1.

Regulation of Owners’ Rights as Against Others – The Right to Exclude

Trespass: intentional intrusion on property possessed by another

Defenses: consent, necessity, public policy exceptions
Remedies: civil damages, injunction, declaratory judgment, criminal

Traditionally common law right to exclude for all except innkeepers and common
carriers

Common Law, State/Fed Statues, State/Fed Constitutions place limits on absolute

right to exclude

Common Law Limits: Public Access

State v. Shack (3) NJ Sup (migrant farm workers) – Aid workers sought to gain entry to a
camp at a farm to assist migrant farm workers. They were charged with criminal trespass
and alleged that the worker could not bar them from the property. This comes up against
the traditional common law right to exclude absolutely. The employer may not deny the
worker his privacy or interfere with his opportunity to love with dignity and to
enjoy associations customary among our citizens.

Policy
 Migrant farmworkers isolated, poor, rootless
 Lack of communication with outside community services, outreach programs are
necessary
 Property rights cannot hinder human rights
 Tension between flexible rules and clear cut rules b/c technically not tenants
 State law does not allow governmental services to be barred by state real property
rights

Uston v. Resorts NJ (16) – Card counter was barred from a casino even though his
actions were completely legal. He brought this action that he should be allowed into the
casino. Property owners have no legitimate interest in unreasonably excluding
particular members of the public when they open their premises for public use …
No party in this appeal questions the right of property owners to exclude from their
premises those whose actions “disrupt the the regular and essential operations of the
premises.” This furthers the trend that the more public a private entity appears the more
rights that must be allowed in the private space that began in schmid.

The right to exclude in a business makes sense so that they don’t end up in court all the
time and they wouldn’t want to throw everyone out since they are trying to make money

Statutory Limits: Anti-Discrimination (vs. freedom of association)

When reading statute: 1. Text of statute, 2. Purpose, 3. Legislative intent

Civil Rights Act of 1964 (33)

 Prohibits discrimination based on race, color, religion, national origin (gender not
mentioned)
 Applies to places of public accommodation (housing (not including owner occupied
with five or less rooms), restaurants, entertainment, or establishment within one of
these or which one of these is within and which holds itself out as serving its patrons)
 Must affect commerce or if discrimination or segregations by it is supported by state
actions
 “full and equal enjoyment of goods, services”
 Does not apply to private clubs or places not open to the public except when they
hold themselves out to patrons of an establishment listed above

Most state laws are broader than federal laws

NJ Law Against Discrimination (40)- guarantees right to employment, and

accommodations, advantages, facilities, and privileges of any PPA. Broadens PPA
dramatically by listing many and that the list is not exhaustive. Maintains private
exemption. Shows that a state can expand the protections offered by the federal
government. Distinctly private.

Dale v. Boy Scouts NJ case- Place can apply to something that is not a fixed location,
extended from Now v. Little League Inc. BSA is public because they have no screening
mechanism, open invitation to public, large numbers and publicly advertise. Also, BSA is
public because they are closely tied to government. A private club needs to be selective
and not open to the public.

Boy Scouts v. Dale US case- Inclusion of Dale violates 1a rights of BSA to expressive
association. Forcing a group to include members may prohibit them from expressing their
views.

Constitutional Limits: Free Speech (First Amendment)

Lloyd Corp. v. Tanner US – No first amendment right to free speech. Interprets Marsh
holding to say only when private interests are acting like government. There has
been no such dedication of lloyds privately owned and operated shopping center to
public use as to entitle exercise therein the asserted First Amendment rights.
(Dissent holds Mall becomes like a town square private entity is providing a
governmentlike benefit and should be held to include 1A rights) (Marsh v. Alabama
precedent company town)

N.J. Coalition Against The War v. JMB Realty NJ – The extent of free speech rights on
private property depend on the nature of the use of the property, the extent of the
public invitation to use that property, and the purpose of the speech activity in
relation to the use of the property. (Persian Gulf War protesters) Mall has become
center of “culture” Owner can regulate activity in mall still, and the right does not
extend beyond leaflets. Court looks at sliding scale of how public it is.
To determine whether property is held open to public:
 nature of normal use (whether it is to invite public)
 extent of invitation to public
 purpose of expressional activity (recreate business districts which historically 1st
Amendment allowed speech)
Dissent: purpose of mall is for profit not to be a forum for speech

2. Regulation of agreements between Parties – The Power to Dispose

1. Involuntary Transfers (Adverse Possession, Prescriptive Easements)

Adverse Possession – all states have a statute of limitation that eventually bar the
owner of property from suing to recover possession from one who has wrongfully entered
the property (ejectment). Once the limitations period has passed, the wrongful possessor
effectively gets title to land. Government is absolute defense to AP claim majority (if
not public land or if for commercial use may be subject to AP claim

Requirements of Adverse Possession

1. Actual possession
a. As an ordinary owner would make
b. Boundary fence is actual use (if no fence may only get property actually
possessed)
c. Color of title acts as a fence
2. Adverse or Hostile possession
a. Objective test –open and notorious is presumed hostile
b. Permission defeats claim, unless permission runs out
c. 3 subjective tests
i. Claim of right - some states requires this though actual use would
satisfy others requiring this have mistaken boundaries defeat AP
claim
ii. Intentional dispossession-intended to take from true owner
iii. Good faith – only mistaken possession can grant AP
3. Open and Notorious
a. Put a reasonable owner on notice, no actual notice required
b. Fences (not fences of convenience or for animals), structures, clearing
land, laying driveway, tending land, planting crops
c. Clear if community knows
4. Exclusive
a. Exclusion of type ordinary owner would do
b. Cannot be shared with true owner (occasional entry by homeowner
doesn’t defeat claim)
5. Continuous
a. As ordinary owner would make (summer home)
6. (Claim of title or color of title, paid property taxes, in good faith, claim of right,
improvement cultivation or enclosure)
7. Statute of Limitations
 a. Tacking – adding time of previous possessors
b. Tolling- SoL doesn’t run if true owner is under disability
c. Color of Title – may decrease SoL
d. Government can lose land through adverse possession though it is not
certain

What can owner do knock down stuff on property, post signs for permission, eject.

AP claim must be shown by clear and convincing evidence Brown v. Gobble

Nome 2000 v. Fagerstrom AK(289) – Whether a claimant’s physical acts upon the
land of another are sufficiently continuous, notorious and exclusive does not
necessarily depend on the existence of significant improvements, substantial activity,
or absolute exclusivity … The conditions of continuity and exclusivity require only
that the land be used for the statutory period as an average owner of similar
property would use it. Hostile means acting towards land as if the owner. Absent
color of title only land actually possessed can be AP’ed.

Brown v. Gobble WVa (281) – Lays out elements that make up adverse possession
and includes claim of title. States clear and convincing evidence is standard for AP
claim. Establishes tacking doctrine.

Policy

 Economic efficiency – utilization of land v. destabilization of market

 Don’t want to reward laziness
 Clarification of who is owner / sets clear property rules
 Protects reliance interests

Easements - right to use land of another, runs w/land

Affirmative Easement – entitles holder to do a physical act on another’s land
(right of way)
Negative Easement – enables holder to prevent the owner of land from making
certain uses of land. Cannot be gained adversely.
Types:
Prescriptive Easement – analogous to adverse possession. Easements are not
possessory interests so an easement cannot be acquired by adverse possession. But
adverse use for a sufficient period of time can ripen into an easement by prescription.
Elements:
1. Actual Use
2. Continuous
3. Open and Notorious
4. Adverse or hostile use
a. Use generally nonpermissive but a lot of courts treat it as generally
permissive (neighborly)
5. SoL
 6. (Acquiescence) – owner did not try to exert right to exclude
7. (Claim of right)-intentional use of another’s land in some cts others treat this as
nonpermissive req
8. public can bring PE claims though public use is generally permissive

Community Feed v. Northeastern Culvert VT (311)– The extent of the use must be
proved not with absolute precision, but only as to the general outlines consistent
with the pattern of use. Open and notorious use will be presumed to be adverse.

3. SERVITUDES

A. Easements
a. by estoppel (subject to requirements of promissory estoppel)
i. Reliance on a license can render it irrevocable hollbrook states
considerable expense
ii. Can be used to fix express easements that don’t meet the statute of
frauds
iii. Permission can be implied meant
b. by necessity
i. landlocked parcel retains ROW over land it was sold off from
ii. some courts have extended this to include implied by prior use
iii. Statutory regs in some states allow purchase of easement by
necessity
iv. Servient estate gets to pick where the easement
c. by express agreement (appurtenant and in gross)

License – permission to enter onto land, generally revocable at will.

Express Easement – created by deed or will

Requirements
1. In writing
2. Intent
3. Notice (constructive, actual, inquiry)

Elements
1. Appurtenant v. In Gross
a. Appurtenant – “running with the land” (magic language) benefits holder
in use of a certain piece of land. The land whose benefit the appurtenant
easement is called the dominant estate. The land that is burdened is called
the servient estate. Attached to ownership in land (can’t be severed),
moves with parcel when sold, can be subdivided
b. In Gross – Easement not attached to land but to person and can be
transferred. Obligation will not pass to future possessors if it does not
benefit the owner of another parcel. Traditionally non-transferable but this
has changed in some states when easement is non personal.
 c. If language is vague ask if a person or a property are benefited by the
easement. Presumption is appurtenant
2. Scope
a. Kind of use – what activities are covered by an easement. General RoW
has been held to cover utility lines but cts are split.
b. Unreasonable additional burden – use can be an undue burden even if it is
the same kind
c. Divisibility – appurtenant are divisible with the property, in gross requires
exclusivity to be divisible. Commercial easements in gross are
transferrable.
3. Modifying the easement
a. Extension of use may be allowed where no additional burden exists
b. Changing location may be done by servient owner if it doesn’t harm the
dominant use or by paying damages (minority)
c. Modification can occur if it is consistent with original intent
4. Terminating Easements
a. Agreement
b. Terms of Easement
c. Merger
d. Abandonment (not mere non use)
e. AP
f. Frustration of purpose – impossible to accomplish or no longer serves its
intended purpose
g. Some states require easements be re-recorded every so often

Holbrook v. Taylor 427 KY (easement by estoppel, irrevocable license) – where use of a

roadway, improvements to and maintenance of a roadway have all occurred with the tacit
approval of the landowner, the landowner is estopped from barring access to the
improving party
 Economic efficiency/ use of property
 Unjust enrichment
 Minority jurisdictions have rejected the doctrine of easement by estoppel

Finn v. Williams 446 ILL (easements by necessity) – where an owner conveys a portion
of his land which has no outlet except over the land of the grantor, or of strangers, an
easement by necessity exists over the retained land of the grantor. May lay dormant
through several transfers.

Green v. Lupo 458 Wash (easement by express agreement)- Easemet listing names
evidences an intent that the easement be in gross…The grant of an easment for
ingress and egress is evidence of an intent to benefit land. There is a strong
presumption that easements are appurtenant. A servient owner is entitled to impose
reasonable restrictions on a right of way to avoid a greater burden on the servient
owner’s estate than that originally contemplated as long as such restraints do not
unreasonably interfere with the dominant owner’s use.
Cox v. Glenbrook 463 Nev (appurtenant easements) – The servient estate granted the
predecessor an easement over the estate to reach the predecessor's estate. At the time of
the conveyance, the predecessor used his estate as a single-family residence and used a
one-lane dirt road to reach the residence. There was another road through the servient
estate to the dominant estate, but the servient estate blocked that road with a fence. The
developers obtained the estate, planned to subdivide it into 40 to 60 lots and widened the
dirt road. As a general rule the owner of an easement may prepare, maintain,
improve, or repair the way in a manner and to an extent reasonably calculated to
promote the purpose for which it is created. The owner may not, however, by such
action, cause an undue burden upon the servient estate nor an unwarranted
interference with the indepent rights of the others who have a similar use. The
intent of the grantor controls where there is ambiguous language. Planning to use
something in a certain way cannot of itself cause an unreasonable burden.

Henley v. Continental Cablevision 468 MO – Cable company bought easements from

telephone and electric company. Exclusive easements are presumptively divisible.
Easements can be licensed to others if it is consistent with the original purpose. They
read the grant of the right of way broadly in order to includes future technologies.
Policy
 Should we interpret easements broadly as to changing circumstances? Need to
facilitate development v. reliance of prior use
 Undermines certainty of granting easements
 Easements are often ambiguously written, but because they are permanent, the issue
of scope becomes prevalent

B. Restrictive Covenants – right to let/not let person do something on his land. More
regulated then easements b/c have more power and towards free use of property.
Covenants only run with land under specifications. Enforce by damages

Requirements for covenants

1) In Writing (title, deed or plat, not a commercial document or non official method)
2) Notice
a) actual notice, (b) inquiry notice (should have known) (c) constructive notice – in a
recorded deed (cts are split if it must be in deed of land sold, most cts hold that
buyer must search all contiguous land owned by seller)
3) Intent to bind/run with land – magic language
4) Touch and Concern
a) Traditional – benefit/burden relates to use of land (cannot be held in gross)
i) Exceptions are Governments, Charities and HOA
b) Modern – reasonable benefit/burden (public policy as well as levels of burdens)
i) Not like affirmative covenants, being forced to pay money
ii) Courts dislike covenants that are completely open ended
5) Privity
 a) horizontal – instantaneous (at time of sale) or mutual privity (landlord/tenant or
some other interest such as an easement is mutually held in the land)
b) Vertical – relationship between sale parties (strict - purchaser gets all interest in
land)
c) Modern courts have been replacing this clause with notice to merge covenants and
equitable servitudes
d) Under touch and concern element, restrictive use or restraint of trade does attach
touch and concern on land (modern view) (value of land changed)

C. Equitable Servitudes – Usually enforced by injunction, no privity req

Notes on RC and ES
1) Interpreting language of ambiguous land
a) Intent of grantor
b) Traditional presumption to unburden land but losing favor
2) Remedies now enforced as appropriate
3) Public Policy limits
a) Covenants that violate strong public policy are unenforceable
b) Specifically antidiscrimination statues
4) Methods of termination
a) Doctrine of changed condition – no substantial benefit to dominant estate
b) Relative and undue hardship
c) Economic frustration
d) Acquiescence
e) Abandonment
f) Unclean hands
g) Estoppel
h) Laches
i) Marketable title acts not rerecorded within a set time
j) Language
k) Merger
l) Release
m) prescription

Policy (p.472)
- the inevitable role of regulation: adjudicating conflicting interests in free use and
security
- consumer protection and reliance
- the dead hand problem
- equal access vs. community control
- efficiency

Winn Dixie v Dolgencorp 477 Fla – Outlays the three notice requirements and provides
an example of inquiry notice.
Whitinsville Plaza v. Kotseas (481)(neighboring parcels) Mass – reasonable covenants
against competition may be considered to run with the land when they serve a purpose of
facilitating orderly and harmonious development for commercial use.

Davidson Brothers, Inc. v. D. Katz & Sons, Inc. NJ (482) Non-competition covenant can
touch and concern the land because it affects the property values and places a burden and
benefit on the two parcels of land. Example of modern test. Covenenat runs with the land
if it is in writing, the parties intend them to run with the land, we have notice, there is a
touch and concern the land under modern test. Then we ask if the restrictive covenant is
reasonable.

Blevins v. Barry-Lawrence County Assoc For Retarded Citizens (512) MO– Restrictive
covenants will be read when ambiguous in favor of free use of land. The more that a
group home looks like a traditional family the more likely it will be considered
residential.

El Di v. Town of Bethany (519) (changed conditions) Del – A court will not enforce a
restrictive covenant where a fundamental change has occurred in the intended
character of the neighborhood that renders the benefits underlying imposition of the
restrictions incapable of enjoyment.

D. Covenants in Homeowners Ass’n

Declaration prior to sale of first home creates HOA

Each deed references the declaration
Think of as mini governments who can create laws to protect interests
Rules are judged to have strong presumption of reasonableness - (not arbitrary,
with notice, consideration of relevant facts not beyond scope of HOA)
Business judgment rule-furthers this by saying HOAs must only act in good faith
Statutes can override any rule created by HOA

Appel v. Presley (536) NM – A clearly expressed clause allowing owners to alter

amend repeal or modify covenant restrictions is valid so long as it is exercised in a
reasonable manner so as not to destroy the general scheme or plan of development.
In determining whether relief should issue the court may consider a number of factors
and should balance equities and hardships where required.

Shelley v. Kramer (541) US – covenants that restrict sale based on race have been struck
down as in violation of 14a. The state action has been the enforcement of the covenants
by the courts. This rule has not been widely used

O’Buck v. Cottonwood (583) AK – In evaluating the reasonableness of a HoA rule it is

necessary to balance the importance of the rules objective against the importance of the
interest infringed. (Some form of strict scrutiny v rational basis)
Narhstedt v. Lakeside CA - the court enforces covenants, conditions, and restrictions of
HOA unless unreasonable. It is not to be determined on a case by case basis only as a
whole. Non-enforcement would be proper only if restrictions were arbitrary or in
violation of public policy or some fundamental constitutional right. Business judgment
rule.

Neuman v. Grandview (586) Fla - The test for rules regarding the operation of the
common elements of the condominium is reasonableness. A categorical ban of peaceable
assembly would be invalid h/e the court ruled that this right does not extend to the right
to assemble for religious purposes.

4. Estates & Future Interests

present words used future
interest interest future
grantor interest in
third
person
Fee simple “to A”, “and
absolute her heirs”

Fee simple “so long as”, Possibility

determinable “while”, of reverter
“during”,
“until”,
“unless”
Fee simple “provided Right of
subject to that”, “on entry for
condition condition”, condition
subsequent “but if” broken (or
power of
termination)
Fee simple “until (or Executory
subject to unless)… interest
executory then to”,
limitation “but if…
then to”
Life estate “for life” Reversion Remainder

 Courts do not allow creation of new mechanisms so it must fit one of these in
order to be enforced and cts will often force it to fit if it does not.
 Fee tail-“to A and the heirs of his body” is only recognized in a minority of cts
 Presumption is that cts look to intent of grantor but if language is unclear then
tend toward current owner of land maintaining possession.
 Vestes StO, Contingent R, and Executory interest can’t be sold or transferred
5. Extent of Propert Rights – The Right to Use
Nontrespassory interferences with the property rights of another can occur when the
use of one’s own property harms the property of one’s neighbor. This is covered
under nuisance law (torts) and in special cases by courts and legislature (water, air,
light, and support obligations)

Privilege – the use is protected and no liability can arise, a plaintiff would have to
purchase the right to act from the defendant

Strict Liability – the plaintiff has absolute right not to suffer specified harm,
defendant would have to purchase right to act from plaintiff

Reasonableness – authourizes defendant to engage in harmful activity if it is

reasonable, but not if the conduct or harm caused by it is deemed unreasonable. This
requires the trier to make a moral or policy judgement about the legitimacy of the
conduct

Factors
a) the extent of the harm to the plaintiff and the social utility of the plaintiffs activity
b) the social benefits of the defendants activity, measured by the loss to society by
preventing the use
c) the availability of to mitigate or avoid the conflict and which owner can do it at the
lowest cost
d) the defendants motive (malice or spite may swing towards plaintiff)
e) which use was established first (coming to the nuisance)

Remedies available
a) Dismissal of complaint – defendant has right court may also issue declaratory
judgement if harmer brought suit
b) Damages – cost of restoration and difference in market value
c) Injunction – defendant is enjoined from continuing harm
d) Purchased Injunction – it may be unfair for defendant to bear cost of shut down
and loss of rights but in best interest of public to do so plaintiff must pay for it then

A. Water (Diffuse Surface Water, Flooding)

1. Common Enemy Rule – possessor of land has unlimited and unrestricted right
to rid land of surface water
a)Some states impose liability for negligence
b) Many states impose liability if defendant installs devices designed to
collect and expel water in great quantity
2. Natural Flow Rule – Person who interferes with natural flow is subject to
liability
a) Some cts limit this rule to rural land and follow RT for urban land
3. Reasonableness Test – weighs contributing factors to determine who has right
and who has responsibility. Factors are as listed above including foreseeability.
 a) if harm to plaintiff is great no matter the societal benefit it is likely to be
found to be an unreasonable use.

Policy Arguments
1. Rights: Freedom of Action v. Security
a) appeals to fairness or justice in social relationship
b) FoA – right to use property as wished
c) Sec – Right to have one’s property protected from harm
d) The rights must be balanced (profit uses may be invalidated)

2. Social Utility – Competition v. Secure Investment

a) appeal to the goal of the law of generating laws that promote socially
desirable conduct and deter socially harmful conduct
b) Promote Competition – favor free use of land to promote development
c) Promote Sec. Invest – provide security for justified expectations so that
people will feel comfortable in investing in development
d) the balancing includes an analysis of how people will react to different
rules

3. Rigid Rules v. Flexible Standards

a)Rules – clear rules allow people to know how cases will be decided
regardless of facts but can lead to wrong decisions at times
b) Standards – lack clarity but hopefully get more borderline cases correct
c) Social welfare may come in bc with standard people will question if
they can justify actions to a jury

Armstrong v. Francis (337-41) NJ - Defendant development company built a subdivision

on a tract of land on which a natural stream existed. Defendant constructed a drainage
system that increased flow to the stream which intersected plaintiffs' properties. The
increased flow caused substantial erosion and threatened the septic system on plaintiffs'
land. Reasonableness test is NJ test. Factors to consider are all relevant
circumstances including amount of harm caused forseeability of harm, purpose or
motive and all other relevant info.

B. Water (Groundwater, Surface Water)

1. Groundwater
a) free use – owner is free to withdraw as much water as he likes (not
wasting it though)
b) reasonable use rule – owners of land overlying an aquifer may
withdraw water only if they put it to a reasonable use on their overlying
tracts. Some cts expand to all tracts as long as it doesn’t harm on tract uses
c) prior appropriations – first in time first in right
d) correlative rights – allowing each owner to withdraw an equitable
portion of the groundwater.
 2. Surface Water
a) Riparian rights Doctrine
1) Classic – riparian owners are entitled to natural flow free from
diminution or pollution
2) Reasonable Use Rule – normal reasonableness test h/e focus
may be on providing most value to society or apportioning use so
that all riparian owners have right to some water

b) Prior Appropriations
1) First in time, First in right
2) Not linked to ownership
3) Water can be moved
4) subject to priority of uses usually (domestic, agricultural,
manufacturing)

Empire Water v. Cascade Town 8th cir – Water from falls was pretty and watered plants
at resort that came first. Power company wanted to use river. Court ruled that there were
two doctrines prior use and a ranking system. Ranking did not include aesthetic and must
not be wasteful (watering of plants could be done with less water if more efficient.)

Collens v. New Canaan Water Co. Conn – Water company was diverting water for
public use and causing river to run dry below. Riparian owners along a river are
entitled to the natural flow of the water of the running stream through or along
their land, in its accustomed channel, undiminished in quantity or unimpaired in
quality.

C. Nuisance

1. Private Nuisance – a substantial and unreasonable interference with the use or

enjoyment of land. Except where harm is due to hypersensitivity of one party.

Factors
a) Gravity of harm (land related)
b) Character of harm (land related)
c) Prevailing conceptions of social harm
d) Possibility of avoiding harm
e) Suitability of conduct to locality
f) Social utility
h) First in use

Page County Appliance v. Honeywell (370-73) Iowa – Radiation from a computer was
interfering with TVs at a second store. Nuisance can’t be claimed where we have a
hypersensitive use. People involved in the nuisance but not actually causing it can be
implicated if there participation is material. (think vendor that sold computer and repaired
it) A fair test if whether the operation of a lawful trade consitututes a nuisance is the
reasonableness of conducting it in the manner, at the place, and under the
circumstances shown by the evidence. Each case turns on its own facts and is an
issue of fact and not of law.

Fancher v. Fagella (373-76) Va – Tree with invasive branches and roots is threatening
damage to house and foundation. Three Rules (Mass- limited to self help, Restatement-
liability on owner of tree if not “natural”, Hawaii-nuisance when imminent danger or
actual harm) Court adopts a form of Hawaii rule that keeps self help but allows trees
and plants to be regarded as a nuisance when the cause or pose imminent danger of
actual harm. If so, the owner of the tree MAY be held responsible where reasonable.

2. Public Nuisace – a substantial and unreasonable interference with a right common to

general public

Connecticut v AEP – State governments sued 4 largest coal burning power companies to
force them to reduce carbon output. Nuisance was related to health safety of people.

6. Landlord-Tenant law

A. Leasehold Estate

Types
Term of year, Periodic tenancy, Tenancy at will, Tenancy at sufferance (holdover tenant)

Statute of Frauds may apply depending on state if term is more than one year

License v. Lease
If no controlling statue, ask to what extent has the owner transferred exclusive possession
of a defined space
Owners may use self-help to remove licensees but most states require eviction
proceedings to remove tenants
Students and apartment managers specifically exempted from URLTA
Courts have shown that contract language does not always govern
Unequal bargaining power, freedom to contract, and minimum standards theories can
govern examinations of leases

Vasquez v. Glassboro (737-42) NJ – Abolishes self help for migrant workers but does not
discuss whether or not they are a tenant

B. Conflicts about rent

1. If tenant fails to pay rent or breaches other material terms in the lease, landlord can sue
for possession and back rent. Tenant may respond with defenses including that eviction is
based on family status, disability, race, or gender
2. If tenant becomes holdover tenant, but continues to pay rent, landlord may choose to
accept as new tenancy. Most states hold that this is periodic based on rent payment.
Minority reforms old lease for original term of years and tenant is bound to this.
If landlord chooses not to create new tenancy he can sue for possession h/e states are split
on whether or not landlord can collect rent during this time (some allow him to cash
checks in protest.

Landlords of residential spaces cannot use self help to remove a tenant in almost all states
and is being extended to commercial leases

3. If tenant leaves the property before the lease is up, the landlord can accept his
surrender (default) or he can choose not to accept the surrender and relet on the tenants
account.

If landlord accepts surrender he can recover backrent, costs of getting new tenant, rent
until new tenant moves in, and the original rental price minus the fair market price.

If the landlord relets on tenants account he also can hold old tenant liable if new tenant
moves out early.

Traditional rule is that landlord may do nothing until end of lease period and then sue for
all rent. Modern rule in most states is that residential landlord has a duty to mitigate
damages. Further, they must treat it as any of their other apartments. URLTA provides
that rental agreement terminates if landlord does nothing to re-let and landlord can
recover nothing.

Rent acceleration clauses- liquidated damages are enforced by some states if it does not
constitute a penalty and if it is not unconscionable.

Burden of proof- owner has burden of showing that they mitigate damages.

Security deposits can be used to protect landlord from tenants failures to pay rent. Some
states limit the amount that can be required and that it be placed in a separate account and
be paid back with interest at end of lease

Rent Control – states have passed laws restricting amount landlords can raise the rent.

Sommer v. Kridel 774 NJ - Defendants in two separate cases signed a residential lease for
apartments that they vacated. Landlords sued tenants to collect rent for the entire lease.
The court held landlords had an obligation to make a reasonable effort to mitigate
damages in wrongfully vacated apartments and to prove that he has used
reasonable diligence.

Braschi v. Stahl Associates NY - In the context of eviction, a more realistic view of a

family included two adult lifetime partners whose relationship was long term and
characterized by an emotional and financial commitment and interdependence.
C. Conflicts about occupancy (right to assign or sublease)

Landlord has a responsibility to deliver possession of the apartment at beginning of lease.

If there is a holdover tenant than the landlord must try to evict him. Excluded tenant can
terminate lease because of landlords breach, minority of states only find right to deliver
and not duty.

Clauses that give landlord right to consent to sublet or assignment

Commercial- trend towards reasonableness but traditional rule is absolute right to refuse
h/e it may be that this clause was freely negotiated and uphold it
Residential-absolute right to refuse, this doesn’t have the public policy concerns that
residential leases have

Landlord can absolutely refuse to renew a lease unless

It is based on discriminatory factors
In rent control apartments without just cause
For the purposes of converting apartments to condos
In public housing without just cause

Kendall v Ernest Pestana 758 Cal – Majority rule is that commercial landlords have
absolute right to refuse. Court adopts minority rule right to refuse is subject to a
commercially reasonable reason and not based on personal taste or convenience.

Slavin v Rent Control Board of Brookline 763 Mass – No reasonableness standard in

residential leases. There is no alienability concern that is present in commercial leases.

E. Habitable Premise (constructive eviction, implied warranty)

Leases are governed by express and implied terms in the lease, implied terms may not be
disclaimable.

Implied Terms
Covenant of quiet enjoyment
Implied warranty of habitability – (lack of heat, broken windows, pest infestation, and
leaky roofs) Many courts hold that warranty is not violated until landlord has notice.

Actual Eviction – physically blocks tenant from use of apartment or part of apartment
(lock on outside door or locks an interior door) tenant can move out or stay and pay rent
for remaining parts when only locked out of some of apt.
Constructive Eviction – living in apartment is either impossible or uncomfortable is
functional equivalent of eviction and tenant usually must move out to claim this.
Partial Constructive Eviction – same as above but related to a portion of the property
and tenants don’t have to move out (minority)
Actions that constitute constructive eviction
a) direct acts by landlord
b) in some states acts by third parties whose conduct landlord has a legal right to
control. Most leases now have a clause that allows eviction of tenants if they
interfere with QE of others. This gives landlord legal right.
c) Traditional rule is that tenants are not liable for third parties unless stated in lease

Note – back rent and possession are not connected in terms of defenses
necessarily

Tenant remedies for violation of warranty of habitability

d) Recission or right to move out early – tenant is not liable for remaining rent if
violation of habitability results in material change even if not constructive
eviction.
e) Rent Withholding – Tenant can stop paying rent and raise warr. Of hab. As
defense when landlord claims breach has occurred. (diff. from constructive
eviction bc tenant can remain living there and stop paying rent) Statute may
prohibit a tenant from withholding rent without notice to landlord of defects and
verification by housing inspector.
f) Rent abatement – tenant can sue landlord for rent reduction some states apply fair
market test lowering the rent to what rent would be as-is. Majority reduce
according to the severity of the violation.
g) Repair and deduct – tenant can pay for repairs and deduct from rent. Statutes may
regulate amount deducted and kinds of repairs allowed.
h) Injunctive relief – some states allow tenants to bring suit to force landlord to
repair.
i) Administrative remedies – local housing authorities can speed this up by
inspecting premises and ordering landlord directly.
j) Criminal Penalites – serious violations can be punished as criminal
k) Compensatory damages – can exceed agreed upon rent only when there is
valuable personal property that is damaged (K don’t usually have punative
damages)

Warranty of habitability does not apply to commercial leases in all states.

Minjak Co. v. Randolph NY 782 - The tenants occupied a loft pursuant to a commercial
lease. The counterclaims comprised claims of a breach of the warranty of habitability and
constructive eviction related to certain dangerous construction work and other conduct
interfering with the tenants' ability to use and enjoy possession of their loft. The appellate
court had found that the doctrine of constructive eviction did not provide a defense for
the nonpayment of rent because the tenants had not abandoned the premises. The court
held that (1) the tenants were allowed to assert the doctrine of partial constructive
eviction as a defense to the nonpayment of rent when the abandoned a portion of the
demised premises due the landlord's improper acts; (2) the record supported an
award of punitive damages for the landlord's breach of the warranty of habitability;
Blackett v. Olanoff 785 Mass - Defendant tenants successfully raised the defense of
constructive eviction. They claimed that late evening noise from a nearby lounge leased
by plaintiff landlords to others violated their implied warranty of quiet enjoyment, and
the lower court agreed. The court affirmed, holding that plaintiff landlords had it within
their control to correct the conditions that caused plaintiff tenants to vacate their
apartments. Lease provision allowed landlord to regulate noise of the lounge. Where the
landlord has a right to control a situation this court holds him liable for
objectionable conditions.

Javins v. First National Realty Corp. 792 DC – Leases should be treated as contracts. In
addition, comprehensive regulatory scheme of the housing code displaced common law
rule. Common law rule placing the burden of repair on tenant was no longer valid
because modern urban tenants' interest in property had nothing to do with the land itself,
but was an interest in having suitable living quarters. Any private agreement to shift the
duties would be illegal and unenforceable.

7. Zoning

A. Introduction to zoning

States can delegate police power to zoning authorities to enforce regulations promoting
health, welfare, and safety

Zoning types
a) Use – kinds of uses allowed in each district, usually tiered (All inclusive down to
single family)
b) Area – regulations considering location and manner of structures on a lot

Most Zoning enabling acts require a comprehensive plan and future changes must be
consistent with this general plan

Village of Euclid v Amber Realty 1100 US – The landowner asserted that because of the
building restrictions imposed, the ordinance operated to reduce the normal value of his
property in part by 75%. The court held that the ordinance, in its general scope and
dominant features, was a valid exercise of authority. The restrictions imposed bore a
rational relation to the health and safety of the community.

Nectow v. City of Cambridge 1102 US - The court said that although respondent had
broad power to restrict the petitioner's rights through zoning ordinances, that power was
not unlimited. Respondent could not exercise its power arbitrarily or irrationally, without
relation to public health, morals, and safety. In this case, the master's report showed that
respondent had exercised its power irrationally.

B. Constitutional Issues (Due Process and Equal Protection)

A zoning ordinance as well as any other legislation can be subject to claims under DP or
EP.

Equal Protection
a) claim can occur when government splits people into classes on its face
b) Form of review depends upon class being divided
a. Strict scrutiny (race/religion) – is the rule narrowly tailored to a
compelling government interest in least burdensome way. (not over or
under inclusive)
b. Intermediate Review (gender and other quasi protected) – in between
c. Rational basis (all others) – arguably related to a legitimate government
purpose (very difficult for claim to win against rational basis)

Due Process
a) claim can occur when a right is violated
b) form of review depends on right
a. Strict Scrutiny (fundamental/constitutional right) (free speech (nude
dancing couldn’t be completely outlawed), religion)
b. Rational Basis (all others)
c) When a right is clearly violated on the face of the statute you are more likely to
get strict scrutiny
d) Most state courts don’t find fundamental right to nontraditional families though a
minority do

Village of Willowbrook v. Olech 1055 US – homeowner who was required by town to

give 33 foot water easement where everyone else gave 15 could bring EP claim under
class of one bc they were being treated differently. Ill will that existed was not required
though other cts have followed ill will.

Village of Belle Torre v. Boraas 996 US – DP Appellant village had an ordinance

restricting land use to one-family dwellings. The word "family" meant one or more
related persons or a number of persons but not exceeding two that were not related.
Appellee house owners leased a house to appellee tenants who were not related. Ct found
no fundamental right so under rational basis review.

Charter Township of Delta v. Dinolfo 999 Mich – DP Similar facts, ct does not clearly
state that it is a fundamental right, but they apply some form of intermediate review. End
result is that the rule is invalidated as in violation of due process because it is arbitrary
and capricious.

Moore v City of East Cleveland 1002 US

C. Prior Non-Conforming Use and Variances

Owners are protected from retroactive applications of zoning laws when those laws
unfairly surprise owners who invested in reliance on preexisting laws by these two
doctrines

Prior Non-Conforming Use

There is generally statutory protection for non-conforming uses
The use can be continued only if it is a continuance of substantially the same kind of use
as when the zoning ordinance was enacted (Parrillo’s)
A substantial change in the use can be either time, area or use related

Variances
A variance can be granted when a homeowner meets the relevant standard of the
jurisdiction
There are two major standards, Unnecessary Hardship and Practical difficulty
Unecessary Hardship – would deprive the user of all reasonable use of the land and/or
buildings involved
Practical Difficulty – if reasonable and will not substantially impair purpose and intent of
zoning ordinance
Variances are generally granted to relax lot and building restrictions but not use
restrictions, some states expressly prohibit use variances. Others prohibit use variances
from being given by the ZB but allow the city council to vote on them. Some states use
PD for area variances and UH for use variances.

Town of Belleville v. Parrillo’s (1038-41) NJ - Plaintiff city challenged the appeals

court's reversal of defendant business owner's conviction for violating plaintiff's zoning
ordinance. Defendant's conversion of his business from a family restaurant to a disco
with a disc jockey and several bars represented a substantial, and, therefore,
impermissible, change in use. The court reversed and remanded for an entry of
conviction.

Cochran v. Fairfax County (1041-46) VA - The threshold question was whether the
zoning ordinance interfered with all reasonable beneficial uses of the property, taken as a
whole. As the answer was "no," the BZAs had no authority to act.

8. Takings

A. Regulatory Takings Generally

The Fifth Amendment prohibits the government from taking private property for public
use without just compensation
Not all governmental regulations can amount to a taking when the state acts within the
legitimate sphere of its police power there need be no compensation h/e when some
regulations have disproportionate negative effects on some property holders they can be
takings when they look like eminent domain
Courts ask whether fairness and justice require an owner be compensated to answer this
question they look at the factors from Penn Central (ad hoc test)

Character of Government Action

Is the action conferring a benefit or protecting from a harm/nuisance
Goal is to identify those regulations whose effects are functionally comparable to
government appropriation or invasion of private property
Economic Impact
The greater the diminution in value the more likely the regulations will be
characterized as a taking. Complete deprivation of economic value is likely a
taking unless the rights never existed in the first place
This depends on the denominator that a court uses to look at each property right
Interference with reasonable investment backed expectation
Per Se tests
Loretto – permanent physical invasions of property
Lucas – complete depravation of all economically viable use of her property unless
background principles of nuisance mean there were no rights to being with
VERY NARROW lingle

The standard for striking down a regulation for lack of due process of law is arbitrary
discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt

NOTES
Mugler v Kansas held that laws cannot constitute unconstitutional takings of property as
long as they are intended in good faith to protect the public from harm and do not amount
to an actual taking or deprive the owner of possessory rights

Powell v Penn explained as long as the law is for the purpose of protecting public health
and preventing fraud.

Hadacheck v Sebastian there can be no vested right to do an act that is a nuisance

Buchanan v Warley A core property right is the right to sell and a law that denied this on
the basis of race was invalid

Penn Coal v Mahon held that an ordinance was invalid because it stopped coal miners
from taking out half of their coal when a structure was on top even though they purchased
the coal rights.

A few states have passed takings statutes expanding them to make sure gov takes effect
on property into account before taking action and some states even allow property owners
to get compensation for decrease in property value when there normally wouldn’t be a
taking

Miller v. Schoene (1106-07) US - The Court held that when forced to make the choice,
the state did not exceed its constitutional powers by deciding upon the destruction of the
cedar trees in order to save the apple orchards, which in the judgment of the legislature
was of greater value to the public.

Penn Central v. New York (1108-1115) US - The Court held that plaintiffs could not
establish a "taking" simply by showing that they had been denied the ability to exploit a
property interest that they had believed was available for development. The court noted
that landmark laws were not like discriminatory or "reverse spot" zoning. The Landmarks
Law did not interfere in any way with the terminal's present uses and plaintiffs' primary
expectation concerning the use of the parcel. The restrictions imposed were substantially
related to the promotion of the general welfare and not only permitted reasonable
beneficial use of the landmark site, but also afforded plaintiffs opportunities further to
enhance not only the terminal site, but also other properties. CREATED AD HOC
TEST

Keystone Bitnuminous v. deBenedictis (1115-16) US - No taking because the

governmental action was to prevent harm to surface estate and not govs problem that they
broke up the estates bc if wholly owned only 2 precent of coal must be kept in place.

B. Physical invasions

A permanent physical invasion is likely to be found to be a per se taking, however

the two major cases lay out examples of this test. In addition, there is a lot of
difference of opinion over what constitutes a taking and what doesn’t. The field
seems to lack predictability.

PruneYard Shopping Center v. Robins (1128-31) US - The Supreme Court held that the
requirement that appellants permit appellees to exercise state-protected rights of free
expression did not infringe appellants' property rights under the taking clause, because
nothing suggested that the exercise of those rights would unreasonably impair the value
or use of appellants' property. IE they could set time place and manner restrictions.

Loretto v. Teleprompter (1131-36) US - The Court explained that to the extent the
government permanently occupied physical property, it effectively destroyed the right of
the owner to exclude or control that portion of her property. Even though not entirely
permanent bc it would be removed if converted back to residential. Also this is a third
party being allowed into the property not the government.

C.  Deprivation of Economic Benefit

Complete depravation of value is a per se taking. A problem exists in a definition of
the property right being examined ie the denominator.

Lucas v. South Carolina Coastal Council (1144-58) - The court held that where a state
seeks to sustain a regulation that deprives land of all economically beneficial use, it may
resist compensation only if the logically antecedent inquiry into the nature of the owner's
estate showed that the proscribed use interests were not part of his title to begin with. Ie
were a nuisance
Palazzolo v. Rhode Island (1158-61) - The state court erred in finding that the claims
were unripe, because the landowner obtained a final decision from the council
determining the permitted use for the land. The state court also erred in ruling that
acquisition of title after the effective date of the regulations barred the claims. However,
the state court did not err in finding that the landowner failed to establish a deprivation of
all economic value, because it was undisputed that the upland portion of the parcel
retained significant worth for construction of a residence. The case was remanded so the
claims could be examined under the Penn Central analysis.
DENOMINATOR PROBLEM
RIPENESS OF CLAIM

Tahoe-Sierra v. Tahoe Regional (1161-63) - The United State Supreme Court held,
however, that the mere enactment of the regulations implementing the moratoria did not
constitute a per se taking of the landowners' property. Rather, whether a taking occurred
depended upon consideration of the landowners' investment-backed expectations, the
actual impact of the regulation on the landowners, the importance of the public interest
involved, and the reasons for imposing the temporary restriction. Adoption of a
categorical rule that any deprivation of all economic use, no matter how brief, constituted
a compensable taking would impose unreasonable financial obligations upon
governments for the normal delays involved in processing land use applications and
would improperly encourage hasty decisionmaking.
TEMPORARY TAKINGS CAN BE BUT ARENT NEC COMPENSABLE