could not demonstrate
this. At time the parcels of land were not land locked.
o Easement by proscription similar to Adverse
Possession
o It must be shown that the owner acquiesced and did not
affirmatively object and that there was no affirmative

28

permission by the person burdened by the easement.

(because this eliminates the hostility notion)
Easements by prescription
o Prescription implied easements granted after the dominant estate
has used the property in a hostile, continuous and open manner for
a statutorily prescribed number of years. Does not require
exclusivity (diferent than adverse possession)
o Generally only for affirmative easements
o ACEHO (ace in the hole, but no exclusive)
o Fences built in incorrect locations often result in the creation of
prescriptive easements
o Fiction of the lost grant if a use was shown to have existed for
20 years, it was presumed that a grant of an easement had been
made and that the grant had been lost
o The presumption of grant could not be rebutted by evidence
that no grant had in fact been made.
o Owner is presumed to consent or acquiesce in the use; after
all, the owner is thought to have granted the easement
o Public prescriptive easements
o Claiming a public road
o May be difficult to prove
o Some courts use implied dedication express or implied
Express are essentially grants and usually involve
gratuitous transfers of land to a government body or the
public at large
Implied owes something to lost grant fiction
Landowner evidences intent

Easement by necessity
o Early law one who grants a thing must be understood to have
granted that without which the granted thing couldnt exist.
o Public policy no land be made inaccessible
o 19th century courts sought to ground rights in the contract
between the parties, the easement by necessity was said to carry
out the presumed intent of the parties.
o Courts must decide if valid if parties contest
o Must be strict necessity Othen v. Rosier
o An easement by necessity endures only so long as it necessary
o If a landlocked owner finds another way out no necessity

Matthew v. Bay Head Improvement Association

o The publics right to use the tidal lands and waters under the
public trust doctrine also includes the right to gain access

29

o
o

through and to use privately-owned dry sand areas as reasonably

necessary.
Facts: The Association denied the public its rights of access to and
use of the public beaches during the summer. The Association
owned land that beach goers would have to cross over in order to
get to the public beach area.
o The Court said. . . Exercise of this right, however, may depend
on a right to pass across the beach immediately upland from
the foreshore areas.
o The Court gave injunctive remedy and said that the
association could keep the property but could not exclude
anyone from the organization since they are not allowed to
exclude anyone from the beach.
Public Trust Doctrine the public owns the shore line and
the land is held in trust for people to enjoy. Ex. You cant
enjoy the river without reasonable access to the shoreline.
the public trust doctrine extends to all land covered by the ebb and
flow of the tide and in addition, all inland lakes and rivers that are
navigable.
Generally an easement in appurtenant is assignable and an
easement in gross is not. Easements in gross are assignable the
grantee gets the whole interest. (Miller v. Lutheran) If there is more
than one interest then both parties must agree.

Assignability of Easements
o Appurtenant easement pass automatically to assignees of the
land to which the are appurtenant
o If the parties so intend and the burdened party has notice
of the easement
o Where the benefit is in gross, the benefit may not be
assignable
o You are only entitled to your easement, you cannot make a
new one, that is trespassing!

30

Miller v. Lutheran Conference & Camp Association

When two or more people own an easement in gross, the

easement must be used as one stock, meaning that any
actions involving the easement must be made with
common consent of all the owners.
Facts: Millers executors licensed the Association to use the lake
without referring to Frank Miller, who owned of the interest in
such rights.
How is the assignable property to be used? An easement must
be used or exercised in its entirety. (one stock)
The court said that it is clear that the plaintif did not wish to
grant Rufus a separate right to subdivide and sublicense their
lake privileges.
Takeaway: If the easement is structure by its terms to be
assignable, then it is assignable.
Scope of Easement the scope of the easement is for that scope
only, and not for any extension that can be applied. (Brown v.
Voss) Changes in a easement need to be carefully construde.
The servient is allowed to change the easement at his own cost,
but must not frustrate the purpose for with the easement was
created.

Transferability of easements in gross

o Where an easement is appurtenant, burden on the ST is limited
by the needs of the DT.
o Appurtenant transfer with land
o In gross has no such limitations, courts dont want burden to
increase.
o Restatement 1 IG can be transferred if commercial
character
Connected with trade or business or profit seeking
o R3d all easements in gross are assignable regardless of
their commercial character.
Most courts permit if the parties so intend
Recreational easements in gross do not transfer.

Divisibility of easements in gross

R3d easements in gross may be divided unless contrary to the

intent of the parties while creating or division is too burdensome

31

Scope of Easements
Brown v. Voss
If an easement benefits its owner in the use of a
particular parcel of land, any extension of the easement
to other parcels is a misuse of the easement.
Facts: The defendant blocked of private road easement for
parcel B after Brown started building a house that would sit on
both parcels B and C.
Can the owner of a dominant estate extend the use of the
easement to the non-dominant land?
No. When the scope of an easement is explicitly defined, the
scope remains and cannot be extended. Rule of strict
construction.
Takeaway: This is a bad lawyering example on the part of the
representation for the Vosses, there should have been an
estoppel claim or prescription claim raised.

Negative Easements

The right of the DT to stop the ST from doing something on the

servient land.
Early types
o Blocking your windows
o Interfering with air flow to land in a defined channel
o Removing the support of your building
o Interfering with the flow of water
o ** English judges do not favor negative easements
must be in writing
American courts have accepted English restrictions, but the list
of 4 is not necessarily closed.
o R3d treats them as restrictive covenants
o Lateral support is a natural right

Conservation and other Novel Easements

Preserves scenic and historic area and open space.

Big in wv stops coal companies
Immune from common law impediments that might be raised.
Lasts forever
May help against adverse possession
Durable restrictions and affirmative obligations to protect natural
resources.
Owners get tax deductions

32

Preseault v. United States Conversion of abandoned railroad

easement into public nature trail constitutes unauthorized
taking of servient estate.
Was there a taking to the detriment of the owner, if yes then the
government owns the owner
Did the railroad have fee simple or easement? Easement
This is an easement because it functions as an easement, it is
typically an easement that railroads acquire an easement this
way.
If Easement does the scope of easemet include using it for public trail
no
The test is was this use reasonable within what was
contemplated when the easement was created. No, this was an
unforeseeable by the parties.
If yes, was the easement considered abandoned by discontinuence of
railroad use thus relieving the servient.
Abandonment does not happen by non-use there has to be an
act that shows the intent to abandon. i.e. when the railroad co.
removed the rails
Is public use of the strip authorized by Act a taking of private property?
Yes

Easement v. Fee Simple

what an easement permits is going to be more limited.

Termination of easements
o An easement is terminated when the function that it serves
was not in the foreseeable view when the parties
contracted.
o An easement is terminated when it is abandoned.
Abandonment requires an intentional act that shows
the intent to abandon, not simply the non use of the
easement. (Preseault v. US)

Easements v. Covenants

Easements are non possessory interest that deal with the

dominant tenants right to use the property of the servient tenant
in a particular way
Covenants are non-possessory interest that deals with the
servient tenants right to do or not do something with their own
land in a particular way.
o Not limited to four things

33

o Similar to a contract but runs with the land

Covenants

policy: agreements on how to internalize externalities.

Courts generally disfavor negative easements.

Why a covenant instead of a contract?

You want injunctive relief

You want the covenant to be with the land, not the person.
A covenant binds successors, contract does not.

Real covenant

a promise respecting the use of land that runs with the land at
law.
WITHN Writing, Intent, Touch and Concern, Horizontal and
Vertical Privity, Notice

Horizontal Privity and Vertical Privity

Horizontal meaning privity of estate between the original

covenanting parties
o Successive relationship (grantorgrantee)
o
Vertical meaning privity of estate between one of the
covenanting parties and a successor in interest.

Notice

Actual
Inquiry
Record

34

If A or B sells to C and D (who are not part of the orginial K. C and D

have vertical privity.
Ex. A owns a property and sells to B and there is a covenant on the
property that says that the property can only be used for single-family
dwellings.
In most states for the burden to run you have to have both horizontal
and vertical privity. For the burden to run there has to be an
agreement between A and B and D has to take Bs entire durational
estate (life estate, fee simple. . . )

There are different tests to determine whether the

covenant runs with the land
1. Intent test was the intention of the agreement merely a deal
b/w the original parties or was the intent to bind subsequent
owners (focus on the language of the covenant. . . to A or to A,
heirs, and sucessors)
2. The notice of the burdens test whether the successor in interest
to the burdened estate take the estate with notice of the burden
(was this recorded?)
3. The touch and concern test Whether the burden itself actually
is the kind of burden that relates to the use of the land diferent
from personal burdens. Has to relate to something that you do
with the property, something that makes the property more
valuable to the benefited party.
The scope of Covenants The general notion here is that
covenants allow people to agree what they want to agree to,
but there are limits.
Tulk v. Moxhay Covenant will be enforceable in equity against
a person who purchases land with notice of the covenant.
Rule: The court said that when a person buys property aware
of a covenant, then they are restricted under the covenant.

35

This case created equitable servitude, an equitable is a covenant

reguarding the use of the land that is enforceable in equity subsequent
possessors, even if the covenant itself is not enforceable at law. When
an equitable servitude is breached, the remedy is an injunction or
enforcement of a consensual lien.
Sanborn v. McLean An equitable servitude can be implied on
a lot, even when the servitude is not created by a written
instrument, if there is a scheme for development of a
residential subdivision and the purchaser of the lot has notice
of it.
An anomaly to this idea. Relies more on inquiry notice.
Neponsit Property Owners Association, Inc. v. Emigrant
Industrial Savings Bank An affirmative covenant to pay
money for improvements or maintenance done in connection
with, but not upon the land which is to be subject to the
burden of the covenant does touch and concern the land, and a
homeowners association, as the agent of the actual owners of
the property, can rightfully enforce the covenant.
Hill v. Community of Damien of Molokai Restrictive covenants
that have restrictive effects are rendered unenforceable.
Shelly v. Kraemer Judicial enforcement of a restrictive
covenant based on race constitutes discriminatory state
action, and is this forbidden but the constitution.
Western Land Co. v. Truskolaski A restrictive covenant
establishing a residential subdivision cannot be terminated as
long as the residential character of the subdivision has not
been adversely affected by the surrounding area, and it is of
real and substantial value to the landowner within the
subdivision.
Rick v. West A landowner in a subdivision under a restrictive
covenant has the right to insist upon adherence to the
covenant even when the other owners consent to its release.
Hold out case, such a private land owner has the right to rely on a preexisting covenant. The mere inability to sell land is not enough to say
that there is a changed condition.

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