IRAC

ACQUISITION OF PROPERTY

Some basic ways to acquire property:

1. Buying it
2. Inheriting it
3. Being gifted it
4. Capturing it
5. Conquering (“discovering”) it

The general principle of property acquisition is first come first serve. But first to do what? The
answer to that question seeks:
1. Clarity
2. Simplicity
3. Straightforwardness
4. Avoidance of conflict (in litigation or physical violence)

I. Discovery (“conquering it”)

Johnson v. M’Intosh (US 1823)

P sues in ejectment action (making their claim to the land). P claims title because they purchased
from Native Americans pre-revolution, and it has been in their family’s possession ever since.

D claims title because they bought it from the federal government, which traces its title to the
state/colony of VA.

The only way for D to win is if native title transfers are categorically unrecognized (because
otherwise, P bought it first). But that’s what happens: Court holds that when the treaty ending the
Rev War was signed, it stripped Britain of any sovereignty over the US lands, and as such
transactions made under that former British rule are invalid.

II. Capture

Pierson v. Post (NY 1805)

Post is hunting foxes (using dogs to clear them out). He spots a fox, uses his dog to clear it out—
but before he can shoot it, Pierson sees the fox, swoops in, and kills the fox. Who has title to the
dead fox?

Held: Pierson has title. Reasoning is that this is a bright line rule—it’s obvious who captures it,
but it would be challenging to identify who was the first to chase it. So, in order to serve the
general property law principle of clarity, the court adopts this easy rule.
Dissent: First, defer to the norms of hunters (possession happens when someone has a reasonable
prospect of getting the fox). But second, foxes are bad and the bright line rule discourages people
from putting in the effort to go hunting foxes (because someone might just grab it at the last
minute).

Compare to INS v. AP: here, the person who puts in the work does not necessarily create a
property right.

III. Creation

INS v. Associated Press (US 1918)

AP sues INS for infringing on their property rights by copying news from their bulletin boards
and their early edition newspapers, and then selling that news to their own customers. Three
questions:
1. Is information property?
2. How long can it be owned?
3. Is INS acting in unfair competition?

First, yes and no. The “literary” aspect of news is protected by copyright. But the “history of the
day” is not. It can be freely disseminated among the public. But the court holds there’s a quasi-
property right in the news. That is, property rights are relational, and the AP retains a
property interest in its news as against its competitors.

Competitor news sources owe each other a duty to conduct their own business in a manner that
will not unnecessarily or unfairly injure the business of others.

Holding: Where a company has expended resources in creating news and information, the creator
can exclude others from copying until its commercial value as news has passed away.

Dissent: it’s against public policy to recognize this quasi-property right because it impedes the
distribution of news.

Compare to Pierson v. Post: here, the person who put in the work does get to exclude the
competitor. Much more Lockean (mixing your labor with the land).

IV. Personhood

Moore v. Regents of the Univ. of Cal. (Cal. 1990)

Moore has his spleen removed during surgery. He isn’t told, but it’s used in research generating
thousands to millions of dollars. Does he have a property interest in his spleen once it’s been
removed?

Held: breach of fiduciary duty and lack of informed consent, but no conversion (stealing)
because she had no property interest in her cells.
First, no CA court has ever held that cells are property. Second, CA statutory law limits the
continuing interest of a patient in excised cells: it says you can only do certain things with
excised cells, can only dispose of them in certain ways, etc. Essentially, it limits the rights
“conventionally” associated with property rights. The court reasons that if you did have a
property interest in the cells then those rights wouldn’t be so limited.

In short: if one of the rights of property ownership is control, then the state law which runs
counter to that fundamental right implies that this object can’t be property.

Policy Consideration: Conversion is a strict liability tort and would expose innocent researchers
to liability (need to foster scientific progress).

V. Adverse possession

Adverse possession is a process by which someone who does not own land, but uses the land
anyways, can take title to the land. It requires four things:

1. An entry that is actual and exclusive (the owner/public can’t also be using it)
2. Open and notorious (put reasonably attentive owner on notice of use)
3. Continuous for the statutory period (not literally constant, but regular)
a. Ewing v. Burnet (paying regular property taxes adequate)
b. Pettis v. Lozier (storing livestock, putting up no hunting signs, telling others that
you own it, is inadequate)
4. Adverse and under a claim of right

Why does this exist? Not to make people use their land. Landowners are entitled to do nothing
with their land! But it does have the effect. Instead, it’s about forcing landowners to not just give
up their property rights.

Maine Doctrine: Doesn’t exist anywhere anymore. Requires really aggressive stealing of
property for AP.

Permission always defeats adverse possession.

Van Valkenburgh v. Lutz (NY 1952)

The Lutz’s buy two lots and start using a neighboring lot to access their property. Someone buys
the neighboring lot and takes possession and moves to eject Lutz. Lutz moves to get a
prescriptive right to the land (like an easement or something).

Held: no adverse possession. To satisfy the statutory requirement in NY (§ 39, 40 of Civil

Practice Act) the premises must be cultivated or improved significantly.

1. Though Lutz had used the land for a garden, that was not significant because it did not
use the whole of the premises claimed.
 2. The premises weren’t improved because the shed Lutz had built was so close to the
property line.
3. The Lutz’ garage, which encroached on the property at issue, was not made under a claim
of title, because Lutz thought it was on his own property.
4. Similarly, the fact that Lutz only sought an easement or prescriptive right shows that he
never thought he actually had title to the land—you can’t have it both ways.

Dissent: Lutz basically had created a whole farm there for years. And there is evidence that the
cultivated area used the entire property at issue. Also, the fact that he asked for only an easement
is irrelevant, because that only occurred after property title had vested in Lutz through AP.

Note: case inflected with some classism against the Lutz’ use.

Note: overruled by Walling v. Przybylo (NY 2006).

Walling v. Przybylo (NY 2006): OVERRULED by statute in 2008

Held: Actual knowledge that someone else owns the title does not, on its own, defeat a claim of
adverse possession.

Case where they did a lot of very significant aggressive “use” of the land: bulldozering, etc.

Manillo v. Gorski (NJ 1969)

Front steps of a house going 15 inches over the property line.

Elements met: actual/exclusive, continuous for statutory period.

Unclear: under a claim of right; open and notorious.

Court is choosing between CT and ME doctrines. ME doctrine requires knowing, bad-faith,

aggressive mindset for adverse possession. CT doctrine (from Pierce) is an objective approach.
Did they act like an owner of the property during the statutory period?

Held: Objective approach applies (CT doctrine) because the ME doctrine treats the wrongdoes
better than those who make innocent mistakes. They consider a requirement of “good faith” but
reject it: it’s “looking at the wrong person.” Adverse possession is about punishing the owner for
sleeping on their rights, whether or not the adverse possessor was acting in good faith.

Court also says that large, obvious encroachments are presumptively open and notorious. But
small encroachments (like the 15in stairs at issue) are not presumptively open and notorious. The
burden falls on the adverse possessor to show that there was notice.

Court ends with a solution: the occupier pays the market value of the encroached upon property.
Reminiscent of buying out the injunction?
Howard v. Kunto (Washington Ct. App 1970)
Previous owner has a deed describing a 50 ft. wide parcel on shore of canal. But the possessor
instead occupies the parcel next door. Issue: does only summer occupancy defeat the continuity
requirement of AP?

Held: No. Summer occupancy is adequate because it is the type of possession that “ordinarily
marks the conduct of owners in general . . . of like nature and condition.” One usually only uses
summer homes in the summer, so that’s all that was needed here.

Note: “tacking” is adding successive time periods of adverse possession together to meet the
SOL. Traditionally only allowed if the parties are in privity, but the court says that’s unnecessary
here. The privity requirement is just judicial recognition of the need for connection between
occupiers to raise the claim of right “above the status of the wrongful trespasser” and here, that is
met.

Privity in the AP setting is a legal relationship between successive occupiers.

City of Tonawanda v. Ellicott Creek HOA (Sup. Ct. NY 1982)

The city has record title to the property, but people who own residential property across the road,
as well as boat owners, have used the creekfront property for years.

Under NY law, the record holder bears the burden of showing that they have the title. Then, the
burden shifts to D to show that they are actually entitled to the property by adverse possession.
However, D only bears the burden only to the first 3 elements (actual/exclusive, open/notorious,
continuous). The final element (under a claim of right a.k.a “hostile occupancy”) is presumed.

Note: Inquiry about a building permit was necessary for construction and was not a request for
permission to use city property (because permission would defeat claim to easement by
prescription).

Note: Tonawanda style burden shifting doesn’t always apply—sometimes all the burden is on
the adverse possessor. But either way you have to analyze all four elements of AP in the exam.

NY State Law:

501.1: Defines adverse possessors and says that it can be knowingly or not knowingly.
501.3: Requires the adverse possessor to show a reasonable basis for believing that the property
belongs to them (good faith requirement).
 ESTATES IN LAND

Generally, one owns an “interest” in land, not the land itself. Multiple people can own similar or
different interests in the same land at the same time (concurrent interests). There are a few types
of interests.

1. Present interest: you have the interest today, and it entitles you to current possession.
a. Defined by time (non-defeasible)
i. Fee simple absolute (forever)
ii. Life estate (for your lifetime)
iii. Term of years
b. Defined by event (defeasible)
i. Fee simple determinable
ii. Fee simple subject to condition subsequent
iii. Fee simple subject to executory limitation
2. Future interest: you have the interest today, and it entitles you to future possession.
a. Retained by grantor
i. Reverter (interest remaining in grantor who transfers an estate of a lesser
quantum than that of the vested estate he has)
ii. Possibility of reverter (future interest retained by grantor in a fee simple
determinable)
iii. Right of entry (future interest retained by grantor in a fee simple subject
to condition subsequent)
b. Retained by transferee (remainders)
i. Vested remainders
1. Indefeasibly
2. Subject to open
3. Subject to complete divestment
ii. Contingent remainders

I. Present Interests
II. Fee simple absolute
Entitles you to possess the land forever. No event, nothing whatsoever (except eminent domain)
can remove it.

It’s freely alienable which means that you can give it or sell it to anyone, and then once you do
they hold the fee simple absolute. It also means that when you die, someone will inherit it.

It used to be that there was a presumption that a devisor was only granting a life estate, not a fee
simple, and you had to use special magic words to show that you were granting a fee simple.
However, it is now presumed that when you devise land you are transferring a fee simple.

Magic Words: To A.
 III. Life Estate
Ends at your death. Non-devisable, because as soon as you die, you lose your interest. It is
technically transferrable, but when the original person who had the life estate dies, the interest
ends.

Magic Words: To A for life.

IV. Term of years

Exactly what it sounds like. Devisable, but only for as long as the term. Transferrable, but only
for as long as the term.

Magic Words: To A for X years.

V. Fee Simple Determinable

When some event occurs, the fee simple ends automatically and reverts back to the grantor. Note
that the future interest retained by the grantor is called the possibility of reverter. See
Mahrenholtz.

Uses “durational words.” Note the difference between “to A so long as it’s used for X” (fee
simple determinable) and “to A for the purpose of X” (not fee simple determinable).

Magic Words: To A so long as X.

To A during X.
To A until X.

Mahrenholz v. County Board of School Trustees (Illinois 1981)

Hutton conveys to the School a defeasible estate: stated it “was to be used for school purposes
only; otherwise to revert to [g]rantors.” Hutton transfers his future interest to Mahrenholtz and
disclaims having his own future interest. School breaches. But a quirk of IL law says you can’t
transfer possibility of reverter or right of re-entry. So either way, Hutton had the future interest.

If it was fee simple determinable, then as soon as the school breached it reverted to Hutton. So
Hutton would own in fee simple (and there’s an open question of whether he gave it to
Mahrenholz).
If it was fee simple subject to condition subsequent, then Hutton had a right of entry that he
failed to use—and then disclaimed. So the school would own in fee simple.

Court says that the deed seems like it’s supposed to be an immediate reversion. And it uses the
word “revert” which implies the possibility of reverter of a fee simple determinable. Although
usually the description of a future interest alone is inadequate to determine the present interest, in
this case, the word “only” helps show that this was a fee simple determinable.

Held: This is a fee simple determinable.

 Note that this is suspect reasoning, because a fee simple determinable usually requires temporal
language that isn’t present here.

VI. Fee simple subject to condition subsequent

Grantor retains a “right of entry” to retake possession—not automatic, but relatively easily. See
Odd Fellows.

Magic Words: To A, but if X (or not X) then back to O.

To A, on the condition that X.
Odd Fellows v. Toscano (Cal. App. 1947)
Toscanos gift the land to Odd Fellows with two conditions: that it can’t be sold and that is must
be used by the Odd Fellows. If sold (or not used by the Odd Fellows), the Toscanos have a right
of entry to revert the property to the Toscanos, called a “habendum clause.”

Held: this is a fee simple subject to condition subsequent. There is no temporal element, and
there is a presumption for fee simple subject to condition subsequent when the situation is
“doubtful.”

Do use restrictions ever cross the line into a restraint on alienation?

Held: Not here. So long as there is no formal restriction on alienation, use restrictions are
enforceable. But see Nebraska rule: Falls City v. Missouri Pacific Railway, applies a functional
test. Does the use restriction “materially affect marketability adversely?” Strong public policy
reason for Odd Fellows rule to encourage charitable giving by donors who want to retain some
control.

VII. Fee simple subject to executory limitation

Basically like fee simple subject to condition subsequent: a 3rd party has an executory interest.
This one is automatic, but is created by the same language as a fee simple subject to condition
subsequent.

Magic Words: To A, but if X (or not X), then to B. Whoever has the power to make X happen
has the executory interest.

VIII. Future Interests

Some future interests are retained by the grantor (first 3), some are retained by the transferee.
A. Reversion
The interest remaining in a grantor who transfers an estate of a lesser quantum than that of the
vested estate he has. A reversion is indefeasibly (absolutely) vested in the grantor. For example,
the retained interest in a grantor when he grants a life estate to a grantee.
II. Possibility of Reverter
The retained part of a fee simple determinable. The estate returns to the grantor when a condition
is broken. Freely alienable.
 III. Right of entry
The retained part of a fee simple subject to condition subsequent. The estate returns to the
grantor upon the violation of a condition if the grantor elects. Cannot be transferred inter vivos
but can be transferred by will or intestate succession.
IV. Vested remainders
Conveyed to transferee, along contingent remainders A remainder is vested if there is both:
 At least one identifiable and ascertainable remainderman (who is a real person)
 No condition precedent (something having to happen before it vests)

V. Indefeasibly Vested Remainders

The remainder can’t be divested. The remainderman is absolutely certain to see the remainder
become possessory when the preceding life estate ends.
For example: to A, remainder to B.
VI. Subject to Open
At least one member of a class is certain to have their interest become possessory, but it might
have to be “split up.”
For example: Assume B has one child right now but could have more. To A for life, remainder
to B’s children. B’s child has an interest subject to open, but when B dies the class closes and
the interest becomes indefeasibly vested.

VII. Subject to complete divestment

The interest has vested, but something could happen later that completely divests them of the
interest.
For example: to A for life, then to B, but if B doesn’t graduate college, then to C. B would
have a vested remainder subject to complete divestment (if they don’t graduate college). And C
would have an executory interest.

Note that this is different than A for life, and if B graduates college, then to B, if not then to
C. That would be a condition precedent, which would make it not a vested remainder. See
below.

In re Krooss (NY 1951)

Herman gives life estate to his wife, and upon her death the remainder would pass to his two
children equally. If either of his two children die before wife and leave descendants, the
descendants should take the parent’s share. One child, Florence, died without having children.

Was the remainder vested subject to complete divestment upon dying before wife while having
kids? If so, then the divestment doesn’t take place because Florence didn’t have kids. So
Florence had the interest and it goes through her will.

Or was it a contingent remainder with the conditions being dying before wife and having had
kids? If so, then contingency didn’t occur and the interest didn’t pass to Florence at all.

Held: vested remainder subject to complete divestment. NY favors earlier vestment to promote
stability, clarity, and alienability. And the will was structured such that it first gave the interest
to the children, and then mentioned divestment.
VIII. Contingent remainder
Basically everything else. If the answer to either of these questions is yes, then it’s a contingent
remainder:
 Is there no ascertainable taker? For example, an unborn person?
 Is there a condition precedent? (other than the death of the preceding estate)

Every time there’s someone with a contingent remainder, there must be someone else with
another future interest (remainder or reversion).

For example: to A for life, then to the heirs of B. Even if B already has kids, heirs are
determined at the date of death, so “heirs of B” is indeterminate until a future date.

For example: to A for life, then to B if B marries. Assume B is unmarried. Then B’s interest is
contingent on their getting married.

Browning v. Sacrison (OR 1974)

Farmland left in life estate to Ada, remainder to devisor’s grandsons. Will provided that in no
event should it go to the grandson’s father. One of the grandsons predeceases Ada. Was their
remainder interest contingent on them surviving the life tenant (Ada)?

Held: Yes. When the form of remainder of a life estate is ambiguous, there is no presumption
(unlike in NY) for early vestment. Traditional (as in NY) public policy goals don’t apply
anymore: tax consequences and the intent of most similarly situated conveyors to delay the
vesting weigh in favor of delaying the vesting of an interest until the property can be fully
enjoyed by the remaindermen. Instead we look to the intent of the parties.

IX. Rule Against Perpetuities

No interest is good unless it must vest, if at all, not later than 21 years after some life in being at
the creation of the interest.

Basically, a future interest either must vest, or it must not vest. We’re looking for clarity. It is not
asking when the future interest becomes possessory. It’s asking about when it becomes
indefeasibly vested.

Why? Determining vested interests counteracts dead hand control by putting a time limit on how
long it takes for an interest to vest.

What is subject to the RAP?

 Contingent remainders
 Executory interests
 Class gifts (vested subject to open)
What is not subject to RAP?
 Remainder vested subject to complete divestment
 Indefeasibly vested remainders
 Future interests retained by grantor (reversion, right of entry, possibility of reverter)
 Present interests

Steps:
1. Identify the future interest from the list above. Does the rule apply?
2. What event will necessarily cause it to resolve? What is the latest thing that could happen
that would give final clarity?
3. Who is alive at the creation of the interest? Can they affect #2?
4. Will #2 happen within #3’s lifetime, plus 21 years? If so, then interest is good.

Note: in word problems, living people have names or letters. People who don’t exist (yet) are not
named or lettered.

A. Examples
Add examples of problems from page 358.

B. NY Statutory Reforms
 If the contingency fails RAP due to an age-related problem (you get land when you turn
30), we pretend the conveyance says 21 to make it valid. – Court will knock it down to
number of years needed to make it work
 Women over 55 cannot have children. Woman who medically cannot have kids are also
considered infertile
 If the conveyance says “spouse” “wife” we deem it to mean an alive spouse, and not
someone that may be born after. You do not need to be married to her now.

III. Concurrent Interests

The uniting feature of concurrent interests is that each owner has the same right to do what an
owner can do, with the entire property, regardless of how large their interest is.

There are three types of concurrent interests: tenancy in common, joint tenancy, and tenancy by
the entirety.

A. Types of concurrent interests

1. Tenancy in common

The default form of co-ownership. Separate but undivided interests in the property. No limit on
how many people, and it doesn’t have to be equally divided.

Each person can separately and freely convey or freely devise only their respective interest or
share.
Each person is responsible for their own share of taxes, and receives their own share if the
property is sold entirely.

II. Joint tenants

Joint tenants have the right of survivorship with each other—their interest immediately reverts to
the other joint tenant when they die. Can be multiple people.

You must specify that you have a joint tenancy. But you also absolutely need the four “unities”:
 Time: need to obtain interest at the same time.
 Title: need to acquire title in the same conveyance/instrument
 Interest: equal shares and identical interests as measured by duration (unlike tenancy in
common)
 Possession: right to possession as a whole (true with all concurrent interests)

Note: saying “jointly” is inadequate. Must say “as joint tenants” or “as joint tenants with a right
of survivorship.”

Each person may freely convey it but may not devise. This is because devising it would make
the right of survivorship awkward. When you convey a joint tenancy you sever it and it becomes
a tenancy in common, because time and title are no longer satisfied.

Example: to A, B, C as joint tenants. A transfers to Y. Now: Y is tenant in common w/ B and C.

But B and C remain joint tenants.

III. Tenancy by the entirety

Same as joint tenancy but only applies between spouses. They operate as one person, and cannot
be unilaterally severed like in a joint tenancy (only way to sever is by divorce).

A tenancy by the entirety is not devisable and not freely conveyable.

Note: Tenancy by the entirety is not required for spouses! They can just get a regular old joint
tenancy or tenancy in common.

IV. Severing a joint tenancy

Riddle v. Harmon (Cal. Ct. App. 1980)
Mr. and Ms. Riddle are joint tenants. Ms. Riddle doesn’t want her husband to get her portion
when she dies, so she tries to “give herself” her own interest in order to unilaterally sever the
joint tenancy.

It used to be that you needed a straw purchaser (freely convey your interest, severing it, and they
give it back as a tenancy in common). But the court says that’s silly, and you can “enfeoff”
yourself.

Held: You can enfeoff yourself, during your lifetime, without a straw purchaser. But you cannot
sever a joint tenancy in a will.
Note: formality of the 3rd party to sever does have actual value—prevents someone from
fraudulently severing the tenancy. For example, if the husband died first, you tear up the
severance document and get the benefit of the right of survivorship.

Harms v. Sprague (IL 1984)

Harms owns a property in joint tenancy with his brother. Harms mortgages his interest in the
property for money (needs cash), and then dies without the loan paid off. The lender holds only a
lien on the property interest (even though in the past in IL, the lender would have actually had
some title to the property interest).

Held: a joint tenancy is not severed by the placement of a lien on one interest. The lender cannot
recover because the property interest on which they hold a lien no longer exists. They are shit
outta luck.

Note that in a state operating under the title theory of mortgage, the lender owns the title until
they are paid back, and so such action (mortgaging) severs the joint tenancy.

V. Partitioning concurrent interests

When one party in a tenancy in common wants to split up, what do you do? Two main options:
partition in kind or partition by sale. Can happen to tenants in common and joint tenants, but not
tenancy by the entirety.

Partition by sale is simple: you sell the property, and each person gets proceeds proportional to
their interest.

Partition in kind splits the land up according to value. It could be proportional to the land size,
but the value of how appealing, valuable (i.e. close to the road, oil deposit, etc.) will be taken
into account.

But one other option is owelty/compensation- Compensate for the fact that the partition in kind
results in one cotenant getting a more valuable part than the other cotenants:
 If the partition in kind is impractical/wasteful
 If the sale would not protect the interests of all parties, the court may assign all the
property to one or a couple cotenants so long as compensation is paid equal to fair market
value

Delfino v. Vealencis (CT 1980)

Vealencis (lives on land) wants a partition in kind, Delfino (does not live on land) wants a
partition by sale.

Held: A partition by sale should be ordered only where a partition in kind is impracticable or
inequitable, and when the interests of the parties would be better suited by sale. This especially
applies when one party lives on the land and the other does not.

Other Case Law on Partition in Kind vs. Sale

Ark Land Co. v. Harper (WVA 2004): Partition by sale can work hardships on owners unwilling
to sell because they have emotional attachments to the land (economic value of the property as a
whole would be less if it were partitioned in kind is relevant but not dispositive

Contrast with Johnson v. Hendrickson (SD 1946): If the land was partitioned in kind, it would
get chopped up into so many pieces that the tracts would materially depreciate in value so the
court ordered partition in sale.

Gray v. Crotts (NC 1982): Property should be divided into 4 parcels of equal value and the
cotenants should draw for who gets what parcel (but one tenant wanted the parcel next to his
home).

VI. Sharing co-ownership

What do you do when problems arise between co-owners not addressed in their original
contracts? When it comes to rent, does a co-tenant in possession have to pay a co-tenant not in
possession?

Spiller v. Mackereth (AL 1976)

Defendant used jointly owned property as warehouse. Plaintiff sent notice to vacate or pay half
the rent of the property.

Held: cotenant in possession doesn’t have to pay rent unless ouster has occurred. Thus a demand
or an attempt to enter the property is essential.

Majority rule: Unless there's been an ouster, a cotenant in possession doesn't have to pay rent to
the cotenants out of possession.

Minority rule: Cotenant in exclusive possession must pay rent to cotenants out of possession even
in the absence of ouster.

Note that an ouster can occur by adverse possession but only if the tenant asserting adverse
possession actually does so under a claim of the entire title, not just claiming that they can
possess the property under tenancy in common.

But an ouster can be evidenced by a possessor stopping the co-tenant from using their fair share
of the property.

Swartzbaugh v. Sampson (Cal. Ct. App. 1936)

Mr. and Mrs. Swartzbaugh own property as joint tenants with right of survivorship. One of them
leases a portion of the property to Sampson. The other objects and sues.

Held: A joint tenant can convey, lease, mortgage, or burden their entire interest in the property.
Because joint tenants each the right to possess the property entirely, Swartzbaugh was entitled to
lease out part of the property without his co-tenants consent. But the other tenant had a right to
half the rent.
Note that if they were tenants by the entirety, the other Swartzbaugh could object and prevent the
lease!

VII. Marital Property

There are types of marital property regimes.

1. Community Property States

All property acquired during the marriage is owned by the couple, except for gifts and
inheritances. This does not include anything acquired beforehand. Comes from the continental
European tradition.

In community property states, there’s no tenancy by the entirety.

Note: no right of survivorship in community property states. Each can devise their half, but can’t
convey during their lifetime. That is, a dying spouse can devise half the property however they
want to: to children, friends, or back to their surviving spouse. But they can't control more than
half of the entire community property. However, if you die intestate, then it usually goes to the
surviving spouse.

II. Separate Property States

Each spouse keeps their own things, unless they choose to co-own things through any one of the
means of co-ownership above. Comes from English common-law tradition.

In these states: the dying spouse can devise whatever they want to their spouse. Could in theory
completely disinherit their surviving spouse. But most states now have elective share statute:
guarantee surviving spouses a specific percentage of dying spouse’s assets. Usually, the same as
the amount they'd get if their spouse dies intestate.

Sawada v. Endo (HI 1977)

Only separate property states! Endo is in a car accident with Sawada, and it’s Endo’s fault.
Before the judgement is entered, though, Endo and his wife convey their house (held in tenancy
by the entirety) to their sons to protect it from the judgement. For some reason, the question is: is
the interest of one spouse in a tenancy by the entirety subject to the claims of that spouse’s
individual creditors?

There are four types of states that answer this question:

Group I: common law tenancy by entirety. All property is “common” but subject to husband’s
exclusive dominion and control. That means if a woman has judgement against her, she has no
individual assets to access. But it also means she can’t access credit on her own.

Group II states: the interest of the debtor spouse can be sold or levied upon separate debts. But,
this is subject to the other spouse’s contingent right of survivorship. If the non-debtor dies and
the debtor still holds the asset, then creditors can reach it. But if the debtor dies and the non-
debtor spouse holds the asset, creditors can’t reach it.
Group III: what HI chooses. Individual debts can’t be attached to tenancy by the entirety
property. That is, tenancy by the entirety is immune from individual debts. So, in this case,
the conveyance by the Endos was completely unnecessary.

Group IV: The opposite of group II. Creditors can attach the right of survivorship, but nothing
else.

One problem with choosing Group III is that it’s a safe haven for tortfeasors! Sure, creditors can
check to make sure that the assets aren’t held in tenancy by the entirety. But for people injured
by tortfeasors… you’re just shit outta luck.

In re Marriage of Graham (CO 1978)

What happens when you get divorced? In community property states, it just goes back to
“whatever you came into the marriage with.” But what about the marital property?

Wife pays for husband through business school, and then he divorces her. No meaningful assets
between them, no kids, no alimony. The MBA is essentially the only thing that the marriage
produced. Trial court finds that wife contributed 70% of money during marriage, did all the
housework, and did all the cooking. Trial court finds that MBA has a pecuniary value, so she is
entitled to some portion of that value (although not the degree itself).

Held: pecuniary value of the MBA is not property. Regular property can be transferred,
exchanged for a value, bought, sold, like a commodity. But the MBA isn’t like that because it
dies when its holder dies. In general, educational degrees are not “property” in this context.

Bad reasoning: the court says that the value of the MBA could be used to calculate alimony
payments… but that wasn’t requested here. So they acknowledge its value while disclaiming it
as property.
 LEASEHOLDS
An area with huge variation between states. So the below is focused on common-law principles.

I. Types of Leases
A. Term of Years Lease
Lasts for a certain amount of time, agreed upon by the parties. The lease ends when the time
period is up. That means there’s no notice required to end a term of years lease.

Either party can terminate a lease early—but there are consequences for breach of contract. And
the death of either party does not end the lease.

II. Periodic Tenancy

A lease that continues to renew over some period until one party gives notice. Usually the notice
period is either the lease period, or 6 months, whichever is shorter. For example, a month-to-
month lease, with a one-month notice period.

If you give notice too late, then it’s still effective but only at the end of the next period.

Death of either party does not end the lease.

III. Tenancy at will

Goes on forever until one party terminates it. There may be a required notice period in the
contract. Death of either party ends the lease .

IV. “Tenancy” at sufferance: holdovers

Not actually a tenancy. This is when someone wrongfully remains in possession after the lease is
over. The landlord has two options in that case:
 Charge rent
 Evict
If the landlord chooses to charge the rent, and the tenant at sufferance pays, then it becomes a
new tenancy, usually implied to the same terms and conditions as the original lease which was
held over.

V. Other types of tenancies?

Garner v. Gerrish (NY 1984)
A lease granted the lessee the right to terminate the tenancy (and otherwise had no contractual
ending date). Basically seemed to provide a life tenancy that only the lessee could terminate.
Does this lease then imply that the lessor also has a right to terminate? Lower court said that this
created a tenancy at will, and thus both have the right to terminate (basically, “we have to choose
from the list above).

Held: no. The old common law rituals no longer apply, and there’s no reason to prevent parties
from creating their own contractual relationships. Because the clear intent of the parties was to
allow unilateral termination for the lessee, that’s what the court holds the contract requires.
Note: this is basically a question of using either a property law approach (must pick from menu
of types of leases) or a contract law approach (let parties decide for themselves).

VI. Fair Housing Act

Background: there were racially restrictive covenants, which are language in deeds which
prevents the owner from renting or selling to non-white people.
 
Eventually, Shelley v. Kramer (1948) holds that the government won't enforce restrictive
covenants. People move onto other strategies: for example, steering by brokers. Only show
clients houses in certain neighborhoods. Very powerful driver of segregation, though it was done
at a concerted broad level.
 
Another common practice was redlining. Banks deny mortgages for the purchase of a house in
certain neighborhoods. The neighborhoods were ranked from "best" to "hazardous." And by
hazardous they just meant mostly black.
 
LBJ established the Kerner Commission; studying what's wrong with the country and how to fix
it. 1968. Found that the majority of black Americans lived in neighborhoods marked by blight
and lacking resources.
 
This created a self-reinforcing issue: people saw that Black neighborhoods were in disrepair, and
thought that it was a cause, so they felt like more segregation was needed.

A. Section 3603 (“Exceptions”)

Where does the FHA apply? In general, it applies to selling or renting “dwellings.” See § 3604,
below. But it doesn’t apply to a whole host of places:

 Religious organizations, on the basis of religion only (§ 3607)

 Family status, in geriatric housing only
 Private clubs under certain circumstances (§ 3607)
 A “single family house sold or rented by an owner” so long as the owner is a private
individual who does not own more than three such single family houses at any one time
and they do not use the sale/rental facilities/services of a broker, agent, salesman, or
anyone in that type of business and they do not publicize, post, or mail any advertisement
or written notice in violation of § 3604 (c).
o Note that lawyers/title companies dealing with the title don’t count as brokers or
agents.
 Rooms or units in dwellings with living quarters for four or fewer families living
independently, so long as the owner actually occupies one of those living quarters as his
residence.

II. Section 3604

What is actually prohibited?
 1. Discrimination in sale (or lack of sale) or rental (or lack of rental) of property on the basis
of: race, color, religion, sex (post Bostock includes LGBT), familial status, or national
origin.
2. Discrimination in terms and conditions on any of those bases (for example, rent price, pet
allowances, etc)
3. To advertise or make any statement in a way that conveys a preference based on a
protected characteristic. Can’t say that to potential renters/buyers, or to brokers.

See Page 472 for full text including handicap status discrimination in subsection (f).

III. Proving an FHA claim

FHA claims follow the standard discrimination claim burden shifting framework of McDonnell
Douglas. One can make either a disparate treatment claim or a disparate impact claim.

Note that while disparate impact claims are technically allowed under FHA, they are difficult to
prove and unlikely to survive in the current Court. These would be facially neutral policies that
impact certain groups worse. For example, background or credit checks.

To have a disparate treatment claim, it helps to show that there is a pattern of discrimination
(potentially using testers). But ultimately the legal question is: did they consider the protected
characteristic when making the decision—even “benign” discrimination is unlawful under the
FHA.

Burden shifting steps:

1. The P makes a prima facie case of discrimination
2. Burden shifts to D, and they have two options
a. Admit to the discrimination and employ a “compelling interest” defense, arguing
that there were no other options than discriminating, and there was no less
discriminatory alternative. (For example, you need a kosher kitchen, so you have
to discriminate on the basis of religion).
b. Alternatively, deny the discrimination and argue that D had another (legal) reason
for acting the way they did, and that the underlying purpose was not
discriminatory. Here, D have only the burden of production.
3. At that point, the burden of proof shifts back to P to show that D’s purported reason was
pretextual and that discrimination was the purpose.

Ultimately, this is going to go to a factfinder.

Wentworth v. Hedson (EDNY 2007)

White tenants (Wentworth) brought action against their landlord under the FHA, and other
federal and state statutes, claiming that defendants unlawfully interfered with their housing rights
by harassing them, disturbing the quiet enjoyment of their apartment, and instituting eviction
proceedings against them because they associated with people of African American or African
Caribbean descent.
Wentworths ran a vocal studio out of their apartment. Types of harassment here:
 Referring to black students as “these people”
 Shouting at Asian American students
 Lack of harassment of white students

Holdings:
1. A plaintiff does not need to be a member of a protected class for an FHA claim.
2. FHA applies not just to a denial of rental, but also any other interference with their
substantive housing rights (quiet enjoyment), or eviction.
3. Statements don’t have to be facially discriminatory so long as an ordinary listener would
interpret them that way in context. The ordinary person is neither the most suspicious nor
the most insensitive. In situations involving vague remarks, context and timing are
everything.
4. Being an “equal opportunity harasser” does not resolve it if it’s not actually equal in
terms of prevalence, severity and impact.

IV. Delivery of premises

Hannan v. Dusch (VA 1930)

Hannan leases premises from Dusch, but on the day he’s supposed to move in he can’t: there’s
another holdover tenant. There was nothing in the lease requiring the landlord to actually deliver
the premises. Is there an implied covenant to actually deliver the premises in a real estate lease?

Held: no implied covenant to deliver actual possession of premises.

Under the English rule, there would be an implied covenant to deliver actual possession, whether
there is an express covenant or not, because the landlord is in the best position to know whether
delivery will be possible (will there be a holdover tenant?).

Under the American rule (adopted here) there is no implied covenant because it would be unduly
burdensome on landlords. They would be worried about entering into a lease agreement on
premises until the prior tenant has actually vacated, lest they be held accountable for their former
tenant’s wrongdoing in holding over.

That being said, under the American rule (and in this case), the plaintiff can still sue the holdover
tenant.

Note: The majority of jurisdictions go with the English Rule (including NY) but landlords can
still put something like the American rule in the lease. But in the absence of a clause about
delivering actual possession the English rule is the default.

V. Sublease and assignment

Some obligations come out of a property relationship, some come out of a contractual
relationship.
The obligations a tenant owes a landlord as a result of privity of estate are those that “touch and
concern the land.

The obligations a tenant owes a landlord as a result of privity of contract are those found in the
contract.

There are three ways of changing who leases some property.

A. Sublease

In a sublease, because there is no connection between Landlord and Sublessee, the Sublessee
owes the landlord nothing and vice versa.

II. Assignment

In an assignment, the Landlord and Assignee owe each other whatever obligations flow from the
privity of estate relationship, such as rent, maintenance, etc. But because there is still a
connection between the Prime Tenant and the Assignee, and between the Landlord and the Prime
Tenant. That means the Prime Tenant can recover rent from the Assignee, and the Landlord can
recover rent from either.

In theory, assignments can keep going on and on. But in that case the only privity of estate is
between the most recent assignee and the landlord.

Ernst v. Conditt (TN 1965)

Ernst leases to Rogers, who leases to Conditt. Ernst/Rogers lease allows “sublet.” Rogers/Conditt
lease says that Conditt is subletting. Conditt hasn’t paid rent.
If it’s an assignment, then Conditt owes Ernst. If it’s a sublease, then Conditt owes Rogers who
owes Ernst.

Held: it’s an assignment. We look to the parties intent not what they say (minority rule). Their
intent was evidenced by the fact that they handed over the entire remaining lease term, which
implies assignment. But if there were other facts evidencing intent, we’d look at those too.
On the other hand, the common law (majority rule) test looks exclusively to how much of the
remaining lease term the prime tenant has handed over.

III. Novation
Here, Landlord and Tenant simply sever their relationship completely by mutual agreement.
Then the Landlord and the New Tenant sign a new lease. Basically, kill the old contract and
make a new one.

IV. Limits on subleasing

When can a landlord prevent a tenant from subleasing? In commercial leases, in the majority of
states, there are no limits. But a minority of states bar commercial lessors from withholding
consent to assignment/sublease without a “commercially reasonable justification.”

Some policy considerations:

1. Majority Rule (including NY)
a. In Favor
i. LL can pick PT so he should be able to pick the subtenant
ii. There was no limit in the lease, so why should we put in a limit?
 b. Against
i. Don’t need extra protection b/c subtenant is already liable for the rent
ii. Just like any contract, there is an expectation of reasonableness and good
faith
2. Minority Rule (Kendall)
a. In Favor
i. There is always a good faith reasonableness requirement
ii. It would otherwise retrain alienation & a lease is still an interest in
property
iii. Lessor is just as likely to find a high-quality tenant in in the assignee
iv. Lessee remains contractually liable, so lessor is still protected

Kendall v. Pestana (CA 1985)

In CA, you need a commercially reasonable justification for not allowing a certain subtenant or
assignee. Factors that can be considered are:
 Financial responsibility of subtenant
 Suitability of the use for the particular property
 Legality of the proposed use
 Need for alteration of the premises
 Nature of the occupancy (office, factory, hospital, etc).

What would be unreasonable?

 Personal dislike
 Trying to get higher rent

Somewhere in the middle is the quality and fanciness of the tenant, perhaps to try to attract a
certain type of customer (J. Crew vs. Gucci example). This is probably reasonable.

Note that in CA, this is only a default rule. It can be contracted around in theory, but the reasons
given for the rule seem to show that it should be a complete rule.

Note: for residential leases, there are way more rules about when the landlord can deny a
sublease. In NYC, for example, it’s really hard for the landlord to prevent you from subleasing or
assigning. And if they reject your qualified assignment candidate, they must allow you out of
your lease early.

V. Tenant Default
Berg v. Wiley (MN 1978)
Berg is violating health codes in the restaurant she runs at premises leased from Wiley, all in
violation of her lease. Wiley calls the police a few times, etc, and eventually changes the locks.

Held: Under the common law rule, self-help eviction was allowed only when the means to retake
the premises are peaceful. In this case given the animosity between the tenant and LL, changing
the locks was not peaceful. But either way, the court completely bars self-help eviction: going
forward, in this jurisdiction, only judicial eviction is allowed.
In general: jurisdictions are moving to bar self-help evictions. But some jurisdictions still allow
it.

Note: judicial evictions are usually too slow for landlords, and too fast for tenants. Interesting.
And there’s an advantage to self-help evictions for tenants: they happen under the radar and
create no record for future employers, landlords, creditors, etc.

VI. Duty to Mitigate/Tenant Abandonment

Why a duty to mitigate is bad:

 There’s already a contract and agreement in place.
 If the lease is already in place, the tenant still has some rights over that space. Can the
landlord even rent it out from underneath the (non-paying) tenant?
 Moral hazard—tenants will just start leaving willy-nilly.
 Expensive for the landlord to deal with finding new tenants.

Why a duty to mitigate is good:

 Fair dealing
 In line with contract law
 Efficient—vacant property should be on the market
 Prevents crime and vandalism by avoiding vacancies
 Unoccupied property is bad for neighborhoods

What is the extent of the duty? Make reasonable efforts to re-let the property. If you can’t fully
mitigate, the tenant remains liable for the lease amount. Probably not a waivable duty.

Sommer v. Kridel (NJ 1977)

Kridel signed a lease with Sommer, but before it started he informed Sommer that he had to
break it because he no longer had the money to pay the rent. At some point during the lease term,
a third party told Sommer that he wanted to rent the property, but Sommer rejected that despite
the fact that the property was vacant.
 Held: Landlord has a duty to mitigate damages. This is consistent with the ideas of basic justice
and fairness, and fits with the conception of leases as commercial contracts which always have a
duty to mitigate.

VII. Implied Covenant to Quiet Enjoyment

A fundamental right that exists in every lease (commercial and residential). For the covenant to
be breached, there must be either actual or constructive eviction.

Village Commons v. MCPO (Indiana Ct. App. 2008)

Village commons is the landlord and the MCPO tenant. There’s an “exclusive remedy” provision
that says if the landlord breaches any warranty or covenant then the tenant can’t withhold rent or
vacate—they can only sue for damages.

There is intense water damage, sewage flowing, etc. Landlord doesn’t fix it and suggests that the
MCPO move items from the affected area.

Held: MCPO was constructively evicted because the landlord interfered with their use and
enjoyment in a way that was substantial, and the tenant actually left in a reasonable amount of
time.

Remedies available for breach of Implied Covenant to Quiet Enjoyment:

 Stay, Pay, and Sue (for damages)
 Leave and stop paying rent (and you have the affirmative defense of constructive eviction
in your pocket)

Note: possible to have partial constructive eviction (for example, if the bathroom doesn’t work)
and to recover damages (or get rent abatement) for the partial value.

In general, actual and constructive evictions are treated the same.

VIII. Implied Warranty of Habitability

Lots of overlap with covenant of quiet enjoyment, but only applies to residential leases.

Hilder v. St. Peter (Vt. 1984)

Premises are in awful condition—raw sewage, ceiling falling in, leaking water. But Hilder stays
on premises anyways and pays rent the entire time. Sues to get her money back.

At common law: no remedy for this type of situation. Caveat lessee: renter beware. But as the
courts shift landlord-tenant law to be closer to contract law, maybe there is a duty.

Held: all residential leases have an implied warranty of habitability. As a result, a renter is
entitled to return of rent paid when that warranty has been breached.

What can the tenant do and get back?

With withhold future rent payments until the problems are resolved; or make the repairs herself
and deduct the cost from future rent. On top of that a tenant may recover compensatory damages
reflecting discomfort and annoyance arising from the defects. And punitive damages when the
breach is so wanton, willful or fraudulent so as to justify an award of exemplary damages (not
available under quiet enjoyment).

The warranty of habitability is an objective question: special needs of tenants do not factor in.
And there’s no assumption of risk defense for the landlord (even if there’s an “as is” clause in
lease).

Justification:
 Contract law inspired
 Housing is fundamentally important, so it makes sense to have these heightened
protections
 Good public policy to keep houses in good shape. Property values up, good for
communities.

IX. Housing Policy and Rent Control

In most places, you need to have lived somewhere for some amount of time to get rent control.
Disincentives people from moving, reduces supply, raising rent on everyone else. See below
from Judge Posner in Chicago Board of Realtors for all the bad things about tenant protection
laws:
To the extent they succeed, tenants will be worse off, or at least no better off.
Landlords will also screen applicants more carefully, because the cost of renting to
a deadbeat will now be higher; so marginal tenants will find it harder to persuade
landlords to rent to them. Those who do find apartments but then are slow to pay will be
subsidized by responsible tenants (some of them marginal too), who will be paying
higher rents, assuming the landlord cannot determine in advance who is likely to pay
rent on time. Insofar as these efforts to offset the ordinance fail, the cost of rental
housing will be higher to landlords and therefore less will be supplied—more of
the existing stock than would otherwise be the case will be converted to
condominia and cooperatives and less rental housing will be built.
 LAND TRANSFERS

I. Marketable Title

II. Duty to Disclose

III. Recording System

If you want to buy a piece of land, you check that the person you’re buying it from is in the
grantee index (to ensure they actually bought something). And go up the chain of grantees.

At the top, you go back down the other direction—in the grantor index. Make sure that the
grantors haven’t given the piece of land out of the chain of title.

Recording is not necessary to make a transaction valid, but it is a good way of protecting your
interest. And there are big advantages, to be seen below. There are three types of recording
statutes, which tell us when a subsequent bona fide purchaser for value prevails over a prior
claimant.

In every jurisdiction, all that the original purchaser needs to do to protect their title is to record
their deed first. Under race and race-notice they trivially prevail, and under notice they have
provided constructive notice (record notice). So these statutes exist to encourage people to
record.

A. Race
A race to the courthouse! Whoever records their deed first wins. Louisiana and NC only. So if
you buy a property first, and then it gets sold (by the same initial seller) again to a second party,
and the second party records it first, you’re out of luck.

II. Notice
If B knows that A has a prior unrecorded title, then they can’t record first and win. But if B
doesn’t know that A has prior unrecorded title then they can win. Basically if the subsequent
bona fide purchaser for value has no constructive or actual notice that there was a previous
purchaser, then the subsequent purchaser wins.

Notice means actual or constructive (record or inquiry notice).

III. Race-Notice
A mix. Subsequent purchaser B can prevail only if they lack notice of the prior claim, and they
record it first. NY is a race-notice jurisdiction.

Again, notice means actual or constructive (record or inquiry notice).

IV. Shelter Rule

Grantees of “would-be” winners are also winners. Assume O conveys to A and then B, and under
whatever rule B would theoretically win in a dispute. Then B conveys to C, but beforehand
something happens that would the original outcome in favor of A. The shelter rule says that
doesn’t matter—C still wins as the grantee of the previous (theoretical) winner).

Messersmith v. Smith (ND 1953)

Race-notice jurisdiction because it says whoever’s deed is first recorded “in good faith.”
May 7, 1946: Caroline to Frederick
May 7, 1951: Caroline to Smith (improper acknowledgement)
May 9, 1951: Smith to Seale
May 26, 1951: Smith and Seale record the deeds
July 9, 1951: Frederick records deed from original conveyance

Smith and Seale should win because they lacked notice and recorded first. But the court says that
the conveyance was improperly notarized so the recording basically doesn’t count, either for the
race or as constructive notice.

Note that this has been overturned by statute: you can’t sue for lack of notice based on an error in
the conveyance somehow negating the recordation. If it’s in the index, you have record notice.

V. Inquiry Notice
Sometimes, there’s facts available that would prompt a reasonable person to make an inquiry
into the possibility of other interests in the property they are purchasing.
Harper v. Paradise (GA 1974)
Susan conveys life estate to Maude, remainder in fee simple to Maude’s children. The deed is
lost and not recorded. After Susan dies, her heirs come together to fix the problem. They replace
the lost deed with a conveyance that says “this is a replacement for the lost deed” and write a
deed that conveyed a fee simple absolute. Question: does the subsequent conveyance (which was
recorded first) get priority over the original?

Held: No. Because the subsequent conveyance explicitly references the earlier lost life estate
deed, it was created with knowledge of that deed. The Paradise’s (who had access to the later
conveyance) should have seen that and known that there was something up.

Basically requires inquiry notice.

VI. Mortgages
Borrower is the mortgagor. Bank is the mortgagee.

Things that affect if you qualify:

1. Credit score
2. Verifiability of income
3. How much are you asking for vs. how much is the property valued at
4. Other debt
5. Criminal history
6. If the property is already mortgaged

When you take out the loan, the bank gets a promissory note (creating personal liability) and a
deed in fee simple with condition subsequent. If you don’t pay, the bank can foreclose. If the sale
generates more than the bank’s equity, you get the remainder.

The promissory note is secured by the property, but it also creates personal liability. So if the
bank can’t recover the entire value at the foreclosure sale, you are personally on the hook for the
remainder.

Most mortgages are fixed-rate, amortized over time, though there are some ARMs.

You can sell a house before the mortgage is up:

 Sell the house with the mortgage, and the buyer assumes the mortgage. This rarely
happens, because the bank that approved the original owner won’t want a random new
borrower without vetting.
 The buyer pays the sellers current equity to the seller, and pays the rest of their new loan
directly to the old mortgage bank.

You can take out second mortgages but the first one has priority over subsequent ones at
foreclosure. Usually higher rate because riskier.
Murphy v. Financial Development Corp (NH 1985)
A mortgagee (bank) has a duty to protect the interests of the mortgager and get a good price at
the foreclosure sale.

Facts: no one comes to the foreclosure sale, except a bank representative who bids exactly the
equity in the house. Essentially liquidating the owner’s loan. The bank walks away with no
profit, but just the house. Then, later that day, they sell the house to a developer at a steep profit.

Held: low price alone does not indicate bad faith, but there was a failure to do due diligence: no
advertising, and once no one showed up they should have called it off.

McGlawn v. PHRC (PA 2006)

Reverse redlining case. Instead of no loans, you intentionally lend to unqualified borrowers.

There’s a difference between prime mortgages, sub-prime mortgages, and predatory lending.
Prime is someone with good credit. Sub-prime is someone with worse credit, and has 2-3%
higher interest rates. But sub-prime mortgages are good, because they allow access to capital for
poor people.

Features of predatory lending:

1. High interest rates
2. pre-payment penalties
3. balloon payments (crazy huge sum you have to pay at the end of the life of the loan).
4. mandatory arbitration clauses
5. high broker fees
6. undisclosed fees
7. yield spread premiums (the lender pays the broker in return for the broker bringing the a
high interest loan. Basically a bounty to bring a person willing to sing a high interest
mortgage).
8. various other additional closing costs
9. falsification of information on loan documents
10. failure to disclose information regarding terms of the loan
11. high-pressure sales tactics

A lot of this stuff is now regulated by the CFPB, but it still happens.
 PRIVATE LAND USE CONTROLS
Generally called “servitudes” and can be split into three categories: easements, real covenants,
and equitable servitudes.

I. Types of Easements
Two types of easements in terms of what they say:
 Affirmative easement: the right to enter or perform an act on the land
 Negative easement: the right to forbid another person from acting on their own land in a
certain way
Two types of easements in terms of how the right attaches:
 Appurtenant Easement: the right flows from the ownership of a piece of land
o Dominant tenement (or dominant estate): the estate that ownership of which gives
the easement rights
o Servient tenement: the land that’s getting used or entered upon
 Easement in gross: the right flows from the person. (For example, person P has the right
to do something on parcel Y. Here, no dominant estate, just servient estate.)

Once established, an easement is a property interest belonging to the dominant estate (except see
easement in gross). Successors of the dominant estate inherit easement rights, successors of the
servient estate inherit obligations so long as they are on actual or constructive notice.

Exam tip: Ask two questions. Was an easement created? Is the servient owner on notice of the
easement?

Finally, there are five ways for easements to be created:

A. Express Easement
An easement that is written down. In some states, you can only reserve an easement for yourself.
Willard v. First Church of Christ Scientist (CA 1972)
The deed for Lot 20 has an appurtenant easement saying that “so long as” another property
currently used by the Church remains in use by the Church, the Church is allowed to use Lot 20
for parking. Lot 20 gets sold to Willard, but without the easement on the deed. Willard has no
actual notice of the easement.

Trial court: no easement created—there’s a common law rule that allows sellers to reserve an
interest in the land for themselves only, but not for a 3rd party (like the Church).

Held: easement was created—sellers can reserve an interest in the land for anyone, including a
3rd party. And Willard was on record notice because the original deed had an easement, and
Willard should have done due diligence to look back in the record.

Note: NY follows the common law rule. Sellers can only reserve an interest in the land for
themselves.
 II. Prescriptive (implied)
An easement by adverse possession basically. Were you using the land as though you had an
easement? Same rules as AP apply: must be actual, exclusive, open, notorious, under a claim of
right (to the easement).

Holbrook v. Taylor (KY 1976)

Taylors had a tract of land next to Holbrook’s road and used it with Holbrook’s permission for
construction. Eventually, with Holbrook’s permission, they widened the road, and improved it at
some expense. Do they get an easement?

Holding one: no prescriptive easement because it was not adverse, continuous, or under a claim
of right. They had permission, fatal to any adverse possession claim.

Holding two: see below on estoppel.

III. Estoppel (implied)

If you have permission to use some land and then reasonably improve the land based on a
reliance on the permission (license) given by the owner, than that detrimental reliance can turn
the initial revocable license into an irrevocable easement.

Holbrook v. Taylor (KY 1976)

Same facts as above.

Holding two: because the Taylors detrimentally relied on Holbrook’s initial permission to use the
land, and reasonably improved it: they added gravel, a culvert, etc, at some significant cost. And
they did so with Holbrook’s permission. To now bar them from using it would constitute unjust
enrichment of Holbrook.
Note: most implied easements are appurtenant, so they pass with the property.

IV. Prior existing use (implied)

Three requirements:
 Unity of ownership: each parcel had to be owned by the same person, and then it was
broken up
 Quasi-easement prior to severance: apparent, existing, and continuing use of one parcel
at the time. Before the land was divided, the owner was using one part of the land to
benefit the other part of the land
 Intent for use to continue: there has to be evidence that the parties wanted the use to
continue post-severance. If the continuous use was necessary, that is conclusive evidence
of this element. Unnecessary use may still give rise to easement though.

Van Sandt v. Royster (KS 1938)

Three adjacent properties owned by one person, with a sewer running across all three going from
the furthest house to the city sewer line. Land is subdivided and the lot closest to the street wants
the other two lots to stop using their sewer (which runs through his house).
Held: easement by prior existing use. Not nullified by the fact that the deed said it was “free of
encumbrances.” The question came down to whether the property owner had notice, and the
court says that he did because the house had plumbing and that should have prompted inquiry.
Questionable logic, but necessary for public policy.

V. Necessity (implied)
An easement by necessity is created when the owner of an estate conveys a portion of his land,
but needs to reserve for himself the use of part of the conveyed land.

Two requirements:
 Unity of ownership: each parcel had to be owned by the same person, and then it was
broken up
 Necessity: it is necessary to use one property for the other, not just convenient.
 Because of and due to severance: The necessity must have existed at the time of the
severance, due to the fact of severing the land.

Othen v. Rosier (TX 1950)

Someone owns a large tract of land, which is split up. Eventually, some of it was owned by
Other and some by Rosier. Othen’s land didn’t connect to a public road, so he used a path along
Rosier’s land. Rosier eventually blocked the path.

Held: no easement by necessity. Even though using the path was now necessary, there was no
evidence that at the time the land was originally split up it was necessary. There were a series of
subdivisions—all we look at is the first severance and if there was no necessity then, then there’s
no easement.

VI. Terminating Easements

Express easements last forever unless the grantor specifies a term. But implied easements last
only as long as the need lasts.

Other ways for express easements to end:

 Easement owner can release. Usually must be done in writing for Statute of Frauds.
 Expiration if the easement has a specified ending date.
 Upon occurrence of some event if the easement is defeasible.
 When the necessity ends.
 If the servient owner reasonably relies on some statement/representation of the dominant
owner, the easement may end through estoppel.
 By eminent domain if the government takes title to the servient estate for a purpose
inconsistent with the easement.
 By prescription, which is basically inverse adverse possession. Servient owner
wrongfully prevents the easement from being used for the prescriptive period, then it
ends.
 By abandonment, similarly, if the dominant estate doesn’t use a prescriptive easement
for a statutory period.
  If the dominant and servient estates are purchased by the same person, the
easement disappears, even if redividing the land later.

VII. Scope of Easements

What can you use an easement for? Basically, only what it says!

Brown v. Voss (WA 1986)

Parcels A, B, and C are all in a line. There’s an easement on Parcel A to use the road there to
access Parcel B. Brown buys both parcels B and C. Can he use the easement on Parcel A to
access Parcel C?

Held: no. You can only use an appurtenant easement to access the property to which it is
appurtenant. So the use of the easement to get to Parcel C was wrong. But because the trial court
appropriately found that this would render C unusable, and had no significant harm on parcel A,
an injunction was not appropriate.

VIII. Real Covenants

A real covenant is enforceable at law for monetary damages. A few requirements:
1. In writing (saying “this agreement is enforceable as a real covenant” usually)
2. Intent to bind successors
3. Touches and concerns the land (See Neponsit)
4. Privity of estate
a. For the burden to run there must be vertical privity (same type of estate, and
can’t be by adverse possession), and horizonal privity between the burdened and
benefitting parties (some kind of deed between the two).
b. For the benefit to run there must only be vertical privity in the same or lesser
estate.
Reminder: Horizonal privity means that the same person owned the two parcels and sold one off.
Can’t have horizontal privity if you make an agreement between two separate owners of separate
land.

Vertical privity just means grantor-grantee relationship.

Neponsit Property Owners Association v. Emigrant Industrial Savings Bank (NY 1938)
Deeded covenant requires homeowners and their successors to pay an annual fee to the
developer. The obligation is secured by a lien on the property. The property owner sells to
someone else—and the developer assigned their right to sue to an HOA. The main question is
whether it touches and concerns the land.

Note that while the court analyses this as a covenant, enforcement of liens is an equitable
remedy.

Held: Yes. In general, an obligation to pay a sum of money does not touch and concern the land.
Same with any other obligation to perform an “affirmative act.” But, the real question is whether
it substantially alters the legal rights which flow from ownership of the land and which are
connected with the land? Of course, any positive obligation can be rephased as a negative right
—you have to mow the lawn, or you can’t let the grass grow too tall.

The court says that your HOA money is actually purchasing a property interest in the common
enjoyment of common areas—essentially purchasing an easement to access common areas.

IX. Equitable Servitude

An equitable servitude is enforceable in equity for injunctive relief. A few requirements:
1. Intent to bind successors
2. Touches and concerns the land (See Neponsit)
3. Doesn’t need to be in writing
4. No privity required.
5. For the burden to run: successor must have actual, record, or inquiry notice.
6. For the benefit to run: disagreement.
a. No rules—it runs to whoever the original parties say it could run to, or
b. You need vertical privity.

An equitable servitude can be implied.

Sanborn v. McLean (MI 1925)
The McLaughlin's owned a ton of land and subdivided it into a bunch of lots that they sold off in
batches for residential purposes only: they had a plan to form a residential community. They
manifested this plan by including a restriction in the deeds, that the plots were for residential
purposes only. But they forgot to put the restriction in all the deeds.

McLean’s property lacked the restriction in the deed. They try to build a gas station contrary to
the plan. There is no deed in their chain of title with a restriction on the land.

Held: there is an implied reciprocal negative easement or an implied reciprocal equitable

servitude. That occurs when:
 Land from a common owner
 With a general plan instituted by the common owner w/r/t the development of the
subdivided parcels
 At least one deed where the restrictions are made express

If those are satisfied, then every deed created after the one where the restrictions are expressly
made is burdened by the implied reciprocal equitable servitude.

There can be inquiry notice due to “uniformity in the community” which should prompt
purchasers to ask about a plan.

The neighbors (who were also subject to the plan) were entitled to sue under this because they
have vertical privity with the original planners/grantors.
 X. Restrictive Covenants
Shelley v Kraemer (1948)
Racially restrictive covenant—says no one who is not white can move in. The Kraemer’s own a
benefitted parcel and Shelley purchased a burdened parcel. Kraemers sue to enforce the covenant
(which is styled as an express servitude that is expressly reciprocal. So everyone is bound by it.)

Note that this would not be enforceable as a real covenant for monetary damages because there’s
no horizontal privity.

Evaluate as an equitable servitude:

1. Intent to bind successors? Yes. It says it will bind successors for 50 years.
2. Did the sellers and the buyers (Shelley's) have notice? No actual notice for the Shelley's,
but the sellers probably did have notice. And the Shelley's would have had record
notice--it was in their deed.
3. Touch and concern the land? Yes. It absolutely restricts how the land can be used or
occupied.
a. Could argue this restricts ownership, not use. So less about what you can do with
the land--this doesn't affect your right as an owner, but only affects if you can be
an owner. Goes around in circles a bit…

Held: enforcement would be state action in violation of 14A. But note that the court could have
just said this was an unreasonable restraint on alienation… but maybe as a factual matter in that
era it wasn’t.

Note that until the FHA (§3604(c) on publicizing discriminatory intent), you could still have the
restriction, just not enforce it, and it would have a signaling effect to potential buyers.

XI. Termination of Covenants

Like easements, can be terminated on a number of grounds:
 Merger: benefit and burden become owned by the same person
 Release: all benefitting people and all burdened people agree to end it
 Acquiescence: benefitting parcel fails to enforce against a certain breach
 Abandonment: same as above, but makes it unenforceable as to the entire parcel, not
just the plaintiff at issue.
 Equitable doctrine of unclean hands: in a reciprocal equitable servitude, if the plaintiff
violated it then they can’t try to enforce it against someone else
 Equitable doctrine of laches: bars enforcement if there’s unreasonable delay in
enforcement causing prejudice to the defendant.
 Estoppel: if D relies upon plaintiff’s conduct in a way that makes it inequitable to
enforce
 Eminent domain
 Changed conditions: see below Western Land
Western Land Co. v. Truskolaski (NV 1972)
Developer divides a lot and imposes restrictive covenant saying you can only build single-famiyl
homes. Now they want to build a shopping center on one of the parcels because it now
economically makes sense (new commercial area has cropped up nearby). Basically wants to get
out of his own covenant.

Held: circumstances have not adequately changed. Nothing has changed in the affected land
itself. Two questions to ask:
1) Have circumstances changed such that it would be oppressive to continue to enforce the
agreement?
2) Does the agreement now fail to provide any benefits and instead only provides harms?

Here, the homeowners still get a benefit of a quiet neighborhood, so the purpose of the covenant
isn’t thwarted.

XII. HOAs/CICs
These are private developments with private law. They have the power to create new rules,
enforce those rules, and interpret the rules. Boards can do whatever they want, and courts will
defer heavily to those boards with regards to interpretation, factual assessments, policy
judgement and more.

Approximately 75 million people in USA live in some type of common interest community
(CIC). More than ¼ of Americans. 80% of new housing is in a CIC. More than 30k CICs in
Texas, but only 1k municipalities.

There are three types:

1. HOAs
a. A bunch of separate properties (homes), owned in fee simple by their owners.
b. Covenants burdening every parcel.
c. There's common space that is not the homes (roads, tennis courts, pools), which
are owned in fee simple by a developer or the board or some other corporate
entity. See Neponsit (your HOA dues give you an easement to this common area).
2. Condos
a. Each homeowner owns their home in fee simple
b. Tenant in common over the common spaces (own a fractional share of the
common spaces)
c. Usually apt building type thing but could also be divided properties technically
speaking.
3. Co-ops
a. Very NYC thing.
b. A corporation owns the building in fee simple.
c. You own shares in the corporation (and you don't own fee simple in anything).
d. You are a tenant but also your own landlord.
e. Co-ops have the power to choose who lives there, because the corporation is the
landlord.
 A. Creating an HOA
A few steps and requirements (in bold).

1. A developer subdivides a large parcel of land.

2. Promulgates and records the Declaration (like a constitution for the community).
a. Specifies the geography
b. Specifies any restrictive covenants that the developer wants to impose
c. Specifies whether there is a board, and whether people are required to join the
board, and sets out voting rules--essentially describes the broad management
structure of the association.
d. Provides for procedures for its own amendment.
3. Writes the Bylaws.
a. More operational details--how the board is run, expected budget, etc.
4. Draws a Plat Map
a. Just a map: shows the parcels, the common spaces, roads, etc.
5. Then: sells a first lot with deed that references to the declaration and map.
a. At this point, every lot is thus bound by al the restrictions and obligations. See
Sanborn.
b. And every lot will be bound by new rules made under the procedures of the
original declaration.
c. Living in an HOA means that you accept that the rules might just change! Just
like in real life.

II. What kind of rules can an HOA make?

Pretty much anything. Extreme deference to HOA rule promulgation.

Nahrstedt v. Lakeside Village Condo. Ass’n (CA 1994)

Homeowner sues because the Condo Ass’n bans having dogs and cats, and she wants to keep her
cats inside her apartment exclusively. Argues that it’s an unreasonable restriction because she
wants to keep them indoors and it’s not a nuisance.

Held: restriction upheld. There is a presumption in CA that condo rules are enforceable unless
unreasonable, or unconstitutional or against public policy. This rule doesn’t fall into any of those
categories. When asking if the rule is unreasonable, courts should look at its general application,
not the application to this one specific case. And there’s no public policy interests in allowing
someone to keep cats indoors.

Fun HOA enforcement decisions

 
1. a nail popping out of a window shutter by a half inch
2. weight limit on pet--dog got fat over time and HOA forced them to get rid of it
3. no flag flying rule--Vietnam veteran flew an American flag once a year
4. citation to a 51-year-old woman who lives in the building: citation issued that says
"Resident seen parking in circular driveway kissing and doing bad things"
 
Boards have a lot of discretion over their enforcement decisions. If you're the recipient of one of
those citations… you don't really have any recourse.
 
Levendusky (unsure)
Courts treat HOA with Business Judgement Rule Deference.
So long as the board is acting in:
1. good faith
2. not self-dealing
3. not selective prosecution
…then their decisions are final and good.
 
This is even more deferential than just a "reasonable standard." Why is this justified?
1. If you don't like it, you can leave. (is this true? if the community has tons of bad
decisions, maybe it's unsellable).
2. You can always run for the board (exercise your voice. But what if you're a minority?).
3. Members of the board have expertise and knowledge about the community.
4. No rational board would make intentionally bad or stupid decisions because, if nothing
else, they don't want their property value to go down.

III. Amendments
Weldy v. Northbrook Condo Ass’n (CT 2006)
Dog leash length case. There was already something in the condo declaration saying that dogs
had to be properly restrained by a leash, but the board passed a resolution limiting that to 20 feet.

Held: upheld. Because proper restraint by a leash is ambiguous, specifying the length doesn’t
contravene a right in the condo declaration. So an amendment to the declaration is not
required if no right is contravened.

Test for action by board of directors:

1. Did they act within their scope of authority?
a. Standard of review for reviewing the board's authority to adopt rules/regulations:
Provided a board enacted rule does not contravene either an express provision of
the declaration or a right reasonably inferred, it will be valid and within the
board's authority.
2. Was the action reasonable or was it done arbitrarily/in bad faith?
a. If reasonable, then good.
b. If in bad faith, then bad.

Woodside Village v. Jahren (FL 2002)

Condo declaration was amended to limit leasing to certain number of months per year. It was
done properly via the bylaws. The question is whether it was reasonable or done arbitrarily/bad
faith.

Held: reasonable. In general, amendments are entitled to a strong presumption of validity. Condo
owners assume the risk of “increased controls and limitations upon the rights of unit owners”
when they buy a condo. It was done by the correct protocol, and the owners were on notice of the
potential for a new amendment to be made. And this one is not contrary to public policy. So,
okay.
 PUBLIC LAND USE CONTROL
I. Nuisance Law
The overriding principle of nuisance law is that once should not use their property in a way that
is harmful to another’s use of their property. Nuisance law tries to draw that line, and decides
who absorbs the harm.

In nuisance law, we have the same property vs. liability dichotomy: injunctive relief or
monetary relief.

A nuisance is an invasion on someone’s property that interferes with their use and
enjoyment of the land. It must be a non-trespassory invasion.

Nuisances can be intentional or unintentional.

 Intentional: engaging in an action on purpose that will obviously have the harmful
consequence, that they know will have the consequence, or where the harm is
substantially likely to occur.
o Here the conduct must be intentional; the harm must be a sure consequence.
 Unintentional: the conduct is negligent, reckless, or abnormally dangerous, but not
intentional.
For any nuisance claim, there must be an actual injury and it must be unreasonable, which is
decided by one of two tests.

A. The Level Test

A court asks whether the conduct causes a harm above a certain level. How badly harmed are the
plaintiffs? If it’s enough, then it’s unreasonable. “That looks pretty bad.”

Morgan v. Penn Oil (NC 1953)

Oil refinery emitting noxious fumes harming the neighbors. Clearly intentional because they are
engaging in oil refining. And noxious fumes are an obvious result of that. The question is
whether this is reasonable?

Held: evidence is sufficient to support jury finding that the oil refinery was acting unreasonably,
and the court enjoins the operation.

II. The Balancing Test (From Restatement)

Balance the harm to the plaintiffs of continuing the conduct against the harm to the defendant of
stopping the conduct. No proportional aspect—doesn’t matter if one party is a billionaire and the
other party is dirt poor. This is a pure economic efficiency test.

Here we can use the Coase Theorem. Assuming no transaction costs, parties will take care of
things on their own: there is an economic equilibrium, and the law can assign the costs of
achieving that outcome. Basically, the result will be the same either way—but nuisance law
decides who pays for it.
Estancias Dallas Corp. v. Schultz (TX 1973)
Big apartment building next to a little house, and the big building has a loud A/C unit. The harm
to the little house is 25k, the cost to change the big apartment building would be 150k. In theory,
the big apartment building would simple pay 25k to the little house and all would be settled. But
they don’t accept that offer.

Held: big apartment enjoined from operating their A/C unit. Court balances the equities and finds
for the plaintiffs, because there’s no public interest implicated that would make the
injunction unjust.

Boomer v. Atlantic Cement Co. (NY 1970)

D operates large cement plant which puts out lots of dust and noise and vibration and smoke
which affects the nearby residential landowners. Lower court finds a nuisance, but declines to
enjoin it, because of the disparity in economic consequence. To shut down the cement plant
would close over $45 million, plus jobs, salaries, etc. But the law in NY is that if there is a
nuisance, it must be enjoined.

Held: the injunction must be granted—but they allow the cement company to “buy out the
injunction.” Basically, if they pay a certain amount to the plaintiffs, the injunction is lifted. And
they facilitate the bargaining by setting a price for a few reasons:
1. It makes it clearer and easier for the cement company
2. It stops the plaintiffs from keeping D hostage, and asking for $45 mil (minus a few
dollars).
3. Forces the plaintiffs to actually settle, because they don't want money. They just want the
injunction. And this limits the future lawsuits to just easy payouts, so future plaintiffs
aren't gonna bother suing.

This is essentially just a liability rule remedy in the form of damages, but it technically fits
within the NY rule required injunction.

This rule setup means that the big company always wins because they are more valuable.

Spur Industries v. Del Webb Development Co. (AZ 1972)

Spur owns a feedlot which smells bad. Del Webb keeps developing closer and closer to the
feedlot, until no one wants to buy his houses anymore because they smell bad. Del Webb sues to
enjoin the feedlot.

Should obviously fall under coming to the nuisance. But the court says that this is a public
nuisance because it affects the rights of the public as a whole. It affects the entire neighborhood.
And so the court grants the injunction. But they force them to pay for the cost of the injunction as
well. This is because we’re in fast-growing Phoenix, the area is changing, and the writing is on
the wall. The court is just helping to speed it along, and making the developer pay.

Rule: When a developer “brings into the area” a residential population that creates a conflict, the
developer is entitled to an injunction against the nuisance but must pay for the cost of the
injunctive relief.
 III. What can we do?
Ultimately there are four options when confronted with a nuisance case.
1. No injunction
2. Injunction
3. Damages (to remove injunction, see Boomer)
4. Injunction, but P must indemnify cost of injunction (Spur)

And note one glaring problem: reasonableness tests invite explicit and implicit bias. In
Morrison v. Rawlinson, the SC Court agrees that a Black church in a White neighborhood is a
nuisance because it’s “too loud” during worship.

IV. Zoning Law

Reasons for zoning:
 To overcome obstacles to efficient bargaining in nuisance
 To overcome shortcomings of restrictive covenenants
 To help further public policy in a straightforward way

Zoning law is done by local government, through a delegated state power. They create a map
which shows where certain categories of use are allowed. Those categories are defined in a text.
These become law as adopted by the municipality, which means that they can be amended.

Zoning also allows for variances which are essentially permission to violate the law. These are
granted by an administrative (executive branch) authority called the Zoning Board of Appeals or
similar.

Village of Euclid v. Ambler Realty (US 1926)

Ambler alleges that zoning restricting something to residential use is a 14A violation.

Held: No. Zoning is constitutional. Legislatures may impose zoning restrictions on use. This is a
public policy exercised under the police power to promote public health, safety, morals, and
general welfare.

A. Non-conforming use
Sometimes, there’s a preexisting use that doesn’t conform to new zoning regulation. What do we
do? Well, first of all, the zoning regulation will stand. But it might be excepted with regard to the
non-conforming use.

PA Northwestern Distributors v. Zoning Hearing Board (PA 1991)

Note that this case is decided under the PA constitution. Not a general rule.

PA NW opens an adult bookstore. Four days later, zoning ordinance changes to ban adult
bookstores.

Held: Zoning law is balanced against the constitutionally guaranteed right to use and enjoy land.
A municipality cannot compel a landowner to make changes to his existing use of property.
He has a vested property which cannot be taken away unless it is a nuisance, abandoned, or
extinguished by eminent domain. The amortization clause does not change the fact that the new
zoning law is confiscatory of that property right.

Concurrence: This creates a race to build in order to “lock in” the rights. That’s a bad incentive.
Instead, we should have a sliding scale of amortization. The longer you’ve had the non-
conforming use, the longer time you have to stop the use. But it shouldn’t be this strict cutoff.

Furthermore, concurrence says we should assess the reasonableness of the amortization period
for the non-conforming use. Factors usually listed as relevant to an assessment of the
reasonableness of a particular amortization period are:
 The nature of the use in question,
 The amount invested in it,
 The number of improvements,
 The public detriment caused by the use,
 The character of the surrounding neighborhood, and
 The amount of time needed to “amortize” the investment

Note: non-conforming uses can’t be rebuilt if they are destroyed (in a fire, etc.).
But a right non-conforming use does run with the land so it can be sold, and a reasonable or
natural expansion or adaptation.

II. Variances
Basically permission to break the law in this instance. Two types of variance, with the regular
common law requirements below:
 Area variance
o Easier to get
 Use variance
o Harder to get
 For all variances
o Must show that land can’t earn reasonable return without the variance
o A unique hardship that doesn’t apply to the rest of the neighborhood
o Won’t alter the essential characteristics of the neighborhood
o The hardship wasn’t self-created

A note on hardship: objective standard. This means that even if you have personal hardship
(handicap) it doesn’t matter. Just a reasonable person standard.

In NY State: area variances have just a balancing test of benefit to applicant against detriment to
public. But in NYC, it’s the same unified rule as below in Commons.

Commons v. Westwood Zoning Board of Adjustment (NJ 1980)

P wanted area variance to build a home on a lot that used to be used for common area, so the
parcel wasn’t technically big enough to build a house consistent with the minimum lot size for
homes.
Court says that here, you need to show it’s necessary to prevent undue hardship and it won’t
unduly impinge on the public good or the zoning plan. They say that undue hardship means
that without a variance, no effective use of the parcel can be made.

Held: there was undue hardship. The lot is zoned exclusively for houses, but it’s impossible to
build a house there under the current zoning. So it literally cannot be used within the zoning
rules. And it won’t hurt the overall plan or the character of the neighborhood, because the facts
show the house would be essentially identical to its neighbors.

Finally, court notes that the point of the plan was to keep out poor people, and clarifies that this
house is worth plenty of money.

III. Zoning Exceptions

Sometimes instead of needing a variance, the government will recognize that the zoning law
shouldn’t always apply. So they build in exceptions that one can just automatically take
advantage of.

In re Skeen (WV 1994)

Skeen lives in a residential only district with a statutory list of exceptions. In some situations,
you can run a business out of your home despite the broader zoning scheme. Skeen wants to run
a babysitting service from her home. Zoning Board rejects the application to use the exception
because the neighbors are objecting.

Held: reversed. Neighbors complaining should not be taken into account when applying the
statutory exception schema. There is a list of factors to be considered under the exception statute,
and that’s all that should be considered. Unlike in the variance context, zoning boards have no
discretion to grant or deny exceptions outside the statutory criteria.

IV. Spot Zoning and Flexibility

Sometimes a legislature can just make special rules for certain parcels. But there needs to be a
rational basis for rezoning or spot zoning decisions.

State v. City of Rochester (MN 1978)

Parcel in a single-family low-density zoning area. But very nearby, there’s some big, tall
apartment buildings, and the Mayo Clinic. The owner wants to build a large apartment building
on his parcel. So he gets a rezoning/spot-zoning for the parcel.

Held: in MN, rezoning is presumptively valid, unless it is unsupported by any rational basis,
because it’s an act of the legislatures police powers. Here, there is clear rational basis because it
generally fit in the area, and it was not creating an “island” of spot-zoning in an otherwise
different area.

Note that other jurisdictions consider spot-zoning a quasi-judicial act subject to higher scrutiny,
and require substantial evidence that it is reasonable. And they tend to be skeptical of quid pro
quo spot zonings.
 V. Contract, Conditional, Incentive Zoning
Contract zoning occurs when someone requests a rezoning, and the municipality agrees but
imposes other conditions—certain payments or responsibilities or obligations. For example, no
one was allowed to live at Mar A Lago as a condition of their rezoning.

Similarly, incentive zoning allows rezoning based on payments. But it’s not ad-hoc. Instead, the
city publishes a price list—you pay us X, we give you Y. You build a library, we give you extra
stories on your building.

This is how NYC creates affordable housing, or weird food stores in food deserts, or Privately
Owned Public Spaces. Same with Community Benefit Agreements—where a developer buys
support of neighborhood or union workers and gets that embedded in the re-zoning law.

VI. Inclusionary Zoning

Basically only occurs in NJ. Mt. Laurel forces collective action to have more inclusive zoning.
There are technically two ways to do this: either drop barriers, or actively be inclusive. NJ takes
the second approach.

NAACP v. Mt. Laurel Township (NJ 1975)

Mt. Laurel is mostly single-family zoning. There’s minimum lot sizes and no multi-family
housing anywhere in the town, no mobile homes, no townhomes. The town had it set up like this
explicitly to keep property taxes low: apartments hold more people with less property value, so
they’re a bad tax deal. The town wants to have more net-payers than net-takers.

Under the NJ constitution, is there an obligation for the town to promote the general welfare of
Mt. Laurel’s own residents, or the state’s residents?

Held: the town must affirmatively afford the opportunity for low-income people to live there.
Developing municipalities must affirmatively provide their fair share of the regional housing
need. They owe a duty to the state’s residents, not just their own town’s, because the power to
zone flows the from state power.

Mt. Laurel doesn’t comply with the order, so 8 years later it comes back. The court is mad. They
hold:
 All municipalities must do this
 We will look at the effects: if your zoning policy has the effect of excluding (regardless
of purpose) it is illegal
 You need to take affirmative steps like incentive zoning for affordable housing
 Towns must prove that they took those steps

A panel of judges is created who will hear every case about exclusionary zoning. The legislature
later enacts a legislative administrative body to do that instead (Council On Affordable
Housing--COAH). The COAH does a few things
1. figure out what the regions are
2. figure out the needs of the region
3. figure out how to fill those needs
 4. communicate those solutions to the towns
 
If a town works with COAH, they are immunized from suit.
 
A few things: COAH has been kinda toothless, especially since Christie was governor when he
defunded it. Doesn't have the utility it expected to have.

VII. RLUIPA
Religious Land Use and Institutionalized Persons Act

A little history:
Sherbert v. Verner (1963): free exercise clause prohibits government from imposing a substantial
burden on religious exercise unless there is a compelling government interest achieved by the
least restrictive means. Basically applies strict scrutiny.

Employment Div. v. Smith (1990): peyote for religious practices. Says neutral laws of general
applicability are not subject to Sherbert strict scrutity.

RFRA (1993): Overturns Employment Div. v. Smith. Applies strict scrutiny to all religious
freedom claims.

City of Boerne v. Flores (1997): RFRA unconstitutional as applied to states.

RLUIPA (2000): Just like RFRA, but only applies to land use regulations. Strict scrutiny is
applied to any land use regulation that substantially burdens free exercise.

Free exercise is… whatever you say it is. Doesn’t have to be part of any organized religion.
What’s a substantial burden? Borrowing from Hobby Lobby’s interpretation of RFRA, it’s
whatever you say it is.

So the test is this:

1. Does it impose a substantial burden on free exercise? Probably does.
2. Is there a compelling government interest?
3. Is this the least restrictive means
 TAKINGS

“Nor shall private property be taken for public use without just compensation.” 5th
Amendment. That means the government can take your property under two conditions:
1. For public use
2. They pay you

We need takings because individual landowners might not make the best use of their property.
This helps resolve the problem of holdout landowners holding infrastructure projects hostage.

We can split takings into two categories: eminent domain, and regulatory. With eminent domain
the government takes title to your land. With regulatory takings, they don’t.

In both situations, just compensation is measured by fair market value.

I. Eminent domain
Government takes title to your land. Here, the question is usually about whether the taking is
allowed at all. If it’s not for public use and with just compensation, then the government can’t
take your property at all.

Kelo v. City of New London (2005)

New London is in economic dire straits. They create a plan to develop Fort Trumbull with a
hotel, Riverwalk, Pfizer office, etc. Economic development 101.

Kelo owns a house there, and doesn’t want to sell it for economic development. So the question
is: could New London take this for public use?

Things that are definitely a public use: park, road, anything that the public is literally going to
use and that is open to the public. Here, it’s not publicly accessible or government owned. It’s a
transfer from one private party to another, for the benefit of the public.

Held: public use means “public purpose” in the 5A takings context.

Thomas dissents: In Berman v. Parker, DC case, the government wanted to clear out a "blighted
area" and make it better. "Blight" is supposed to mean property that is actively harmful to the
public (rather than just underutilized property). The blight in DC in Berman just meant that it
was 97% black. Blight removal really just means getting rid of poor (or even wealthy) black
people, he says.

O'connor dissents: Tries to distinguish Berman--there, the land at issue was blighted. But here, it
isn't. And in Midkiff (Hawaii case of transfer from landlord to lessee), there was a serious
problem being resolved--the social harm of unique wealth concentration oligopoly in Hawaii.
Here, the property arrangement wasn’t causing harm. They’re just trying to improve it.
After Kelo: wide open doors for eminent domain. So long as there is rational basis for the
government to say that the taking will benefit the community, the taking is valid. Note, however,
the in reaction to Kelo many state legislatures extended property protections beyond Kelo’s floor.

II. Regulatory Takings

Regulatory takings occur when the government institutes a law or regulation that infringes
somehow on a property owner’s rights without taking title to the land. Here, the real question is
not whether the government can institute the rule (they absolutely can under police power). The
question is whether it’s a taking so that they owe compensation.

Things that could be takings:

 Is a taking
o Permanent physical occupation is a per se taking (Loretto)
o Taking of personal property is a per se taking (Horne)
o A regulation causing a significant diminution in property value (Penn Coal)
 Is almost definitely a taking
o A law that restricts 100% of the economically beneficial use and value of the land
is a per se taking (Lucas)
 Unless the use being restricted was a common law nuisance and was never
part of the property right/title to begin with. (Lucas)
 Is not a taking
o Regulation forbidding a public nuisance (Hadacheck)
o Anything that fails the Penn Central test, which is most things (Penn Central)

Hadacheck v. Sebastian (US 1915)

P wants to use his property for manufacturing bricks because his land has high quality clay. But
there’s a criminal prohibition on doing so. He had been able to do so, but the city expanded in
territory and annexed a bunch of land including his brickyard, to the criminal prohibition only
now applies to his business. We’d think this is maybe similar to the adult bookstore in PA
Northwestern.

Held: Not a taking. The brickyard is a public nuisance. The legislature has decided that brick
making is harmful to the community as a whole—and they made that determination reasonably
and in good faith.

Why? You don’t have a right to engage in a nuisance. So if they decide you’re engaging in a
nuisance, they aren’t “taking” anything away. And this allows for progress: “There must be
progress, and if in its march some private interest gets in the way, it must yield to progress.”

Penn Coal v. Mahon (US 1922)

Penn Coal sells land to Mahon but retains the right to mine below. State then passes a law saying
that mining companies can’t mine in a way that would impair the integrity of structures above
ground, as this would do.

Held: taking. When the law causes a significant diminution in property value then that law is
a regulatory taking and must provide compensation. While they can pass laws with incidental
impact on property values, this one just goes too far. There’s an open question of what the
denominator is: the whole property, or just some aspect of the property?

Penn Central Transportation Co. v. City of New York (US 1978)

Landmarks Preservation Law creates a commission to designate historic buildings, and they have
exclusive power to approve changes to those landmarks. This can apply to buildings in their
entirety, or just certain elements. Penn Central wants to build a tower on top of Grand Central,
but the commission denies it.

Held: not a taking. Articulates a three-part balancing test:

1. The economic impact of the regulation on the owner
2. The extent to which it interferes with the owner’s reasonable investment-backed
expectations (aka, the likely profit they’d see from the project, where investment-backed
means it’s feasible and has money invested already)
3. The character of the government action involved in the regulation

It’s not a strict test though. Courts must ask these questions, and then sort-of “feel out” an
answer, in order to “adjust the benefits and burdens of economic life to promote the common
good.” And it’s really hard to win under this test.

Loretto v. Teleprompter Manhattan CATV Corp. (US 1982)

Government requires landlords to allow cable companies to install equipment on the building.
There will be some wires and boxes on the roof and outside of building. Under the new law, they
are compensated at $1. Loretto sues for compensation.

Held: any permanent physical occupation is a per se taking. This means that it’s not subject
to Penn Central test (which would have been hard to overcome). And it doesn’t matter how
much space is taken, so long as the bundle of rights that flow from ownership are severed
with regards to the space used.

The bundle of rights are the right to exclude, the right to sell or dispose, the right to use. Here,
all three of those are removed in the space where the cable box is placed.

Lucas v. South Carolina Coastal Council (US 1992)

Lucas buys two lots of beachfront land and wants to build there but hasn’t done so yet. SC then
later enacts a law which bars him from building any “occupiable structure.” No non-conforming
use because the houses weren’t built yet. Lower court says value was reduced to zero by the
regulation. State supreme court says no taking, even though value was so reduced, because the
purpose of the regulation was to “prevent serious public harm.” Following Hadecheck, there’s a
public harm being abated, just like the nuisance there.

Held: it’s a per se taking when you lose 100% of property value. But if you lose only 99%,
then apply Penn Central test. A regulation that causes you to lose 100% of value is so extreme
and outside the realm of what an owner would expect that it cannot ever be fairly balanced by the
benefit to society. It would automatically fail Penn Central, so we needn’t apply Penn Central.
However, there are some exceptions: when there’s a common-law nuisance. But the exception
doesn’t apply to new nuisances.

Stevens dissent: the cliff effect of the 100% rule is stupid. But that’s just the nature of the bright
line rules.

Blackmun dissents: “launch a missile to kill a mouse.” Jurisdictional issues with the factual
record; there’s no way to know if you’ve lost 100% of value because of denominator problem;
why are we even here when we could just apply Penn Central?

Horne v. Dep’t of Agriculture (US 2015)

USDA requires that a portion of raisin farmer’s crops are set aside for government use. The
government would then sell portions of that for the sake of keeping the raisin market healthy.
The government would keep the revenue from those sales.

Held: A governmental mandate to relinquish specific, identifiable, safe personal property is a

per se taking. There is no reason to treat personal property differently than real property. This is
not a regulatory taking because the raisins were physically seized. The bundle of rights was at
least somewhat slashed through.

Sotomayor dissenting: argues that it’s not a complete dispossession of the property, because the
government just holds the raisins in reserve and may elect to pay out some of the reserve raisin
sales back to the growers.

Cedar Point Nursery v. Hassid (US 2021)

Regulation requires employers to allow union organizers to enter the property at certain times
before and after work and during lunch, for a certain number of days per year, with notice to the
employer, and they can’t interfere with work.

Held: it is a physical taking. The property interest taken from the farmers is the right to exclude,
and the right given to the union organizers is an easement. Because one element of the bundle of
property rights has been taken away, it is a physical taking. And though the occupation isn’t
permanent, the easement is permanent.

The project to empower property owners to shrink the ability of government to restrict their use
of property moves one step forward. There are assurances that this won’t affect safety inspectors,
etc. But that is… to be seen.