PROPERTY II Outlines

8/7/2019 PROPERTY II Outlines

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PROPERTY II

Assignment 3:Landlord Tenant Relations

- Lease v License- License: a personal, revocable and unassignable permission to do one or more

acts on the land of another without possessing any interest therein.o Merely authorizes the licensee to use the land in the possession of

another.o Grants no interest in land.

o A license is terminable at the will of a licensor,

If terminated, only the interest in land that was granted ends. Thelicensor may still be liable in contract for the breach.

o Example: guest at a party, customers in a store.

- Lease - a possessory interest that normally gives the tenant the right to exclusivepossession.

o the landlord gives possession to the tenant (leasee) in return for the

obligation for the latter to pay rent.o A lease must include:

1. Uses of property allowed (less limited =lease)2. Descriptions of space (more defined= lease)

or failing to provide a description, the parties must actupon the agreement as relating to a particular space afterthe agreement is entered into.

3. Provisions for periodic rent (a strong indication of lease)4. Duration (limited=lease)

o If the document or agreement is ambiguous you look to the intent of the

parties

Types of LeasesLeases: Dual Nature

- Conveyance of an estateo Promises were independent of others performance.

o LL delivers possession; T pays rent & maintains premises even if other

provisions are breached.- Contract

o Covenants are mutually dependent.

o Becoming dominant approach

Tenancy for term of years: a lease for a fixed period of time:o Beginning and ending dates fixed.

Or on the occurrence of an event. (rare)o Created by express agreement between landlord and tenant.

o be determinable: you can have a lease for 10 years so long as no

alcohol is sold thereo is always self-terminating. You dont have to do anything to terminate

the lease. You dont have to give notice, when the end of the leasearrives, then the lease is terminated.


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Periodic tenancy: A tenancy that does not end automatically on a fixed date, it continuesfor succeeding breaks.

o It is automatically renewable at the end of each period.

- Creation:o express agreement; implication (where tenant pays rent on, say, a

weekly basis and nothing else is said about a lease, there is a periodictenancy from week to week)

o If you have a holdover tenant from a term of years tenancy, the

landlord has the option to hold you to a periodic tenancyo if you enter into an invalid lease (landlord and you agree to enter a lease

for 2 years orally: statute of frauds) Since you are in an invalid lease for 2years, the court is not going to hold you to a 2 years, so the court is goingto look at the way you pay and the court will want you to have a month tomonth lease.

- Periodic tenancy requires notice for it to be ended.o There is a maximum of6 months notice

o Common law: the amount of notice required is the same as the period i.e if the tenancy is week-to week, a weeks notice is required; if

its month to month, a months notice is necessary. However, ifthe period is a year or more, six months notice is required.

o Modern rule: By statute, many states require only 30 days notice,

regardless of the period involvedo ineffective notice, the majority of jurisdictions will interpret it as no

notice at all:o Ex. suppose that you are in a month to month lease, the lease started on

January 1st and you want to end it in March, you need to give a monthnotice or 30 days. You cannot terminate the lease in the middle of a

period. The lease has to be terminated on the last day of the period.Unless you give notice on the last day of January, your notice is going tobe longer than 30 days.So, if you give notice on January 15, that 30 daysnotice will allow you to leave on February 28 or 29.

o You cant give notice in the middle of a period to get out of that lease

at the end of that same period

o Just because you are paying your lease on a month to month basis does

not mean that you have a month to month lease. It may be the way that theowner wants to get paid.

o Next possible date rule: whatever your notice is, we will find out when it

can be applied.- The death of either the landlord or tenant does not affect the duration of a

periodic tenancy.Tenancy at will: A tenancy that either landlord or tenant, or both, can terminate any time

with reasonable notice. It has no fixed duration.- Creation: it can be

o expressly created, or


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o implied by law if the lease does not provide for periodic rent (which

would make it a periodic tenancy or tenancy from period to period)

If you are paying rent, the tenancy at will will become a periodicmonth to month lease.

If you have a holdover tenant or a tenant who is under an invalid

lease, the moment the tenant becomes a holdover tenant and thelandlord said to him that he shouldnt be there whether it is a termof years or periodic, the tenant is now a tenant at will whichmeans that the landlord can evict you anytime he wants to.

If the landlord allowed the holdover tenant to stay and to pay amonth rent, and does that every month then, it will become aperiodic tenancy.

- Termination of tenancy at will:o landlord or tenant terminate the tenancy,

o operation of law:

landlords selling the property,

an attempt to assign by eitherparty or the death of either will terminate the tenancy.

- Common law: the termination is immediate.- Statutory modification: typically requires 30 day notice (contrast with periodic

tenancy) There is no end period to worry about. I have exactly 30 days to get out.- Statute of frauds:

o the common law required writing if lease was for greater than 3 years.

o American statutes typically require writing if it is over1 year

- Invalid oral lease; tenancy at will that converts to periodic: year to year,irrespective of rental payment;

- Minority view: it depends on how rent is paid; Or tenancy at will with 30 daysnotice to terminate.

Tenancy at Sufferance/ Holdovers: created when a tenant wrongfully maintainspossession of the premises (hold over) after the expiration of the lease.- The lessor may, if he chooses (in most jurisdictions) either evict the tenant or

hold the tenant to a new tenancy merely by accepting rent.- Not trespassers since they were allowed to be on the property for the first place.

o But they are going to be treated as trespasser the day that they were

supposed to vacate.o It is not a tenancy at all; it is a description of a tenancy in breach

- No notice or other action by the landlord is required to terminate it.- Some jurisdiction will not give the landlord their options if you have a judicially

recognized reason for staying over.o Not held for the next term or year but you will have to pay for that period

of time that you occupy the premise.

This is allowed under the theory ofunjust enrichment- Ex. If I am on a term of years lease, and I hold over. The landlord can hold me to

anotherterm of year. Same thing, if I am on a year to year periodic lease, the


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landlord can hold me to another period. All the original provisions of theprevious lease will apply if I am held to a new lease. And the landlord can raisethe rent, must expressly refuse. If you refuse to pay the new rent, the landlord canevict you. But you will only have to pay the old rent that you owed and the nextmonth that the landlord held you to.

Assignment and Subleases

Sublease: a tenants transfer away of less than the entire estate left to him in term ofduration (eg. 1 year of lease with 3 years left)- A sublesseeis not liable for covenants running with the land; he cant sue or

be sued by the landlordAssignment: occurs when a tenant transfers away the entire remainder of his lease, in

term of duration.- An assignee is in privity of estate with the landlord and can sue the landlord

and be sued by the landlord

- To distinguish between assignment and sublease: See if the tenant has any time

left on the lease, if so, it is a sublease; if not, it is an assignment. What isdeterminative is the time remaining.- If the transferorretained any benefit for him (even if it is one day), the

assumption is that it is a sub-lease rather than an assignment. You cannot have areversion when you intend to do an assignment.

- Privity of estate: is a means of binding someone to an agreement he didntpersonally make.

o Exists between an original landlord and a tenant because the tenant holds

a lease and the landlord holds the reversion.o When an assignee assumes all of the tenants possessory rights, he holds

the lease, and the landlord still holds the reversion, putting them in privity

of estate.- Privity of contracts means the two parties have agreed between themselves to door not to do something; in other words, they have a contract.

- 3 ways to see if there is an assignment:1. did you give all your benefits away2. if there is ambiguity in the document the court looks at the intent of

the party,3. The possibility of repossession or the right to re-entry

- Ex. What if I am a head tenant (I have 2 years left) and I assign my right toanother party and that party breaches: landlord has now privity of estate with thenew assignee. The landlord can directly sue the assignee. Had it been a sub-lease,

the landlord could not sue or evict the sub-leasee. What the landlord could dois cancelled the head-lease than the person would become a trespasser- As many covenants as the first assignee assumed, there will be privity of

contract.- Even after privity of estate disappears, the original tenant can never get away

from his contractual duties.o Unless there is:

o novation= new contract to replace the old one or a


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o recession= contract over, the lease no longer applies.

- Touches of concern - covenant that run with the land.o Whoever receives all the benefit of the land, have all the obligations.

o If the transfer from the original tenant is an assignment, the transferee is

traditionally considered to be bound by every promise contained in the

lease that touches and concerns the transferred interest.o Rent is always considered to touch and concern the leased premises.

- If a sublessee of the original tenant has not expressly assumed the obligations ofthe original lease, the sublessee is not liable for monetary damages for failingto comply with these obligations.

- The sublessee is not liable because no privity of estate exists between thesublessee and the original landlord.

- The landlord may be able to enforce some of these covenants by using equitableremedies

- tenant/sub-landlord A tenant that leases to a sub-lessee.o If the sub-tenant failed to pay rent, only the sub-landlord can do

something about it not the original landlord.o The sub-tenant rights are dependent on the sub-landlord rights.

If the sub-landlord rights are abrogated by the landlord, then, thelandlord can evict the sub-tenant

o If the head-lease is breached and the landlord has the right to

regain possession, the landlord cannot sue the sub-tenant for damageso In a tenant/sub-lease relationship, the privity of estate is between the

tenant and the sub-lease. The landlord has nothing to do with it.TENANTS RIGHT TO ASSIGN OR SUBLEASE

- In the absence of a lease provision restricting the tenants right to assign or

sublet, the tenant may assign or sublet without the landlords permission. This isallowed since the law favors the alienability of estates

o Alienability rights: ability to separate self from property rights.

- If the lease---whether oral or written--- is silent, then presumption is freealienation is permissible

o whether by assignment or sub-lease

- Landlord can restrict assigning and sub-leasing activities.o However, you have to be very clear about what you are restricting.

- Can the landlord have an absolute bar against assignment and sub-lease? In themajority of jurisdiction, the courts are going to see if it is clear that tenants arebarred from such transfers.

- The court will construe an ambiguity against the landlord in favor oftransferability.

- If lease uses only assignment, then sub-leasing can be done without permission.If you only use the word sub-lease then assignment can be done without yourpermission.

o The landlord has to use both if he wants them to be subject to his

consent.- CL: Landlord could reject potential occupiers arbitrarily.


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- The landlord can be arbitrary ifit is explicit in the document- NY Rule: where there is a provision stating permission is required landlord can

be arbitrary in decision- The landlord must have reasonable commercial reason for not consenting to the

sub-lease:

1. Financial responsibility of the proposed assignee or sublessee2. The assignees or sublessees suitability for the particular property3. Legality of the proposed use4. Need foralteration of the premises5. Nature of the occupancy

- The landlords consent cannot violate the FHA statutes:o Racial: discriminatory purpose oreffect.

o Sex: includes harrassment.

o Familial Status (perhaps not effect)

Exempts specially defined senior housing.o Handicapped broadly defined

o Recovering addicts; AIDS sufferers are protected.- Must provide reasonable accommodations in rules/services to give equal opp. to

use/enjoy.- Applicable to all sales or rentals (including advertising) of dwellings.

o Bars discrimination based on race, color, religion, nat. origin, sex,

children and handicap.o Remedies: injunction, damages, punitive damages available.

- Exemptions:o Private clubs/religious orgs (w/limits).

o Single-family dwellings:

o If owner owns 3 or fewer dwellings; and doesnt discriminate in ads or

use broker services BOTH requiredo Only one transaction per 24 mths if not owner-occupier.

o Owner-occupier of 4 or less units.

- Must prove discriminatory intent.o May use discriminatory effect to establish prima facie case, but this

may be rebutted by articulation of non-discriminatory basis bydefendant.

o If so, plaintiff must either prove that this is pretext or have evidence

of actual intent.

Interference with Quiet Enjoyment The landlord delivers on day 1, Legal possession, the bundle of rights.

And also, he delivers Actual possession, the landlord has to make sure that noone is interfering with that right.

o Actual possession is delivered only at the inception of the lease (day 1). If

you, as a tenant, go to the property and you notice at the inception of thelease that it is occupied by someone else, you do not have to pay rent untilthe landlord takes care of that problem.


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You cant cancel the lease if the premised is occupied.o The landlord has to be given a reasonable time to make the property

available for you.

Landlord is not responsible for interference during the lease since you are inpossession.

If while you are in possession someone makes a complaint of ejection thelandlord is responsible for that and you can get damages because landlord did notgive you exclusive possession

The landlord should guarantee the covenant ofquiet enjoyment;o Covenant of Quiet Enjoyment landlord guarantees the tenant has

possession free and clear of disturbance and hostile claimants.o Modern expansion - landlord will not do something physically that

interferes with the possession; that landlord will make repair.

LANDLORDS DUTIES TO THE TENANT

The landlord has a duty(1) to provide the tenant with the legal right to possession(2) not to interfere with the tenants physical possession;(3) to make possession actually available to the tenant.

If landlord decided to share possession with you, or locked you out of property,he is interfering with the basic instruction ofquiet enjoyment of the lease.

Quiet enjoyment: it is a covenant, implied in every lease, providing that thetenant will not be ousted by any third party with paramount title or title superiorthan the landlord. And that the landlord and his representatives will not interferewith the tenants use and enjoyment of the premises

o If landlord interferes Tenant is entitled:

Not to pay rent while landlord is interfering with the property.

Sue for damages.1. However, the action must be tied with the landlords

conduct.

Constructive eviction: when the acts or omissions of the landlord may have theeffect of evicting the tenant, although the landlord does not physically prevent thetenant from occupying the premises.

o The interference must be substantial, that is, the premises must become

uninhabitable for the intended purpose.o

Ex: failure to provide heat or water, failure to control unreasonable noisecreated by a neighboring tenant, may make it impossible for the tenant toremain in the premise.

the landlord has a duty to control common areas.o Ex. Thus, even if another tenant (and not the landlord himself) creates an

unendurable racket in common areas, there is constructive eviction.

landlord has a duty not to allow nuisance, according to some courts.


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o Ex.Thus renting to a crack dealer, who operates a crack den on the

premises, would make the landlord accountable for the nuisance.

If a court finds that a tenant has been constructively evicted, the lease isterminated and the tenant owes no rent for the period following termination

In some jurisdiction, if you dont vacate you cannot claim constructive eviction.

What if after you vacated, you were wrong? Now, you owe 2 rents! You have to give the landlord notice and a reasonable amount of time to fix.

Then you have to vacate or leave

If the tenant is aware of the landlords wrongful conduct when taking possession,the right to assert constructive eviction in the future is waived.

Implied Warranty of Habitability: Each residential lease is deemed to containan implied warranty that the landlord will deliver the premises in habitablecondition, and maintain them in that condition during the lease term.

The landlord cannot waive the implied warranty of habitability because this willbe violation of public policy.

o Tenant can withhold rent until the landlord fixes the premise.

even if the tenant knew about the defects before the lease or pay asmall price for the place.

o Tenant can even seek for damages for all the years that the premise was

defective.

The test for violation of implied warranty of habitability:o the defects must be so serious that a reasonable person would find the

premises inhabitable.

The landlord is not responsible for defects created by tenant.

Remedies

o Pay a reduced value for the time that you have been waiting.

o Make the repair yourself and deduct the amount from the rent (somejurisdiction dont like that option because tenants can make unnecessaryrepairs and that will not be fair for the landlords).

o Pay no rent and wait for the landlord to sue for rent.

If you do that, then you can use it as a defense. Especially, it is adefense for an unlawful detainer action. You can use the decreasedvalue as a set off.

o You can sue fordamages by remaining in possession of the premises and

continuing to pay rent.o Unlawful detainer action: a summary proceeding, a statutory created

proceeding that focuses on whether the rent should be paid or the tenant

could be kicked out. It is a status against landlords self-help or unlawfuleviction. It is a status against forcible entry and detainer.

TENANT REMEDIES

Actual eviction: the tenant is dispossessed of most or all of the leasehold

Tenant can terminate the lease, refusing to pay further rent.o Most court allow termination even if the tenant remains on part of the

leasehold


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Constructive eviction: If there has been a constructive evictiono the tenant can only terminate the lease if she abandons the premises

within a reasonable time.o Remaining in possession, tenant can only sue fordamages.

The tenant who is constructively evicted may vacate the premises and terminate

the lease, thereby avoiding liability for future rent. 3 steps must be taken1) Provide landlord with notice of the interfering defect or condition2) Allow a reasonable period of time for the landlord to cure the problem3) Vacate the premise within a reasonable period of time.

TENANT DUTIES

The tenant has a duty too pay rent,

o not to commit waste,

Harmful ordestructive use of property.o not to interfere with other tenants enjoyment of their leased premises;

o not to use the premises for illegal purposes and

o to make necessary repairs (Min)

LANDLORDS REMEDIES

- If the tenant is in possession and has breached by not paying the rent, thelandlords options are as follow:1) Landlord can terminate the lease (no rent, possession, the tenant is now a

tenant at sufferance, you can evict the tenant) you cannot self-help.2) LL will have to do the forcible entry and unlawful detainer act so the tenant

can be evicted.3) LL may evict them and later collect your rent.

- Since you terminate the lease, you can relet and get past damages for all thetime the tenant was in possession. (Also attorneys fee if it is in the lease)

- You can also let the tenant stays (every month that the tenant stays is anothermonth that he/she owes you). You can sue for damages

- Surrender and acceptance doctrine: when a tenant surrenders the premises to alandlord before a lease term expires and the landlord accepts that surrender thetenant is no longer in privity of estate with the landlord and has no obligation topay any rents.

- Traditional rule: landlords are not required to mitigate by reletting.- Trend rule: landlords have obligation to relet.

o Passive mitigation requires only the minimal attempt to mitigate

o Active mitigation requires the landlord to have vigorously attempted

to mitigate.- Landlord is only entitled to rent that has accrued up to the date of trial.- In order to recover for future rent there must be another case brought

o The landlord is required to use what the reasonable landlord in the

situation would use to mitigate.- The landlord can recover for rent with multiple causes of action


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- The landlord can bring suit foranticipatory breach.- The landlord can sue foraccrued and future rents where the jurisdiction does

not close the matter.- Landlord can only recover what he would not have avoided with reasonable

diligence.

- The breaching party must prove the landlord did not exercise reasonablediligence to minimize loss

EASEMENTS

Easement: it is an irrevocable right to use anothers person land for specificpurpose. In other words, it is a non-possessory right to use land in thepossession of another.

You cannot revoke an easement, once you give it, it is gone. You can give aneasement for life, fee simple, for term of years; easement can also be implied bylaw.

if it is revocable, it is not an easement but a license

***The idea of burdening property is called servitude. 3 types of servitudes:easement, real covenant, and equitable servitude. Not widely recognized.

****

Servient estate: The land subject to the easement (burdened by the easement)

Dominant estate: The land benefited by the easement is called the

Easement does not give exclusive possession, leases do.

Affirmative easement authorizes the holder of the easement to do a particularact on the servient land.

Ex: an easement that allows A to cross Bs land is affirmative in character; itpermits the holderA to do something on (travel across) the servient land B.

Negative easement entitles the dominant owner to prevent the servient ownerfrom doing a particular act on the servient land

Easement Appurtenant: it benefits the easement holder in using the dominantland and burdens the servient land.

o It passes with the property that it benefits and has the potential to continue

indefinitely.o An easement appurtenant affects at least two parcels of land

o An easement appurtenant exists only when there is both dominant land

and servient land.o The easement appurtenant is attached to the dominant land, not to any

particular owner of that land.o Ex: As right to cross Bs land Blackacre is presumably an easement

appurtenant, attached to Redacre.o When the dominant estate is transferred, any easement appurtenant to it

automatically passes with it.


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o If a recipient of the easement owned a nearby parcel of land that would

benefit from the easement, it is presumed that an appurtenant easementwas created unless strong evidence to the contrary; 3 reasons:

o Most easements are intended to be appurtenant, so it is reasonable to

think so in the absence of evidence.

o Since appurtenant easement passes automatically with a grant of thedominant estate, a finding of appurtenancy tends to protect the grantee ofthat estate from the consequences of an inadvertent failure to include aseparate grant of an easement with a grant of fee

o Any detriment to the servient estate is usually offset by a benefit to the

dominant estate. This offset would not exist if the easement was in gross.o You cant transferan appurtenant easement without transferring the

dominant estate. You cannot sell the right alone since it is attached withthe land.

o The law favors the easement appurtenant over the easement in gross

because this result facilitates the productive use of land.

Easement in Gross: it is personal to the holder. It benefits the holder in apersonal sense, whether or not he owns any other parcel of land. Thus, it isattached to the holder, not to the land.

o The easement in gross involves only servient land; no dominant land

exists.o The easement in gross remains with the holder when there is a transfer of

the servient land with notice.o Easement in gross is a personal right to use the land of another but it is

not related at all to another piece of propertyo Easement in gross is personal with the grantee. Thus, if the grantor sells

the land whoever buys the property will have to abide by the easement.The burden runs with the land but the benefits are personal to the grantee.

***The intention of the parties determines whether a particular easement is appurtenantor in gross.***

Creation

By Deed: Must be in writing to be valid.

ByReservation: The easement by reservation arises when a deed creates awholly new easement that is retained by the transferor upon conveyance ofland to another.

o At common law, an easement could only be reserved in favor of the

grantor.o Stranger to the deed rule: Easement in favor of a third person was

invalid.o The grantor can reserve an easement for himself but for not someone else.

o A reservation retains for the grantor a newly created property right.

o Reservation = easement


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By Exception: retains for the grantor a pre-existing interest in a describedgeographical part of the property or recognizes a previously existing propertyright in a third party.

Ex: suppose that the land conveyed is already burdened by an easement before theconveyance, if the transferor retains this pre-existing easement, it is called an

exception If grantor wants to reserve an easement for a 3 rd party, he should grant the

easement first then while conveying the land, excepting the easement.

Traditionally, an exception in favor of a third party is invalid.

When there is an exception, the presumption is in favor of a fee simple***However, most of the things that is done to restrict people on how to use their

property is done by restrictive covenant not by negative easement***

DIFFERENCE BETWEEN EASEMENT AND FEE SIMPLE

If the grant does not fix the width, length, and location of an easement, the courtwill look to the intentions and reasonable expectations of the parties

In the absence of language relating to the use or purpose of the grant or languagelimiting the estate conveyed, a transfer of a strip of land is generally construed aspassing an estate fee.

The more descriptive that you are with the land, the more it is a fee

Consideration: the more money the larger the scope of the easement.

Ex. If an easement for a right of way mistakenly says that the easement holdercan use 50 feet wide for the right of way, it doesnt necessarily means that theeasement holder have to use that 50 feet description, the holder has to only usethe reasonable length for the right of way

Factors to determine whether a fee simple or an easement:1) amount of consideration (the more consideration, the more likely it is a fee)2) The particularity of the description of the property (the more descriptive=

fee)3) The extent of the limitation upon the use of the property4) The type of interest which best serves the manifested purpose of the parties5) The peculiarities of wording used in the conveyance document6) To whom the property was assessed and who paid the taxes on the property7) How the parties to the conveyance, or heirs or assigns, have treated the

property

INTERPRETATION AND EXTENT

You can expand the scope of your easement reasonably to accommodate yourreasonable growth, if you have a commercial place

Relocation :o CL: No unilateral relocation of the easement by either party ( majority

rule). You need permission.o Restatement Rule which allows for unilateral movement of an

easement so long as: BY THE SERVIENT to permit normal use anddevelopment.


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1. It doesnt significantly lessen the utility of the easement,2. Increase the burdens on the dominant estate to use and enjoyment,

or3. Frustrate the purpose for which the easement had been established.o All at the servient estates expense.

o Must be what parties agree upon. If there is normal development, (no radical change) you can increase the

intensity of use of the easement over the years. You cannot put additionalburden on the easement.

The dominant estate cannot use the easement nor permit its use for theservice of land which was not part of the dominant estate at the time theeasement was created. This is trespass.

In the absence of an express agreement, the easement owner is assumedto have a duty to make those repairs necessary so as not to interferewith the servient owners use and enjoyment of his property.

If an easement is appurtenant to a particular parcel of land, any extension

thereof to other parcels is a misuse of the easement unless the servientestate does not overburden it. ( you can expend easement to any otherparcel as long as it doesnt overburden the servient estate) Brown v Voss

According to the Restatement 3rd, you need a declaratory judgment tochange the location of an easement if the grant is silent about that.(Relocation must not burden the servient estate or frustrate the purpose ofthe easement). You cant engage in self-help.

Whatever the grant of the easement says goes unless it is ambiguous thus yougo with the intent of the parties.

Extension of use of easement/ Expanding intensity:o When an easement is created by grant or reservation and the

instrument creating the easement does not limit the use to be made ofit, the easement may be used for any purpose to which the dominantestate may then, or in the future, reasonably be devoted. (as long asthere is no extra burden to the servient land)

o However, no use may be made which is different from that established

at the time of its creation and which imposes an additional burdenupon the servient estate.

EXPRESS EASEMENT: SUCCESSION***If the granting document designates an easement as either appurtenant or in gross

the words of the grant are given effect

***If the grant does not specify, the court will attempt to determine whether the partiesintended an easement in gross or appurtenant. The court will look at the language ofthe grant and to the circumstances surrounding the grant. In ascertaining the intentionof the party, there is a presumption that the parties intended the easement to beappurtenant

*** For an appurtenant easement, when the dominant estate is transferred to someone


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else, the benefits run with the dominant estate whether or not it has been expresslystated in the conveyance.

**** For appurtenant easement: When the servient estate transfers his land to someoneelse, then the burden transfers to the next holder of the servient estate. That happens

whether or not the easement is specifically defined in the document. As long as thereis a properly established easement it doesnt matter if it is described. However thetransferee must have actual notice, constructive notice or inquiry notice of the

easement if they are a BONA FIDE PURCHASER FOR VALUE

**** The transferee of the servient estate has to take with notice

***Easement in gross: if the servient estate transfers the property does the burden run?Yes the burden runs subject to notice to the bona fide purchaser for value.

***Easement in gross doesnt care where the right holder is located. (movement has

nothing to do with easement in gross)

***Easement in gross: common law rule is that easement in gross are not assignable*** Can you transfer the incorporeal right of an easement in gross to a 3rd party?

Common law rule is NO

*** Modern rule: Easement in gross is transferable if the easement is commercial innature not merely personal (economic benefit/profit)

Restatement 3rd: easement in gross is transferable if the document says that it is (if theparty intends it to be)

***Can I create a joint-tenancy in the easement, can I transfer part of the easement ingross, and can I share it. Common law: NO

***new law: if your joint-use does not create a burden of the servient estate, and it growsnaturally, then whats the harm? Joint-holder has to act in concert.

***older view: we will presume the easement not assignable but you can show by apreponderance of evidence that it is assignable ( demonstrating that is commercial)

***if the primary purpose of the easement in gross is to gain personal satisfaction, it isdeemed not commercial and there is a rebuttal presumption that is not assignable

EASEMENT BY PRESCRIPTION

*** An easement by prescription is almost like adverse possession. The difference isthat you are not possessing adversely but you are using adversely. If you are activityin the property falls short of possession (you are using the property for your benefits,do it through the statutory period, it is open, continuous).


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***Your use of the easement by prescription is limited to the very narrow-purpose forwhich you were once engaging (if you were hiking, you cant use a horse)

***easement by prescriptions are not favored but when they are granted they areconstrued within the tight contour of the actual use of it.

TERMINATION OF EXPRESS EASEMENT

Expiration in accordance with express terms of the conveyance:1) End of enumerated time period2) Purpose for which it was created is accomplished or accomplishment becomes

impossible3) Created as a determinable easement subject to condition subsequent and condition

breached

Extinguishment as the result of subsequent events

1) Act of the easement owner: severance of appurtenant easement, release,

abandonment, excess use or misuse which cannot be enjoined withoutterminating the easement2) Act of other parties: eminent domain, mortgage foreclosure, tax sale3) Act of servient owners: adverse use for the prescriptive period, conveyance

to bona fide purchaser without notice of the easement4) Act of either easement owner or servient owner: merger, estoppel

****Abandonment: You have to unequivocally intend to abandon your property right.If I stop using an easement but I dont have the intent to abandon it, it is not abandon.Non-use by itself doesnt mean abandonment

***When the servient estate purchases the dominant estate, the easement is merged andit disappears. (you dont recreate the easement by splitting up the estate again unlessyou create it explicitly). The same thing happens to the easement if the dominantowner purchases the servient estate.

*** Servient estate owner can terminate easement by prescription: The easementholder has to know that you are no longer recognizing their rights. Why is it difficult?It is because as the servient estate owner, you have the right to use that easement. So,even your heavy use of the easement doesnt make it necessarily so that youadversely own it. You have to make it virtually impossible for the dominant holderto use it the easement.

***Estoppel: reasonable reliance and detrimental harm:if you reasonably relied on theact of the dominant estate owner that the easement was going to be abandoned, andthe dominant estate holder watches you changes your financial position, and nowenforcing the easement would put you at substantial loss. The dominant holder will beestopped


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***Mortgage foreclosure: it depends on when the mortgage was first taken. If the ownerhad a first mortgage and the easement was created after the first mortgage then,the property will go free in clear of all encumbrances. If the easement pre-existed themortgage, the foreclosure will be subject to the easement

***Tax sale: if the property is bought out of a tax sale; it will be free and clear of theeasement.

***Reverse prescription: easement can be terminated through reverse prescription. It isbased on the same principle of adverse possession (but it not adverse possession sincethere is no possession)

***Just as you can earn easement right through prescription, you can lose it by somebodyelse if the person interferes with you right so substantially. (using of easement)

*** A dominant easement owner goes away and not using the easement, if you (servient

owner) let the easement owner know that you are stopping the easement, then you canget the clock going forreverse prescription.

NON-EXPRESS EASEMENT

Factors to be considered in determining whether an easement should be implied:1) The terms of the conveyance2) The consideration paid3) Whether the claim is made against a simultaneous conveyee4) The extent of necessity of the easement5) Whether reciprocal benefits result to the conveyor and the conveyee6) The manner in which the land was used prior to its conveyance and the

subsequent action taken by the parties involved7) The extent to which the manner of prior use was or might have been known to

the parties8) The result that would best meet the reasonable expectations of land owners

and purchasers, and arrive at result that are fair to all parties9) The ability of parties to act to avoid the confusion10) Public policy considerations, such as the avoidance of economic waste and the

promotion of full utilization of land11) The size, shape, and location of the land in question12) Whether the claimant is the conveyor or the conveyee

Three elements are required for an easement implied from a prior existing use:1. Unity of ownership at severance of title2. The easement must be open, obvious, and visible, benefitting one part of the

premises and burden another.a. Not as necessary when grantor retains servient estate.

3. An existing, apparent, permanent and continuous use when severance occurs, and4. Reasonable necessity for the use at the time of severance


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When the common owner of the two parcels conveys the quasi-dominantestate, the grantee may claim an implied easement by grant in the quasi-servient estate under the proper circumstances.

if the parcel retains by the common owner is the quasi-dominant estate, he

may be in position to assert a claim to an easement implied by reservation inthe lot conveyed

An easement is implied, if at the time of the severance, the parties hadreasonable grounds to expect that the conveyance would not terminate theright to continue prior use.

An implied easement arises also when the parties intend to create aneasement at the time the property is severed, but neglect to include it in awritten agreement.

In determining the scope of implied easement, a court cannot look to writtenlanguage for guidance. The extent of use prior to severance is the major factorin making this determination.

EASEMENT BY NECESSITY

It is an easement that is necessary for the reasonable use and enjoyment of thedominant parcel. This easement arises by operation of law based on thecircumstances of the case, without any express agreement.

Two elements for easement by necessity:1) Unity of ownership at severance of title2) Strict necessity for the easement at the time of severance

a. Strict necessity; if the owner of the dominant estate has any legalmean of reaching the landregardless of how inconvenient,expensive, or impractical it may beno strict necessity exist.

The most prevalent type of easement by necessity is a right of way that arisesupon conveyance or retention ofa landlocked parcel of land. This is an easementthat requires a high degree of necessity when title is severed

The servient owner is usually permitted to select the location for the roadeasement, as long as the route is reasonable.

The easement by necessity endures only for so long as the necessity exist.o Once the necessity ends (highway is built) the easement by necessity

terminates.

The scope of an easement by necessity is deemed to be coextensive with thepresent and future reasonable use of the dominant estate

COVENANTS: CREATION AND VALIDITY

Easements are a servitude because property is being burdened (you have given upsome of the bundle of you rights) they are a grant to another person to make a useof property.

Servitude: rights in land possessed by another


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Promissory servitude: (real covenant and equitable servitude) talk about youruse of your property; restricting you to do something or forcing you to something.You are again given away a portion of your bundle of your right.

Covenant: a binding promise or agreement and conveyance of property rights. Broken into benefits and burdens

Promee is benefitted Promor is burdened

Covenant Running with the Land: an agreement that may be enforced by oragainst a successor to real estate.

Real covenant: is enforceable in action for damages. Example: The promise: Alfred, owner of Appleacre makes a written

promise to Barney, owner of Blackacre, no structure built on Appleacrewill interfere with Blackacres direct access to sunlight. The breach:While Blackacre remains undeveloped, Alfred builds a house that shadowsone-half of Blackacre during peak daylight hours. The remedy: Sincethe court is unlikely to order Alfred to tear down his house, Barney seeks

damages equal to the reduction in property value, or increased cost of hisplanned investment in solar panels.

Equitable servitudes are covenant at equity; your relief is injunction. Example: The Promise: Alan, owner of Ashacre, promises to Barbara,

owner of Blueacre, that Ashacre will only be used as a single-familyresidence. The Breach: Alan contracts to have Ashacre developed as aconvenience store. Remedy: Before construction is underway, Barbaraseeks an injunction from the court that prohibits Alan, under penalty ofcontempt of court, from building anything but a single-family residence.

Some covenants can be construed both as a real covenant and equitable servitude.(damages for past violation and injunction for future). So, covenants is not either

or. Example: The Promise: Amber, owner of Arboracre, promises to Bob,

owner of Beigeacre, that a retaining wall will be built and maintained toprevent falling rocks onto Beigeacre. The Breach: Amber deeds theproperty to Annette, who takes no action when wall partially crumbles.Rocks fall and do considerable damage to Bobs pool. The Remedy: Bobseeks damages to compensate for the property loss and an injunction tocompel Annette to repair the wall.

A real covenant may be an: Affirmative covenant - a promise to perform a particular act, or Negative covenant - a promise not to perform a particular act.

Covenants are NOT easements They do not provide a rights that would otherwise be a trespass they

dont let another party use the burdened estate.

Covenants may be appurtenant or in gross If appurtenant, a covenant benefits a parcel, and is not personal to the

promisee/owner. If in gross, the promise is a personal benefit to the promisee, unrelated

to the promisees ownership of any land.


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Statute of Frauds applies With rare exception (covered later), all covenants must be in writingin

order to be enforceable May be found

In a deed

In a lease In a separate document

Exceptions do apply (estoppel, part performance)Covenant enforceable unless

Covenant would be enforced unless unreasonable

Common interest community requires subordination of individual propertyrights to collective judgment to be successful

Covenant must reasonably further collective health, happiness and enjoymentof life of the common interest community

Enforced unless violates public policy, or bears no rational relationship toprotection, preservation, operation or purpose of affected land, or imposes

burdens disproportionate to beneficial effects Must consider effect on common interest community as a whole not on

individual owner

Any servitude that does not violate public policy is probably goodHow terms are interpreted affect validity

If language is unclear orambiguous, resolve in favor offree enjoyment ofproperty.

No implied restrictions, only those enumerated by language.

Reasonable interpretation, but strictly to avoid illogical, unnatural or strainedmeanings.

Restrictions to be given ordinary and intended meaning.Validity of Covenant public policy & constitutional concerns

Covenants cant violate public policy, cant violate enforceable statutes, andcant deprive state or federal constitutional rights

Restraints on alienability state adopted Restatement positiono Must protect enforcers interest in land

o Limited in duration

o Accomplishes a worthwhile purpose

o Conveyances that are limited are not frequently made

o Number of prohibited persons is small

ENFORCEMENT AND RUNNING OF COVENANTSIn the exam before you even go to the chart:

- Who are the parties?o P seeks to enforce burden

o D seeks to ignore burden

- Ask yourself what covenants are we trying to enforce?o Beneftit or burden

P benefit


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D Burden

Original covenanting party?

1. Yes runs

o Whether covenant was created

o Validity of covenant

o Whether covenant was breachedo Appropriate remedy

2. No must determine

o Does benefit run? (Does THIS person have right

to enforce covenant?)

o Does burden run? (Can THIS property owner

be sued for the breach)

- What remedies are the parties seeking?o Monetary or equity

- Old restatement: burden in covenant in gross cannot be enforced because thereis no benefit to a neighboring land

- New restatement: Covenant in gross should be enforceable whenever the partiesto the covenant intended this result. (if the party holding the benefit still has alegitimate interest in the property)

***The burden does not run if the benefit is in gross, that is, if it fails to touch andconcern land

***Covenants are often bi-lateral ( I make a promise that benefits me and burden you,

and you make a promise that benefits you in burden me= 2 covenants).

***Be careful about what kind of covenant you have in the exam bilateral or

unilateral

***It is the kind of relief that you ask for that determines what kind of covenant it is***if something runs as a real covenant, it also runs as equitable servitude

6 elements must be established:1) The covenant must be in writing2) The original parties must intend to bind their successors

3) The covenant must touch and concern the land4) Horizontal privity must exist5) Vertical privity must exist6) The successor must have notice of the covenant

INTENT


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o Money: had to directly affect use of land (repair covenants, e.g.)

Rent was exception: always touched.o Modern trend connection need not be as closely tied with use, but

should relate to burden of ownership or value.

Increases value of property or neighboring property.

- Benefitted Parcel - Will need to establish touch & concern both, depending oncircumstances

o Negative restrictions: typically seen as enhancing use and enjoyment

of benefited parcel (physical impact).o Affirmative: often enhance property values of benefited parcel.

- Benefit in Gross only affects someone and their personal rights.o Does not touch and concern.

OLD RESTAMENT

Old Restatement: The burden runs only when it concerns the physical use andenjoyment of the land.

***For the burden to run in a covenant at law, both the burden and benefit must touchand concern the property. (If I want the burden to run, the benefit must touch andconcern the property, the burden must touch and concern the property)

***No benefits in gross for the burden to run.

***if I am dealing with a benefit in gross, under common law, the burden is not going torun for legal relief and probably not for equitable relief

Ex: A promises Sierra Club (an organization) that he would not build on his land and

help preserve the conservation of his land. A sold to C. C built a major building onthe land thats detrimental to the purpose of the conservation. Sierra Club cannot getdamages from C. (The benefit ofSierra Club was in gross, it doesnt touch andconcern the land)

***if you want the benefits to run at law, you have to have an advantage on the physicalsense to the beneficiary use of land or a decrease competition use of the land (if allthat we areconcerned about is that the benefits should run, then that touch andconcern does not have to have a physical impact but an economic impact.)

***Common law or Old Restatement approach: For the burden to run the touch and

concern has to involve both benefited and burdened property and the court tend tolook for a physical impact to the benefit property.

***if all we are concerned about is whether the benefits run, we need to have someeconomic benefits to the enforcing party in connection with the land. (not physicalimpact)

INCONVENIENT COVENANTS


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*** The law tries to prevent the running of those promises whose running is likely toprove too convenient either to society or to successors of the promisor. Weighingthe advantage and the disadvantage is important to determine the inconvenience of acovenant. Factors tending to make a covenant inconvenient:

1) Its duration is long or indefinite

2) The burden on the land of the promisor is greater than the benefit to the landof the promise3) The purposes of the covenant could be accomplished by means other than a

covenant running with the land4) The covenant serves only frivolous orwhimsicalpurposes (arbitary)5) The existence of the covenant makes it difficult to sell or use the property,

and (restrain and alienation)6) The promise can be performed by the original promisor as easily as it can be

performed by the person in possession ( personal covenant)

Ex: Sam owns Lot 1 and Lot 2, Sam wants sells Lot 2. However, despite lowering the

price of Lot 2 twice, Sam couldnt sell it. Finally he found Dora, in an attempt toinduce Dora to buy the property Sam promised on the deed behalf of himself and allsuccessive owners and occupier of Lot 1 that he would cut the lawn of Lot 2. Is thistouch and concern the land if Sam sells Lot 1? (Look at the inconvenient party)

PRIVITY- Horizontal: conveyance relationship existed between original covenanting

parties.

- Vertical:o Strict successor takes entire estate of transferor.

o Relaxed successor takes a lesser estate from transferor.

o

None not a successor, but has substantial interest in parcel that was owned bycovenanting party.NEW RESTATEMENT

- The general rule under the new Restatement is that all successors are bound bythe promises whether in privity or not. Exceptions:

1) One who holds a title superior to that of the original promisor or creator ofthe servitude cannot be burdened

****Ex: Suppose that the person who had made a promise was a sub-leasee. The Sub-leasee made a promise regarding conducts on the property, so when the lease expired

the landlord cannot be burdened by it.

2) With respect to affirmative covenants, persons who hold estates oflesserduration than those of the original covenanting parties generally are notsubject to burdens and cannot obtain the benefits of such covenants,

except in certain situations involving lessees (covenants to repair and maintainor render services run) and life tenants


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***Ex: if the original covenanting parties had a fee and I am a successor to the burdenestate and I have a lease or life estate, I cannot be burdened or benefited by theseaffirmative covenants

3) Person holding possession adversely generally cannot obtain the benefits of

affirmative covenants, with the exception of covenant to repair and renderservice to the property

***Ex: People who are in adverse possession but are waiting for title of the land, thosepeople cannot obtain the benefits of the affirmative covenants. They are nonethelesssubject to the burden. Once they become actual fee owner through adversepossession, the general rule applies

***For the exam: before you get into any analysis of intent, touch and concern andetc, you have to do a diagram. What do I need to see to show it is running, who hasconveyed to whom, am I dealing with original parties? Am I dealing with one side

that conveyed? Both sides have conveyed? Which is running? Burden or benefit orboth? What kind of remedies?Covenant at law: BURDEN to run

1) Written2) Intent

a. That burden is enforceable against successor3) Notice

a. Under recording act.4) Touch & Concern

a. Benefit and Burden5) Strict vertical privity6) Horizontal privity

Covenant at law:BENEFIT to run1) Written2) Intent

a. That benefit be enforceable by successors3) Touch & Concern

a. Only benefit4) Relax vertical privity

Equitable Servitude: BURDEN to run

1) Written2) Intent

a. That burden be enforceable against successors.3) Notice

a. Any kind of notice.4) Touch & Concern

a. Benefit and Burden5) Any possessory interest in benefited land


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Equitable Servitude: BENEFIT to run1) Written2) Intent

a. That benefit be enforceable by successors

3) Touch & Concerna. Benefit and Burden4) Possessory interest in the benefited land

a. Substantial interest in land of original covorb. Intended 3rd party beneficiary.

New Restatement: BURDEN to run

1) Intent2) Notice3) Not illegal, unconstitutional, or against public policy4) None, except holder of superior title to promisor and lesser estate holder to

affirmative covenants not bound ( save some lessees)New Restatement: BENEFIT to run1) Intent2) Not illegal, unconstitutional or against public policy3) None, except lesser estate holders to affirmative covenants dont benefit ( save

more lessees) and adverse possessors (short of statute) are limited to certaintypes of benefits.

- When you are dealing with original covenanting parties, all you have to worryabout is if there is a valid covenant or contract.

o If original promor ask if burden runs?

o If original promee ask if benefit runs?

o

If neither ask if both run. Must first determine if the state applies the traditional rules or the

Restatement (Third) rules.

Must also determine if the aggrieved party is seeking damages,injunction, or both.

Must then apply appropriate rules to determine if either benefit,burden or both run.

DEFENSES TO THE ENFORCEMENT OF COVENANT

- Covenant that runs with the land doesnt have to be supported by separateconsideration

- Waiver of enforcement: this is where a party wants to enforce a benefit but it isprohibited to because there has been some knowing waiver on a permanent basison the benefit of the contract

- Estoppel: You rely on a non-enforcement of a covenant to your economicdetriment, I am aware of that I could enforce it, I dont and now I am trying toenforce it ( the court will estopped me)

- Laches: It is undue delay of enforcing ones rights. The nature of lashes is thatthe delay is so unreasonably long, that the person who has the delay is aware of


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the violation and has done nothing about it. The wait is going on so long that theother side should be estopped from enforcing it. It is like estoppel withoutreasonable reliance (the prejudice in favor of the violator occurs because of thelong wait)

- The court will look at the extent to which the hardship on the D increased

because of the changed circumstances that were not anticipated when thecovenant was made.- Changed Circumstances: Covenants can be terminated if the conditions in the

neighborhood have so changed that the covenant no longer serves its intendedpurpose.

1. Look at the surrounding environment, have things changed?2. Whats going on in reality around this situation such that it has changed

so much that enforcing this promise no longer makes?3. Has the changed condition adversely affected the benefited lot?4. Is it now impossible to achieve the original parties intent even if the

covenant is enforced?

- Relative Hardship: courts may refuse to enforce a covenant if enforcement willresult in a hardship to the owner of the burdened land that is disproportionate tothe benefit to be obtained from enforcement.

o If the hardship on the D is very great, and the benefit to the P is relatively

minor, the court may refuse to issue an injunction. Particularly if the Dacted without knowledge of the covenant.

***When using the doctrine of relative hardship the court will require that thedefendant does not act with malice. Just because the court wont enter an injunctiondoesnt mean that the court wont give damages. If it is a covenant that can functionas a real covenant/equitable servitude, the court may not give an injunction but still

give legal relief.

NEGATIVE RECIPROCAL COVENANT

****Ex 1: Developer owns Blackacre and conveys one of its lots to A subject to arestrictive covenant. If A breaches, Developer can enjoin the violation and anysubsequent purchaser of the Developers retain land can enjoin A if the benefit isappurtenant to subsequent purchasers land.

This is because the covenant in the deed is a unilateral covenant that burdened As lotand benefited the rest of the Developers land. So, each lot sold later remainsbenefited and all new owners can enforce the covenant against A

***Ex 2: 2 years later after selling the lot to A, Developer sold another lot to B with asimilar deed that contains the same restrictive covenant that As deed contains. Bbreaches the covenant in his deed. Under traditional law, A cannot enforce thecovenant against B nor against any subsequent purchaser although Bs deed includesthe same covenant.

The covenant in As land only burdened As land, it did not burden the Developersremaining property unilateral covenant---


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Ex 3: The covenant in all deeds out from Developer restricts each lot to a single familyhouse. C purchases the last lot and wants to build a gas station there. Developerwaives the restrictions. Neither A, B, or any other purchasers of the previous lot canenforce the covenant under traditional law.

The benefit is now personal to the Developer since he no longer owns any lot to whichthe benefit might become appurtenant, plus he waives the enforcement of thecovenant. Second, all previous purchasers are now stranger to the deed to C

IMPLIED RECIPROCAL NEGATIVE COVENANT: To remedy that problem, once acourt finds that there is a common scheme, the court will conclude that the commonowner (Developer) intended to impose the identical covenant in all parcels from thetime the common scheme began. Thus, the entire tract become burdened andbenefited as soon as the common owner sells the first lot as part of the commonscheme. This is called Implied Reciprocal Negative Covenant

****The problem with negative reciprocal covenant is that when the purchaser is doingtitle searches, he is no going to see an obligation to the entire lot. So, what about thenotice problem?

The general scheme itself should trigger notice. You may be required to go to the originaltitle to see if there were restrictive covenants. By looking around at the neighborhoodand seeing that every other lot is developed in a particular way, and that knowing thatthey were developed by one developer is enough to put you on inquiring notice. Inconclusion, the court will find away to get over the notice requirements.

****We need to know when the common scheme started. If there were no covenants withLot 1 and Lot 2, and the common scheme started with Lot 3, then Lot1 and Lot 2 arenot part of it.

Common Interest Communities

NUISANCE

PUBLIC / PRIVATE NUISANCE

Public Nuisance: unreasonable interference with the rights common to the generalpublic.- i.e. health, safety, morals, or comfort of the public.

o Drug houses, illegal gambling houses, etc.

- Allows governments to close facilities that violate.- For public nuisance, everybody suffers in the same way from the nuisance.- Private individuals dont have the right to enjoin a public nuisance.

o Private individuals may petition their public officials to enjoin a public

nuisance but they cannot do it themselvesPrivate Nuisance: unreasonable, non trespassory, interference with the use or enjoyment

of property right of another.- Common Law:- Elements


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1. Interference is substantial and unreasonable2. Conduct is intentional and unreasonable or reckless, wanton, negligent, or

ultra-hazardous.

Traditionally the effect must be unreasonable.

Modernly the act must be unreasonable.

3. Causation: the D actions are a substantial cause of the interference.4. Injured party must have some interest in the land.

- Law will not protect ultra sensitive plaintiff.- If the cost of the injunction weighs more than the Ps benefit, then there has been

economic waste.- Restatement

***Private nuisance: is an act or condition on the defendants land that substantially andunreasonably interferes with the plaintiffs use and enjoyment of plaintiffs land.

***For nuisance, the interference is usually an intangible invasion (smell, light, sounds,dust, pollution) rather than a physical invasion which is the subject of trespass

***I can be negligent in the operation of a business and because of my act ofcarelessness, I can cause interference with somebody use and enjoyment of theirproperty. (Nuisance could be fault-based, but it doesnt have to be always fault-based)

***Trespass offends the right to possess; exclusive possession

BOOMER v ATLANTIC CEMENT

Boomer v Atlantic Cement: the court use the threshold factor first to find the nuisance,then goes to the utility factors

***The court refused to issue an injunction in Boomer although it declared the cementcompany a nuisance. Instead the court awarded plaintiffs compensatory damages fortheir injuries to date and authorized them to bring suit in the future as further injurywas suffered.

***It was a conditional injunction: an injunction to be vacated when Atlantic paidpermanent damages to plaintiff. ( in effect, this essentially awarded plaintiffcompensatory damages in lieu of an injunction)

****The court reasoned that the only way to comply with an injunction to abate theemissions would be to stop operations all together. This would shot down a big planthat gives works to 300 people. ( loss of a $45 million plants, 300 workers and highercement price outweighed the benefits to plaintiff)

***If the cost of an injunction outweighs the benefit, the court will deny an injunctionand instead award damages.


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Unreasonable Acts; An intentional invasion of anothers interest in the use and enjoymentof land is unreasonable if

The gravity of the harm outweighs the utility of the actors conduct, orThe harm caused by the conduct is serious and the financial burden of compensating for

this and similar harm to others would not make the continuation of the conduct not

feasible

***This is where you use the balancing test ( especially for damages):a) Ex: I know that my operating this pump is making a lot of noise but I am giving water

to the community and I am keeping the area from being flooded (utility). Thequestion is, is the utility of that conduct outweighs the right of the person who iscomplaining about the violation of his right of use and enjoyment?

***b) Ex: I am liable if my conduct caused some serious interference with the right ofuse and enjoyment of land and if I have to compensate for that, I am not going to goout of business.

Gravity of Harm Factors: In determining the gravity of the harm from an intentionalinvasion of anothers interest in the use and enjoyment of land, the following factorsare important:

The extent of the harm involved ( how much of the plaintiffs property is affected)The character of the harm involved (what kind of harm is it, noise, and radiation health

problem?)The social value that the law attaches to the type of use or enjoyment invaded ( the law

will be more favorable to a dwelling house than to a brothel)The suitability of the particular use or enjoyment invaded to the character of the locality;

and ( your house doesnt fit well here since this a factory area)The burden on the person harmed of avoiding the harm ( Can I do something like putting

a wall to restrict the vibration)

THE PARTY WHO IS CREATING NUISANCE

Utility of Conduct Factors: in determining the utility of conduct that causes an intentionalinvasion of anothers interest in the use and enjoyment of land, the following factorsare important:

The social value that the law attaches to the primary purpose of the conduct (you makingall the noises, is it for something society valued like cement, creating electricity etc,look at the market! Is only 1 or 18 of the same factories in the same area)

The suitability of the conduct to the character of the locality ( is there activity is notsuitable for the place, look at the environment )

The impracticability of preventing or avoiding the invasion ( look at the cost the offenderwould have to undergo to limit or eliminate the nuisance)

***( c ) As a defense, the defendant can say that he is using state of the art technologyand still, the nuisance cannot be eliminate


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*** Sometimes, you can get an injunction but because the equity does not balance in yourfavor (because you knew that cattle feedlot was out there, and you knew you weregoing to develop) you cant expect the legitimate business to abandon their business

***The appropriate remedy in a nuisance action should be an injunction cancellable uponpayment by the defendant of damages to the plaintiff for past injuries and for futureinjuries that would flow from the continuation of the defendants activities.

CONDEMNATION5th Amendment: nor shall private property be taken for public use, without just

compensation

***Government has a right to take property or condemn for public use. There is noproblem when it is post office, schools, military bases; but what about condemning

land to build a shopping mall or to give to Meijer?

HAWAII HOUSING AUTHORITY v MIDKIFFHawaii Housing Authority v Midkiff: Could the state of Hawaii condemn land from a

landlord and then convey to his tenant? The court says yes as long as it conforms tothe rational basis test for public purpose

***Midkiff: Public use is now defined by the purpose underlying the governmentaction, not by the identity of the land user

The public use requirement is thus coterminous with the scope of a sovereigns policepower. The state has the power to define what the public use is.-

*** Where the exercise of the eminent domain power is rationally related to aconceivable public purpose, the Court has never held a compensated taking to beproscribed by the public use clause

So, according to the Supreme Court, public use is a rationally basis test. Publicpurpose: health, safety moral, welfare, better quality of life etc, could be decided bythe state.

*** As regard to condemnation, the appropriate question is not whether in fact thecondemnation serves a public purpose. A court only has to inquire whether thedecision is rationally related to a conceivable public purpose. In other words, couldthe legislature rationally have believed that the condemnation would serve apermissible public purpose?

*** The Hawaiian oligopoly was undermining better quality of life, so the taking was forpublic purpose to create social stability. We are taking land from A to give to B, we


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are not doing to make B feel better, but we are doing it to create a market. Suchmarket under the rational basis test, conforms with the public purpose

***As long as property is taken for a legitimate public purposethat is, a purpose withinthe scope of the government police powerthe public use requirement is satisfied.

KELO v CITY OF NEW LONDONKelo v City of New London: a public organization decided to improve their community,

they form a committee and debated about what would be good for their community,they then made a decision to condemn a neighborhood for economic improvement.They acted like a public body and made a judgment that this condemnation will begood for their community. The Supreme Court agreed.

*** The mere fact that property taken outright by eminent domain is transferred in thefirst instance to private beneficiaries does not condemn that taking as only having aprivate purpose. Public purpose could be indirect.

***The court doesnt want to second guess governmental decision. Once the question ofpublic use is decided, court is done.

Poletown: if you can make a showing that there will be substantial improvement to thelocal economy, even though it is going to be indirect through the operation of aprivate factory, thats enough for public use to justify condemnation

****Poletown: if you can prognosticate the improvement of the community, then youcan show a public purpose. And in Poletown, GM failed miserably in its predictionand promises after the eradication of a decent neighborhood in favor a factor plant.

*** The problem with that method ( Poletown) is that the private companies shouldntbe the ones to make the showing, they shouldnt be the one to start the ball rollingsince they will be driven by their own passion for profits and will certainly paintthings in their favor. These decisions should be made by public figures.

COUNTY OF WAYNE v HATCHCOCKCounty of Wayne v Hathcock; Developers wanted to develop an economic zone around

the airport, new business, expansion. However, some of the owners in theneighborhood did not want to sell. The court did not want to follow Poletown, wherethe developers presented showings

***Instead the Michigan court says that there are only 3 instances where a governmentcan condemn private property and give back to somebody as private property underMichigan constitution:

Where public necessity of the extreme sort requires collective action (railroads, canals,etc )


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Where the property remains subject to public oversight after transfer to a private entity( ex: land is condemned and is given to a private property that is going to producewater but that company is under public supervision)

Where the property is selected because of facts of independent public significancerather than the interests of the private entity to which the property is eventually

transferred. ( the act of condemning itself is whats good, we are condemning itbecause it is blighted)

***Hatchcock only applies to Michigan

Regulatory Taking

- Land use regulation: takes many forms like building, zoning ordinance; singlefamily, duplex, industrial can be etc; there are an array of limitations

- Land use regulation limits and sometimes decreases property value because ofrestrictions it imposed; zoning, conservation, landmark preservation, exaction

- Land use is not like condemnation where the government just takes property forpublic use and compensates you, but a land use regulation to a certain extent canbecome a taking.

- The police power authorizes government to regulate the use of land to protect thepublic health, morals, safety and welfare.

- Thus, a land use regulation would be upheld against a substantive due processattack if it had a rational relationship to a legitimate government interest, such aspublic health or safety

- Whenever there is a regulation that equals a permanent physical invasion ofsomeones land that is a taking.

- Whenever there is reduction of the market value of someones land to zero, that isa taking .

- Takings occur under 2 ruleso Categorical rule it fits into a catergory that requires compensationi.e.

physical invasion, economic devaluation.o Balancing test

LORETTO v MANHATTAN CATV CORP

Loretto v Manhattan CATV Corp: Loretto revolves around the installation of cabletelevision equipment at a NY City apartment building. NY had enacted a statute thatauthorized cable television companies to install cable and related facilities onresidential rental property. The sum of $1.00 was determined to be reasonable

payment in return. A cable company installed a non-cross over cable line at Lorettosbuilding that provided cable television to Lorettos tenant. Loretto sued, claiming thatthe state law was a taking of property without just compensation.

****Loretto: the court recognizes this bright line rule; Any permanent physicaloccupation authorized by government is a taking without regard to the public interestthat it may serve


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***The cable installation was a taking since the facilities were attached to the buildingwith bolts and screws and thus were permanent.

***Loretto only applies to physical takings. It can be classified as a regulatory takingcase only in the narrow sense that the government had authorized the permanent

physical occupation of land by a third party.

***Can temporary physical invasion is a taking? Yes, but a balancing test will be used.

YEE v CITY OF ESCONDIDOYee v City of Escondido: the Yees, owners of two mobile-home parks, brought this suit

for damages alleging that a state law, in conjunction with a local rent controlordinance, deprived them of all use and occupancy of their real property amounting toa physical taking of that property

***The law regulated how a land owner may terminate a mobile home owners tenancy.

Also, the ordinance impeded the landowner ability of using rent to control who isgoing to rent the land. The Yees argued them of all the use and occupancy of theirreal property, amounting to a physical occupation of that property.

***Just because the regulation affects the landowner economically doesnt mean it is ataking. The landowners, still own their lots.

***Mere regulation is not tantamount to a taking

PENNSYLVANIA COAL v MAHONPennsylvania Coal v Mahon: The Pennsylvania Coal Company conveyed a parcel of land

to plaintiffs predecessor in title, but reserved in the deed the right to remove all thecoal under the land surface. Mahon ( plaintiff) purchased the propertyapparentlywith notice of this restriction.

In the interim, the state adopted a statute that prohibited the mining coal under residentialareas in a manner that caused the subsistence of any dwelling. When the companywarned the Mahons that its future mining operations would soon cause their home tosubside, they sought an injunction pursuant to this statute. The Coal argue the statutewas unconstitutional.

***The Court argued that the statute was a taking of the coals company propertys right

***Pennsylvania Coal: if regulation goes too far it will be considered a taking

**** Diminution of value test : that is the extent to which the regulation diminished thefair market value of the property. According to the court in Pennsylvania, the extentof the taking was great because the statute took the coal companys entire supportof estate.


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***Justice Brandeis: The relevant property was the whole property owned by the coalcompany; thus the extent of diminution in value could be determined only bycomparing by (a) the value of the coal kept in place v (b) the value of the wholeproperty

***So, according to Brandeiss approach the status only diminished a portion of thewhole property and not caused a 100% diminution in the value of the property

*** Average Reciprocity: the reciprocal benefits of regulation compensate for itsburden. That is, a regulation was justified when the burdens it imposed in landowners were offset by the benefits it conferred on them.

Ex: An ordinance that restricts A from building a building exceeding 2 stories in height,burden A because he cannot build a 3 stories building but also benefits him adjacentlandowners are si

***So in Pennsylvania, where is the average reciprocity?

***The court is looking at the extent of the nuisance, the extent of public interest(character of the government action, how important is it to the public)This is a balancing test: the Court is comparing the extent of the public interest with the

extent of diminution and the court concluded that the statute did not manifest a publicinterest

***You bought the land by knowing of the risk in the deed, you shouldnt be relying ongovernment regulation to bail you out.

Balancing Test Factors1. Degree to which the property has been diminished in value.2. The remaining economic viability of the property3. The degree to which the investment-backed expectations of the property

owner have been thwarted by the regulations.4. Character of the governments actions. (Benefit to public, due process,

was the process used fair etc.)5. Whether the regulation affords a reciprocal advantage to the property

owner.

PENN CENTRAL TRANSPORTATION v NEW YORKPenn Central Transportation v New York: the Grand Central Terminal building was

designated a landmark under NY Citys preservation laws. Under the landmarklaw, any change in the exterior architectural features of a landmark or interior workrequired advance approval from a city commission. However, city ordinances alsoallowed the owner of a landmark to transfer unused development rights from thelandmark parcel to other nearby parcel

The owners of the terminal ( Penn Central) leased the airspace above the terminal to UGPproprieties for a 50 year term. UGPs plan to construct a 55 story office building inthe airspace over the terminal required approval from the landmark commission. Thecommission rejected the proposal based on aesthetic considerations. Penn Central andUGP filed suit, alleging that the application of the landmark law to the property was a


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taking of their property right in the airspace. Second, the law diminished the value ofthe land

***Penn Stations lawyers arguedrawing on Pennsylvania that they have lost alltheir right to the airspace, thus that constitutes a taking

****Penn Station: Taking jurisprudence does not divide a single parcel into a discretesegment and attempt to determine whether rights in particular segment have beenentirely abrogated. The Court would consider the impact of the law on rights in theparcel as a whole, not merely the impact on the airspace

- Investment-Backed Expectations: if you buy land devoted to a legally-permitteduse, you have a reasonable investment-backed expectation that the use willcontinue. For example, the Penn Central Court stressed that the landmarkpreservation ordinance did not interfere with the owners primary expectationwhich is the continuing the existing terminal use

- If a parcel of land is already subject to land use regulation at the time of thepurchase, the buyer cannot have a reasonable investment-backed expectation thathe will be able to violate the law

***Investment-Backed expectation: are you losing money to the newly property rightsthat you have discovered. Did you initially invest money and reasonably expect theairspace to create money for you? This is an opportunity loss not an out of pocketloss.

***Penn Station can sell the rights of its airspace that it cannot use to somebody else(reciprocal benefits). Thats a value to Penn Station

*** The building wasnt single out because there are 400 buildings that are landmark

***Factors to look at : ( case by case specially when dealing with significant economicimpact)

Degree to which the property has been diminished in value ( negative impact on theinvestment, residual value)

Reciprocal advantage ( are you being singled out)Character of the government action ( how substantial of a public benefits are we dealing

with, how fair was the government in the way they handled the process)

LUCAS v SOUTH CAROLINA COASTAL COUNCILLucas v South Carolina Coastal Council: Lucas a real estate developer paid $975, 000 for

two beachfront lots in a residential development located on a barrier island off thecoast of South Carolina. Since Lucas lots were 300 feet away from the beach, at thetime of the purchase, they were not covered by a statute that required coastal lands toobtain a permit before developing their property. 2 years later, the state adopted astatute that prohibited all construction along a long stretch of shoreline, includingboth Lucas lots.


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Lucas: The court identifies two categories where a taking could be found without afact-specific inquiry:

Regulations that compel the property owner to suffer a physical invasion of his property( Loretto)

Regulation that deny all economically beneficial or productive use of land(Pennsylvania Coal)

***If the regulation is the true cause no matter how good the regulation is to the publicand the diminutive value is zero, then there is a taking and the state has tocompensate

***However, if the value of the property was zero before the regulation (pre-existingnuisance), then you had no bundle of rights to begin with

Palazzolo v Rhode Island; regulation was passed before Palazzolo purchased the property(no reduction to zero). There was no bundle of rights to begin with.

***Inverse Condemnation: Inverse condemnation is a term often used to describeproperty owners cause of action against the government to recover damages for thevalue of property that the government has in fact taken, although the government hasnot brought any action under the power of eminent domain

Tahoe-Sierra preservation Council v Tahoe Regional Planning: A moratorium ondevelopment prohibited construction for 32 months to protect the environment.

***Plaintiffs argue that for 32 months they have lost all their right to make a profit outthe land since the government restriction. (Temporary taking). The court disagreedwith that assessment.

***Where the regulation is temporary, then Lucas or the diminution of value to zerocannot be satisfied

***However, using Pennsylvania Coal analysis, a regulation that is temporary may be ataking. For instance, what if the land that was subjected to the temporary regulationwas providing an ongoing stream of income and suddenly halted because of thetemporary regulation. You can make a case using Pennsylvania Coal.- If a law was a taking and it was repealed, gov still has to compensate for the time

it was enforced.

EXACTIONExaction: an exaction is a requirement that the developer provide specified land,

improvements, payments or other benefits to the public to help offset the impact ofthe project


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***You already have regulated property, the property owner wants an escape from theregulation (variance, special treatment, exception) something that the public authorityhave a power to do. And the property owner will make a case to say that he isqualified for the exception. The public authority, in return of granting the exception,they want something back. That something back is called an exaction.

***The question is whether that something back is more than what the government isentitled to get under the Constitution. If it is more than what the government shouldget, then it is a taking and the government has to pay compensation.

***There needs to be a relationship between the public value and the exaction for it tosubstantially advancing legitimate state interests.

*** There has to be an essential nexus between the thing you are asking and the publicvalue. If you go on without that connection, you have to pay for it. (For instance thereis no logical connection or essential nexus between an exaction to build a building

that block ocean view and an easement that would allow people to walk through theowners land. Nolan v California Coastal Commission

DOLAN v CITY OF TIGARDDolan v City of Tigard: Dolan owned a plumbing store in Oregon, she planned to double

the size of her store, pave the exiting gravel parking lot, and build an additional retailbuilding on her land

PROPERTY II Outlines

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