PROPERTY BANNER

Tensions: Promote alienation (efficiency) but respect owner autonomy (fairness). Standards vs. Rules?
Standards (Flexible)
Benefits: could encourage bargaining b/n property owners; could
encourage development which would have an overall positive
social impact; fact specific (more fair to individual Ps & Ds)
Costs: lack of clarity could hurt alienation and investment

Rules (Rigid)
Benefits: expectations protected; judicial costs as generally
easier to apply
Costs: could encourage litigation if one litigant hopes to show
that rigid rule would work injustice

PROPERTYS ORIGINS AND JUSTIFICATIONS

Where does it come from? What is it?
Bentham: the LAW or physical
force creates property rights. No
natural property just positive
rights.

VS

Bastiat: the product of LABOR,

which arouses sympathy (even in hut
builders). Property gives rise to legal
protections!

Necessity, private or public, may justify entry upon the lands of another mans right to real property is
not absolute. Balancing Test of interests/ rights.
State of New Jersey v. SHACK (NJ Sup 1971), NJ leans toward Bentham
Defendants sought to give legal and medical aid to migrant farm workers on Tedescos farm. Their actions
were funded by programs supported by a federal statute (Economic Opportunity Act of 1964). Issue: Is a
landholders right to control property absolute? Holding: No. Trespass allowed!
Reasoning: (1) The ct ducks the constitutional gun, claiming that the farms arent open to general public.
Benefit? Non-constitutional solution better serves migrants interests (more FLEXIBLE). (2) State has an
interest in preventing politically powerless farmworkers from contracting away their welfare. Threat
increases as society industrializes. (3) BALANCING: Right to live w/ dignity and associate freely >
interest in real property. So, law of New Jersey (as interpreted by the court) doesnt mean property includes
right to exclude Shack. (4) Need for positive communication to enforce it!
Implications: LAW creates/controls property (Bentham/Hobbes). Compare to fire-fighting needs.
But property owners are now LESS SECURE (could affect property value). Takings?
What is property? Property rights describe relationships among people regarding control and disposition
of valued resources; competing interests of people.
Why does it exist? (1) Increase wealth (2) satisfy moral expectations, (3) stable expect. for development.
Rights-based Normative
Property has a moral appeal, as the just
desserts of laborers (Locke/Bastiat).
People should respect the property of one
another.

Utilitarian
Maximize social utility-property is useful
for progression (prop gives laborers
incentives), enlightenment, the political
process (prop owners have a stake in
political decisions).

Rousseau: property breeds

jealousy, crime, war, slavery. But
even he admits that individual
rights are nec for progress.

VS

Social Relations
Encourage positive relations; provide
liberty from discrimination. Granting
property rights can defend marginalized
communities (flipside-opp for abuse).

Posner: Efficiency! Property rights

give workers incentive to work.
Secure expectations in investments,
encouraging proper allo. of resources

The right of Publicity must protect the commercial and moral interests of BOTH the owner and society.
Conflict b/n Just Desserts (for owner) and Social Utility (for advertisers).
Vanna WHITE v. Samsung Electronics America. (US App 9th 1993)
Ds used robot as proxy for White in Wheel-like circumstances for a humorous advertisement. Claim of
infringement of Ps right of publicity. No consent or payment. Issues: How broadly should the right of
publicity be interpreted? Holding: Majority says quite broad. Reversed for P.

Reasoning: Dist Ct: 4-prong Eastwood test: (1) D uses Ps identity (2) to Ds advantage, where (3) there is a
lack of consent and (4) resulting injury. Second prong fails b/c robot not Whites likeness.
App Ct: Eastwood is not exhaustive precedent for appropriation of identity. Law must protect celebritys
sole right to exploit the value of his or her name and likeness. [JUST DESSERTS, INCENTIVES].
Dissent: Hoarding leads to inefficient allocation of resources, swinging the progressive door the other wayno creativity w/o rich public domain. And intellectual property rights are imposed at the expense of future
creators. Plus parody is valuable to society. [UTILITARIAN, PROGRESS!] Possible: moral duty to share.
What is NOT property?
If the classification (1) is inefficient (e.g., highwaystough for individual coordination, expensive to
enforcebroadcast frequencysignals too dear) or (2) violates moral intuition (e.g. body parts, b/c its
repugnant and a reminder of slavery)
Exceptions for certain body parts? Davis v. Davis held that the wife could not get embryos unless she
had no reasonable means of parenting (protecting the deceased fathers right not to procreate).
Limited time scientific research exception, though for a limited time
Defn: Conversion is the wrongful exercise of ownership over anothers property.
For conversion, P must establish an actual interference with his ownership or right of possession.
based upon existing disclosure obligations protects patients' rights of privacy and autonomy without
unnecessarily hindering research.
MOORE v. REGENTS of the U of C (CA Sup 1990), right to blood products
Ds recommended the Ps spleen be removed to slow hairy-cell leukemia. Blood samples periodically taken.
Golde established a cell line from Moore's T-lymphocytes, earning all Ds income. Income and Ds prior
knowledge of blood products value were concealed from P.
Issue: Can Ps spleen cells be considered property, giving rise to a conversion claim? Holding: No.
For Allowing Taking
Dont limit research by increasing costs.

Efficiency
Moral

Scientists should get the fruits of labor.

Ps cell line is factually distinct/invented.

Against Allowing Taking

Researchers arent forced to evaluate the
cost of using cells (upsetting Ps).
Body is sacred. Reminiscent of slavery.

Reasoning: (1) There was a breach of fiduciary duty. (2) No conversion. No precedent for such a tort
action. Extending theory could hinder socially important medical research. Patients rights protected by
informed consent obligations. (3) Legislature should change the status of body parts, if any body should.
Why?
. . . (1) get input from competing interests (2) to reach intermediate goals

Legislatures
. . . can do extensive fact-finding in weighing policy goals (beyond case)

Dissent: Uniform Anatomical Gift Act clearly gives patient right to control fate of body part
BEFORE it is removed. By not informing P of their actions, they interfered w/ Ps right to his body
parts. So common law should recognize conversion. P is barred from enjoying benefit of the cells.
Recall policy pillars of Goldberg: (1) individual fairness; (2) efficiency; (3) distribution; (4) legitimacy!

METHODS OF ACQUIRING PROPERTY

Purchase
Caveat emptor used to be the uniform ruleseller had a duty not to misrepresent, but he or she had the
right to keep mum. Onus on the buyer! No longer by default
Caveat emptor requires a buyer to exercise due care in assessing property EXCEPT (a) when a
condition has been created by the seller that is material to the K or peculiarly w/in the knowledge of the
seller, and is unlikely to be discovered by a prudent buyer; or (b) when the condition is non-physical.
STAMBOVSKY v. Ackley (NY App 1991), haunted house, buyer saved

Ps bought house from D. D previously reported poltergeists in Readers Digest and local press. In 1989
local press reported house as Victorian w/ ghost. P seeks rescission of sale.
Issue: What did P purchase? Did it include a ghost? Holding: No. Reversed for P. Sale rescinded.
Reasoning: Majority: As a matter of law the house is haunted (b/c it was advertised as such). Houses
reputation goes to the heart of the bargain. Strict rule of caveat emptor should NOT be applied b/c (1) Ps
not local and not likely to have discovered houses reputation (hiring clairvoyant and establishing special
escrow accounts for such situations would lead to inefficient allocation of resources), (2) reputation was of
Ds making (facts are peculiarly w/in the knowledge of [D]). Also, premises not really delivered vacant.
Other magic words: If condition is tangible (can be substantiated), but concealed from P no sale.
Who to put the onus on
Efficiency
Fairness
Up for grabs

Buyer?
Seller?
Only if the buyer offers a certain price
Sellers generally have better access to
should the seller be required to disclose
complete information. Forcing the buyer
all; concealment could result in discount.
to acquire information wastes resources.
First-time buyers of real or personal
Sellers may not have complete
property shouldnt be automatically taken
information. Unfair to force them to
advantage of bad social relations.
discover.
Merger/as is clauses are valuable to commerce but potential boilerplate surprises to Bs.

Find
Principles: (1) Encourage honesty/reporting but encourage finders to look ( waste-good for owner and
general welfare) (2) Tiered system of preference helps resolve a potentially chaotic claim process. (3)
Fruits of labor (but for action of finder), just desserts Locke, Bastiat.
Status
Lost

Party
Finder

Abandoned
Mislaid

Landowner
Finder
Landowner

Shipwrecked
Archeological

State
Finder
Finder

Circumstances & Justification

First preference over everyone but the owner (unintentional parting). Encourages searching
for objects; a reward encourages turning in, incentive for honesty. But for finders act, item
lost. To strengthen incentive, if owner doesnt claim object after a certain t, finder gets it.
If finder is trespassing, L has first pref over all but owner b/c he has constructive possession
First rights, but owner must clearly intend to relinquish ownership.
(1) Intentionally placed but (2) mistakenly left. Giving L, not F, first rights chances for
owner, while incentive to trespass.
If embedded, the state has constructive possession, being the landowner.
If not embedded but abandoned, finder gets goods.
If abandoned, F has first rights. If lost, potential reward.

Iowa Code 644.6-14

If > $5 in value, report it. Why? Make it worth their time. If > $10 in value info published for 3 weeks in
county paper. All reporting and proof of advertisements w/ affidavit. Vests to finder after 1 year. But if
owner appears, F gets 10% of value plus cost of ads and maintenance; F may contest claim in court.
Benjamin v. LINDNER AVIATION, Inc., and State Central Bank (Iowa Sup 1995), money in plane wing
P/Lindner employee found $18K in currency in a plane which had been repossessed by Bank after default.
Reported. P filed affidavit as F and followed Iowa Code reqs. After 12 months no one claimed it. P-644
applies to ALL found prop, and he is F. Lindner-mislaid, it owns hanger. Bank/owner-644 n/a. Issue: Who
should own the currency? Holding: Affirmed for owner/Bank, no finders fee for P.
Reasoning: (1) 644 applies only to lost property b/c state Sup Ct in 1937 interpreted it to mean the rights
of property vary according to their characteristics. Legislature hasnt refined the law since the Sup Ct
interpreted it. So, no finders fee. (2) Money likely mislaid b/c location and wrapping suggest money was
placed there intentionally, not lost. Also not likely someone other than the owner placed it there. Not likely
abandoned b/c of high value, and location, again, indicates desire for safekeeping. Not treasure trove b/c
money dated only 35 yrs back, no evidence that last inspection wasnt more recent. Not enough time had
passed. (3) Owner of premises is the Bank, not Lindner, in whose hangar the plane happened to be parked.
Policy: increase likelihood that owner will find it.
Key Qs: (1) Where is owner likely to look? (2) As time passes, likelihood of abandonment .
Finders keepers alternative: distrust, false findings; hoarding/guarding, insurance costs.
Gift
Defn: A gift is a transfer of property from one person to another w/o payment.
Inter vivos among living

VS

Testamentary transfer dead to living

(wills) criticism: anti-alienability

Requirements: (1) intent to transfer title; (2) delivery; (3) acceptance.

Exceptions: Constructive delivery if deliv is inconvenient or impossible. Present intent of future deliv.
How to relinquish control: Life estate-the right to retain a piece of property until death.
Remainder-the right to the property after death (not in former owners control); has present value.
Doctrine of waste-during his life, the decedent has a duty not to waste the gift
Rules of Thumb
Type of Transfer
Joint Control general
Joint Control bank accounts
Condition Prec, Undelivered

Courts Treatment
Split. If yes, clear intent req.
Split. Either has total control
or max withdrawal for either.
No gift.

Condition Prec, Delivered.

Yes gift.

Type of Transfer
Engagement presents
Condition Subs, Uncertainrepo car if, causa mortis
Condition Subs, Certain
death.

Courts Treatment
Condition now enforceable.
Yes gift, but condition
enforceable.
Yes gift, present intent to
transfer future interest.

To make a valid inter vivos gift there must be present (1) intent to transfer some interest, (2) actual or
constructive delivery (in accord w/ circumstances), and (3) acceptance. Burden of proof on donee.
GRUEN v. Gruen (NY App 1986), previous owner can reserve a life estate in chattel, donee -> remainder
P/son claims his father, deceased, made a life estate gift of a Gustav Klimt painting in 1963. Father retained
possession until death in 1980. P never possessed painting. Father sent P a letter promising him the painting
that he purchased for $8,000 in 1959. P remitted letter, per fathers instructions. Father sent two letters in
May of 1963, though, one a substitute gift letter; objective was to avoid having to pay an inheritance tax.
Issue: Is an inter vivos gift of a chattel valid if the donor has reserved a life estate in the chattel AND the
donee never has had physical possession of it before the donor's death? Holding: Yes. Affirmed for son.
Reasoning: Principle: avoid mistakes by donors, false claims by donees; allow parties to plan accordingly.
Requirement
Intent
Delivery
Acceptance

Ps Arguments
Three letters amount to a promissory note. Not filing a
gift tax return is a forgivable mistake for an architect.
Letters = constructive delivery; symbolic deliv from
Europe would have been inefficient.
P kept letters for 17 yrs and told friends. Estoppel.

Ds Arguments
Decedent made statements about painting in will, didnt
file a gift tax return.
There was never any physical delivery of the chattel.
P did not list painting among assets when divorcing.

Challenge: How can a donor retain the right to change his mind? Make the gift in testament/a will. Or
write letter w/ condition subsequent (e.g., remit if Victor outlives Michael).
Adverse Possession Real Property
Right
Exclusion
Privilege to use

Public Limits
Public accommodation law, right of access
Public nuisance law, protection of public
security

Other Limit - Adverse Possession

Trespasser may obtain all rights to property.
Against: Moral - rewards theft
For: Efficiency - use of
Efficency destroys expect.,
limited resources. Moral - S of
heavy burden on owner
L runs, sympathy w/ time.

Tension: Formal vs. Informal sources of expectations

sympathy
squatter
landowner
t

Adverse Possession Test - OBJECTIVE

(1)
(2)
(3)
(4)
(5)
(6)

actual possession (physical occupation)

open & notorious manner (sufficient for notice)
exclusive (not shared w/ owner or public)
continuous
hostile to owners wishes
beyond S of L
+ some jurisdictions require
(7) color of title (erroneous written claim)
(8) occupation in good faith.

NOME 2000 v. Fagerstrom (AK 1990), adverse possession of real property

P/Nome 2000 holds title to prop; brought claim in 1987. Ds/Charles and Peggy Fagerstrom have made
seasonal use of the disputed parcel for subsistence and recreation since 1945. In 1966, Ds brought materials
to build a cabin there. In 1970 Ds used four cornerposts to stake off parcel; built a picnic area on the north
end. Since July 1974, Ds parked camper trailer in north end of disputed parcel. Also built outhouse, fish

rack, reindeer shelter, and planted trees. From 1974 to 78 Ds were present at least every weekend. Ds
kicked off campers who had burned Ds firewood. Built cabin in north end in 1978.
Issue: Did the Ds meet the requirements for adverse possession of the real property? Holding: Yes on
northerly portion, not on southerly portion.
Reasoning: Objective owners test. (1) Actual/physical occupation = f(character of property). (2) Open &
notorious sufficient to put P on notice, given structures. (3) Exclusive since they kicked people off prop. (4)
Continuity = f(character or prop). As frequent as owner would have been there. (5) Hostile as Ds acted like
they owned it w/o permission (controversy). (6) AK statute of limitations for real property is 10 yrs. (7) Ds
use of southerly portion (use of pre-existing trails, picking up litter, posts) was insufficient to take title.
Afterthought: No adverse possession against the government! (1) Most govt land meant to be open to
the public. (2) Difficulty in monitoring. Drive up common costs. (3) Common property-we all lose.
Adverse Possession - Personal Property
Big difference: chattels are portable discovery is difficult, so open & notorious is critical!
Discovery Rule Tolling of S of L = f(reasonable diligence)
Demand and Refuse Rule S of L = f(opp to demand)
Cause of action does not accrue until the injured party discovers
S of L runs from when owner demanded and possessor refused
by exercise of reasonable diligence facts which form basis for it.
delivery of property.
Principle: Visibility intended to put owner on notice, but its
Principle: Offer maximum protection for true owners.
insufficient for chattel. Discovery rule makes up for it.
For: (1) Different visibility requirement discourages larceny in
For: Protects true owners. Important to foreign buyers, who are
art. (2) Encourage careful practice in art purchases. (3) Owner
not likely to have sufficient notice from domestically due
rights shouldnt be invalidated b/c of mechanical applic of law.
diligence. (2) Clarity & predictability.
Against: (1) Onus on owner to prove actions were reasonably
Against: Rewards inaction. Perverse: a thief has a better shot than
dilig. (2) Perverse: non-diligent search means possession = theft.
an honest possessor.
Purpose of S of L: (a) stimulate activity, (b) punish negligence, (c) promote repose.

Georgia O'KEEFFE v. Snyder, Princeton Gallery of Fine Art (NJ Sup 1980), discovery rule applied
P/OKeeffe in 1976 claims 3 paintings stolen from An American Place (gallery) in NY in 1946. They were
uninsured, no evidence of a break-in, the theft was not reported to police, nor was it advertised. However, P
did mention it to associates in the art world, and, prompted, finally listed the paintings as stolen in 1972.
Paintings discovered by P in Ds gallery in 75. D got them from Frank, who exhibited them in 1968.
Issue: When did Ps action accrue? Holding: Reversed and remanded for P.
Reasoning: Should the discovery rule apply? Does due diligence require more than talking to colleagues to
alert the art world? Does registering paintings with the Art Dealers Association of America, Inc. or any
other organization would put a reasonably prudent purchaser of art on constructive notice that someone
other than the possessor was the true owner? Ct says yes.
Defn. Tacking is the stacking of time for S of L purposes.
GUGGENHEIM Foundation v. Lubell (N.Y. Ct of App, 1991), due diligence vs. demand and refuse
Chagall gouache stolen from P in the late 1960s. P elected not to report theft to authorities or to art world,
fearing that it would drive the gouache farther away. P de-accedes painting in 1974. Ds bought the painting
from a NY gallery in 1967, displaying it in their home for 20 yrs, unaware of theft.
Issue: Is Ps failure to exercise due diligence to locate the gouache relevant for S of L? Holding: No. Aff P.
Reasoning: (1) NY rejects discovery rule in OKeeffe b/c Governor Cuomo vetoed bill claiming it would
provide insufficient notice to foreign owners before action must be taken. Protect NY as cultural center and
dont infuriate foreign governments! (2) No proof that public disclosure would have helped the museum
locate the property. Ct not ready to set down steadfast rule for all situations. (3) Perversion: for an outright
theft the S of L runs from time of theft, regardless of owners awareness; for a good-faith possessor, the S
of L runs from the time the owner makes demand of the property.

SHARED OWNERSHIP
Estates and Future Estates
History
Consolidation
Generational

Tension
Feudal ownership: land use NOT FREE b/c tied to services
Promotes free use & transfer b/c buyers deal w/ only 1
owner, autonomous actors (alienability -> efficient mkt)
Allows owners to extend rights beyond life (just desserts)

Allodial ownership: FREEDOM, not tied

But prevents disaggregation of interests in
value-maximizing ways (anti-efficient)
Prevents freedom of the living (anti-efficient)
answer is rule against perpetuities
Leaseholds transfer possession for
a fixed or renewable period, or at
will

Freehold
Estates

Fee simple total

control, to Aparty- and his
heirs-limitation

Defeasible fees terminate

upon future occurrence;
either reverts auto or req
action (e.g., determinable)

Life estate owner

keeps rights while
alive,
transferable;
remainders -----

Timeline of Estates
Present Estate ----------------------------- t -------------------------
ESTATE PRESENT INTEREST

Vested no conditions; we
know who will get it
Contingent uncertain b/c
of condition or open class

FUTURE INTEREST
3rd Party

Grantor
Fee Simple Absolute no one has a right to possess it in the future;
you own the whole timeline
Life Estate owner has a right to possess it until he/she dies;
remainder in the future (vested, contingent subject to open, divest.)
Leasehold leaseholder has the right to possess it until a date of
expiration; reversion to landlord in the future
Fee Simple Determinable grantor conveys property to grantee
until an event occurs in the future; at that point the property
automatically returns to grantor
Fee Simple Subject to Condition Subsequent like determinable
but grantor reserves right to reclaim; NOT automatic, relevant for
adverse possession clock (A from X to Y, but if Z, then X reserves
the right to reclaim the property)
Fee Simple Subject to Executory Limitation like determinable
but if event occurs the land goes to 3rd party, not to grantor
Fee Tail Right to possess property until biological line runs out;
popular way for aristocrats to tie up land forever

None

None

Reversion

Remainder

Reversion

Remainder

Possibility of
Reverter

None

Right of Entry

None

None

Executory Interest

Rule against Perpetuities

Creation of Interest | ----------------------------------------------------- | ----------------
Perpetuities Period
Lives in Being + 21 yrs
Traditional Rule: Future interests are invalid unless they are CERTAIN to vest or fail to vest w/in the
lifetime of someone who is in being at the creation of the interest or no later than 21 yrs, 9 months after
her death. Regulates non-vested interests. Look to when the contingency will be resolved!
Goal: Leave control of the world more in the hands of the living than in the hands of the dead!
Subject to Rule
Excepted from Rule
Definitions

Executory interests (includes options), contingent remainders, vested remainder subject to open
Reversions, possibilities of reverter, rights of entry, executory interests where parties are charities.
Criticism: why allow grantor to extend interests into the future in these cases?
Vesting: (a) executory interest-vests when contingency occurs; (b) contingent remainder-vests when
condition disappears (doesnt matter if remainder doesnt then become possessory)
Lives in Being: a party in the K, w/in whose lifetime the future interest vests

Method
Step 1: Is there an executory interest, contingent remainder, or vested remainder subject to open?
Step 2: What is the condition, or uncertainty?
Step 3: When is that uncertainty going to resolve itself?
Step 4: Is that date of resolution (vesting) less than 21 yrs after the death of a life
in being at the time the interest was created?
Alternatives Rules
Wait & See
Cy pres

Cts dont automatically declare a future interest

void; instead they wait until perp period passes
Cts revise faulty wording to 21 yrs

Uniform Stat
Rule against Perp
Clauses

Commercial transactions exempted; wait

and see period of 90 yrs
Text states that rule of perp N/A

Examples
(1) To A for life, then to As first child to reach 18. Contingent remainder; uncertainty=when a child of A
reaches 18. Ignorining, artificial insemination, outside limit is 18 years. NOT VOID under rule.
(2) To A for life, then to As first child to reach 25. Rule against perp VOIDS contin rem unless cy pres.
(3) To the Baptist Church so long as services are held every Sunday, then to GW Bush. Estate in church
could last forever, > 21 yrs after GWs death. Exec interest VOID under the Rule of Perp.
(4) Like 3 w/ addition as long as GW is still alive at the time. This passes under the Rule of Perp since
GW is a validating life, and uncertainty will be resolved when GW dies.
(5) To my wife for her life, then to my daughter Jillian on her 35th birthday (Jillian is 5 at the time of my
death). NOT VOID b/c the contingency will be resolved w/in 21 yrs after death of Jillian (the
measuring life). Either 21 yrs will pass b/n my wifes death but before Jillian turns 35 (e.g., wife dies
tomorrow) or Jillian dies before her 35th birthday or Jillian will turn 35 < 21 yrs after my wife dies. In
all cases the contingency will be resolved for certain!
(6) To my wife for her life, then to our grandchildren in equal shares. (Two children at time of death, but
no grandchildren). Its a contingent remainder since the grandchildren have not yet been born.
Measuring life: either child. Class of grandchildren closes when the last kid dies, so its NOT VOID
under Rule against Perp. (Contingency resolved when the last kid dies.) Wait and see . diff result.
(7) To my wife for her life, then to our great-grandchildren in equal shares (same conditions as in 6). Ditto,
although this could potentially fail even 90 yr wait-and-see period. And its possible that the greatgrandchildren could be born > 21 yrs after the last life in being (i.e., your children) dies. Why? B/c
grandchildren are not in being at time of your death. Implication: limits in number of generations.
(8) To my sister Emilys children, when they reach the age of 30. (At time of death Emily is alive and her
kids are 29 and 27.) Fee simple subject to executory interest or subject to open? VOID if Emily can
still have kids, b/c wording requires all (they) to reach 30.
(9) My son when the Dodgers win the World Series. VOID since it may never happen.
(10) My son when the Dodgers win the next game. Ditto, although under wait and see rule likely okay.
Concurrent Ownership - Creation
Defn. Concurrent ownership is the right of MULTIPLE parties to possess ALL of a piece of property.
Tenancy in Common
Each tenant has a
separate interest.
Transferrable. No
survivorship rights.
Problem of large #s:
overuse, undermaintained (free riding)

Joint Tenancy
Tenancy in common + right of survivorship where survivor
gets decedents right upon his or her death.
Pro: avoids probate dispute (efficient)
Con: transfer breaks joint tenancy!
Unities: (1) acquired at the same time, (2) through same title,
(3) equal interests, (4) all have rights of total possession.
If A transfers, but B and C do not, rights of survivorship still
apply to B and C, even though it transforms into T in C.

Tenancy by the Entirety

Joint tenancy for married couples only;
cant be severed unilaterally. Terminates
by divorce or death.
Pro: prevents creditors from pursuing
all funds.

Intention of the parties, ascertainable from the complete document, prevails over technical terms or
their formal arrangement. Legislators prefer tenancies in common over joint tenancies.
KIPP v. Chips Estate (VT Sup 1999), ambiguous language and right of survivorship
In 1987 both P/surviving co-owner and D/deceased co-owner got interest in warranty deed from Gould.
Habendum clause described grantees as tenants in common, but the granting clause described P and D as
joint tenants, but with rights passing onto their heirs (inconsistent). D died in 1994. Issue: Did the deed
convey a tenancy in common or a joint tenancy, which includes a right of survivorship? Holding: Affirmed
for D-tenancy in common.
Reasoning: (1) Legislative intent to favor estate in common over a joint tenancy, such that the grantor must
CLEARLY express intent to create joint tenancy. Why? T in C favors transferability (potentially more
efficient use), greater #s, and discourages ill-will among tenants. (2) Deed was not ambiguous, so no parole
evidence called for. Three-step process in interpretation: (a) look at the specific language; (b) if ambiguous,
look at the language of the whole document; (c) if still ambiguous, then all relevant evidence can come in.
The ct chooses (b), arguing that the whole document clarifies the ambiguity in the grantings clause.
Policy: encourage parties to make intentions clear in document; favor efficient transfers, ill will
Unresolved: if tenant A in common leases prop, cts split on whether the lease survives tenant A

Partition
Partition in Kind a committee divides the
land into relevant shares. Pro: respects
subjective value placed on property (likely >
mkt value)

VS

Partition by Sale forced sale; appropriate only if (a)

physical limitations on partition (# cotenants, swamp, 1
large structure) and (b) interests of owners are better served
by a sale

A sale by partition should be ordered only when (1) it is physically impracticable to divide the land, and
(2) the interests of the owners would be better promoted by a partition by sale. O/w in-kind partition.
DELFINO v. Vealencis (CT Sup 1980)
Ps/Delfinos and D/Vealencis owned property in Bristol, CT, as tenants in common. Ps share=99/144. Ds
share=45/144. D has a dwelling on prop from which she runs a garbage hauling business. Ps seek to
develop prop into residences; want partition by sale to get it all. Lower ct ordered auction b/c Ps proposed
use was the best use of the property and Ds business would force rerouting of extension road, could hurt
zoning approval chances for P, and could Ps res prop Issue: Should the court order a partition in kind or
a partition by sale? Holding: Reversed. Partition in kind is appropriate.
Reasoning: (1) The ct prefers a partition in kind over a partition by sale b/c a partition by sale is an extreme
exercise of power (if adverse to one partys wishes, it really seems unjust). So, the burden is on the party
requesting partition by sale to prove that the sale would better promote the owners interests. (2) The
geography of the land suggests that a partition in kind would be easily practicable: rectangular shape, w/
only two competing interests, Ds at the far western edge, and two roads abut the property. (3) Ds business
was not in violation of zoning laws + Bristol has licenses in these conditions before. D merely stores empty
containerized dumpsters on property, suggesting city would probably grant P permits. (4) So Ds
hardship in losing home and business > maximizing economic interests of P (collective interests not max).
Implication: choosing partition in kind forced Ps to compensate D for his value

LANDLORDS AND TENANTS

Leases
Defn: A leasehold divides the timeline of ownership. L has a reversion
Types of Leaseholds
Term of years: fixed period of time; terminates automatically;
Tenancy at will: no fixed period; terminates w/ either party
alienable & inheritable
giving notice (often interpreted by cts as a periodic tenancy)
Periodic tenancy: continues for fixed or successive periods;
Tenancy at sufferance: T remains in prop after lease expires
terminates w/ notice (b/n one to six months); alienability & inher. (holdover)
Notice cts may require written or oral documentation; some say moving out is enough

Property that has not been abandoned or voluntarily surrendered may be repossessed ONLY by resort to
judicial process. Old: Landlord may use self-help to retake the property if (1) landlord is legally entitled
to possession and (2) landlords means of re-entry are peaceable. O/w P gets wrongful eviction.
BERG v. Wiley (Minn Sup 1978), cant change the locks w/o the courts permission
Lease was for 5-yr term w/ conditions that (a) tenant bear costs of repairs, (b) tenant make no changes w/o
permission, (c) tenant operate the restaurant in a lawful and prudent manner. Lessor reserved right to retake
possession if conditions violated. D objected to P remodeling w/o permission and violating health codes. P
put up a sign: closed for remodeling. W/o permission from P or the courts, D changed locks. Issues: Did
P abandon the property? Was Ds entry forcible and wrongful? Holding: No abandonment. Wrongful
entry=wrongful eviction. Affirmed for P.
Reasoning: (1) Balancing: To discourage Ls from taking matters into their own hands AND to recognize
need for quick action, the law provides a summary procedure so L can recover possession in 3 to 10 days.
TROs available if necessary. (2) Violence would have resulted if P had been present; so, re-entry not
peaceable. Precedent: In Gulf Oil (TX) lock picking, while not violent, was ruled forcible.
Policy: (1) Discourage landlords from taking the law into their own hands; (a) Could violence. (b)
L not legal expert; should defer to courts. (2) Treble damages apply to wrongful eviction to deter.
Pros of New Rule
chances for violence, problems w/ distrust
Preserves opportunity for quick resolution w/ fast track hearings.
Ensures Ts due process

Cons
W/ legal action come legal costs -> time and money
In practice, it could take L months to evict T legally
T has opportunity to abuse property.
L will probably pass on costs of potential litigation to all Ts (dist)
Can parties K around it? In theory, but (a) it could still be disputed in ct and (b) Ts are in weak bargaining position (adhesion)

Subleases and Assignments

L ------- T -------- T1
Assignment

Sublease

Tenant assigns ALL interests under the lease for the

ENTIRE unexpired TERM of the lease
Establishes vertical privity b/n assignor and assignee. L in
privity of K w/ T. L in privity of estate w/ T1. T is in
privity of K w/ T1.
L can sue either T or T1, as covenants run w/ the land.

Tenant assigns the leasehold for less than the full

remaining time, or reserves right of entry.
No vertical privity. L is in privity of K and privity of
estate w/ T. T is in privity of K w/ T1.
L can sue only T. T could implead T1.

If the transfer is a sublease, then no privity of K exists b/n the landlord and the new tenant. So, the new
tenant is not liable to the landlord for breach of covenant.
ERNST v. Conditt (Tennessee Court of Appeals, 1964)
Rogers originally leases land from Ernst for 1 yr plus a few days. He sets up a go-kart gig. Soon he finds
Conditt, who wants to take over and extend the term of the lease to 2 years. Landlords agree, although the
language of a new instrument suggests that Rogers remains liable for Conditts actions.
Issue: Did the instrument represent a sublease or an assignment? Holding: Assignment. Affirmed against D.
Reasoning: (1) D argues that by indicating that Rogers was primarily liable for the lease, the instrument
meant that Rogers had the implied right to re-enter and perform the lease in the event of default. So, Rogers
retained a reversionary interest in the lease, indicating that ALL rights were NOT passed. Plus the
agreement included the words sublet and subletting. So it seems to be a sublease. (2) Both common
law and modern interpretation suggest meaning is to be found in the language of the document, not the
intention of the parties (parol evidence). (3) The court finds that Rogers express agreement to remain liable
did NOT create a right of re-entry or reversion. (4) The term sublet is used in the agreement, but it has been
used to mean both assign and sublet (ambiguous). (5) Rogers parted w/ property upon selling go-kart
business and the landlord rented to Conditt for ALL of the extended term.
Can a sublettor /T1agree to be held to the L? Yes, if T and T1 agree to it by K (third party benefi).
Why should no sublease or assignment clauses be enforceable? L has an interest in controlling the
identity of the tenants to (a) ensure physical security of property and (b) to ensure his financial
interest in receiving rent. If clause is with the landlords consent, nonconsent must be reasonable
Abandonment
Landlords REMEDIES if T LEAVES before lease is up:
(1) Accept Tenants Surrender
(2) Re-let on Tenants Account
(3) Sue for Damages
(4) Sue for Rent at the End of the Lease

Leasehold terminates. No further obligations and landlord is free to lease the property
to someone else. Remedies still available for breaches prior to surrender.
Landlord refuses to accept tenants surrender and the tenant remains liable. But tenant
implies a wish to be relieved of the liability, which occurs if the landlord can find a
replacement tenant. Original tenant still liable if new tenant defaults.
Damages based on anticipatory breach. Breach must be unequivocal. Damages =
difference b/n reserved rent and fair rental value. Assumes that the landlord relets the
premises and suffers only the difference.
Landlord waits until the unpaid rent has accrued to the end of the term before he sues.
Modern courts impose a duty to mitigate, which could affect damages.
For duty: breach may be efficient and duty avoids waste
Against duty: L bargained for security of income; judicial interp tough; search costs
K around it: autonomy, mkt trusted. Counter: imbalance of power problem,
especially if acceleration clause

Landlords have an obligation to make a reasonable effort to mitigate damages if a tenant wrongfully
abandons a lease. Tenant is liable for back-rent and expenses incurred in re-letting.
SOMMER v. Kridel (New Jersey Supreme Court, 1977),
James Kridel/D entered lease which ran from May 1, 1972 to April 30, 1974. $345 per month. Firstmonths rent not due until June, 1972. D was discharged from the Army, lost engagement, and became a
student, supported by stepfather. Couldnt afford rent; wrote landlord on May 19, 1972, asking for
sympathy, and willingly forfeited down payment of first-months rent and security deposit. P doesnt reply.
P refuses to re-let apt to another (willing and able to pay) until Sep 1973 for $345.
Issue: Does L have a duty to try to re-let an apt wrongfully vacated by the tenant? Holding: Yes. Reversed.
Reasoning: (1) Old majority rule: L did not have a duty to mitigate. Lease was a transfer of property
interest in the owners estate. T technically owned the property until the lease terminated. Why should L

concern himself w/ Ts abandonment of Ts own property? (2) Evolution! The law of estates is ceding
ground to the law of K, which emphasizes equity and fairness. (3) Lost volume rule doesnt apply since the
prospective tenant requested Ts particular unit, no other. It was individual. (4) L has burden of proving he
used reasonable diligence. Why? Hes in a superior position of information. Proof-newspaper ads, listings.
Policy: Not imposing duty to mitigate is uneconomic, allowing valuable rental space [to] lie fallow.
Counter: Imposing a duty rents or security deposits for all, hurting lower income disproportionately;
Ts may be more wont to break leases, increasing vacancies in the short run (still, its a 0 sum game).
Implied Warranty of Habitability
History. No responsibilities on L
Implications.
(1) Leaseholds now more like K than
negative duty in an implied covenant of
conveyances. In K product must
quiet enjoyment (no constructive eviction)
conform to representation.
in early 20th century affirmative duty
(2) L & T covenants become dependent.
in an implied warranty of habitability
No longer must T sue for injunction
first.
Residential NOT commercial (where
(3) T can seek a remedy w/o abandoning
parties have = bargaining power & T has
the property.
an interest in making repairs)
(4) Perversity-T-friendly statutes may
Grounding: majority-assumed; minorityhave homelessness; Ls dont want
housing code or implied in circ.
to deal w/ poorer Ts, priced out
Burden: Strict for termination.
Negligence for damages.
Procedure. T must provide NOTICE. L
gets a certain time to respond.

K around it?
For: autonomy/free mkt; negotiating
could price
Against: majority of jurisdictions dont
allow it; social safety net; poorer renters
could be ramroded; loophole for mean Ls

Remedy.
(1) Repudiate the lease/rescind K most
allow it outright; some require Ls
breach to be material; Uniform Res L
and T Act allows it only if breach
materially affects health and safety.
(2) Rent withholding until problem is
fixed; allows T to stay in the property
(3) Rent abatement ct can reduce rent
owed; the diff b/n actual and fair rental
value given poor condition
(4) Damages T can recover rent + b/c of
violations of implied warranty
(5) Injunction
(6) Repair and deduct
(7) Housing code remedies housing
inspector may testify and ct may order
civil or crim fines

T may lawfully withhold rent AND retain right of possession in a leasehold if L breaches the implied
warranty of habitability. Standard: materially affects health and safety. Damages should be the
difference b/n actual rent and the fair market value for property in poor condition.
GREEN v. Superior Court (CA 1974), slumlord nailed on breach
In Oct 1972 SF Public Works inspector cited 80 housing code violations of Ls property and scheduled a
condemnation hearing on Jan 19, 1973. Ds had reported to L (1) collapse of bathroom ceiling, (2) absence
of heat, (3) plumbing blocked, (4) rats, mice, and cockroaches, (5) faulty wiring, (6) bad stove.
Issue: Whats the remedy for a breach of the implied warranty of habitability in a res lease?
Reasoning: (1) No warranty/caveat emptor policy no longer appropriate. Residences on land were
secondary in agrarian past (land was most important by far), and farmers generally could repair things.
Conditions are changed and leases are more like contracts. L overwhelmingly better favored in info about
premises (i.e., possible defects), and Ts dont understand a lot. (2) Urbanization and pop growth
decrease in low-cost housing. Low-rent Ts have no bargaining power or alternative, so the free market cant
insure habitability. (3) In industrial era, a consumers expectations must be protected by warranties. And a
modern T is like any consumer of goods. T is buying right to inhabit, so T can reasonably expected property
to be habitable. (4) Housing codes suggest legislature wants to place the burden of maintaining habitable
property on Ls. (5) Repair and deduct provisions of Civil Code 1941 does not preclude common law
development. The section provides that w/ notice T can either abandon the lease (constructive eviction) or
repair and deduct. The ct argues that these are NOT the only possible remedies; saying that cts have
expanded on these remedies in the past. (6) Precedent requires defenses in unlawful detainer actions must
directly relate to the issue of possession. Purpose? Make unlawful detainer actions quick. Need for justice >
need for speed. Plus other jurisdictions suggest that speed need not be forfeited, and they suggest
procedural counterweights: T must pay to ct or escrow.
Retaliatory Eviction
Rule: Ls cant evict or o/w retaliate against Ts for asserting their legal rights protected by, say, the implied warranty of habitability
Caveat: applies to residential leases only
Burden: Unifrom Residential L & T Act puts burden of
production on L and burden of persuasion on T.
Old rule: L could evict on any ground w/ sufficient notice.
Defenses: include legitimate business reasons.
Policy: (a) Ts must not be discouraged from reporting & handling violations legally. Admin agency cant catch everything problem
w/ housing regulation ; (b) fairness+distributional-often unequal bargaining power + housing shortage; (c) assure minimum

habitability.

L cannot evict in retaliation for T (1) exercising legal rights when L violates a (2) protective housing
statute. But L must be (3) in the business of renting residences, (4) T must not be in breach when served
w/ eviction notice, and (5) Ts complaint must be in good faith. Burden of proof on P, production on L.
Building Monitoring Systems, Inc. v. PAXTON and Amy Lowder (UT Sup 1995), UT wants to reporting
Ds sign a month-to-month (periodic) tenancy. Ds complain to Health Department about plumbing and
wiring in apartment. Upon receiving second notice in October, P gives Ds notice of termination at the end
of the month. Ds stay. P files for unlawful detainer. Trial ct says the eviction was retaliatory.
Issue: Is retaliatory eviction a valid defense to an unlawful detainer action? Holding: Yes; reversed for D.
Reasoning: (1) Although not adopted in Utah, statutes in 31 states allow the retaliatory eviction defense and
housing regulations suggest it. Plus 2 Utah acts manifest an intent to improve housing condition. (2)
Edwards v. Habib (DC 1969) said that defense of retaliatory eviction was vital to maintain effective
enforcement of housing code. (3) Private reporting of violations of housing and health codes is vital to their
enforcement. Counter: Under subsection 57-22-4(2) of the Utah Fit Premises Act, an owner may refuse to
correct and terminate the rental agreement if apt unfit. (4) All elements of test satisfied. (5) Remedy: T may
be remain in property until repairs are made + reasonable time to find alternative housing. Vague?
Who is most likely to use this? Ts w/ rent control. Balancing: cost of trial vs. seeking alternative.
FEDERAL Housing Discrimination and the Fair Housing Act 42 U.S.C. 3601 et seq.
Applies to all sales and rental of housing.
Exceptions: (a) Single-family homes, if owner owns less than four. If owner doesnt live in the home
he can sell once every 2 years. (b) Cant use if seller advertised or used services of a broker, agent, etc.
(c) Owners home, as long as not more than 4 families could live there independently.
N/A to ability of states and feds to regulate the max # of occupants.
Discrimination (applies to renter or buyer, or persons affiliated w/ them)
(a) Cant refuse to negotiate for sale or rental b/c of race, color, religion, sex, familial status, natl origin
(b) Cant discriminate through terms or conditions.
(c) Cant advertise to rent or sell dwelling by indicating preference based on race, gender, etc.
(d) Cant tell someone that a vacant unit is taken b/c of race, gender, etc.
(e) Cant misrepresent qualities of neighborhood (e.g., racial makeup) to induce into selling or renting.
(f) Cant refuse to make reasonable accommodations to afford equal access.
Equal Access
(g) Have to allow buyers to modify the premises to enjoy equal opportunity of use. Renter may need to
restore it to its original condition upon leaving, though.
(h) Covered multi-family buildings built after 1988 must be accessible by handicapped. Covered multifamily dwellings include, generally, 4 or more unit buildings.
(i) Act sets a floor, not a ceiling. State may require more.
Excepted Groups
Religious organization can allocate property based on religious preferences. Private clubs can favor
members. Elderly homes can give preference based on familial status.
Enforcement
Private civil action.
U.S. DOJ can bring civil actions on behalf of the government. Officer w/in the civil rights department
would get 3 testers, 2 white and 1 black, and give them equal credentials.
Funky: Female seeks female for apt share. Inadvertently banned under 3604(c) of the FHA.
STATE Housing Discrimination Marital Status and Religion
Challenge: Balancing state interests in eradicating invidious discrimination in housing market vs.
protecting religious rights of Ls (e.g., to object to cohabiting outside of marriage).
State of affairs: In Boerne (1997) the Court held RB is the standard for state burdens on religion.
Fed has a higher bar SS for fed burdens on religion. Result? State anti-discrim laws survive!
Statutory prohibition against discrimination on the basis of sex or marital status does not cover
unmarried cohabitants of the opposite sex. Look to statutory language/product of compromise first.

MISTER v. A.R.K. Partnership (Ill App 1990), unmarried cohabitants lose out to religious objection
Illinois Human Rights Act of 1987 prohibits discrimination based on sex or marital status in real estate
transactions. Marital status is defined: "the legal status of being married, single, separated, divorced or
widowed.".A.R.K./D refused to rent to Ps, two male-female couples cohabiting (one couple was engaged).
$150 to process application and hold the apt returned to both. D claims policy reflects religious belief
against unmarried cohabitation, but no evidence supports this. D appeals costly TRO. Issue: Does the Ill
statute protect cohabitation of unmarried opposite-sex adults from discrimination? Holding: No. Rev for D.
For Ps/opposite-sex rentors (losers)
Textual interp: Relationship reflects sex and marital status. Ds
denial is totally related to sex: if they were of same sex, Ds
wouldnt object; or married of opposite sex, no objection.
History: Anti-fornication law is old, rarely enforced. Amendment
to act recently rejected to exclude unmarried cobhabs. It is not
the courts job to assume the legislative role in shaping policy.

For Ds/landlords (winners)

Textual interp: Refusal to rent based on couples consensual
relationship, not their sex or marital relationship. Act allows
denial of renting to persons of one sex.
History. Anti-fornication law still on the books (had not been
repealed), was echoed in 1979 Jarrett case->common law
marriages not recognized; against open & notorious cohabitation.
Consistency! Leg rejecting amend not the same as 1970s leg.
Counter: packing the record -> inaccurate portrayal of intent.
Leg history: bill sponsor said unmarried cohabitants not included
Remedial leg: generally construed liberally.
Counter: intended to protect on the class intended to be covered
Counter policy: alternatives to marriage allow efficient unions
Policy: Alternatives to marriage weaken the family.
Beyond the FHA? Diff defn for familial status; Ill includes ancestry.

Example
Landlord v. Tenant
Determinative Facts: Lease ran from Sep 1 to Aug 31. Rent paid monthly. In April roof begins to leak after
a series of thunderstorms. L was in Africa at the time. Leak got progressively worse until it ruined her
computer. T lost files, including spring notes and senior thesis. T withholds May rent; moves out May 15.
Few days later T calls L to inform L that Steve Sub would occupy until August. L refuses as no permission
sought, nor provision in the lease. Plus L wont have a man in the house (all women).
Landlord
No notice given. Unaware so how can L reasonably be expected
to repair? Given situation, T could have gotten the roof repaired.
She was in the best position to identify the problem, as it didnt
seem to affect the others.
Lease was for term of years. T chose not to abdicate the lease,
choosing instead to sublet. No permission sought; no provision in
the lease for it. L under no obligation to allow it. T remains liable
for the remainder of the lease.
L has no duty to relet premises since K still in force. Technically
T has leaseholder rights over the property. L did not accept T
surrender, since T never abandoned (unlike Kridel who clearly
abdicated). L cant relet on Ts account since T indicated a wish
to determine who stays there. L cant sue for damages since
anticipatory breach not unequivocal.
Practical: Leak was progressive. T had ample time to move or
cover computer. Not damaging to health. Breach not material.
No consequential damages only damages recoverable are the
difference b/n actual rent and FMV

Tenant
Implied warranty of habitability breached. Damages for harm,
including lost job, the cost of a new computer, and the cost of
attending school for another semester. Impossible to notify L b/c
L was in Africa.
T could withhold rent AND retain possession of the property
until L fixed the problem. L didnt until Sep. T owes nothing in
Sub (1) Wrongful eviction assignment OK unless the lease
stipulates o/w. (2) FHA sexual discrimination. Ls response
(1) No eviction since no privity w/ Sub. (2) Single sex OK. W/o
more facts, doubt persists. Since Sub has burden, ct finds for L.
Sub (1) Misrepresenation. (2) Estoppel. T -

RELATIONS BETWEEN PROPERTY OWNERS AND OTHERS

Trespass
Defn: Trespass is the physical invasion to real property or chattels. Violates owners right to exclude
One who intentionally interferes w/ anothers property is liable only if the interference is harmful to
possessors materially valuable interest [Rest, 12]. However, degree of trespass required = f(remedy).
Intel Corp. v. HAMIDI (CA App 2001), trespass to chattels, web servers
Hamidi/D was fired by Intel/P. D subsequently sent 6 mass e-mails to Intel employees complaining of
Intels personnel policies. D evaded Ps security in doing so. Trial ct granted injunction on SJ for trespass
to chattels. Issue: When can a party prevail on a trespass to chattel claim? Holding: Affirmed for P.
P/Intel (winner)
Trespass b/c (1) transmitting electronic signals qualify as a
physical contact w/ chattel, and (2) mass e-mails productivity
(time + annoyance).

D/Hamidi (loser)
(1) Transmitting electronic signals are like talking on the phone.
(2) No actual injury proven. Servers not damaged or noticeably
slowed. Some workers welcomed the messages. (3) In trespass to
chattel claim, owner must show loss of possessionnot here. (4)
Leg omission: e-mailing of advertising restricted; not this type

Policy: protect the owners right to exclude; expectations.

Policy: Slippery slope to losing the right to make a phone call.
N.B. Trespass could be tough in situations where premises are open to the public.

Nuisance
Defn: Nuisance is the unreasonable interference with the use of anothers property. Contrast: Use vs.
physical invasion (trespass). Trespass law protects the interest in exclusive physical possession. Nuisance
law protects interest in the use or enjoyment of ones own property. Conflict: free use & development vs.
secure use & enjoyment by others (Bastiat-property rights protected by state action not acting = taking.)
OBJECTIVE TEST: Nuisance if (a) harm is substantial (e.g., decreases value of the property),
and (b) conduct creating the harm or the consequences must be unreasonable. Controlling
Factors: (1) Location; (2) Activity; (3) Harm; (4) Priority; (5) Social Value.
Displeasing appearance of an object on neighboring land does not constitute nuisance. Injury must be
SUBSTANTIAL and conduct UNREASONABLE (i.e., social costs > social benefits).
OLIVER v. AT&T Wireless Services (CA App 1999), neighbors cell phone tower in height
110 ft wireless cell phone tower on Permanns property was replaced by 130 ft tower. Local commission
granted/sanctioned the replacement. Ps did not protest the presence of the former tower. Security fence
around tower site is 7 ft from Ps property line at closest point. Nuisance claim-eyesore + humming sound.
Issue: Does the appearance of a structure on a neighbors property constitute a cause of action for nuisance?
Holding: No. Affirmed SJ for Ds.
Ps
What about air rights? Difference b/n urban and rural expectation
While humming may not really bother Ps (admitted), once Ps
decide to sell their property value is lower substantial harm?
property value can be a proxy for reasonableness.

Ds/Tower (winner)
Landowner has no natural right to an unobstructed view.
Estoppel given the neighbors didnt complain 20 ago.
Diminution in value does NOT interfere w/ the PRESENT use
and enjoyment of the land no interference.

Policy: Aesthetic objection insufficient; o/w nuisance = f(taste)

Implications: Expectations can be unsettled! Courts are making
policy calls, especially as federal common law expands.
In either case the balancing question under the reasonableness prong goes to the jury.
Government could bring a claim if public/common interest threatened (compare to SC Coastal Commission takings case).

Remedies for Private Nuisance

Property Rules
Injunction

Entitlement to be free from harm (veto right).

Alienable. Incentive for D to K renegotiate for
easement. Majority of jurisdictions award
injunction ONLY IF damages are inadequate or
harm would be irreparable.

No Relief

Entitlement to inflict harm (privilege). Alienable.

Incentive for P to K renegotiate for negative
easement.

Exchanges of entitlements take place through BARGAIN.

Asking prices are likely to be higher than the fair market value.
Goals: (1) Maximize aggregate welfare
(2) Fair distribution

Liability Rules
Damages

Forced sale of entitlement of secure use; denied

ability to stop. Court decides sum, not P.
Criticism: defies notion of ownership/right to
exclude. Argument for: allows property owner
who might have a higher valued use of property
according to the community to continue
nuisance. Balancing test. Goals: efficiency, yet
fairness.
Purchased
In exchange P must pay owner for lost profits,
Injunction
relocation costs, reduction in fair market value.
Appropriate if on balance social harms outweigh
benefits. Goals: efficiency, fairness (shifts costs)
COURT determines awards. Fair market value likely to be less
than what parties want. Trade-off: efficiency for distrib fairness.
Measures: (1) Fair market value avg max joint market value
(2) Auction highest bidder (lower P for seller)
Status quo encourage bargaining (higher P for s)
Redistribution find for Ds in balancing test and
conclude that Ps couldnt give Ds enough to stop
Reverse auction entitlement to least likely seller
Social welfare assume that both sides internalize

Damages are appropriate if the loss recoverable < cost of removal of the nuisance/injunction.
BOOMER v. Atlantic Cement (NY Ct of App 1970), payoff for cement pollution social benefit greater
D operates cement factory near Albany. P seeks injunction from dirt, smoke, and vibration. Total damage to
Ps property is small ($185K) compared to the consequences of an injunction for Ds business. Issue:
Should a ct award an injunction or damages if the aggregate social cost of an injunction would be greater
than the benefit to an individual P? Holding: Reversed injunction. Permanent damages appropriate.

Reasoning: (1) Institutional competence/deference. Solving pollution problems is beyond the power of the
court. (2) In Whalen, the ct upheld the injunction despite the gross disparity b/n damages and
consequences. The old rule was that if damages were substantial (>$100 per year), injunction was
appropriate. (3) Here injunction would cripple D, as technology doesnt yet exist to allow cement makers
not to pollute. (4) Instead permanent (past, present, future) damages can be calculated, and < cost of
shutting down. Balancing test! Claim preclusion to Ps?
Policy: Force polluters to internalize costs (more efficient resource allocation), but allow production
to continue if society benefits on net.
Options rejected: (a) delayed injunction (rejected b/c factory is unlikely to develop technology to
reduce emissions w/in timeframe); (b) permanent injunction (wasted value of the factory and harm to
workers and community); (c) periodic damages (repetitive litigation, but ongoing incentive for R&D).
Example
Harrys Bar and Grill v. Undercover Reporters. Claim: trespass and nuisance. Remedy: injunction. Facts:
Investigator posed as a supplier of fruits and vegetables. Videotaped 20 minutes of unhygienic food prep.
Investigator plans to air the tape on his show. No consent obtained to tape.
Harrys
Trespass: physical invasion of property w/o consent. Re-contra:
but not the kitchen and storehouses. Fraud-policy consequences
(checking all patrons ineff). Plus actual injury likely. Trespass to
chattel when there is intermeddling which is detrimental to
business interest. Analogy to Intel.
Nuisance: Unreasonable interference w/ Ps property. Harm is
substantial. Bound to lose customers. W/o them business is hurt.
Free development disrupted. Conduct is unreasonable.
Fraud/misrep to get videotape. [IIED, NIED]. No warning. Plus
decreased value of restaurant suggests unreasonable.
Remedy: Injunction. More efficient for both parties. Can be sold.
Damages are tough to calculate, but substantial. Harrys cant
match advertising revenue-purchased injunction not appropriate.
Vanna White Right to publicity violated. Eastwood test
satisfied as D uses Ps identity to Ds advantage w/o consent and
injury will result. Counter: not TVs business. Unjust enrichment.

Undercover Reporters
Counter: It was open to the public. No right to exclude.
Permission granted. Damages should be nominal, since no
damage was done in trespassing.
Conduct is perfectly reasonable; its in the nature of TV
reporting. Free speech. Secure enjoyment by others (of their
persons) is threatened by Harrys. Social value of public health is
high. Hazardous activity. Plenty of other restaurants. Decrease
in value doesnt disrupt present use. [Oliver]
No relief. Privilege of investigative reporting. Serving the public
good. Injunction or damages would deter the truth from coming
out.
Society will benefit from the truth.

Creation of Easements
Defn: A license is a temporary invitation, waiving the right to exclude. Revocable at will, generally.
Defn: An easement is a right to use land possessed by another. Not revocable at will. Generally permanent
A. Affirmative: right to do something on anothers land
B. Negative/restrictive covenant: right to prevent other from doing something on their land
Servitudes: non-possessory interests in land belonging to another (include easements and covenants)
Key Issues
Duration
Expressions
Scope of Use
Relocation
Transferability
Runs w/ Land
or Person
Dom/Servient
Termination
Law
Disaggregation
Regulation

Temporary, revocable at will license

Express agreement generally written,
sometimes oral
Kind
Owner of easement
License might not allow it.
Anyone can buy easement easement in
gross (relevance: easement stays w/ the
PERSON)
Dominant tenament = land benefiting

Permanent or fixed t easement

Implied agreement conduct or informal circumstances

Interpretation common law

Hurts alienability since a property is
burdened w/ many encumbrances;
consolidating promotes autonomy too
Benefits
-Prevent concentrations in power over
others activities -> encourage development
-limit ability to create servitude-> alienab

Regulation legislature
Helps alienability in that owners may be more willing to
part w/ ownership if they can retain some control

Intensity
Owner of servient estate (land on which easement passes)
Easement allows for it.
Intended to benefit only neighboring landowners/land
appurtenant to a parcel (ownership to owner of dominant
estate) (relevance: easement stays w/ the LAND);
Servient tenament = land over which easement passes

Costs
-Restricting servitudes prevents freedom to K,
autonomy and efficiency (mkt cant decide on developm)
-Destroying servitudes disrupts expectations

A court will interpret a transfer as a fee simple unless language in the document, when viewed as a
whole, explicitly states it is an easement or right of way. Other parol evidence: custom, affidavits.

Urbaitis v. COMMONWEALTH EDISON (Ill Sup 1991), fee simple vs easement -> former alienability
Parcel of land in Kane County is 100 ft wide and 2713 ft long. 1909 deed from Dodson to Chicago,
Wheaton & Western Railway. Railway operations stopped in 1946. Forest Preserve District now using the
land in form of a permanent easement from Commonwealth Edison, who got the interest from Western
United Gas & Elect Co. (deedholder since 1946). Ps claim to be successors in interest, neighbors in land.
Proc: Claim for quiet title of land. Trial ct said deed conveyed fee simple (for Ds). Dismissed. Issue: Did
the Dodson deed convey a fee simple or an easement for railway purposes? Holding: Fee simple. Affirmed.
Reasoning: (1) Start w/ the deed language: conveys and warrants for $3500 (one time payment);
releasing and waiving all rights and damages. Grantee must construct and maintain a grade crossing
to maintain right of way, a culvert under roadbed. (2) If deed uses terminology which the law of property
gives a definite meaning, it will be interpreted as such. Conveying a parcel or strip of land, w/o
qualification, is considered a fee simple estate transfer. If language purports to grant a right, its just an
easement. (3) The Ill Conveyances Act of 1874 states that a transfer is a fee simple absolute unless deed
includes express words or by construction or operation of law. (4) Right of way, when read as part of the
whole, used only to locate and describe the land. Cases cited by Ps which used right-of-way term clearly
intended for an easement to be granted. Case at bar similar to Sowers [20-24] term used just to locate.
Easements vs. Licenses (Estoppel Transformation)
Licenses usually (a) created informally, (b) are revocable, and (c) run w/ the person, not the land.
Limitations/exceptions: not revocable if (a) reasonable reliance/estoppel, (b) interpreted to be leases
(e.g., rights to place signs on billboards, students in college dorms; key: exclusive) or covenants, (c)
public accommodation which cant do so if discriminatory.
Estoppel Policy Arguments
For: Fairness-after expenditures, denying D rights to use the
Against: discourage unreasonable reliance upon a license. Its bad
property would be unjust; prop owner would have D over a barrel to burden land w/ unwritten easements (disagg/alienability)

Example: In Wilson v. Owen developer granted homeowners the privilege to use two lakes for
recreational purposes. The deeds gave homeowners the power to alter the covenants. Majority of
owners voted to revoke the privilege. Issue: Was the privilege to use the lakes a license (revocable)
or a permanent easement (not revocable)? The ct held that the language was ambiguous and sales
brochures suggested rights were exclusive -> so its an easement (irrevocable).
A right to use a roadway over the lands of another (easement) can be established by estoppel if in the
exercise of using the privilege (license) a party has reasonably spent significant money in uses
connected w/ its use on the faith of the license. Reasonableness standard.
HOLBROOK v. Taylor (KY Sup 1976), easement through estoppel
Ps claim right to use roadway 12 wide by 250 long by estoppel. Roadway on Ds property. In 1944 D gave
permission for haul road to be cut to move coal from a mine; D got royalties for use. Mine closed in 1949.
From 1957 on the roadway was used by D and their tenant. P bought neighboring 3 acre lot in 1964 and
constructed home in 1965. Use of road by permission of D until 1965. D put up a steel wire to prevent P
from getting from the public road to his home. P seeks injunction. Issue: When will ESTOPPEL guarantee
the right to use a passway on others property? Holding: Aff for P. Easement by estoppel.
Reasoning: (1) Gibbs precedent: If license includes the right to erect structures and acquire an interest in
the land, then if a party encounters expense in erecting structures, the grantor cannot revoke. (2) Owners
permitted others to use the road since 1944. This included the period of Ps construction. After construction
D still allowed P to use the roadway. And P improved the roadway. (3) No alternative location for a
roadway exists over the hilly woodlands. (4) Past use, need to use to move heavy equipment, Ps
maintenance of the roadway, tacit approval of Ds, and the value of Ps construction -> ease by estoppel.
Implication: Threshold problem-how much is significant? Its a function of (a) degree of use, (b)
financial harm, (c) length of use, (d) owners representations.
Prescriptive Easement
Elements of a Prescriptive Easement
Actual (substantially the same/substantial identity)
Exclusive (public as a whole)
Open and notorious
Adverse, hostile
Continuous (tied to notice)
Statute of limitations
Contrast w/ adverse possession: w/ prescriptive easements, cts are more lenient on exclusivity and favor public use.
For: as time goes on sympathy for the trespasser increases;
Against: unjust taking; costly & inefficient to prevent all trespass;

fiction of a lost grant; exclusivity tough as public turns over

impairing alienability property values

Prescription by easement requires: (1) P to carry burden, (2) presumption is that use is permissive unless
o/w proven, (3) use must be hostile or under claim of right, (4) use must be open and notorious, (5) use
must be continuous for 20 yrs, (6) substantial identity of easement claimed.
CONCERNED CITIZENS of Brunswick County v. North Carolina (NC Sup 1991), sandy path is publics
Ocean View Blvd West is located in the Holden Beach West Subdivision, which used to be owned by 2
families, later developed by Holden Beach Enterprises. D bought property in 1985 and paved marl road.
This road generally follows the path that residents used for years before the island was developed.
Eastern end of the overwash (from Hazel in 1954) lies 1400 ft from the eastern property line. In 1982-83
the state paved the 2880 ft segment of the east-west road from the west turnaround to the property line. The
state started this road in the 1940s. In 1977-78 Ds predecessor laid a marl road down 3700 feet from
property line to the west (w/in 1800 ft of Shallotte Inlet). Town used road for fire and police trucks, to get
garbage, and for a public water line. Photographs suggest that a discernible pathway had existed since
1962. Paved road didnt track trail spot on (varied from 60 to 200), designed by Raleigh consulting firm.
July 1985 D erected a guardhouse blocking access. Trial judge held no prescriptive easement b/c (a)
location of path changed (not confined to specific line of travel), (b) interruptions of use. App ct affirmed.
Issues: Is there sufficient evidence to establish an easement by prescription by the publics use of a pathway
across the dunes of the Outer Banks of NC? Did owners barring the public use from time to time
sufficiently interrupt continuity to destroy the prescriptive easement? Holding: Remanded for new hearing.
Reasoning: (1) Trial judge erred in not applying substantial identity test (actual use), instead requiring a
single, definite and specific line. Forces of nature shift sand -> claimant need only to be able to determine
w/ reasonable specificity to give reasonable notice. Precedents large variations dont destroy finding an
easement. Changes made to suit the convenience of the owner do not destroy the identity. (2) Signs and
barriers put up in the 1960s did not prevent the public from using the road. People just drove around them
or tore them out, ignored guards. Since nothing the owner did actually PREVENTED the use of the road,
continuity not destroyed. Plus continuous is dependent upon the purpose and nature of the easement
asserted; must be enough to constitute notice. Easement to reach the inlet, fish, bath, etc.
Dissent: (1) Until the 1960s the use of the land was permissive. (2) In 1963 James Griffen placed a log
in the pathway; followed by 2 posts, a cable and a lock; followed by farmgate; followed by guard booth
in 1985. Barriers prevented full and free enjoyment of the easement. Some people were deterred.
Solution: Openly permit public use or erect The Wall!!!
Implied Easements (Pre-existing Use or Necessity)
Pre-existing Use Elements
(1) Common grantor (former unity of ownership)
(2) Quasi easement one part of the land had to be benefiting the
land before the severance/split
(3) Apparent, continuous and reasonably necessary (more than
convenient, but not required to be absolutely necessary)
Goals: at least one party would have demanded it at the time of
severance

Necessity Elements
(1) Common grantor
(2) Necessity necessary for egress

(3) Necessity at time of severance necessity has to exist at the

time of the severance
Goals: (1) Logic: parties would probably have created an
easement themselves. (2) Public interest in not having landlocked
parcels. We want people to have access to roads.
Downside of implied easements (a) surprise buyers, (b) discourage alienability, (c) upset expectations of servient estate owners.

Easements may be created by express grant, implication, estoppel or prescription. Easement by

implication can be established by necessity or pre-existing use. Ease by pre-existing use (appurtenant) is
dissolved when servient land is sold if buyer does not have notice, or use was not apparent.
Russakoff v. SCRUGGS (VA Sup 1991), pre-existing use of East Canterbury Lake
In 1960s a Richmond developing company constructed Canterbury East in Tuckahoe (Henrico County).
Subdivision includes a man-made lake. 4 lot owners property abuts the lake. Development co stopped
paying taxes on the lake in the 1980s; tax sale in 1983; goes to Scruggs, who spends $8K on repairs, puts
up no trespassing signs and erected a fence around the lake. Issue: Did landowners establish an easement
for access to and use of a lake? Holding: Yes. Reversed for Ps.
Reasoning: (1) Easement is the right to use the land of another in a particular way for a particular time, not
an ownership interest in the servient land. (2) Implication: when one conveys land, he/she conveys all that
is necessary and proper to enjoy the use and enjoyment of the property. But test: (a) dominant and servient
tracts originated from a common grantor, (b) use existed at time of severence (quasi easement), (c) use

was open, continuous, and reasonably necessary for enjoyment of the dominant tract. P and previous
owners openly and continuosly used it for sprinkler systems, boating, fishing, etc. Unrealistic to claim that
the developers merely intended the lake to be used for utility and flood control purposes. (3) Buyer/Scruggs
knew of use he asked lot owners to pay to continue to use it. So implied easement by pre-existing use.
Type: Appurtenant implied easement since the next owner of the dominant estate/lot gets it.
Problem: Reasonably necessary Do watering lawns and frogging qualify?
Easement by necessity arises when an owner severs a landlocked portion of his/her property by
conveying it to another. To create it: (a) prior common grantor, (b) owner of the landlocked portion
cannot access a public roadway (necessity for egress), (c) necessity existed at time of severance.
Schwab v. TIMMONS (Wisc Sup 1999), shot self in foot-not necessary at time of severance
Ps have landlocked parcels in Door County, b/n Green Bay on the west and a 50 ft bluff to the east. In 1854
the U.S. granted Lot 4 (southernmost of 3 lots) to Torgerson; didnt retain right of way through Lot 4 as
both Lots 2 and 3 had access to public roadways. In 1882 US sold Lots 2 and 3 to Anderson. Ps parents
bought parcels in Lot 2 (northernmost) in 1940s; property included a way above the bluff to a public road.
In passing the properties on to children, the parties conveyed away access to public roads. Ps had tried to
convince the Village of Ephraim to exercise statutory right to extend a public road into the private road
extending north from Hoblers property through Timmons/D prop. Denied b/c not in the publics interest.
Issues: Does the circumstances suggest an easement by necessity? Should there be a policy of hidden
easements for landlocked properties? Holding: Not necessarily. Affirmed for D. Claim dismissed.
Reasoning: (1) Parcels were not landlocked at time of conveyance. Ps conveyed away their right to
highway access. (2) Implied easement is appropriate only when the necessity for the easement is so clear
and absolute that w/o the easement the owner cant enjoy the property properly (high bar). Implied
easement also requires open and continuous use prior to separation. Here, there was no prior road extending
north from Ds property. (3) The US never severed a landlocked portion that was inaccessible from a public
roadway. Geographical barriers alone are not enough. (4) Ps argue that there is no rational basis for
landlocked property. Govt should weigh interests. Arg to SANCTION HIDDEN EASEMENTS cuts against
desire for alienability, policy against implied easements; buyer should be able to rely upon public
records and the language of a K.
Creation of Covenants
Defn A covenant is a land use restriction intended to run w/ the land, binding successors (reciprocal rts)
History.
Governed by the law of (a) easements,
(b) real covenants (K enforced
covenants), or (c) equitable servitudes
(intent, touch & concern, notice).
Created in individual deeds or declaration
of restriction.
Qualities: hard to change.

Types of covenants
Law of servitudes
Negative-restrictions on ones land use
1. Restrictions run w/ the land vs
Affirmative-obligation to use ones
personal covenant (runs w/ parties)
land for the benefit of another
2. Formal: covenants must be recorded to
Most common-single-family use only
put future owners on notice.
3. Informal: estoppel from ads = implied
Enforced by dominant owner or
4. Can be illegitimate (racially discrim)
homeowners association
5. Changed conditions vs single owners
Constitutional limitations on govt actors
veto power over majority (balancing)
n/a to private communities (FHA limits).
Benefits: security in expectations -> knowledge that neighboring
Cons: restricted land is less adaptable (overlapping rights);
land is restricted could increase value (no future factories); K
potential buyers could be deterred (inhibits alienability); high
freedom -> owners can make agreements for mutual benefit
transaction costs in getting a group/class to K change conditions;
developers creating the covenants have limited foresight

A ------- B
|
|
C
D
Real Covenant (common law relic)
(1) Covenant touches and concerns the land. Distinguishes b/n
personal promises and promises relating to the land. E.g.,, B
promises to use the house on Bs land in a certain way.
(2) Privity of estate b/n party seeking to enforce covenant and
party against whom it is enforced. Horizontal relationship b/n
original covenanting parties (A-B)-parties must have a mutual
interest in the same land (e.g., joint tenants, easement but NOT
NEIGHBORS). Vertical successor has the same interest in the
land as the original owner (e.g., both have fee simple absolute).
One party has a burden, other has benefit. For a burden to run
you need H and V privity. For a benefit to run you need V privity.
E.g., D wants to sue C. D must show both V privity b/n B and D

Equitable Servitude (equity relic)

(1) Covenant touches and concerns the land. Today, courts are
willing to find this satisfied since just about anything affects the
value, or enjoyment of the land.
(2) Party against whom enforcement is sought had notice of
covenant at time of purchase (e.g., D needs actual or constructive
notice).

(benefit), V privity b/n A-C and H b/n A and B (burden).

(3) Intent to bind successors in interest (future possessors). Look
to document first; parol evidence next.

(3) Intent to bind successors in interest (future possessors). Look

to document first; parol evidence next.
Implication: easier to prove than real covenant. No privity req.

RUNYON v. Paley (NC Sup 1992), real and equitable covenants and condo development
Ps file claims to enjoin Ds from building condos on adjacent property, claiming restrictive covs. Gaskins to
Brugh sale of 1 acres on Jan 9, 1960, deed of conveyance had several restrictions, which purported to run
w/ the land. Gaskins also sold a parcel to Runyons. The deed allowed for no more than two residences until
neighboring properties turned to commercial use. Brugh subsequently sold to Paleys who entered
partnership w/ Midgett Realty, condo builders. Proc: Lower cts held that restrictive covs were personal to
Gaskins, not intended to benefit the neighboring Runyons. Issue: Can Ps enforce the restrictive covenants?
Reasoning: (1) Personal covenant creates a personal right enforceable only b/n original parties. Real
covenant creates a servitude upon the land for the benefit of the dominant estate (runs w/ land). (2) To
touch and concern the land the covenant must not be able to exist independent of the land. B/c of the close
proximity of the lands and the secluded nature of the area, Ps privilege to enjoy prop is affected. (3)
Horizontal and vertical privity must be shown in a real covenant. Horizontal here b/c Gaskins and Burghs
agreed to the covenant when prop was conveyed (had mutual interest in the land-grantor-grantee). Vertical
NOT satisfied b/n Runyons & Gaskins b/c they did not succeed in land held by Gaskins when the covenant
was created. Runyons got their land from Gaskins prior to Jan 9, 1960. (4) Language of deed reveals intent
to benefit the dominant estate neighboring value of the land at issue. (5) Equitable: (a) touch & concern
(okay); (b) covenant-creating parties didnt intend for Runyons to benefit b/c they were not parties in
original covenant, not part of a common development scheme, land not mentioned (fails); (c) Paleys had no
notice since there was not an enforceable covenant (fails).
Implication: Runyons aint got no right to make em stop, but Gaskins successor, Williams, satisfies
real covenant reqs (in verticial privity w/ Gaskins). Sup ct remands-Williams can get injunction.
Implication from a Common Scheme/Implied Negative Servitudes
Example
Eubanks
Eubanks ---------- Neighbor #1
1 4 7
A
D
G
10
13
|
|
Hicks
Neighbor
#2
2 5 8 Hicks to 14
B
E
H
|
MidMid-State
state
3 6 9
O
C
F
15
Doctrine: where a common grantor develops land for sale in lots and includes a common scheme of
restrictions benefiting the neighborhood, the grantees receive by implication the right to enforce the same
restriction against the grantor or successors in interest to grantors property
Defn: A negative easement/covenant is the right to force someone not to use their land in a particular way.
Elements of a Negative Easement/Covenant
Intent-common grantor intended same
Touch & Concern-must affect use or
Notice-tricky bit b/c the successor to O
grand scheme/covenants to apply to prop
enjoyment of the land (value substitutes)
wont have the language in the deed
Pros: People may pay more if they believe neighborhood will
Cons: burden land w/ restrictions, alienability; burdens buyer
remain residential. Avoids surprising owners of residential plots.
to determine potentially hidden restrictions; can surprise buyers

Doctrine of restrictive covenants in equity: (1) transfer of land, (2) when there is an understanding that
certain restrictions shall be observed (INTENT), (3) enforceable by equity, (4) as long as buyer has
NOTICE. Implied reciprocal negative easement exists if the common grantor develops land for sale in
lots, includes restriction on those, but later sells retained lots w/o restrictions explicitly in deeds.
Mid-State Equipment v. BELL (VA Sup 1976), implication granted
Facts: Disputed property is 1.5 acres in Campbell County in two triangular shapes. Eubanks bought 85
acres in 1945 and in 1960 requested a plat w/ restrictions, including: all lots restricted to residential use
only. Plat applied directly to Jefferson Manor residential subdivision, but this development excluded the 1.5
acre plot directly adjacent to Eubanks. Eubanks later conveyed some property to Clemmons subject to all
valid restrictions. Later Eubanks conveyed disputed property to Hicks, who resides on property from
1966 until 1973. Hicks agent Champe sold parcel as commercial property to Mid-State/D. Deed stated that

it was NOT subject to the restrictions of record on Jefferson Manor. D testified that he would not have
bought property w/ restrictions and he relied upon salesmans representations in improving property.
Issue: What happens if a residential developer omits the covenant from one deed, but the covenant is
present in all other deeds? Holding: Implied negative covenant affirmed.
Reasoning: (1) Implied covenants generally frowned on b/c they hamper alienability. But granted if parties
express intent to be bound b/c it guards expectations that property will be used in a particular manner. (2)
Was there INTENT? General scheme of residential development suggests that Eubanks intended
restrictions to apply to all property: (a) parcel on plat/map; (b) numbering system for the lots; (c) testimony
of surveyor/Overstreet that he was to leave out 2 lots suitable. (3) Did D/Mid-State/buyer have actual or
constructive NOTICE? Yes, given the uniform residential development surrounding the parcel.
Dissent: (1) Clear exclusion of the property from the common plan. (2) No practical way to know that
property would be subject to an implied restrictive covenant. Reliance on broker reasonable?
Implication: Be explicit! O/w buyers will dispute. Look to neighbors deeds, plat filings.
Termination of Covenants
Common

Ways To Terminate
Release K agreements among all
landowners. Difficult w/ more than a few
landowners.
Statutes of Limitations like everything
but murder. Once someone violates the
covenant, the right to sue stops.

Restricted Duration expiration after n

years (by statute or K) or after a majority
vote of the landowners (most common)
Abandonment widespread
Estoppel unclean hands (if P has
noncompliance (f(#s))
violated the covenant); if P has let others
violate the covenant or let others make
considerable expenditures in reas reliance
Changed Conditions a fundamental change has occurred in the intended character of the neighborhood which renders the benefits
flowing from the imposition of the restriction moot/incapable of enjoyment
Pros: (a) implements implied intent of the parties (recognizes
Cons: imposes the will of the majority; why should an objective
3rd party determine the value that a servitude beneficiary puts on
limitations in predictive power and cost of all-inclusive Ks);
the property (violating autonomy, unsettling expectation)?
alienability; (c) increases land value; (d) overcome minority veto

Notes: N/a to servitudes intended to immunize, preserve natural resources. Affirmative covenants, like
the obligation to pay common charges, are dubious since the provider has no incentive to control costs.
A restrictive covenant is no longer enforceable if a fundamental change has occurred in the character of
the neighborhood, rendering the benefits from the imposition of the restriction incapable of enjoyment.
El Di v. BETHANY BEACH (Sup DE 1984), covenant against alcohol sales void -> changed conditions
Ps/Bethany Beach filed for and received an injunction prohibiting D/El Di, owner of Holiday House, from
selling alcoholic beverages. D/El Di had received an on-premise license from the ABC Commission on
April 15, 1982. Commission found public need and convenience. In 1900 and 1901 developers of Bethany
Beach restricted the property to residential use only and prohibited the sale of alcoholic beverages. Affected
2/3 of the property. In 1909 town was incorporated; area , only 15% of which was under restriction. Since
1920s there have been commercial developments on the land in question. Alcohol is also for sale at a
packaging store 200 yards from Holiday House and several nearby restaurants, and Holiday House
customers have followed a BYOB/brown-bagging policy for years.
Issue: Is the restrictive covenant against alcohol sales still enforceable? Holding: No. Changed conditions.
Reasoning: (1) Change need not be to the whole parcel; partial is sufficient. (2) Purpose of covenant was to
maintain the quiet, residential, seaside, church dominated nature of the community. Its now a resort town,
w/ 85% of the 750 acre municipality not subject to restrictions and many commercial establishments. (3)
Town zoned Ds property for commercial use in 1952. (4) Consumption of alcohol is now tolerated by
owners of similarly restricted lots; evidenced in 20-yr brown-bagging policy. Policy: public best served by
allowing D to control the sale and consumption of dangerous substance. (5) Ds section is commercial.
Dissent: (1) Bethany Beach remains a family-oriented resort. (2) Brown bagging policy is not a
waiver. (3) Protect expectations of landowners!
Q: Was the covenant ever enforceable? Real covenant? (1) Touches and concerns the land right to sell
liquor upon the land; affects the capacity of the landowner w/ respect to the land. (2) Intent to bind
successors-original developer/Church group (BBIC) clearly had intent to bind the grantees (language of
deeds). (3) For a burden to run w/ the land you need both H and V privity, and for the benefit you need V
privity. Bethany Beach need only own some piece of land in BBICs original development for V privity.
Plus V privity b/n original grantee and El Di. H privity since they had mutual interest in the land done

from a sale. Equitable servitude? (1) and (2) the same. (3) Notice Despite the fact that the property was
being used commercially, as well as those around it and that the town had zoned it as such, D could have
traced back to the original lease or gone to the public record. And the deed probably included the language.
Common Interest Developments Condominiums & Cooperatives
Condominium
Defn: a network of covenants, w/ units owned in fee simple.
History. Mortgage insurance appears in 1960s, condos as each
condo owner has their own mortgage. 40 mil condo owners today
Restrictions (CC&Rs). (1) Present rules: (a) no changes w/o
approval; (b) no pets. (2) Future rules: homeowners association
Reasonableness requirement applies!
Governing doctrine. Equitable servitudes: (a) notice since owner
signs by-laws; (b) intent to bind since master deed/plan includes
covenant; (c) touch & concern b/c use (pets, changes) affected
Benefits of either: affordable single-family housing; stable
expectations about behavior (high bar to overturn restrictions)

Cooperative
Defn: building owned by corporation; occupants have shares
History + Feature: one mortgage for the entire building
(interdependence); risk kept most coops in NY
Implication: financial risk shared by all

Downside: forfeits personal autonomy for the common interest

Tradeoff: Judicial Efficiency vs Individualized Justice

Covenants in recorded declaration of a common interest are enforceable unless unreasonable.

Unreasonable = (1) burden imposed substantially outweighs the benefits of the restriction, (2) arbitrary,
(3) contrary to public policy.
Nahrstedt v. LAKESIDE VILLAGE (CA Sup 1994),
P kept 3 noiseless cats indoors. Residents share common hallways and lobbies. Developers declaration
filed in 1978 included CC&Rs stating no animals shall be kept in any unit. Proc: P/Homeowner in a 530unit condo complex sues to prevent enforcement against animals. Trial ct dismissed; ct of app finds for P,
arguing that Ds could enforce restriction only if Ps cats would interfere other homeowners right to the
peaceful and quiet enjoyment of their property (balancing). Issue: Is a pet restriction in the recorded
declaration of a condo complex enforceable against a new owner? Holding: Reversed and remanded.
Reasoning: (1) Rule laid out by CA Leg in 1354. Doctrine of equitable servitudes applies (intent, touch
and concern, notice). (2) Enforcement should not be arbitrary (i.e., decided on a case by case basis), but
decided in a uniform manner. (3) Condo is a common interest development; there are shared rights.
Horizontal property ownership (w/ some sharing of common areas) has only fairly recently been legally
recognized in the U.S. (4) Use restrictions are vital to the stable, planned environment of any shared
ownership arrangement. (5) Purchase of property in a common ownership plan entails mandatory
enrollment in an owners association, which has the right to enforce restrictions (w/ good faith and policy
limits). Subordination of individual rights to the common interest. (6) In Hidden Harbor, FL Sup Ct held
that reasonableness should limit homeowners associations promulgated rules but not to restrictions in the
original deeds. Only constitutional violations should invalidate the latter. (7) Pet restriction is not arbitrary,
but is rationally related to health, sanitation and noise concerns. Ps complaint has no reference to complex
as a whole (burden on the whole light in the balancing test).
Dissent: majority understates the value of pets to their owners; burden is in fact quite high.
Exception for fish and birds is illogical as both pose the same potential for health and nuisance
worries. Inconsistency = arbitrary, discriminatory!
Source of reasonableness requirement: discriminatory practices. Control mini-govt/condo complex.
Chains on land
use
Acts of legislatures
& agencies zoning

Courts law of
nuisance,
servitudes

Other citizens private

agreement/K

RELATIONS BETWEEN PROPERTY OWNERS & THE GOVERNMENT

Zoning-The Planning Process
Defn: A zoning ordinance specifies allowable uses by zone.
History. Village of Euclid v. Amber Realty (1926): Supreme Ct
approves of zoning ordinance. Today in all cities except Houston.

Planning Commissions local community members appointed

1. Quasi-legislative: promulgate regulations; make recs to leg
2. Quasi-judicial: decide on developers plans; grant variances if
(a) undue hardship or (b) deprivation of econ viable use
Why not leave it to K, nuisance, or servitudes (courts)? After development, its hard to get all landowners to agree to uniform
restrictions; substantial harm and unreasonable interference w/ enjoyment (nuisance reqs) not always met, yet still annoying

Lawmaking Authority
Legislature
Local govt
Admin agencies
(Power can be taken away!!!)
(Applies all the way down hierarchy)

Legislature
(statute; zoning enabling act)
Local Govt
(ordinance)

Courts

Planning Commission (administrative)

Landowners plat should be objectively measured against ordinance standards. Planning Commissions
have to stay in their boxes, w/in bounds of ordinances.
Richardson v. City of LITTLE ROCK Planning Commission (AK 1988), steep hill zoning appeal
Planning commission rejected Ps application for developments b/c (1) proposed cul-de-sac too close to
adjacent lots; (2) marginal development use given restricted means of access. Yet P didnt propose a cul-desac and the ordinance doesnt contain any language about marginal development use. P had land on a steep
hill w/o easy access; wanted to maximize the # of usable lots on property.
Issue: Does a planning commission have discretionary authority to turn down subdivision plat which meets
the minimum standard in the zoning ordinance? Holding: No. Reversed. Authority bound by ordinance.
Majority
Dissent
Agreed: authority of state oversight of land use police power of the state to protect public health and welfare.
Planning Commissions authority is to prepare/recommend and
Ps plat/plan failed to meet technical requirements of distance as
administer zoning laws. It is limited by (a) bounds of
he refused to reduce the # of usable lots from 15 to 12. Plus
ordinance/enabling legislation, (b) legislature, (c) constitution.
development could lead to erosion in neighboring property. Road
Marginal development potential not a valid reason in ordinance.
access problems are w/in PCs authority to reg street locations.
Commission cant arbitrarily deny proposal if it meets ordinance
Commission must have some discretion. Ordinance grants power
specs. O/w its a false signal expectations disrupted.
to protect neighboring properties in order to protect gen welfare.
Practical result: Planning Commission cant deny it for marginal development potential, so it will probably cite technical reasons.

Zoning-Nonconforming Uses
Prior nonconforming uses are generally grandfathered into new
zoning laws unless
(1) they are a nuisance or o/w cause substantial harm
(2) the use is intensified or substantially changed

Why?
(1) Fairness: previously legal, bargained for; fruits of labor/Lock
(2) Const prohibition against takings in the 5th & 14th amends.
Perversity: (a) nonconforming business uses monopolies; (b)
those who develop generally granted longer amortization period
Arguments for allowing changes in nonconforming uses away from conformity
For: protects prior investors interests; conversion can be ineffic
Against: discourages convergence to conformity (public interest)
Solution? An amortization provides a time limit for bringing the use into conformity; allows investor to recoup investment.

Unreasonable amortization of a prior nonconforming use is a taking w/o just compensation.

PA NORTHWESTERN DISTRIBUTORS v. Zoning Hearing Board of the Township of Moon (PA 1991)
On May 4, 1985 P obtained proper paperwork and opened adult book store in Moon Township, PA. 19 days
later Board of Supervisors amended zoning ordinance to prohibit adult commercial enterprises, setting a
90-day limit for P to come into compliance. Issue: Does the amortization of a prior nonconforming use
violate the Const prohibition (5th, 14th) against taking w/o just compensation? Holding: Yes. Reversed.
Reasoning: (1) State can require amortization of pre-existing nonconforming use structures by exercising
its police power, but only if doing so is reasonable. (2) Sullivan totality of factors approach to
reasonableness: nature of use, amortization period, prospective development of vicinity, community
benefits from discontinuance. (2) Property interests of individual vs. community interest in health and
welfare. If nonconforming use is lawful, a property owner has a right which cannot be abrogated or
destroyed, unless it is a nuisance, abandoned, or extinguished by eminent domain. (3) Any forced
amortization is a taking w/o just compensation. 90 days is not enough for an investor to recoup.
Concurrence: Sullivan factors test should apply. Dont outlaw ALL amortizations!
For Amortizations
Amortizations permit effective zoning, o/w community locked in
Prohibiting it restricts states police power
Provides flexibility in eliminating nonconf use in public interest
Allow the democratic process to work

Against Amortizations
Encourage economic development by protecting expectations
Avoid economic waste
Protect residents property interests
Predictability in judicial outcome

A zoning ordinance does not limit alterations to a NCU unless the purpose and manner are substantially
different from the use it was put to before alteration. (1) Does challenged use reflect current purpose?
(2) Is challenged use a diff manner of original use? (3) Substantially diff impact on neighborhood?
RAYS MARKET v. Town of Pelham (NH Sup 1995), no substantial change in adding Dunkin counter
P runs convenience store. Building was established in the 1950s as an auto repair shop w/ gas pumps and
sundries. Made nonconforming use by residential zoning ordinance in 1960. Evolved into a convenience
store by the time P purchased it (no longer auto repairs or gas sales). P applied for variances in 1985 and
1986 but neighboring resident intervened. Variances denied. P wants to convert 100 sq.ft. of interior to
Dunkin Donuts stand and replace face panels on store to advertise Dunkin. After several bouts of appeals,
the lower ct held moving coffee counter did not = substantial change.
Issue: Does replacement of a coffee counter and change of pre-existing sign amount to a substantial change
to a prior nonconforming use? Holding: No. Affirmed.
Reasoning: (1) Municipality power to zone is granted by the state and must conform to enabling act. Act
limits expansion or enlargement of nonconforming use property, or substantial change of use. (2) Here
mere internal expansion w/in pre-existing structure. Still using store to sell goods. Indeed, no different than
adding or dropping product lines in the store. No diff impact/traffic on neighborhood.
Variances
History: Euclidean zoning came under fire in the 1950s and
1960s (following Village of Euclid landmark case), for creating
lifeless, cookie-cutter suburbslives of isolation. Mixed-use
communities develop: (1) light mixed-use zones, (2) special
exceptions in ordinances (commercial parking okay if noise ),
(3) variances for nonconforming use.
Utility: lawmakers cant foresee all use. Variance Flexibility.

Defn: A variance is permission to deviate from a zoning law if

(1) its application imposes unnecessary hardship, (2) proposed
use not contrary to public interest, (3) would not substantially
impair the purpose of the zoning plan.
Difficulty. Hardship is tough to show -> most dont buy it if selfimposed. Unique condition works, and some allow for a showing
of practical difficulties ( in econ viable use). Compare: takings.

Variance granted if (1) b/c of exceptional property conditions (e.g., shapes or pre-existing structures)
enforcement of the ordinance would result in exceptional, undue hardship; or, (2) public benefits
outweigh detriment from proposed changed (better serving the goals of the ordinance).
LANG v. Zoning Board of Adjustment (NJ Sup 1999), backyard pool proposal infuriates rear neighbor
Application for variance to build an in-ground backyard pool w/ insufficient side (30 & 7) and back (1519) buffers. Proposed pool would occupy 14.2%of backyard; 10% allowed. Granted b/c (1) unusually
narrow backyard and (2) pre-existence of paved driveway and garage in the backyard. Neighboring lots are
all wider. Challenged by neighbor to the back. Reversed by App Div b/c (1) proposed length to
accommodate unnecessary diving board; (2) no safety benefits of replacing above-ground w/ in-ground.
Issue: What should determine whether a variance should be granted? Holding: Reversed. Variance granted.
Reasoning: (1) App Division incorrectly calculated the size of the rear lot using standard assumptions (30
deep by 100 wide). Max permissible size of pool is not 300 sq, but 4446 sq in Ds case. They also
incorrectly added in the space of the heater, pump, and entry steps. (2) Undue hardship has naught to do w/
personal hardship or w/ proving an inability to use the property if ordinance enforced. (3) Inhibit is enough,
but it must be brought on by propertys unique characteristics. (4) Inquiry should focus on whether the
unique property characteristics are the PRIMARY reason for nonconformity. (5) Deference to local zoning
boards given their familiarity w/ community interests. (6) Pool standard in size, better looking, and safer.
Rezoning Spot Zoning
Defn: Spot zoning is the selective rezoning of one or a few parcels. Problems: discriminates in favor of
owner, hurts community, is an abuse of police power. No special legislation; EP under 14th (RB scrut!)
Approaches to Review of Spot Zoning
Fasano (OR) Nature: Judicial b/c individualized, affecting
Arnel (CA) Nature: Legislative b/c it could affect a larger
particular parties; general rule applying to particular facts; case
class; formally legislative, rules produced; clean line.
made before officials at a hearing. Implications: Treating the
Implications: Treating the decisions as legislative means that they
decisions as judicial means that they are bound by precedent,
are invalid only if unconstitutional. Hard to overturn. Judicial
reasoning, legislation governing, evidence. Easier to overturn.
economy. Rule: Must be (1) constitutional, (2) w/in authority
Rule: Must be w/in the comprehensive plan, meaning (1) public of local govt. [MAJORITY approach]
need for change, (2) best achieved through changing the
function of a particular piece of property.

Goals: Tension b/n desire to give local decision-makers more authority and flexibility vs. desire to have decisions made on the merits
rather than on local favoritism.

Process: Planning Commission Board of County Commissioners Trial Ct Ct of App Sup Ct

Any zoning change must be in accordance with the comprehensive plan. Commission must show (1)
public need for change, (2) best achieved through changing that particular piece of property. Judicial
FASANO v. Wash County Bd of Commissioners (Or Sup 1973), mobile homes vs. NIMBYs - judicial
actions, normal review
Board of Commissioners/D1 rezoned AGS Developments/D2s prop from single-family residential to
planned residential/P-R (mobile homes okay). Land originally zoned single-family res in 1959. P-R
classification adopted in 1963 as a floating zone. Land in question changed to P-R in 1970.
Proc: Trial ct for P, homeowners opposing zone change. Ct said D1 had shown no change in neighborhood
to justify rezoning. Ct of App affirms, citing lack of conformity w/ comprehensive plan.
Issue: Was the rezoning in accord with the comprehensive plan of 1959? Whats the standard of ct review?
Holding: No; new housing wouldnt better meet needs of urbanization. Affirmed for P.
Reasoning: (1) Local administrative bodies should NOT be given the same deference as state and national
legislative bodies. An ordinance on the other hand is a more general policy, subject to only review for
abuse. Leg vs. judicial test: if public action applies to an open class of individuals its legislative, if it
targets specific individuals its judicial (spot zoning). (2) Zoning ordinances carry out the comprehensive
plan. Any rezoning must mind local aesthetics, business needs, property development, suitability of land.
(3) The more drastic the change, the higher the burden for D. (4) WORRY: economic interests can drive the
decisions of planning commissions.
All zoning ordinances are legislative acts. Admin decisions, like variances, are adjudicatory.
ARNEL DEVELOPMENT v. City of Costa Mesa (CA Sup 1980), slo-growth denies developer - legislative
actions, constitutional review
P wanted to develop 50 acres as 127 single family dwellings and 539 apt units. Originally 8.5 acres was for
low-use res and the remainder 63 acres for medium-use res. Neighborhood association prevailed on
initiative to rezone area to permit only single family dwellings.
Issue: Should zoning ordinances be treated as legislative acts? Holding: Yes. Reversed for D.
Reasoning: (1) The size of the parcel does not affect the nature of the decision. (2) If a rezoning act affects
only a few persons, ideally they should be granted a hearing, but this cannot be forced, as it would curtail
legislative authority too much. (3) Why legislative? (a) can be enacted by initiative, (b) subject to
referendum, (c) reviewable by ordinary, not just admin mandamus, (d) does not require explicit findings,
(e) RB standard suffices, while admin decisions must be supported by substantial evidence. (4) Benefits:
judicial economy, as not everything needs to be heard on a case-by-case basis.
Rezoning Aesthetics
Tension: individual autonomy (expectations, just desserts) vs. greater interest (max agg prop value)
A building permit may be denied on aesthetic grounds if D can show that the building would be (1)
detrimental to neighboring property values, (2) in conformity w/ character of community, (3) desirable
land use in community/furtherance of ordinance.
STOYANOFF v. Berkeley, Building Commissioner (Missouri Sup 1970), Beauty is in the eyes of the
Architectural Board
Ps applied for building permit to construct a single-family residence. Although it complied w/ existing
regulations, it was unusual: Community is wealthy, w/ restrictive conditions to ensure that it looks that way
(most homes two-story Colonial, French Provincial, or English. Ps challenge the aesthetic criteria as (1)
unconstitutional in being too vague, and (2) the city exceeded its statutory power in enacting the ordinance.
Request refused by Architectural Board of the City of Ladue, gatekeeper w/in authority of enabling act.
Issue: Should aesthetic considerations have any influence on building decisions? Holding: Yes. Rev for D.
Reasoning: (1) Approval is subject to certain minimum standards; ugly buildings are detrimental to the
value and welfare/happiness of the neighboring community ( value). (2) Standards for evaluating aesthetic
conformity: whether proposed home (a) is in conformity w/ general style proposed, (b) is in conformity w/
surrounding structures, (c) would have an adverse effect on property values. (3) In Magidson v. Henze a
Mo App ct held that the city did not have the authority to impose aesthetic standards on owners. But the ct

erred in not applying the three-part standard. (4) Beauty sustains property value! (4) Building
Commissioner has ultimate say on whether an building is sufficiently unsightly to potentially reduce
property values; plus public has the opportunity to be heard. Not all in hands of small Architectural Board.
Implication: Preservation of property values is most cogent reason for zoning ordinances. Personal:
home value. Public: local tax revenue. Architectural review is COMMON today.
Problems: Potential for arbitrary, inconsistent decisions. Authority? innovation. Violate autonomy.
Rezoning Household Composition
Valid Goal: Single-family residential zones prevent high # of
people from living in one home, in order to traffic.
History. Handicapped added to the FHA in 1988. They often live
in group homes. House committee report gave an example of
something valid under FHA exemption: a square footage req.

Contrast: FHA which seeks to prevent discriminatory practices in

the sale or rental of property. # control still valid under FHA.
Extreme denial. The Ct in Moore v. City of East Cleveland
(1977) invalidated (DP) an ordinance restricting grandparents
from living with grandchildren if separated by parents.

The FHA exception applies to restrictions aimed at preventing overcrowding, not bad character.
City of Edmonds v. OXFORD HOUSE (US Sup 1995), ordinance invalidated under FHA, # of occ pretext
FHA exception to handicap discrim: local, state, or fed restrictions on the max # of occupant permitted to
occupy dwelling. But FHA includes requirement of reasonable accommodations for handicap persons. In
1990 D opened a group home for recovering alcoholics and drug addicts in a neighborhood of single-family
residential homes. Ps zoning code permits only family members or <=5 non-family individuals per
home, supposedly to limit # of occupants. 9th & 11th circuits split on family defn. Issue: Does Ps zoning
code qualify for the FHA exception to handicap discrimination? Holding: No. Exception intended to
prrevent overcrowding in living quarters, NOT to foster the family character of a neighborhood. Aff for D.
Reasoning: (1) FHA is a broad remedial act; exception clause should be narrowly read to achieve that
purpose. (2) Land-use restrictions are aimed at character of neighborhood, while occupancy restrictions are
aimed at preventing overcrowding. Section 3607(b)(1) of the FHA aims at the latter as well. (3) Applied:
Ps zoning code ECDC 16.20.010 and 21.30.010 are examples of land-use restrictions and family
composition rules. Doesnt limit the # of family members in a home. ECDC 19.10.000, on the other hand,
aims at overcrowding by limiting the # of occupants per square foot..
Dissent: Plain language refers to maximum 5 unrelated household members. That is exactly what
3607(b)(1) means: restricting the max # of occupants permitted to occupy a dwelling. Plain purpose
best serves the intent of the legislature. Dispute over statutory interpretation & local citys intent.
Implication: City ordinance not necessarily void. Its subject to FHA scrutiny. The City could still
stonewall, arguing that the accommodation is not reasonable. Its a tougher road though.
Exclusionary Zoning
Common Application
1.
Require large lot sizes
2.
Minimum sq footage per child.
Arguments against allowing it:
1. Autonomy
2. Mandated inclusion effective tax on new construction,
which would o/w be unprofitable. So, cost of new housing
increases, actually availability of low-income housing.
3. Ex post: protect value of investment, both personal and for
community (via tax base; keep education costs down)

2-Part Inquiry
1.
Do affluent communities have the authority to do this?
2.
Should they?
Arguments against allowing it:
1.
inefficient restrictions on development (e.g., unused
industrial zone when demand for low-income housing high)
2.
Account for externalities (2dary costs of limiting lowincome housing to urban areas)
3.
Game theory-top down ban prevents chain of tragedy of the
commons, independent buck passing by each county

Cost of govt = prop taxes = (tax rate) * (value of property)

A municipality must, via land use ordinances, plan and provide the reasonable opportunity for an
appropriate variety of housing to meet the needs of all who may desire to live w/in its boundaries.
Municipalities must zone for the living welfare of the people, not for the benefit of the local tax rate.
NAACP v. Township of Mount Laurel (NJ 1975), general welfare requires muni to plan for shelter for all
Need for affordable housing is a crisis issue, according to governor. Regulatory scheme was not intended to
exclude on the basis of race, origin, or social incompatibility. D is a 22-sq mile township about 10 miles
north of Philadelphia. Population in 1940: 3,000; in 1970: 11,000. 65% or property still vacant or for
agricultural use. Highways have been built all around it; access by autos only. Zoning: 29% for industry
(but only 100 of 4,000 acres actually used by industry), 1.2% for retail, balance for single-family homes (R1 to R-3), w/ no allowance for apartments, townhouses, or mobile homes. This, plus big lot developments

push the prices up. Virgin development projects will include apartments, but they will be expensive. Goal:
attract highly educated citizens to support industrial base. Penalties to developer if 3 children from one
multi-family dwelling attend the school system! Retiree zone created in 1972-52 yr-old minimum, w/ max
1 child. In NJ the fewer the schoolchildren, the lower the tax rate. City tax base has eroded as the wealthy
flew to the suburbs, leaving poor public facilities for low income. Issue: Does the land-use policy
unlawfully discriminate against low-income families? Holding: Affirmed order of affirmative action.
Reversed remedy to give muni first shot to amend. N.B. Decided on state, not fed constitution grounds.
Reasoning: (1) State law prohibits municipalities from foreclosing housing opportunities to individuals
based on income. Specifically, zoning actions must conform to the interest of the general welfare. (2)
Legislative and judicial decisions should change when social conditions change (Pierro). Cts should take a
non-local approach to general welfare cases. (3) Provision of adequate housing FOR ALL is essential in
promoting the general welfare. (4) Procedural impact: burden shifted to municipality to show valid basis
for action or omission. Substantive impact: decide what regulations are invalid. (5) Application: Singlefamily dwellings w/ large lot reqs and penalties for too many kids punishes the poor. Much of industrial
zone is unused; could be used to develop multi-family dwellings. Knocking down possible justifications:
(a) keep down local tax rate does not outweigh low-income persons need for housing; (b) environmental,
large lots keep sewage and water supply manageable limited # of multi-family developments wont hurt.
(6) Globalization! Munis must zone w/ REGION in mind. (7) Remedy: 90 days to rezone in accordance w/
opinion. Municipality should have right of first action, not the court (deference).
Mount Laurel II Remedy failed, so the ct required the use of state and federal housing subsidies,
incentives for private developers of low-income housing. Legislature then passed NJ Fair Housing Act of
1985, creating administrative agency called Council of Affordable Housing. N.B. The act allowed
communities to buy their way out of builders remedies, shoving the poor off on neighboring communities
Authority: B/c women, children, and minorities are more likely than white men and adults to be poor,
the Fair Housing Acts disparate impact analysis could be applied to the exclusionary zoning.
Debriefing
Does zoning survive? Yes, but theres now a real limit in
municipalities power to exclude. Query extent of aff obligation.
Top-down approach: local fiscal goals are aimed at only selective
Township as a corporation? A township represents the interests of
welfare. Avoid gaming and buck passing. Criticism: buy-out
all citizens, presumably equally. Cant commodify social utility.
remedy allows it & payment aint likely to be enough to do much
Allowing communities to exclude the poor in the name of taxes
polarizes society, friction inevitableMarx.
Why state law? Keep the fed govt/cts hands off the decision.

THE TAKINGS CLAUSE

5th Amendment: "Nor shall private property be taken for public use, without just compensation."
Principle: In Armstrong the Court held that the inquiry should be whether in all fairness and justice burden
should be borne by the public as a whole, rather than on individual property owners alone.
Courts should defer to state legislatures to decide what constitutes a public use unless the use is palpably
without reasonable foundations. Property need not be held and used by the public to be valid taking.
Hawaii Housing v. MIDKIFF (US 1984), public use clause does NOT prohibit government taking
In the mid-1960s the govt owned 49% of the land and 72 landowners held another 47%. On Oahu, most
urbanized, 22 landowners owned 73% of fee simple titles. Finding that the concentration artificially blew
up land prices and damaged the public welfare, the state legislature passed the Land Reform Act of 1967.
The idea was to permit landowners to escape large federal tax penalties for selling the land by condemning
the property, and forcing sale to lessees. Hawaii Housing Authority to decide whether to condemn a piece
of property if at least 25 tenants apply for it. HHA may then resell it, but not for profit. HHA is also
authorized to lend tenants up to 90% of the purchase price.
Issue: Does the 5th Amend (applies to states via14th) prohibit states from taking, with compensation,
property in order to reduce the concentration in ownership of fees simple? Holding: No. Reversed for HHA
Reasoning: (1) In Berman the ct held that it is for the legislature to decide what public purposes reflect
good public use. Why? Power of eminent domain! (2) Courts should DEFER to the judgment of state
legislatures of what constitutes a public use unless the use is palpably without reasonable foundations. (3)
Rational basis: (a) regulating oligopolies is a legitimate state exercise of police power/object; (b) rational
means by limiting the number of houses available to each lessee + use of public funds.

Why DEFER? The standard of public use is amorphous and better left to a branch of govt which
represents the public. Apolitical nature of judiciary and lack of macro fact-finding.
Implication: Only if the taking is purely private or has no rational basis will cts intervene.
Regulatory Takings
Defn: Govt regulates the use of a piece of property in a way that causes the propertys value to decline.
Examples include zoning laws, nuisance law, implied warranty of habitability, environmental reg, tax laws.
How to determine if govt reg = taking
Always
Never
Sometimes (Penn Central)

Pro
Protects expectations of private owners;
forces the govt to face up to true costs
Allows govt maximum flexibility. The
price you pay for living in a civil society.
Potential to protect owner expectations,
while allowing govt reasonable flexibility.

Con
Super expensive; limit govt. Encourages
agencies to rush decision-making.
Govt doesnt internalize costs of reg
(over-reg). Can reduce price of prop to 0.
Line drawing problem. Increases cost of
litigation. EP worries.

Factors in ad-hoc inquiry into whether economic injuries cause by the government should be
compensated: (1) economic impact of regulation and interference w/ investment-backed expectations;
(2) character of the governmental reg (serves uniquely public function); (3) reciprocity of advantage (vs.
singling out owner to bear the burden). Theme: strength of expectations.
PENN CENTRAL Transportation v. City of New York (US 1978), no taking, deference
Landmark zoning restrictions prevent the owner of Grand Central from building in airspace. Issues: (1)
Does NYCs Landmarks Preservation Law, by restricting the development of certain landmarks, effect a
taking without just compensation, thereby violating the 5th Amendment? (2) Transfer rights = just comp?
Holding: No taking. Affirmed for D.
Reasoning: If substantial public purpose served, its enough (standard of review) [23]. (1) Regulation
doesnt interfere w/ current use, which is already reasonably profitable [35]. Plus they have transferable air
rights. Preserving landmarks is unlike reverse-spot, discriminatory zoning. We all enjoy the benefits of
preservation and there are several property owners targeted. (2) Air rights argument: ct looks to WHOLE
bundle of rights in evaluating whether public is taking. [28]. Question remains: how far can we go in
requiring private property owners to bear the burden? Divisional problem if spread widely, not a taking.
Dissent: (1) No reciprocity not all property owners subject to the same restrictions, yet all enjoy
the benefits. (EP problem?) (2) Burden on landowner is high. Affirmative obligations. Not zoning!.
Physical Takings
Big Split in the Field of Takings
Regulatory
Physical (threshold)
Standard applies: Penn Central offers a factor-based balancing
Rule applies: Any permanent physical occupation authorized by
test to determine if economic harm caused by govt reg should be
the government = taking, regardless of impact on net social
compensated: (a) magnitude of the economic impact and
policy/utility or on the value of the property.
interference w/ investor-backed expectations; (b) character of
govt regulation; (c) reciprocity of advantage (singling out?).
Pro: (a) Balancing accounts for net social interests (fairness
Pro: Favors landowners. (a) In accord w/ precedent (flooding
fight discrim). Allows public policy to evolve w/o potentially
cases like Pumpbelly). (b) Permanent phys occupation is a
high fin. burdens. (c) The judiciary and legislators control.
grave affront. (c) Clean rule. (d) The market controls.
Con: (a) No reciprocity! All enjoy the benefits, a minority
Con: (a) Penn Central should supercede agrarian precedents.
bear the costs. (b) Affirmative obligations impose a high
(b) Regulations can do > damage than perm physical occup
burden on landowner. (c) Lack of foresight deters investment.
(e.g., rent-control ordinance that value of prop by half). (c)
Permanence, physical -> ambiguous, so rule is not so clean.
Big criticism: uncertain expectations
Big criticism: ambiguous + illogical distinction from regulation +
illogical physical distinctions (n/a to fire escapes, mailboxes)

Any permanent physical occupation authorized by govt = taking, regardless of public interests served or
the net impact on the value of the property.
LORETTO v. Teleprompter Manhattan CATV Corp. (US 1982), physical occupation is a per se taking
NYC law authorized cable company to install cables on residential rental properties w/o owners
permission for a fee of $1. Prior to Ps purchase, D dropped a line down the front of the building. CATV
argues development shouldnt be hindered b/c it provides community education balancing. Issue: Does
govt authorization of permanent physical structures = taking under 5th and 14th Am? Holding: Yes. P wins.
Reasoning: (1) Physical invasion is a particular affront to an owners right to exclude (cuts whole bundle!).
One of three factors in Penn Central rule. (2) Permanent physical occupation is different from temporary

(PruneYard allowance of petitioners). Also, PruneYard involved a shopping center, open to the public in
ways that a private residential building is not. (3) Physical occupation by a stranger, not an invitee. In
Block v. Hirsh the Ct upheld antieviction laws in rent-controlled housing, arguing that forced physical
occupation was essential to policy goals (balancing). (4) Rigid rule avoids uncertainties of a standard.
Dissent: (1) Balancing test would be more appropriate: tenants interest in a vital service (consumer
protection) vs. landowners right to exclude. Burden to be expected by landlords [40]. Analogy to
mailboxes. (2) Physical vs. nonphysical distinction is a bad predictor of economic impact. (3) In
Lloyd Corp v. Tanner (1972) the Ct held that the 1st Amend did not guarantee a right to demonstrate
at shopping centers. (4) Why should invitee be allowed to exceed the scope of invitation?
Wipeouts
Regulation is a taking requiring just compensation if reg (a) doesnt substantially advance legit govt end
OR (b) denies the owner all economically viable economic use of the land. EXCEPTIONS: N/A if (1)
use would have been proscribed by pre-existing nuisance common law, (2) chattel (eagle feathers).
LUCAS v. South Carolina Coastal Council (1992), ban on beachfront building -> power to the courts!
In 1986 P bought two residential lots on the Charleston coast, 300 ft from the beach. Neither area qualified
as a critical area, requiring special permits under a 1977 SC Coastal Zone Management Act. In 1988, SC
passed a law which barred P from erecting permanent habitable structures on the parcels. Issue: Does a
100% diminution in economic value from a regulation = taking under the 5th Amend? Holding: Yes.
Lucas Majority (Scalia)
Lucas Dissent (Blackmun)
Rule: Regulation is a taking requiring just compensation if
Rule: Penn Central & nuisance law balancing should apply.
the owner is denied ALL economically viable use of land.
Exception: No taking if owner never had a legal right to
Nuisance law changes over time w/ knowledge &
use his land in a manner illegal in nuisance common law.
circumstances. Exception is too narrow, limiting legislatures.
Reasoning: (1) Total deprivation under reg = physical
Reasoning: (1) Precedents always weighed private against public
appropriation. No reciprocity of advantage-no balancing. (2)
interests in nuisance cases, regardless if total wipeout. (2)
Distinguished nuisance precedents as not involving total
Decision requires taxpayers to pay off owners from harming
wipeouts; + no per se for chattel. (3) Harm-preventing/benefitpublic simply b/c the type of harm is new.
conferring distinction cannot be made in a principled manner.
Implication: Narrow categorical rule b/c few laws wipeout value.
Why compensate people at all for regulatory takings, as the risk
Deprivation denominator problem-tract in question or the whole?
of regulation always exists and should be reflected in price?
Shifts power from legislatures to judges laws now defined by
nuisance common law at a point in time (still uncertainty).
Underlying question: What are reasonable investment backed expectations?
Interpreting Lucas: total wipeout (Tahoe) vs. ban on building so some ambiguity

Moratoria
TAHOE-Sierra Preservation v. Tahoe Regional Planning Agency (US 2002), categorical rule vs. Penn
B/c of 2 moratoriums to study the environmental impact of development in and around Lake Tahoe, D
prevented development for 32 months. Ps include 400 owners of vacant lots, who bought their property in
1980, before the moratoriums, w/ understanding they would be able to build homes. Temporary dispute.
Holding: Affirmed for D/govt. Temp moratorium on development is not a taking under Penn analysis.
Categorical Rule vs. Totality of Circumstances/Penn Central Standard
Categorical Rule (for property owners)
Totality of the Circumstances (for govt)
First English: Once a regulatory taking is found, govt must comp
Dissent in First English: A regulatory taking is NOT=physical.
regardless of how long the taking is in effect (per se). Why?
Length of time is one factor. If short, not likely a taking.
Deprivation of use, regardless of or in property value.
Implication: (1) A temporary regulatory taking is the same as
Reasoning: Concern about penalizing govt for ordinary
(a) a temp physical taking or (b) a perm regulatory taking. (2)
processing. Implication: Legislatures would err on the side of
regulating.
Legislatures will err on the side of NOT regulating (avoid ).
Dissent in Tahoe
Majority in Tahoe
A temporary development moratorium is a per se taking.
Duration of restriction is one factor in Penn Central analysis.
Precedent. Lucas established a categorical rule for permanent
Lucas is an extreme example of total obliteration of econ value.
deprivation of all econ viable use of property. First English
Ct didnt decide First English on the merits; merely a remedial
established that a temporary reg could be a taking. Lorettoinquiry. Plus, Ct did say that a temporary reg might NOT=taking.
physical occupation is a taking. PRACTICAL EQUIVALENCE!
(1) In toto Ps couldnt build for roughly 6 yrs. Ds caused this,
Precedent: Penn Analysis requires looking at the property as a
b/c 1984 plan didnt conform to 1980 Compact injunction req.
whole, not in geographic or temporal pieces (e.g., 32-month
segment). Cant say air space is a total loss.
(2) Time and space are different. Time value of money.
Temporary vs. Permanent. Distinction is tenuous b/c land-use
A per se rule would be financially crippling to govt. informed
regulations are not irrevocable. Govt can escape category of
decision-making as the process becomes rushed. Who suffers?
permanent by labeling regs temporary, or fixing a # of yrs.
Less organized interest groups and planning.

Property rights are enjoyed under an implied limitation (created

by law-Bentham).
Implication: Govt wont internalize costs of its decisions;
chances of maximum reciprocity of advantage. < $ in litigating!

Penn Central analysis. Reciprocity of advantage in temp

moratorium, as immediate construction may not gel w/ ultimately
adopted plan. Property values could , just as well as .
Implication: Flexible. Better for govt, as cat taking tough to show

Method for Analyzing Regulatory Takings

Does a govt act affect private
property?

Rule: Per se, categorical taking if

invasion is physical (Loretto);
all economic use of land is denied (Lucas) or if reg
doesnt substantially legit govt end (Agins)
Some states have passed laws to provide compen-sation
if a govt regulation or seizure land value.

Standard: (1) Temporary, conditional , non physical

regulatory taking Penn Central case-by-case,
fact-specific analysis applies. [baseline]
(2) Dolan rough proportionality w/ individualized
determination for exactions.

Development Exactions (contract vs. conditional zoning)

Defn: An exaction is a city demand w/ which a property owner
must comply to obtain a govt permit to build on his/her land.

Limits: Dolan rough proportionality applies only to exactions.

Similarity: Agins req that taking substantially advance legit inter.

Precedent. Nollan v. CA Coastal Commn (US 1987) established

bar of essential nexus b/n permit condition and the reason for the
development limitation. O/w its a taking. But ct found no nexus
at all b/n forcing easement & reason for limiting renovation
(blocking view from road->horiz easement), so we dont know
how tight (RB?)/general the connection must be.

Dolan v. City of Tigard (US 1992) defined how tight the link
needed to be: rough proportionality b/n permit condition &
projected impact of the proposed development. Exaction denied
b/c land set-aside not least restrictive means to control flooding
problem & easement for bike path not shown to traffic problem

Implications: (1) Nollan and Dolan set the rules for dedications of land for public use. Most cts apply Dolan-like analysis to
required fees from developers for low-income housing. Problem: Dolan seems to require individualized determinations, not macro
strokes. (2) Cities are forced to submit some proof on a case-by-case basis of rough proportionality (good for developers).
For exactions: govt stands in for will of the people in bargaining;
govt cant afford to pay for all measures taken to risk of natural
disasters, traffic, environmental harm; special benefits for or
imposition of special burdens from P req payment

Against exactions: another restriction on personal autonomy, right

to exclude is an essential stick in the bundle; extortion is bad

An exaction = a taking if < rough proportionality b/n permit condition & projected impact of the
proposed development. City must make an individualized determination.
DOLAN v. City of Tigard (US 1992, 5-4), intermediate scrutiny for exactions; condition = f(development)
Facts: P wanted to double size of plumbing and electric supply store, pave gravel parking lot, and put up a
new retail building, all permissible under city zoning scheme. Exaction/condition on permit = (1) P must
dedicate 10% of her land to the city; (2) dedicate an easement for a public bike or pedestrian path. 1973
comprehensive plan of Tigard, Oregon, req prop owners in Central Biz District to set aside 15% for
landscaping + Drainage Plan said floodplains should have no structures. Issue: What is level of connection
b/n the permit condition and the impact of the development is req? Holding: Rough prop. Exaction denied.
Citys goal: development impervious surface flooding, so P must dedicate land. Easement necessary b/c of in traffic to stores
Majority (5)
Standard: Rational basis would give govt too much latitude &
strict scrutiny would constrain govt too much. Intermediate
rough proportionality w/ individualized determination.
There is a less restrictive means: prevent paving over land
situated on floodplain. P already required to set aside 15%. Plus,
no evidence that bike path would traffic problem (just could)
If city had forced P to dedicate a strip of land w/o development, it
would be a taking. Right to exclude is an essential stick in the
bundle (Kaiser Aetna).

Dissents (4)
Burden on city is HIGH from new standard: (a) quantified
findings/evidence; (b) individualized determinations.
Souter. Majority ignores the facts; degree question not raised.
Stevens. Govt should have wider latitude; deny deal only if
condition is grossly disproportionate to dev. Could is enough!
Precedent. Penn Central held that the Ct should (a) focus on the
parcel as a whole and (b) the interference of state action w/ that.

Just Compensation
If there is no net loss to an owner, just compensation for a taking = 0.

BROWN v. Legal Foundation of Washington (US 2003, 5-4), no loss from IOLTA interest so just comp = 0
All states use interest on lawyers trust accounts (IOLTA) to pay for legal services for the needy. In Wash
its grounded by (a) Sup Cts authority to regulate practice of law, (b) but in some states its done by statute.
Precedent: In Phillips v. Washington Legal Foundation (1998), the Ct held that interest income from IOLTA
accounts is the private property of the owner of the principal. Wash Sup Ct adopted the IOLTA program in
1984 after 2 yrs of deliberations and public hearings. Reqs: (a) must deposit all clients funds in interestbearing accounts, (b) low sums unable to earn net interest go to IOLTAs, (c) IOLTA interest must go to D,
(d) D must use funds only for charitable & educational purposes.
Proc: Limited Practice Officers (LPOs)/escrowees sue. Lower ct argued (1) no taking w/o just comp since
w/o program -> no interest income; (2) no loyalty-splitting problem for lawyers threshold is always if
client can earn net interest; (3) in efficient distribution of funds by banks is accounted for in calculation.
But 9th Circ said remand on interest-follows-principal (Phillips rule). But it reconsidered saying no taking
under Penn Central: (a) no actual loss; (b) no problem w/ investment-backed expecations; (c) regulation
permissable/legitimate. Dissent said this is a per se taking (like physical).
Issue: What comp is just for the interest income from IOLTA, which belongs to principals? Holding: 0.
Majority (Bentham)
History. In 1981 FL established first IOLTA, a NOW, interestbearing account permitting pooling of client funds but only if the
interest is used for charitable purposes. Problem redistributes
interest for checking accounts to social projects.
Focus on what the owner has lost, NOT what the taker gains.
O/w remedy could be perverse: owner could get more
than restoration. So remedy ignores idiosyncratic
attachment (compare remedies for private nuisance).
(a) For public use satisfied since providing legal services for
the needy is a compelling public interest. [Midkiff satisfied.]
(b) Just compensation satisfied b/c (i) no interest w/o pooling
(nothing lost) and (ii) no net positive interest given admin costs
Result: IOLTA skimming continues! Free legal services win. But
it doesnt really click w/ Phillips; interest follows principal.

Dissents (Bastiat)
Precedent. Phillips held that (a) interest follows principal (private
property of owner); (b) taking interest is like physical
taking/appropriation (Loretto; size doesnt matter).
Ps are entitled to fair market value at the time of taking.
Mkt value is not what owner lost, but the value of the good
in the mkt. Here its money.
(a) Robin Hood taking!!!
(b) (i) But for argument rejected in Phillips. Dangerous/slippery
slopebut for CA tuition subsidies (ii) Mkt value has nought to
do w/ net; let owners withdraw at risk
Alternative result: Whether positive net interest was earned is a
factual inquiry. Remand to let the jury decide.

Should we think about this as a Loretto physical taking or a Penn Central regulatory taking?
Note: The denominator problem arises only in regulatory takings.
CONCLUSION A WEAK FOUNDATION
The United States have unequivocally acceded to that great and broad rule by which its civilized
inhabitants now hold this country discovery, payment or conquest are valid!
Johnson v. McIntosh (1823), U.S. conquerors win, Indians lose
Ps received land grant in Illinois from Piankeshaw Indians. D received grant from the U.S. for same land.
Ps seek ejectment. Chiefs of Indians were in rightful possession according to tribes. Proclamation of 1763,
Virginia law, and federal law prohibited private purchases of Indian land. Why the hub-bub? State govts
were granting lands in the West to settlers before govts purchased it from Indians. Major financially
speculative question of the day. Possible results: (1) void b/c Indians have the property rights; (2) valid as
Indians have no property rights; (3) conditional upon Indians right to stay. Issue: Do the Indian tribes have
the power to give a title of land to private individuals in the United States? Holding: No. Affirmed for D.
Are property rights a f(law of the conqueror)?
Anglo Overview. Paradigm: control over all the resources in a
given space. Voluntary Limits: divided spatially or temporally
among multiple parties (joint tenancy vs L&T), or divided by use
(easements), or forfeited (covenants). Involuntary Limits:
nuisance (common law); zoning & FHA (statutory). Counterlimits: Constitution (takings). [Driven by LAW-Bentham]

Indian Overview: Contrast: No fee simple, no concept of total

control over resources in a given space. Paradigm: Instead
resources were allocated by use. For example, if a farmer stopped
farming, it could be forfeit to another. However, indian tribes did
own certain areas, analogous to European sovereigns. [Driven
by PRODUCT OF LABOR-Bastiat/Locke]

Rule: discovery or purchase & conquest + tradition = title.

Marshalls Reasoning
Grounding for Investment (discovery + purchase)
1.
Declaring the law as applied; not normative.
2.
European common practice that discovery = ownership.
Why? Theyve been trading areas of land over the centuries
Indians retained the right to use, not own the land.
3.
England followed the rule. Proof: land grants from
monarchs to colonists include fee simple ownership.
4.
Britain conveyed right to the soil + dominion to the
colonies post Revolution. So the U.S. govt owns fee simple.
5.
Result: Investments in land not yet purchased from Indians
are still valid. They are conditional upon Indians forfeiting
rights of occupation.

Marshalls Reasoning
Policy Justifications (conquest)
1.
The conquered have no property rights, although humanity
requires that they be not wantonly oppressed. Conqueror vs
conquered.
2.
Only once blended into the new, single public will the
conquered be granted property rights under the new state.
3.
Could be preemptory justification as Western Indian tribes
were refusing to sell.

Implications
1.
Up in the air whether the right of occupancy is forfeit from
discovery & purchases, or from conquest.
2.
In Teehenaw Indians v. US (1955), the Court held that the
govt could take Alaska w/o compensation. Why? Conquest.
3.
But, Johnson establishes the root of land title in the U.S.

Counterarguments
1.
Conflicts w/in property doctrine: adverse possession, first
finder, theft.
2.
Natural rights See Bastiat.
3.
Pragmatic: What can the cts do w/o sacrificing themselves