Property II Outline – Spring ‘09

LANDLORD – TENANT LAW

A. Duties of Tenants to Landlords – if T fails to follow lease, LL can evict and sue for
damages
i. How to evict – if T defaults can LL retake property without ct. permission (“self –
help”)?
1. Majority Rule: only if self-help “peaceable” and not “forcible” –
otherwise LL must go to court
a. Ex: lockout “forcible” if violence might have erupted if both
parties present (“history of vigorous dispute” between them)
b. When is lockout OK under this test? Not very often –
abandonment, where lockout is essentially consensual
2. Florida Rule: NO SELF – HELP – LL should sue to evict instead
a. If LL unlawfully uses self – help, T gets damages
i. Why?
1. Avoid fights and take law into your hands
2. Peaceable is too hard to define
3. LL always has an alternative
ii. Damages
1. Mitigation – what if T abandons premises without paying rent?
a. Majority rule: T must pay damages under lease, but LL has duty
to mitigate
i. Nature of duty: make “reasonable efforts” to mitigate
1. Assumption 1: lease is a K
2. Assumption 2: K victor has duty to mitigate
damages
3. Conclusion: LL has duty to mitigate damages
ii. Factors:
1. LL’s efforts to advertise
2. LL’s showing apartment to tenants
3. If T rejected, was there a good reason?
iii. Tenants have a duty to avoid waste
1. Modern trend: T not liable for ameliorating waste where value is
increased (if possession has been for a long period of time)
2. Permissive waste: tenant has a duty to make ordinary repairs, LL has
duty to make substantial repairs
 a. T must report the need for such repairs to the LL
B. Tenants Rights
i. Major right is right to enjoyment of premises
1. Covenant of quiet enjoyment: LL promises that he nor anyone else will
interfere the tenant’s quiet enjoyment of the premises
2. Breached by “constructive eviction” where premises becomes
“substantially unsuitable” for their purpose
a. Ex. No heat, sewage back up, etc…
b. Constructive eviction - wasn’t really evicted, but it’s so bad, it’s
like I was evicted
i. Material breach by the LL which violates the tenant’s
implied covenant of quiet enjoyment and renders the
premises uninhabitable
c. How continuous must problem be? Need not be permanent,
24/7 as long as recurring
d. T must leave premises to claim constructive eviction
i. Departure must be within “reasonable time” – can be
years if LL keeps reassuring T problem will be fixed,
though
ii. Once gone, T may cease paying rent
e. Can be waived, but:
i. Waiver must relate to defect known to T
ii. Waiver invalid if LL reassures T problem will be fixed
f. Rights waived if:
i. They stay OR do not leave within a reasonable time
g. A tenant satisfying all of the elements is relieved of the duty to
pay rent
3. Breached by unlawful eviction OR “actual partial eviction” (when LL
excludes T from part of premises)
a. T doesn’t have to pay rent even if she stays on premises
4. Breached by violation of implied warranty of habitability: premises must
be “safe, clean and fit for human habitation”
a. When violated? When premises substantially violates housing
codes or involve “health and safety” issues
b. T doesn’t need to leave, unlike CE
i. Pro-tenant
c. T can’t waive claim, unlike CE (so irrelevant whether defects
patent or latent)
i. But T still has to give LL notice of defect
ii. Pro-tenant
d. No exemption for patent, outright defects
i. BUT latent defect may bar a CE claim
 e. Punitive damages are an option (unlike CE)
f. LL must have had reasonable time to fix problem and did not do
it
g. Remedies
i. Withholding rent (so defense to action for back rent)
ii. Repair and deduct cost from rent
iii. Damages – difference between value of dwelling as is
and dwelling in OK condition
iv. Punitive damages – if LL “willful”
5. Why does CE still exists after the creation on IWH?
a. Because IWH not always applied to all tenancies
i. most states don’t apply to commercial, agricultural
property
b. Where there are exceptions to IWH, CE still viable
C. Civil Rights Law and LL/T Relationship
i. Major statute is Fair Housing Act: 3 types of discrimination:
1. Discriminatory intent – intentionally discriminating based on sex, race,
family status, etc.
a. 42 USC 3504 (a) – discriminatory refusal to rent. 3 part test:
i. P has to show prima facie case – unfavorable outcome,
membership in protected class
ii. D then has to show legitimate nondiscriminatory reason
iii. P has to show D’s “reason” a pretext for discrimination
b. 42 USC 3604 (C) – discriminatory statements or advertisements
that show “tacit preference” to exclude may violate
i. Facially discriminatory ads (ex. “no children allowed”) of
course illegal
ii. What about facially NON - discriminatory statements?
(e.g. asking “are your children noisy?”) Again, issue is
whether nondiscriminatory reasons for statement are a
pretext
1. Bottom line: in discriminatory intent case,
everything about intent
2. Discriminatory effect (“disparate impact”) – even if no discriminatory
intent, D’s policy violates FHA if had adverse impact on protected class
AND was not otherwise reasonable
3. Failure to reasonably accommodate – LL must reasonably accommodate
disabled tenants (applies primarily to disability discrimination)
a. Accommodation is reasonable if there is no undue burden on
the LL
REAL ESTATE TRANSACTIONS

A. Professional Ethics Issues

a. Bar discipline – you must explain transaction to adverse party if :
i. Adverse party unrepresented and
ii. Transaction one sided
b. Must explain to buyer and seller if representing them both
c. Private cause of action – if you break disciplinary rules or are very negligent you
can also be sued for negligence/breach of fiduciary duty
d. FL wrinkle: ordinarily duty to keep sellers secrets, but not buyers
B. Issues Relating to Real Estate Contracts
a. Statute of Frauds
i. Basic concept – real estate contracts (other than short term leases)
must be in writing, not oral
1. Must include essential terms of K
2. Must be signed by party against whom enforcement is sought
ii. Key exception – “part performance”
1. Florida rule – requires payment (at least partially), possession
by buyer, AND improvements to land by buyer
2. Majority rule – possession by buyer plus payment OR
improvements
3. More controversial exception – estoppel (reliance on oral K)
i. Remedy can be damages instead of K enforcement
C. Between Contract and Closing
a. Implied Warranty of Marketable Title – if the seller cannot convey something
called “marketable title,” buyer can rescind contract before closing
i. If defect is discovered by the B before closing, must describe in detail
defect to S and give him a reasonable time to cure the defect
1. If S fails to cure, B can back out, sue for damages for breach of
land sale K or get specific performance with a reduction in the
purchase price to reflect the defect in title
ii. What is marketable title?
1. Not perfect title, just title reasonable person would accept
2. Violated by “substantial” defects
iii. Zoning and marketable title – if property violates zoning law at time of
purchase, warranty of marketable title violated
1. But no violation if buyer merely wants to use property in way
that violates zoning laws
i. At time of closing no violation
ii. But buyer wants to change property after closing in a
way that creates violation
 2. Restrictive covenants – mere EXISTENCE of restrictive covenants
affecting property violates warranty.
iv. Waiver – implied warranty may be waived (though waiver must be
specific)
1. What about waiver saying “property subject to restrictions of
record?”
2. If some covenants exist, but not being violated, this waiver OK
3. If covenants actually being violated at time of contract, more
specific waiver needed; this language ineffective
v. Zoning restrictions and land use restrictions DO NOT render title
unmarketable
b. Risk of Loss – what happens if property damaged between contract and closing?
i. Common law (and still majority rule, and rule in Florida) – “equitable
conversion”
1. That is, risk of loss passes to the buyer at time of contract
2. But parties can (AND USUALLY DO) contract out of this
3. Insurance proceeds from loss follow loss itself
i. so if risk of loss on seller, seller gets proceeds (but has
to make sure loss repaired)
c. Fraud/Nondisclosure
i. S liable for fraud or concealment of defects
ii. What about willful nondisclosure?
1. CL rule: Caveat emptor (no liability without affirmative
misrepresentation)
2. Modern modifications: S liable for fraudulent nondisclosure if:
i. Condition known to seller
ii. Materially impairs value of contract to reasonable buyer
iii. Unlikely to be discovered by prudent buyer
3. Waiver of modern rule - possible but limited
i. B can’t waive latent defects
ii. Waivers read narrowly
iii. Unintentional nondisclosure – is S ever liable if doesn’t know of defect?
1. Yes, there is “implied warranty of habitability” that makes S
liable for some defects, but limitations:
2. Only applies if house of “merchantable quality” – so smaller
defects irrelevant (e.g. ghosts)
i. Homes, not commercial structures
ii. Only new houses (and even then only actions by first
buyer), not old homes OR nearby improvements (e.g.
seawall)
D. At Closing; Transfer of the Deed
a. Types of deeds:
 i. General warranty deed
1. Contains “typical warranties” in deeds
2. Warranting against defects in title
i. e.g. – that seller doesn’t own property
ii. Quit claim deeds – warrants nothing
iii. Special warranty – in between
1. usually warrants against title problems that are the seller’s fault
b. Covenants in the general warranty deed
i. “Present covenants” – violated, if at all, at time of delivery of deed
(which means that statute of limitations starts as soon as deed
delivered)
1. Covenant of seisin – that S actually owns (“is seised of” what S is
selling)
2. Covenant of right to convey – pretty similar, except in unusual
situations
i. By the grantor that he has the right to convey property
3. Covenant against encumbrances – that there are no interests
limiting what B can do with land
i. Examples: mortgages, liens, non-fee interest like life
estates and tenancies, easements and restrictive
covenants
ii. Is violation of environmental/land use regulation an
encumbrance?
i. Often not, if latent and unknown to seller
(unlike implied warranty of marketable title – so
zoning violation allows B to rescind contract
BEFORE closing, but does not always allow B to
sue for damages AFTER closing).
iii. Sometimes breach cannot be based upon the existence
of an easement or profit known to the grantee or which
was open, obvious, and notorious
i. Existence of a public way does not constitute a
breach
ii. Future covenants – violated at time problems arise (e.g. B evicted)
1. General warranty and quiet enjoyment (technically 2 separate
covenants but basically the same) – Seller will compensate if
buyer evicted
i. No violation of this until possession actually interfered
with
ii. Further assurances – that seller will do all he can to
make sure title good
 iii. Guarantees that no third party has a lawful claim of title
and agrees to defend against such claims
c. When is a deed validly delivered?
i. Depends on grantor’s intent, as determined by objective circumstances
1. Physical transfer not necessary
ii. Elements: intent, delivery, acceptance
iii. Key factors: physical delivery of deed, physical occupation – donee’s
actions (did donee act as if she owned property?)
iv. Conditional delivery – valid if deed given to third party with instructions
to give to grantee if X happens.
1. Attempt to create conditional delivery to grantee (as opposed
to third party) creates unconditional delivery
i. deed valid, condition not
2. Note: lots of complexities where third parties involved. We
won’t learn in this course but if you’re curious read LS 125 – 31
E. At Closing, Part 2: The Mortgage – a security interest signed over to lender
a. Provides for the performance of a duty or the payment of a debt
b. If buyer signs over a mortgage to lender, the lender can take the property
(foreclose) if buyer doesn’t pay
i. 2 options:
1. Call the property to be sold and keep the proceeds
2. Or assume title
c. Mortgagor: landowner and debtor
d. Mortgagee: creditor and holder of the mortgage
e. What if multiple mortgages?
i. First lender has priority (assuming both foreclosed)
f. Foreclosure sale – lender sells property
i. Can be set aside by court if inadequate price (nominal consideration)
plus inequitable conduct by seller
ii. If sale valid, landowner can go after buyer for “deficiency judgment”
1. gap between how much buyer owes and amount from sale
g. Three theories:
i. Lien
ii. Title (CL)
iii. Intermediate
F. Title Issues, Long After Closing
a. Recording statutes – when O sells property interests to different buyers at
different times, who has priority?
i. If no statute relevant – “First come first served” first interest always
wins. FIRST IN TIME FIRST IN RIGHT
ii. Types of statutes (“recording statutes”):
1. Race statute: whoever records first wins, period
 i. Adopted by 2 states
ii. Policy: simpler and encourages people to record
2. Notice statute: 2nd grantee wins if a BFP – that is, has no notice
of first transaction and paid consideration
i. 2nd grantee wins if no notice before 1st records
i. Doesn’t matter whether 2nd grantee records or
not
ii. adopted by about ½ the states, including Florida
iii. Policies: prevents unfairness to 2nd buyer, encourages 1st
buyer to record
iv. only matters if 2nd grantee gets property before 1st
grantee records – so 1st buyer can protect self by
recording
v. why it matters: two buyers, A and B:
i. A buys 1/3/08, B purchases without notice
2/1/08. A records 8/30/08
Race statute: A wins b/c A records first
Notice: B wins b/c no notice
Race notice: A wins, just as in race
3. Race – Notice: 2nd grantee wins only if:
i. BFP AND
ii. records 1st
iii. Policies: advantages of race statute and of notice.
Encourages BOTH buyers to record AND avoid
unfairness to 2nd buyer
i. counterargument: race notice no more effective
than notice since 2nd buyer always thinks they
are 1st anyhow
iii. Technical details of recording statutes:
1. Must acknowledge the deed
2. Acknowledgment over phone is not good enough, must sign in
front of a notary
3. Acknowledgment must apply to the deed that was actually
recorded, not an earlier or substitute deed
4. If first buyer has defectively acknowledged the deed, can still be
notice to buyer if not obviously defective
5. Buyers name must be in the deed
iv. What does it mean to be a subsequent BFP?
1. What’s a purchaser? Someone who pays more than nominal
consideration
i. What if 2nd buyer has made some but not all payments
before getting notice?
 i. Majority rule – 2nd buyer a BFP to extent
payments made but no further – usually gets
money back
1. or fractional interest, or 1st buyer gets
remaining payments from 2nd – depends
on equities of case
ii. Florida rule – 2nd buyer a BFP as soon as
“irrevocably bound”
1. i.e. as soon as contract signed
ii. Can creditor (ex. holder of judgment lien) be purchaser?
i. Most states, NO, Florida says YES
2. When is someone “bona fide” (i.e. without notice):
i. Generally: constructive notice enough to exclude buyer
from BFP status, actual notice not required
ii. Quitclaim deed no obstacle to BFP status
iii. If 2nd buyer’s deed refers to earlier deed (even
unrecorded), 2nd buyer on “inquiry notice”
i. In this situation, not a BFP UNLESS diligent
inquiry made
iv. Possession by 1st buyer also creates “inquiry notice”
b. What if you are the loser under recording statutes? Will anyone reimburse you
for lost land?
i. Remember the deed covenants
1. unless you have a quitclaim deed, you might be able to recover
from seller who goofed
ii. Marketable title acts
1. statute of limitations for recording statutes = if interest old
enough it can’t defeat existing interest
iii. Title Insurance
1. buy title insurance and the title insurer will reimburse you
i. but beware, title insurance contracts have lots of
exclusions
ii. Beware: concepts that may look familiar may be
interpreted narrowly. Some courts like title insurance
companies!

VARIOUS FORMS OF LAND USE REGULATION – HOW DO YOU PREVENT

OTHERS FROM MISUSING THEIR LAND?

A. Private Land Use Regulation

a. Nuisance – regulation by tort suit
i. Nuisance is the substantial, unreasonable interference with another’s
land
1. ex. Big smelly factory
2. Suppose BSF a major regional employer. Is it still a nuisance?
a. Probably not, because not “unreasonable” in that
situation
ii. Failure to provide lateral/subjacent support: really a species of nuisance
1. Lateral – support for land next to you
a. Land in its natural condition
b. Absolutely and strictly liable if lateral support is
withdrawn
2. Subjacent – support for land above you
a. Support from underneath the surface of the land as
distinguished from the sides
b. Support for land in its natural state AND any artificial
structures that existed when other party gained rights
c. Usually natural resource situations – coal company
owns underground, homeowner above ground etc…
3. Both governed by same rules
a. you have duty to provide such support for nearby land
to prevent cave - ins
b. How can duty be violated?
1. Usually through digging, blasting, etc.
2. strict liability for D who causes cave – in
c. What if D’s activity and P’s combine to cause cave – in?
1. D liable only for negligence
b. Servitudes: right to use or restrict another’s land – usually created by contract
or implication
i. affirmative rights to use land:
1. Easement – interest in land possessed by another that permits
holder of easement to have LIMITED use of land
a. Types of easements (by function):
1. Negative: entitles dominate owner to preclude
servient owner from doing an act on the
servient land
1. Appurtenant – benefits specific parcel
of land (“dominant tenement”) at
expense of another (“servient
tenement”)
 a. So benefits landowner in way
that cannot be separated from
rights in land
b. Example: easement to travel
across neighbor’s land to reach
your own
i. dependent on fact that
you live near servient
tenant
c. requires two pieces of land that
are owned by two different
persons
2. In Gross – easement holder benefits
without any connection to residence
a. Requires only one piece of land
(servient tenement)
b. Usually involves utilities
c. PROFITS USUALLY IN GROSS –
EASEMENTS USUALLY
APPURTENANT
i. Put another way: would
original easement
holder benefit from
easement even if lived
in Bosnia? If yes, in
gross; if none,
appurtenant
2. Affirmative: allows a physical act on another’s
land
3. Why does it matter whether easements
appurtenant or in gross?
1. Easement app. runs with the land –
when dominant tenant transfers land,
new owner gets easements.
a. Not true with easements in
gross
b. categorizing easements by means of creation
1. Express – by contract
1. Statute of Frauds applies here, which
means oral attempt to do this = license
not an easement
2. Implied –
1. Easement implied from prior use (aka
“quasi easement”, “easement implied
from prior use”) – exists when (PACN):
a. Prior Use - owner uses one part
of land for benefit of another
part AS IF O had easement, and
conveys either part to another
b. O’s use “Apparent” – grantee
should be aware of something
resembling easement
c. O’s use “Continuous” – fairly
regular
d. O’s use reasonably Necessary
for enjoyment of land – O has
significant benefit (e.g. shorter
commute)
e. doesn’t matter anymore
whether O has easement or is
burdened by easement
(“grant/reservation” distinction
at CL, don’t worry about it)
2. Easement by necessity – elements:
a. same person owned both
dominant and servient land at
one time
b. strict necessity – that is,
someone REALLY needs
easement to get to public roads
(as opposed to “reasonable
necessity”)
c. necessity existed at time land
split up by original O
3. Prescription – like adverse possession
for easements
a. idea is that you used easement
for a long time without
permission, so you get
easement through extended
use
b. elements almost same as
adverse possession
(open/continuous/hostile)
 except need not be exclusive
(b/c the nature of an easement
is to share with the owner)
i. but not enough hostility
if you’re using it but
land gated off from
general public, b/c this
means permission
ii. in Florida 20 years for
easements by
prescription, as
opposed to only 7 for
adverse possession (but
no color of title or tax
payments required)
iii. tacking allowed, but
still must be something
like privity
c. Scope of easement – Just because you have easement
doesn’t mean you can abuse it
1. Test: is use of easement reasonable (was it
reasonably foreseeable at time of creation?
How much does it burden servient estate? How
much does it benefit dominant estate?)
d. Termination of easement – most litigation over
whether easements abandoned
1. Mere nonuse not enough; must be acts
showing intent to abandon
1. ex. Tearing up RR tracks
2. need not perform every conceivable act
showing intent to abandon, just something
more than nonuse
2. Profit a prendre – similar to easement
a. But holder of profit removes part of land or products of
the land, as opposed to just being able to travel on land
1. Ex. Right to drill for oil and gas, hunt animals
b. Easement = just travel
c. Profit = easement + taking stuff off land
d. Requires compliance with the Statute of Frauds
e. Non-possessory interest
3. License – like easement, but usually created orally and
revocable
 a. Permits one person to come onto the land in the
possession of another without being a trespasser
b. Not an interest in land, but a privilege
c. exception: license by estoppel
1. when holder of license has spent significant
amount of money relying on license, license
becomes irrevocable even though it was
originally revocable
d. exception: license coupled with interest
1. if someone has license to enter property to pick
up his/her own personal property, license
irrevocable until property recovered
c. Affirmatively restricting how others use their land – restrictive covenants and
equitable servitudes
i. Nearly always created by contract, so issue isn’t whether covenant
exists, just interpretation and whether covenant runs with the land (ex.
binds future landowners).
ii. Basic requirements for covenants to run with the land IN AN ACTION
FOR DAMAGES:
1. intent for covenant to run
i. ex. Requiring grantee to “permanently maintain”
property, reference to “heirs and assigns” being bound
ii. notice of covenant
2. “touch and concern” – covenant must touch and concern land
i. i.e. be “logically connected” to parties interests on land
ii. borderline case: paying homeowner dues (majority rule
is this T&C)
3. vertical privity – parties to lawsuit successors in title to parties
to original covenant
i. nearly always exists, at least when everyone has fee
simple
i. some complexities where lesser estates
involved that we aren’t getting into
4. horizontal privity – (unlike vertical privity we know if it exists on
day of contract) original parties EITHER
i. “mutual interest”: both have interest in relevant land at
same time
i. e.g. landlord/tenant, dominant/servient estate
as in Moseley v. Bohn OR
ii. have “successive” relationship – one grants land to
another, (grantor/grantee)
 i. ex. Classic homeowner association scenario –
developer contracts with buyers
iii. When NOT met?
i. When parties are neighbors (so key point: if
parties neighbors, no damages recovery, just
equitable servitude)
iii. Equitable servitudes – a separate theory of recovery
1. Restriction on the use of land enforceable in a court of equity
2. if requirements are met P can get injunction but not damages
i. easier and more important, because most of the time
people complaining about covenant problems will want
injunction
ii. Basic difference: no privity required (just
notice/intent/T&C)
3. What is required for covenant to run as equitable servitude (i.e.
be enforceable as injunction?)
i. intent for covenant to run
ii. constructive notice (e.g. servitude recorded or
referenced in deed) or actual
i. cannot be enforced against a BFP
iii. touch and concern – anything affecting value of land
iv. Writing complying with the Statute of Frauds
v. Privity not required

Bottom Line: same as in damages action, EXCEPT no privity required

iv. termination of covenants – changed conditions may terminate

1. but existence of SOME tolerated violations not enough; must be
so pervasive that covenant useless
i. e.g. covenant restricts land to single family houses, but
land worthless as houses
ii. so even if most landowners want to waive covenant still
good
2. change in economic conditions
i. if covenant “of real and substantial value” still
enforceable (even if alternative uses more valuable)
3. existence of contrary zoning
i. terminates covenant if uses prohibited by covenant
MANDATED by zoning, but not if merely ALLOWED by
zoning
ii. So if covenant requires single family homes, but zoning
allows both industry and houses, covenant still valid
 4. If covenant is one enforceable by many, release by the original
covenantee (subdivider) will NOT affect the rights of the others
in the subdivision to enforce it against the party who received
the release

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C) Condominiums – condo restrictions valid unless against public policy. In deciding whether restriction
violates public policy

I) category I – “in the declaration” (restrictions at start of condo) – valid unless “arbitrary”

II) Category 2 – passed by the board later – “reasonably related” to a valid purpose

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B. Zoning: Government Regulation of Land Use

a. Basic concept: government separates uses, allowing apartments in one area,
industry in another, homes in another (“Euclidean or single use zoning)
i. Upheld in Euclid v. Ambler Realty in principle, but specific applications
can violate due process if arbitrary or political favoritism
b. Role of comprehensive plan (general document setting forth land uses in less
detail)
i. nonbinding in most states, binding in Florida
1. so if zoning violates comprehensive plan its invalid unless
compliance unreasonable
c. Ways of making zoning more flexible
i. Variances – zoning code ignored for this particular owner (not in the
code)where applying zoning ordinance creates “undue hardship” AND
minimal harm to public, municipality can grant variance
1. What is undue hardship?
a. Must be specific to individual owner, not hardship
affecting everyone in area
b. Not O’s fault – must not be created by individual O or
his/her specific circumstances
1. must apply to any person owning that specific
piece of property
c. Must be severe hardship (e.g. unbuildable/useless
without variance) not just reduction in value
2. Even if undue hardship, no variance if “negative criteria” not
met
a. variance would somehow harm public interest
b. More likely to be a problem for person requesting
variance in use variance (as opposed to area) case
 1. Area regulation: numbers – how many SF,
parking spaces, etc…
2. Use regulation: e.g. Euclid – what activities can
be performed on the land
ii. Rezoning – changing zoning code to allow proposed use or density
1. Changes rules, doesn’t just waive them
a. Standard of review: “legislative” (i.e. courts defer to
municipal decisions, valid unless arbitrary and
capricious)
1. By contrast, for variances and special use
permits, burden of proof on city to show its
decision supported by substantial evidence
b. More likely to be upheld if new use consistent with
nearby parcels of land, less so if “spot zoning”. (to be
invalidated as spot zoning, ALSO has to harm neighbors’
property values)
1. EXAMPLE: suppose area rezoned from one unit
per acre to 10 units per acre. Likely to be
upheld if borders another 10/acre
neighborhood, spot zoning if in the middle of
farmland
iii. Special use permit – provision in code saying “you can do X, but only if
the city council votes to allow it”
1. As opposed to normal zoning “you can do x”
2. In reviewing city council’s decision to grant or deny SUP, ct.
doesn’t defer to city
a. much more clearly about specific individual b/c city
applying law not making it
d. Constitutional limits on zoning - NOT JUST substantive due process (discussed in
Euclid – basically just rationality review) but also…
i. First Amendment – government cannot go too far in restricting signs
1. Even if regulation content – neutral (e.g. “no signs in front of
houses”), government loses if individual’s alternative methods
of communication inadequate
a. Ex. If sign’s best way of expressing your views,
government can’t prohibit them
2. Also: zoning can be used to limit adult businesses but not to
exclude them completely
th
ii. 14 Amendment – civil rights and zoning
1. Equal Protection Clause: government provides “equal
protection of the laws” to people
a. Similarly situated landowners are to be treated similarly
 b. Purpose – to bar racial discrimination
c. No racial discrimination but what about discrimination
by income (“exclusionary zoning” – zoning to keep out
lower income people)?
1. OK under federal Constitution, minority of
states say no
iii. Takings Clause of 5th Amendment: No taking for public use without just
compensation
1. Public Use Clause
a. EVEN IF compensation paid, taking must be for public
use
b. So what’s public use?
1. Midkiff – “public purpose” (even if private
beneficiary) – legislature’s belief only has to be
rational
2. Kelo agrees but Kennedy concurrence (swing
vote) narrows a bit
1. NOT JUST objective public benefit from
taking, BUT ALSO there cannot be
reason to suspect political favoritism
a. e.g. procedural irregularities vs.
lots of formal procedure,
beneficiary known in advance
vs. unknown beneficiaries who
can’t buy people off, absence of
serious public need vs. high
public need
i. e.g. city wide
depression
2. Florida MUCH more restrictive
a. almost no eminent domain power except utilities and
government uses
3. DISSENT CRITIQUE OF KENNEDY
a. multifactor test too vague, rewards city that knows
how to generate paperwork
4. Just compensation clause
a. if government does take it, must compensate,
regardless of strength of public purpose – basically FMV
5. What is taking? Key issue: when is a regulation a “taking”? –“
inverse condemnation”
a. Permanent physical invasion mandated by government
always a taking, even if private person does the
invading
1. Requiring landowner to allow private third
party on land is invasion just as much as
government employees invasion
b. Complete deprivation of all economically beneficial use
always a taking (unless necessary to stop nuisance)
1. Lucas rule doesn’t apply even if 95% loss, has to
be 100%
2. Temporary moratorium on development NOT a
total taking under Lucas, but governed by
balancing test
c. What if regulation merely reduces property value?
Government balances interest based on 3 part test:
1. A harm to P – how much did regulation reduce
property value?
2. Reasonable investment backed expectations –
how much did government harm expectations?
1. IBE can exist even if P somehow got
property after regulation
a. e.g. if P had an interest or
expected to have an interest
before regulation
2. But timing of when P got property still
matters
a. so if P had no link to property
before regulation passed, IBE
favors government defense
3. No IBE if P should have reasonably
foreseen regulation
3. Character of govt. action – how strong is the
state purpose justifying regulation??
(apparently according to O’C concurrence)(and
according to FL case law)