Property Law Outline, Spring 2008

Professor Mary L. Clark

I. INTRO TO THEMES/PRINCIPLES OF PROPERTY: What is property? How is property

acquired? What rights/duties does property ownership give rise to?

RIGHTS THAT COME WITH OWNING PROPERTY:

 Cannot commit torts or crimes with property
 Right to use for economic benefit
 Right to exclude others from using it
 Right to transfer property to anyone you wish
o Transfer property from the present to the future
o Once you transfer property to the future, you are limited b/c then you cannot destroy the property
 Right to destroy or waste it
 Right to sell
 Right to give it away
 Right to not use your property
 Exclusive rights of possession/control
o There are constraints/limitations by zoning and environmental laws (& others)
 Right to recovery if stolen; can sue for return or damages if taken away
 Actual treatment of property under the law as bundle of sticks or rights potentially held by multiple
parties simultaneously and/or successively. Bundle of sticks idea: rights to property as a bundle of
sticks that can be given away (partial or whole)

BECOMING A PROPERTY OWNER THROUGH FIRST-POSSESSION

Possession: is the controlling or having dominion over personal property, with or w/o a claim of ownership. It
has two elements: (1) an intent to possess on the part of the possessor, and (2) his or her actual controlling or
holding of the property. As to the second element, control is key. Both the intent and the control elements
must be present to acquire the rights of a possessor. Possession need not be actual possession.
First in time: one way of prioritizing several individuals’ rights, establishing a priority of rights based on the
time of acquiring the right in question. Under such a rule, all other things being equal, the chronologically first
possessor has the better title.
 Acquisition by capture: The principle that wild animals belong to the person who captures them,
regardless of whether they were originally on another person's land. The only way to have possession
over a wild animal is through occupancy. This is a rule of first in time, first in sight. It is into this
rule of priority in time, re-worded for the situation of two or more claimants for the same thing.
o Pierson v. Post: Court held that Pierson had property rights to the fox because he captured the fox,
whereas Post was only pursuing it. Even though Post put more labor into catching the fox, Pierson
was the one who actually captured it, and therefore the fox was his property.
 Court believed that imminent capture was insufficient to have acquisition of property by
capture
 Actual capture or actual capture alive through nets and trapping or mortally wounding the
animal was sufficient for the court (occupancy)
 “Bright-line” rule – looked favorably upon Utilitarians b/c they create clear signposts in
adjusting our behavior in order to promote the greater good for society
 If imminent capture were enough, then you would be giving Post a monopoly interest in the
capture
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  Dissent: Favored title held by Post because he spent an entire day pursuing the fox (Lockean
Labor Theory Rationale). Furthermore, a panel of sportsman/hunters arbitrators should
decide the case because it is a matter of their expertise. There is not a bright line rule
because there might be a custom as to what constitutes capture. In addition, there is a social
benefit to killing foxes. The panel knows what it takes to capturing a fox and the incentives
to do so. The dissent states that there should be more people like Post pursuing foxes
because he has expended energy in order to attempt to capture the fox.
 Argument for Pierson under Locke’s Theory: He has invested the better labor, more agile,
more effective labor
o Rights to water: There are two rules, English and American
 English: Rights to water were extended as far as your ability to draw up the water. From
drawing water under your land, you are not constricted to just the water under your land, you
are entitled to the water under your neighbor’s land.
 American: You only have rights to reasonable use of the water under your land.
Unreasonable use would be defined as having a negative impact on your neighbors.
 Western and Eastern Water Rights:
 Western (Prior Appropriation): There is a scarcity of water. The person who is
first-in-time had an interest in being first-in-time and the water would not be
overused or exploited by the competition. The first person who appropriates
(captures) the water and puts it to reasonable and beneficial use has a right
superior to later appropriators; encourages premature development and excessive
diversion; rations poorly when supplies dwindle periodically
 Eastern (Riparian): People who live along a water source have a right to use the
water, subject to the rights of other riparian rights. It does not take into account
the fact that one person’s use of the water can affect the other people’s use of the
water; take little to no account of the relative productivity of the land the water
services. Encourages the development of uneconomical “bowling-alley” parcels
of land perpendicular to the banks of the stream, and ration poorly when stream
levels are low
o Locke’s Labor Theory of Property: A person can earn the right to property by adding their labor
to it. When you mix labor with something external and add value/transform it, the external thing
becomes yours. Locke’s idea is based on the idea that we own ourselves, so through our labor, we
come to own property (Basis for Private Property Recognition). Major Oversight  Slaves – slaves
did not “own” themselves and therefore did not own the labor of their body and did not own the
things that they mixed their labor with (i.e. land). Locke’s theory is a moral argument that
private property is a moral rights, has a basis in natural law, natural rights, and is
commonsensical; pre-society. Once the law recognizes the corner as your own, you then assume
the rights and responsibilities of private ownership, you are then expected to build fixtures, invest in
the property.
 Locke proviso: You can only possess as much property as you are usefully using; a
limitation on the amount of property that you can privately own based on how much labor
you can do. Locke draws on a natural law foundation; property is pre-society, it is something
that is natural and that is the common sense basis for private property
 Law of accession: When one person adds to the property of another, by labor alone. Primary
purpose of private property is to move property to its highest invest use- if property is left in
the commons, then it won’t be properly used and it will be wasted, therefore the principle
goal of society is to maximize wealth.

 Acquisition by discovery: Discovery is the sighting or finding of unknown or unchartered territory; the
taking of possession gives rise to title. A person who is the first-in-time discoverer of a piece of land
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can lay claim and exercise complete ownership over the land.
o Johnson v. M’Intosh: Shortly before the Revolutionary war, Native American tribes were selling
titles to private land speculators (1773 and 1775 sales are at issue). Johnson received his land titles
from land speculators who received theirs from Native Americans. M’Intosh received his land
claims through a land grant from the United States. Johnson is seeking to eject M’Intosh from the
land and that he has the sole title. Can Native Americans transfer title/ownership to real
property? Court decided no.
 The Court did not look to the Lockean natural law theory, but United States sovereignty.
Justice Marshall does not want to disturb the settled expectations in regards to the acquisition
of land. Justice Marshall applied Utilitarian Theory of Property; stating that Native
Americans were not using the land to its best potential so the first in time rule did not apply
to them.
 European nations had assented to the customary international law and principle that the first
nation to discover would be the one to hold title to the land. (First-in-Time Discovery). The
first discoverer had exclusive rights to title and ownership of that land with the rights to that
land being excluded to other European nations.
 Chain of Title: Begins with the original owner and is traced through all of the people who
owned the land. British crown- transfer of title was from the British crown to the colonies,
then under a compromise in 1783, it went to the United States government.
 Analogizing Johnson v. M’Intosh to bundle of sticks: One party will hold the entire bundle
of sticks. They will hold complete dominion and control over all of the sticks
 One stick in the bundle is the right to exclude, another stick would be the right to give
it away, another would be the right to occupy, another would be who has title to be a
subsequent party, right to use, and the right to pass down to another person through a
will
 The court is ruling that the owner who received the land held the stick of title
and ownership and the Native Americans hold the stick of use and occupancy
 Relationship between United States and Native Americans: Landlord/Tenant
o Demsetz (Toward a Theory of Property Rights)
 A primary function of property rights is that of guiding incentives to achieve greater
internalization of externalities. Every cost and benefit associated with social interdependence
is a potential externality. Why should the law concern itself with property? The law as a
system needs to recognize that property ownership creates external effects (that is why there
are nuisance laws, zoning laws, and environmental law)
 A system of communal ownership (common property) tend to increase externalities, and a
system of private ownership (private property) tends to reduce them. The cost of transaction
in the rights between the parties (internalization) must exceed the gains from internalization.
 It is important to note the property rights convey the right to benefit or harm oneself or
others. Harming a competitor by producing superior products may be permitted, while
shooting may not. Any may be permitted to benefit himself by shooting an intruder, but be
prohibited from selling below a price floor. It is clear, then, that property rights specify how
persons may be benefited and harmed, and, therefore, who must pay whom to modify the
actions taken by persons. The recognition of this leads easily to the close relationship
between property rights and externalities.
 In general, transacting costs can be large relative to gains because of “natural” difficulties in
trading or they can be large because of legal reasons. In a lawful society, the prohibition of
voluntary negotiations makes the cost of transacting infinite. Users of resources do not take
some costs and benefits into account whenever externalities exist, but allowing transactions
increases the degree to which internalization takes place.
o Utilitarian Theory of Property – “Greatest good for the greatest number”

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 Answers the question of how to optimize the overall wealth and well-being of society; will
often deal with economics but not always
 It is the dominant view of property today
 How does the law/legal system allow property to rise to its highest and best use? Focuses
on the maximization of wealth of the overall society, not focused on the individual (contrast
to Locke, who focused on individuals, moral, and natural law)
 Primary function of property to promote the efficient use of resources
 Property systems are a means of redistributing the wealth of a society
 Private property nourishes individuality and healthy diversity. It is also essential to political
freedom
o Civic Republican Theory of Property (Thomas Jefferson)
 Civic Republican view concerns itself most fundamentally with how to shape/manipulate
property law so that we can enable a broad range of people who own property and thereby
have a stable foundation, a sense of empowerment to go forward as stakeholders in society
and government
 Civic Republicanism was one of the movements that helped tenants gain more rights
 The purpose of property laws should be to give citizens the independence to pursue the
common good. Best way to promote the well-being of the republic is to distribute property
by giving a broad range of citizens access to property
 A stable foundation is created from which citizens can then participate actively in the polity
and property would be transferable in order to avoid privilege and inequality.

 Acquisition by creation: “Any expenditure of mental or physical effort, as a result of which there is
created an entity, whether tangible or intangible, vests in the person who brought the entity into being, a
propriety right to the commercial exploitation of that entity, which right is separate and independent from
the ownership of that entity.” If you create something, if in that sense you are first-in-time, then that
something is most certainly yours to exploit. The foundation of propriety rights is the expenditure of labor
and money (which merely represents past effort). The underlying idea is Lockean, the idea that you own
the fruits of your labor in consequence of having “a property in your own person.” Yet, sometimes fruits of
your labor are not solely yours to explore. Utilitarian in practice.
o International News Service v. Associated Press: AP was seeking an injunction against INS
claiming unfair trade practices for using its news stories as its own.
 The Court held that AP had a quasi property right to the news items they collected that is not
to be copied. The court also held that the best way to get news to the public is to have parties
know that the fruits of their labor will be recognized as theirs and will be profitable. Not
litigated under copyright law b/c new is not a copyrightable matters, news is a matter of
public domain (quasi-property). Not litigated in terms of what AP’s interests are vis-à-vis
the public; instead, is framed in terms of what AP’s interests are vis-à-vis INS’s interests
(private entities)
 Lockean Argument: D was reaping where it had not sown. He did not put in labor, skill,
and money as P had.
 Utilitarian Argument: Also favors AP because AP would leave business if they cannot
profit. There is no incentive to them to stay in the business and it would be a loss to society
because there would be no wealth maximization. If INS is allowed to copy AP’s news, then
AP will say why bother going into all the expense of developing their contacts, investigating
sources, and taking risks if property laws do not protect them. Thus, no one will do the work
or the quality of the news will suffer. No incentive to produce good news reporting where
society can benefit.

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o Cheney Bros. v. Doris Silk: Silk design case; Court held that absent some recognized right at
common law, or under the statutes, a man’s property is limited to the chattels which embody his
invention. Others may imitate at their pleasure. Utilitarian view.
 The public is best served by unfettered competition including what could be seen as unfair
elements.
 Fabrics are not covered under patent or copyright law. One argument is that the fashion
industry is so temporal, fast-paced, and seasonal, that it doesn’t make sense to patent fabric
designs b/c a patent takes too long. Judge Learned Hand limits comparisons to INS v. AP
to its facts (looks at news and says its different from fashion)
 This opinion benefits the public because it keeps ideas public and more people can enter the
market and improve on certain ideas. It could also hurt the public because industry players
may lose incentives to create new fabric patterns because it could be easily taken away by
someone else.
o Smith v. Chanel, Inc.: Chanel sued Smith for using its brand to promote a cheaper knock-off
 Court held for Smith because Chanel does not have a patent on the perfume and that
imitation is the lifeblood of competition.
 Court rejected the utilitarian idea of expending money into the property=legally protected
right
o Property in one’s persona: “One may not reap where one has not sown.” Concern with the right
to publicity is a doctrine that is widely conceptualized. Originally conceptualized as a right to
privacy: the persona that a person has crafted not be used without the consent of the person, and
the use of the persona without consent is a violation of a person’s right to privacy. A celebrity’s
“right of publicity” is widely recognized as a kind of property interest, assignable during life,
descendible at death: this includes name, likeness, and other aspects of one’s “identity.”
 White v. Samsung Electronics American, Inc.: Vanna White claims that her image and
right of publicity (name, likeness, image, etc. cannot be sued w/o her authorization for the
use of profit). Court held that she had a cause of action against Samsung electronics, which
created a robot that resembled her. Court held that White had a “marketable celebrity
identity value.” Majority draws on Lockean school of thought.
 Right of publicity does not necessarily encompass right of privacy, but more right of
profit.
 Lockean argument: Is the development of a persona protected because of the work,
time, and money put into it?
 Utilitarian argument: Shouldn’t we create an incentive for people to create talents
that could benefit society?
 Kozinski’s dissent: Case should be reheard and reversed. White should not have
exclusive rights to her persona because it would starve creation because the public
domain would be diminished from any sort of ideas.
 Posner’s Point: People who bring suit about their right to persona are not interested
in their right to privacy, but the right to monetary compensation for someone taking
their likeness
o Property in one’s own body parts
 Moore v. Regents of the University of California: Moore was never told that his cells had
significant commercial and scientific value. For seven years, he was receiving treatment
from Defendant who converted his cells for own benefit. Moore claims he is entitled to
any profits made from the use of his cells. Majority opinion held that Moore was owed
a fiduciary duty from the doctors and there was a lack of informed consent. However,
the court held that under the conversion claim (wrongful exercise of control over
personal property of another), Moore failed to prove that he had a recognized property
right to his cells (in favor of Regents).

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  Only tangible property can be converted. Moore had no property rights to his
cells/blood once it left his body by virtue of CA’s legislative code. Once bodily
fluids leave the body, for sanitary reasons, the patient cannot exercise control over
them. The health care professionals have the knowledge to adequately dispose of
them.
 Moore’s cells are commonplace and not unique to him, therefore giving no rise to
property rights on Moore’s part. The property interest lied with the doctors and not
with Moore.
 Moore did not labor over his cells. The doctors received a patent because they
labored over the cells.
 Arabian’s concurrence: Brings up moral issue of putting human body parts up for
sale. The human body is objectified and is converted into a mere commodity. There
is an issue of shopping your body around for profit; if Moore had known that value of
his cells, he would have stopped treatment and shopped for the highest bidder.
 Dissent: Moore should have the right to profit off his body similar to how the
defendants did. He could have contracted with researchers and pharmaceuticals
companies to develop and exploit vast commercial potential of his tissue and its
products. Dissent also brings up the argument of which government body, the courts
or the legislature, should decide on whether or not it is lawful to sell body parts. The
Dissent argues that the courts can provide a different, anti-majoritarian perspective to
a social issue (courts are not usually influenced by political pressures like the
legislature). It can collect evidence, listen to experts, and have a full-fledged trial to
seek the truth.
 Majority’s rebuttal: Incentives are needed for doctors to engage in medical research
that could lead to treatments that would benefit society and move forward medical
research. The Utilitarian calculus favors the doctors. In a Lockean framework,
Moore has not done anything to produce the cells. The doctors put in the labor,
expertise, etc. to create the patented cells.
 Moore case parallels in vitro fertilization issues
o More on the right to exclude
 State v. Shack: Tedesco sought a declaratory judgment stating that he has the right as a
property owner to throw out trespassers on his land. Two individuals representing the
government attempted to come onto the land to offer medical and legal services to migrant
farmers.
 “Property rights serve human values” – Property rights are not absolute and a
property owner does not have exclusive dominion or control over his property.
 A property owner may own his land; however, he does not own the people that may
live on his land. He cannot deny the people living on his land certain services such
as access to a lawyer or a doctor.
 Other exceptions: you cannot use your land to harm others, police authorities, to
avoid a greater harm you might need to access private property (child running into
the street case), eminent domain is premised on the overall good of society,
 Migrant workers are limited in their autonomy and liberty to go off site and seek
services. The court makes a distinction between migrant workers and day laborers.
The farm workers have to be recognized as stakeholders; they will be more likely to
participate in society and we all benefit from their participation. This is not true for
day workers; only applies to people who are on property 24/7 (i.e. live-in nannies).
 Property rights have to give way to necessity; the necessity in this case was
formed when Congress enacted the Great Society programs to have government
protection for workers. The defendants were not trespassing onto Tedesco’s land

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 because their reasons for coming onto the land was for the aid of the migrant
workers who lived and worked there
 What motivates NJ’s Supreme Court? Civic Republicanism: Not stripping
Tedesco of his ownership, but will modify his understanding of his absolutist
ownership by showing that migrant workers have a right to meet w/ people (aid
workers) on his property (occupancy rights); people who are essential to the well-
being of the migrant farm workers should be allowed

BECOMING A PROPERTY OWNER THROUGH SUBSEQUENT POSSESSION

 Acquisition by adverse possession: Doctrine of law allowing title/ownership of property to pass from
A, the original/actual owner, to B, the adverse possessor, if B’s use of the property is Continuous,
Adverse, Notorious, and Exclusive for the Statute of Limitations (SOL).
o Adverse possession functions as a method of transferring interests in land without the consent of
the prior owner, and even in spite of the dissent of owners
o Adverse possession refers to personal property as well as land
o History: Has been in existence since 1275 in England. It dispossesses a lawful owner and shifts
the property to someone else on purely utilitarian grounds. The subsequent possessor is putting
the property to active use and that use should be recognized by the law.
o Statue of limitations was commonly 20 years, but there has been a movement to shorten it to 6 to
10 years
o Motives for Adverse Possession
 Sleeping Theory- it penalizes owners who sleep on their rights and are not vigilant about
their property and are not maintaining to see who is on their land.
 Attachment Theory- adverse possessor wannabe is developing an attachment to this
property because they are working over time, and they are coming to think of it as theirs
 Earning Theory- utilitarian understanding that the adverse possessor wannabe is the one
putting effort into the land
o Test: Adverse possessor has to satisfy “CANE for” the statute of limitations
 Continuous- possession does not mean 24/7; it means that as continuous and regular and
as a normal owner would use the land. The property cannot be abandoned with no intent
to return, and then return to the property. Continuousness is driven by the sleeping
theory.
 SOL – In Rural settings, its typically 20-21 years; in Alaska it’s 40 years. In Urban
settings, it’s typically 3-10 years (easier to find out if someone is living on your
property)
 Adverse/Hostility- Without the consent or permission of the true owner. Some
jurisdictions have a good faith doctrine (belief that the adverse possessor has a good faith
belief to be on the property)
 Notorious/Open/Obvious/Not Clandestine/Not Furtive/Not Hidden- It is out in the
open, you are not trying to hide your action. You are making your possession known to
the world. The owner does not have to see the adverse possessor on the land. Put the
actual/original owner on (reasonable) notice; reasonably should have known from the
adverse possessors use of the property.
 Exclusive- The use is exclusive and as original, true, regular owner would use the
property. You use the property as if it were yours. It is not exclusive of all others, but it
is exclusive insofar as you are using the property as if it were yours (improvements to the
property; can have guests, but not commune).
o 3 State of Mind Variations to “CANE”
 Does the adverse possessor use the property as an actual owner?
 Objectively looks at actual owner (Majority) – Does not tease out mind of adverse
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 possessor
 Good Faith Test – (Minority) Whether the AP had a good faith mistaken belief that
they have a right to be on the property; reliance on claim of title requirement (NY)
 Bad Faith Test – (Minority of Minority; Maine) Adverse possessor knew they
didn’t have a right to be on the property, but were seeking to gain title through
Adverse Possession
 Actual possession/entry
 There are going to be variations from state to state because property is more state
than federally regulated
 If the adverse possessor wannabe is not expelled from the land by the actual owner
before the tolling of the statute of limitations, then he can obtain actual title to the
land
 Van Valkenburgh v. Lutz: Yonkers case; Plaintiff brought an ejectment action against
the Lutz’s
 Under NY law, you had to bring an action for ejectment before the statue of
limitations period ends
 Lutz prevailed in obtaining a prescriptive easement
 Court held that Lutz’s did not adversely possess the land from P’s.
 Claim of Right/State of Mind element: Under the good faith requirement,
Lutz did not satisfy because he knew the land was not his. There is no
hostility element because the occupation was not “under a claim of title”.
 Exclusive requirement: Majority held that this was not fulfilled because
there was no evidence to show that both the land was improved and that
garden took up the whole property. Court held that the Lutz’s did not
adversely possess the land. The use of the land by the Lutz’s was not
sufficient to show that they were adverse possessor wannabes
 The good faith/bad faith standard is applied throughout the case
o Mannillo v. Gorski: 15” encroachment of walkway and steps from defendants’ property to
plaintiffs property and plaintiff sues for an injunction to get defendants off the land. Defendants
counter claim with an adverse possession argument to title. Two issues before the Court:
 Adverseness: Manillo court rejects the Maine Doctrine (Bad faith) and adopted the
Connecticut Doctrine because England and the majority of states never required since it
encourages lying and because it rewards wrongful acts. Applying straightforward
adverseness and don’t look at state of mind.
 Notoriousness (Manillo Court’s departure)
 Manillo Court says that there is no way for an actual owner to be put on notice that
there is an actual overhang and something further is required to put the actual owner
on notice.
 Does actual owner have knowledge of overhang? Manillo holds for actual
knowledge while the dominate rule is whether true owner reasonably should know.
 Where the adverse possessor actually fails to grain title, the actual owner must pay
the adverse possessor for improvements on the land.
o Exceptions to Adverse Possession: Cemeteries and Government Property cannot be adversely
possessed
o Color of Title (Bad Title): Adverse possessor has color of title on the property. The adverse
possessor would be granted title to the entirety of the property in the document as long as some of
the property has been worked. i.e. faulty deed or faulty will
 Under CANE, you only get title to as much as you are actively using
 Under color of title with a document that is yours, all you have to do is actively use part of
it and then you are given constructive possession over the rest of the land

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  Under constructive possession, the activities that are relied upon to establish adverse
possession reach not only the part of the premises actually occupied, but the entire premises
described in the deed
 A shorter SOL than usual under CANE
o Tacking: a doctrine whereby two successive adverse possessor wannabes can add together their
time of possession together to meet the statute of limitations. The relationship is based on privity
(occurs by contract of sale, gift, or inheritance by testate or intestate).
 A prospective adverse possessor can add his time to that of the preceding adverse possessor
so long as there is privity between the parties. The clock will keep running against the
original owner
 If the owner sells the land, the adverse possession clock keeps running. It does not stop
and begin again with a new owner. The actual owner cannot stop the adverse possession
clock by transferring ownership to someone else. (This is only if the owner has a fee
simple interest in the property; holds all of the bundle of sticks)
 If the owner only has a life estate in the property, then the adverse possession clock starts
over again when the property shifts from the present interest holder to the future interest
holder.
 The future interest holder cannot bring an action to eject until he becomes the present
interest holder
o Privity: Where A has tendered a deed or other written instrument to B that purports to transfer
more than it actually does and B then relies upon this. It does not rely only a deed. It can rely on a
will or a trust document.
o Disabilities: Across jurisdictions, there are only two disabilities that are recognized today that
would entitle the original owner to eject the adverse possessor. These disabilities are relevant to
the original owner and not to the adverse possessor. A disability is immaterial unless it exists at
the time that the adverse possessor attempts to come onto the land
 Infancy: not having yet reached the age of majority. The age of majority was 21, but now
it is 18
 Ex. If the original owner is 6 years old, the adverse possessor wannabe cannot
make the attempt to adversely possess the property
 Mental Impairment: If the actual owner’s disability is present at the time of the accrual
of the adverse possessor, the statute of limitations on actual owner’s ejection of the
prospective adverse possessor does not begin run until the actual owner’s disability is
resolved by:
 actual owner reaching majority
 actual owner resolving the mental impairment
 actual owner’s death
 When the actual owner’s disability is resolved, most jurisdictions allow 10 years for
an action to be brought to remove the prospective adverse possessor
 The statute of limitations is tolled while the owner has the disability, then the actual
owner has 10 years after his/her disability ends to bring an ejectment.
 If the property is sold or the owner dies and succeeds it to someone in his will, then
the owners disability does not transfer to the new owner. If the new owner has a
disability that is irrelevant b/c the disability would have to take place when the
adverse possessor tried to come onto the land
 Ex. O is insane in 1976. Arrival of AP in 1976. O dies insane in 1999.
When would the AP be able to acquire title? The AP would be able to
acquire title in 2009, if the new owner does not eject the AP.
THOUGHT PROCESS:
1. Continuousness

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 2. Adverseness
a. Should be applied on its own merits
3. Notoriousness
4. Exclusivity
5. 3 State of Mind Variations
a. Does the adverse possessor use the property as an actual owner?
6. Color of Title?
7. Disabilities?

II. ESTATES IN LAND

Purpose:
 Premised on the bundle of sticks – Recognizes that any one item of property, whether it be real, land, or
fixtures on land can be held by multiple individuals either simultaneously or successively
 Looks at the particular item of property and then defines who has what interest, who has an immediate
right of possession, and who comes next in time
 Not person focused, it is property focused

Why the law developed in a way that there are limits in the way in which land can be held
 The stability of the land; limited ways in which property can be held
 In limiting the number of ways in which land can be held, and limiting the choices that a person has in
transferring property, it limits the number of transactions. You cannot create new types of present
interest in the land
History:
 During feudalism, the lord, by granting a very limited right, then maintained control over the right.
 The lord would grant a life estate to anyone working the land
 When the lord would grant a life estate to the serfs who were working the land, the life estate would
terminate upon the death of the serfs. The serfs could not will the land to their children, nor could they
sell it to anyone
 The purpose of the life estate system in feudalism was that the lord did not know what the serf’s
offspring interest was in the land and there was no heritability or inheritability.
 As a market economy developed, there was more of a need for land and land was able to be transferable
so that land could be used to its greatest potential. Thus, the fee simple allowed individuals to hold both
present interest of possession and can dispose of it at your death; present possession and future
disposition (all the sticks in your bundle)
Key Terms/Tidbits
 Estates: present or future possession interests in property. There are four core estates, categorized
based on the potential longevity or duration of the possessory interests. The first three estates for
historical reasons are known as freehold estates. The last one is known as nonfreehold estates.
o Fee simple: forever (Infinity)
o Life Estate: for the life of the grantee
o Term of Years: fixed period measured in years, months, or days; or a date certain
 Interest: any legal right associated with specific property. All estates are interests in land. Hence,
“estates” are a subset of “interests.”
 Duration: how an estate is characterized (fee simple absolute has a duration of infinity). Property is
devisable if the owner can transfer ownership by a will- a testamentary transfer. Property is descendible
or inheritable if the property can pass by the state’s intestacy statute to “heirs” if the owner dies without
a will.
o There are no heirs to the living in the law

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 o Devisee: the person who takes property by virtue of being named in a will.
o Issue: if the decedent leaves issue, they take to the exclusion of all other kindred. If any child of
the decedent dies before the decedent leaving children who survive the decedent, such child’s
share goes to his or her oldest children by right of representation.
o Ancestors: By statute, parents usually take as heirs if the decedent leaves no issue
o Collaterals: All persons related by blood to the decedent who are neither descendants nor
ancestors are collateral kin. This includes brothers, sisters, nephews, nieces, uncles, aunts, and
cousins. If the decedent leaves no spouse, no issue, and no parents, the decedent’s brothers and
sisters (and their descendants by representation) take in all jurisdictions.
 Property is alienable, assignable, or transferable if the owner can sell or gift the interest during his
lifetime- an inter vivos transfer. Most interests are devisable, inheritable, and alienable (except a person
owning a life estate based on her life cannot devise it, nor is it inheritable since the life estate terminates
at the person’s death.
 Estates end either naturally or by a condition subsequent. A condition subsequent is the occurrence or
nonoccurrence of an event that can cut short an estate.

Present interests in possession – an interest in property that an individual has a current right of possession over
 Fee simple
o In a fee simple, a person receives the entire bundle of sticks and a fee simple may last forever: “O
to A and his heirs”
o During feudalism, the fee became alienable because with the expansion of the rural population,
landowners were tempted to sell the land and cut off their heirs’ right to succession
o There is free alienability: There are no constraints on A’s ability to sell or dispose of the property.
(Something is alienable if you can devise or leave it to will to others. It is inalienable if you
cannot)
o If A dies leaving no heirs, the property will escheat to the state
o Fee simple can only be in land and not in personal property
o Intuitive image that you have absolute domain and control over the property. Today, most people
own their houses in a fee simple absolute
 Life estate
o Can be defined either by the duration of the life of the individual to whom it is granted “to A for
life”–this grant of a present possession to land will extinguish at A’s death.
o A can transfer his life estate to B, in which case B has a life estate per autre vie–it is measured by
A’s life, and not B’s. If B dies during A’s lifetime, the life estate passes to B’s heirs or devisees
until A dies. “O to A for the life of B” A holds the LE; B’s life defines the duration of A’s LE
o A life estate is typically not premised on the grantor’s (O) life
o Today, most life estates are created in trust
o White v. Brown: “I wish E.W. to have my home to live in and not to be sold . . . My house is not
to be sold.” Court held that even though the testatrix put a restraint on the alienation of her home,
that was not sufficient evidence to show that she was passing only a life estate to White. In
Tennessee, the law presumes that a fee simple interest is conveyed in a will unless there is specific
language in the will stating otherwise.
 Defeasible estates: Any estate can be created so as to be defeasible (capable of being annulled or
terminated) upon the happening of a future event.
o The most common kind of defeasible freehold estate is a fee simple determinable (FSD). They
are defeasible because they can become terminable at the happening of an event. (Ex. O conveys
Blackacre “to the Hartford School Board, its successors and assigns, so long as the premises are
used for school purposes.”)

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 o A fee simple subject to condition subsequent (FSSCS) is a fee simple that does not
automatically terminate buy may be cut short or divested at the transferor’s election when a stated
condition happens. (Ex. O conveys Whiteacre “to the Hartford School Board, its successors and
assigns, but if the premises are not used for school purposes, the grantor has a right to re-enter and
retake the premises.)
o WHEN THE FUTURE INTEREST IS HELD BY O:
 Present Interest: Fee simple determinable- will end automatically when a stated event
happens. (Ex. O conveys Blackacre “to the Hartford School Board, its successors and
assigns, so long as the premises are used for school purposes”)
 Future Interest: Possibility of reverter, (Held by O) if not used for purposes stated in grant
 *OTHER CONDITIONAL LANGUAGE: “as long as,” “unless,” “until,”
“while,” “during”
 Present Interest: Fee simple subject to condition subsequent (FSSCS)- will not terminate
automatically, but only upon action of the future interest holder. Future interest holder
does one or the other of those within the statutory period, the land then becomes theirs to
possess. They do this by either taking possession of the land or by instituting an action.
(Ex. O conveys Whiteacre “to the Hartford School Board, its successors and assigns,
but if the premises are not used for school purposes, the grantor has the right to re-
enter and retake the premises”)
 Future Interest: Right to Re-entry/Power of Termination (RoR/PoT) by O
 *OTHER DURATIONAL LANGUAGE: “but if,” “provided that,” “provided,
however,” “on condition that”
 Other Future Interest Held by O: Reversion: “O to A for life” (When A dies, the land will
automatically go to O or O’s heirs if O is dead upon the death of A)
o WHEN FUTURE INTEREST IS HELD BY THIRD PARTY:
 Present Interest: Fee simple subject to an executory interest (EI)- there will be automatic
termination (Ex. O to A so long as used as zoo; when no longer used as zoo, to B)
 Future Interest: Executory limitation (FSSEL) held by B
 *SAME DURATIONAL LANGUAGE IS USED
 Present Interest: Fee simple subject to executory limitation- there will be non-automatic
termination (Ex. O to A but if no longer used as a zoo, then B shall have a right to re-
entry)
 Rule: When both durational and conditional language are used, the courts will assume that
it is non-automatic

Future interests in possession: Confer rights to the enjoyment of property at a future time. It allows
individuals (testators) to control inheritance of the land not only at his death but also at a potential son’s death.
A future interest gives rights to its owners.
 Future interests (currently owned interests that becomes possessory at a future date) held by the
original transferor (or his heirs or assigns)
o Reversion: retained by the transferor or grantor when he transfers an interest less than the one he
owns to another. It follows a life estate, fee tail, or term of years.
o Possibility of Reverter: a future interest held by a transferor or grantor who transfers a fee simple
determinable.
o Right of Re-entry/Power of Termination follows the fee simple subject to a condition
subsequent.
 Future interests held by third party transferee(s)
o Vested remainder (VR): FI holder must be ascertainable or known. There must be no condition
on FI holder taking possession; takes possession immediately upon death of PI holder. In the VR,
O has given away all of the sticks in the bundle.
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  Ex. “O to A life, then to B”- PI = A = LE, FI = B = VR  B’s interest is known as a
vested remainder b/c it comes into play at the time that the present interest expires.
 B has no rights or duties vis-a-vis an adverse possessor until B’s rights become
possessory.
 B can restart the clock in regards to the time that they can oust an adverse possessor
 If an adverse possessor gains title to the land during A’s life estate, then the adverse
possessor lawfully has title only during A’s life estate. The adverse possessor
would have to gain title to the land during B’s life estate
 Vested remainder subject to partial divestment (VR subject to PD): Courts disfavor
contingent remainders and favor vested remainders as soon as possible. Thus, a
construction may result in a vested remainder being subject to divestment before it
becomes a possessory estate.
 Ex. “O to A for life, then to A’s children”. At the time of grant, A has one
child named B.”  B has a vested remainder subject to partial divestment because
B is born as being A’s child. If no other children are born, B gets one-hundred
percent. If there are other siblings, the percentage is divided amongst them.
 The key distinction between a vested remainder subject to divestment from a
contingent remainder is whether the determinative condition is a condition
precedent (so the remainder is a contingent remainder) or a condition subsequent
(so the remainder is a vested remainder subject to divestment).
o Contingent remainder (CR): follows a life estate; where either the owner is unascertainable or
possession of the property is subject to a condition precedent (a contingency). It can also be
contingent because there is a condition that needs to be satisfied before possession can be taken.
FI takes possession immediately at expiration of PI holder
 Ex. “O to A for life, then if B graduates from law school”  PI = A = LE A; B must
have graduated from law school in order to take possession at the time of A’s death.
o Executory interest: follows a fee simple subject to an executory interest or a reversion from O;
either cuts short (divests) the PI OR leaves a gap in time between A’s and B’s possession (in this
interval the property reverts to O)
 Shifting Executory Interest
 Ex. “O to A for life, but if B graduates from law school, then to B.”  PI = A =
LE; FI = B = Shifting EI & FS. If B graduates from law school before A dies, then
the title and present possessory interest shifts from A to B.
 Springing Executory Interest
 Ex. “O to A for life, but if B graduates from law school, then to B”  PI = A =
LE; FI = B = Springing EI & FS; FI = O = Possibility of Reverter If B graduates
from law school after A dies, O has a reversion interest. The land will spring from
O to B upon B’s graduation from law school.
o Executory limitation: follows a fee simple subject to an executory limitation
 Ex. “O to A but if not used as a zoo, then to B shall have a right of reentry”

Restraints on Alienation
There are four major objections to restraints on alienation
 Restraints make property unmarketable
 Restraints tend to perpetuate the concentration of wealth by making it impossible for the owner to sell
property and consume the proceeds of sale
 Restraints discourage improvements on land
 Restraints prevent the owner’s creditors from reaching the property, working hardship on creditors who
rely on the owner’s enjoyment of the property in extending credit
Restraints on alienation are traditionally classified as:
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  disabling restraints- withholds from the grantee the power of transferring his interest
o Ex. O conveys Blackacre “to A and his heirs but any transfer hereafter in any manner of an
interest in Blackacre shall be null and void”
 forfeiture restraints- provides that if the grantee attempts to transfer his interest, it is forfeited to another
person
o Ex. O conveys Blackacre “to A and his heirs, but if A attempts to transfer the property by any
means whatsoever, then to B and her heirs
 promissory restraints- provides that the grantee promises not to transfer his interest
o Ex. O conveys Blackacre “to A and his heirs, and A promises to himself, his heirs and
successors in interest that Blackacre will not be transferred by any means

Doctrine of Waste:
The duty not to commit waste is breached if the tenant makes changes that affect the vital and substantial
portion of the premises that would change the characteristic appearance. Arose because we are dealing with
succession and ownership interests in property. The FI holder looks over the PI owner to ensure that the
property is not being harmed or neglected. The PI holder cannot commit waste against the property or else the
FI holder can take the present interest holder to court. The FI holder can get an injunction against the waste and
can get damages for loss of profit.
 Affirmative waste: liability results from injurious acts that have more than trivial effects (cutting too
much timber, not mining enough gold)
 Permissive waste: failure to act. A question of negligent failure to take reasonable care of the property
(not fixing a window when it is broken)

Rule Against Perpetuities (RAP): No interest is good unless it must vest, if at all, not later than 21 years
after some life in being at the creation of the interest. “No interest is good” = if the property interest is valid;
“unless it must vest, if at all” = question of vesting or not, needs and up or down answer, no uncertainty; “not
later than 21 years . . .” = defines perpetuities period. RAP permits a person to control ownership of property
for one generation beyond those persons alive and known to the grantor.
 It is the culmination between the struggle between landowners who wanted to keep land within the
family and the royal judges who tried to stand firm against the efforts
 It has evolved from estates that can be held through life to estate that can be held in perpetuity
 The reason why this rule was articulated was to recognize that a grantor has a rational interest in
eyeballing who the next generation is that is coming onto their property and can control them into their
age of adulthood
 You must prove that a contingent interest is certain to vest or terminate no later than 21 years after the
death of some person alive at the creation of the interest(perpetuities period)
 There only has to be one measuring life that validates the grant
 Steps to Rule Against Perpetuities:
1. Classify Each Interest  Map out PI and FI
2. Is there an interest that is subject to the RAP?
3. For Interest Subject to the RAP, Clearly Identify the Contingency Which Must Resolved for the
Interest to Vest
4. For Interest Subject to the RAP, Identify Potential Measuring Lives (Relevant perpetuities
period)
5. Determine Whether the Contingency Will Be Resolved Within a Perpetuities Period (Does RAP
validate or invalidate?)
6. Strike Out Interests Which Are Void and Reclassify the Interests Remaining (Savings
Technique)
 Future Interests Subject to RAP:
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 o Contingent Remainder
o Executory limitation/Executory Interest
o Vested Remainder subject to Partial Divestment – unclear as to what the size of the holding will
be and how many people will have to share in the holding
o All FI where there are some questions to vesting
 Future Interest Not Subject to RAP:
o Present Interest
o Vested Remainders
o FI held by O (the original grantor)
 Reversion
 Possibility of Reverter
 Right of reentry/Power of termination

 Four Ways In Which a Grant the is Void under RAP Can Be Saved:
o Wait and See- Wait and see if the contingency occurs
 U.S. Statutory Wait and See is 90 years
o Cy Pres- Modify the suspect future interest to make it as close to what the grantors originally
wanted
o Strike the offending clause- strike the offending clause and it will satisfy the RAP
o Savings Clause- if the grant is ever to run afoul of the RAP, then pay out the estate
 Sample Problems
o O to A for life, then to B’s child, B doesn’t have any children at the time of the grant
 Possible Measuring Lives: A and B
Possible Perpetuities Period: B plus 21 years plus relevant gestational period; A plus 21
years plus relevant gestational period

 Step 1: Classify the interests

Present Interest of A with a life estate
Future Interest of B’s child with a contingent remainder(contingent upon B having a
child) B’s child has to be born in order to take possession

 Step 2: Determine Whether the RAP is Applicable to Each Interest

The RAP is applicable to the contingent remainder

 Step 3: Identify the Contingency Which Must Be Resolved for Interest to Vest
B having a child that has to be resolved

 Step 4: For Interests Subject to RAP, Identify Potential Measuring Lives

The measuring lives are A and B

 Step 5: Determine Whether the Contingency Will Be Resolved Within PP

B’s life plus 21 years plus gestational period will answer the question. We will know
within B’s measuring life if the contingency will be resolved
*This example does not violate the rule against perpetuities b/c there is a measuring
life*

o Ex. of App. that does not apply- O to A for life, then to B if turns 30. B is not yet born
 Possible Measuring Lives: A
Possible Perpetuities Period: A plus 21 years plus gestational period

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  Step 1: Classify the interests
Present Interest of A with a life estate
Future Interest of B in a contingent remainder/executory interest
Future Interest of O in reversion

 Step 2: Determine Whether the RAP is Applicable to Each Interest

The RAP is applicable to the contingent remainder/executory interest

 Step 3: Identify the Contingency Which Must Be Resolved for Interest to Vest
B being born and turning 30 is the contingency

 Step 4: For Interests Subject to RAP, Identify Potential Measuring Lives

The measuring life is A

 Step 5: Determine Whether the Contingency Will Be Resolved Within PP

There is no way that the RAP will apply, because if A dies tomorrow, then B will not
reach 30 within that period of time

 Step 6: Strike Out Interests Which Are Void and Reclassify Remaining Interests
You could do the wait and see doctrine and check back in 90 years

III. CO-OWNERSHIP

Concurrent interests: Refers to situations where two or more persons have concurrent rights of present or
future possession. There are three major concurrent interests recognized in America.
 Tenancy-in-Common (TiC)
o Have separate but undivided interests in the property; the interest of each is descendible
(intestate succession) and may be conveyed by deed or will (devisable). There are no
survivorship rights between tenants in common (can leave their interest in property to
whomever they please).
 Example: T devises Blackacre to A and B. A and B are TiC. If A conveys his interest
to C, B and C are TiC. If B then dies intestate, B’s heir is a TiC with C. Each TiC owns
undivided share of the whole (a situation that, whatever its conceptual difficulties, gives
rise to a host of practical ones).
o Tenants-in-common normally share in rents and sales proceeds according to their respective
ownership interest. Even if co-tenants own varying interests in property, it does not affect each
co-tenant’s right to possess the entire property.
 Example: O transfers Blackacre, a 100-acre farm, to A and B as tenants in common. A
and B each own a 50 percent (or half) undivided interest in the entire 100 acres. Three
years later A dies, devising his interest in Blackacre to M. M owns 50 percent (or half)
interest in Blackacre. B and M are tenants in common.
 Joint Tenancy with Right of Survivorship (JT)
o Have the right of survivorship, the outstanding characteristic of a joint tenancy.
o The theory underlying this right is that by a common law fiction, joint tenants together are
regarded as a single owner; each tenant is seised per my et per tout (by the share or moiety and
by the whole).
o In theory, each owns the undivided whole of the property and when one joint tenant dies, nothing
passes to the surviving joint tenant(s). The estate simply continues in survivors freed from the
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 participation of the decedent whose interest is extinguished (joint tenants inherits the land and
there is no intestate succession- sometimes substitute for a will).
 Example: If A and B have a joint tenancy, when A dies, B gets all of the property
 Example: If there are 4 joint tenants (A-D), then if A severs the J/T, then there is a J/T
between B-D
o Since all joint tenant(s) are seised together as one owner, the common law insists that their
interests be equal in all respects. There are four unities are essential to a joint tenancy:
 Time: The interest of each joint tenant must be acquired or vested at the same time
 Title: All JTs must acquire title by the same instrument of by a joint adverse possession.
A JT can never arise by intestate succession or other act of law.
 Interest: All must have equal undivided shares and identical interests (PI/FI) measured
by duration.
 Possession: Each must have a right to possession of the whole. After a JT is created,
one JT can voluntarily give exclusive possession to the other joint tenant. (The unity of
possession is essential to a TiC as well; none of the other three unities are).
o The presumption by the law is that when there is a question in the grant, then a TiC is
assumed. You need to make it clear that the intention is a joint tenancy.
 Tenancy by the Entirety
o JT that is held by a married couple
o The married couple has to satisfy the four unities, plus a fifth requirement of marriage, in order
to have a T by E. There are also survivorship rights.
o Cannot unilaterally sever T by E. Both spouses need to agree to sever. They can do this in
their married lives with proof of evidence that they want to sever, or through divorce.
o Must be married at or before the time of acquisition of property as a T by E
o T by E protects individual spouses from the other spouses debt and can avoid probate courts.
o Less than half the states plus the District of Columbia allow T by E
o Common law presumed an intention to create a T by E. The presumption still has considerable
force in those states that retain the tenancy, though in some of these a conveyance to husband
and wife will be presumed to create a TiC or JT.

Severance of Joint Tenancies: At common law and in many states today, if the four unities do not exist, a JT
is not created; instead, a TiC is created.
 Statutes in some jurisdictions abolish the requirement of the four unities and provide that a JT may be
created simply by stating explicitly the intent to do so.
o No need for a “strawman”- a person who briefly takes legal title for the sole purpose of
reconveying the property back to his grantor. Usually the straw is someone in the lawyer’s
office.
o Before, could not transfer title to yourself or directly to the other joint tenant as a joint tenant.
 If the four entities exist at the time of the joint tenancy but are later severed, the JT turns into a TiC
when the unities cease to exist. Hence, JTs can change their interests into a TiC by a mutual agreement
destroying one of the four entities.
 Any one JT can convert a JT into a TiC unilaterally by conveying his interest to a third party. This
severs the JT as between the third party and his cotenants because it destroys one more of the unities.
o Riddle v. Harmon: Whether Riddle can unilaterally terminate a joint tenancy by conveying her
interest from herself as joint tenant to herself as tenant in common?
 Yes, the Court discarded the archaic rule that one cannot grant himself property, one
joint tenant may unilaterally sever the joint tenancy w/o the use of intermediary device.
 Prior to Riddle, had to use a strawman to sever the unities of a joint tenancy

17
  A universal right of each joint tenant is the power to affect a severance and destroy the
right or survivorship by conveyance of his or her joint interest in another person. The
joint tenancy becomes a tenancy in common.

Relations among concurrent owners: Each tenant owns an equal interest in the entire fee and each has an
equal right to possession of the whole. Neither a JT nor a TiC can do any act to the prejudice of his co-tenants
in their estate.
 If A cannot do as he wishes because it would prejudice B, then B in having her way harms A
although each tenant is entitled to possession of the entire parcel of land, he cannot exercise that
possession w/o coming into conflict with reciprocal right of his co-tenant. (“Two men cannot plow the
same furrow”).
 Concurrent use of land may be inefficient.
o Partition: TiCs or JTs with right of survivorship are not obligated to continue a concurrent
ownership, and they are not required to sell just their interests to separate themselves from the
co-tenancy. Instead, the TiC or the JT may petition a court to partition the property. There are
two distinct categories of partition:
 Partition-in-Kind: Courts favor partition in kind, or physical partition. In a partition-
in-kind, the court divides the property into parcels of equal value; each co-tenant
receives a parcel as his or her separate property or one or more hold separate parcels
while two or more parties become co-owners of a parcel. The court must first make
sure that the physical attributes of the land would not make a partition impossible. If a
court cannot partition the property into parcels of equal value, the court may order a
money payment from one party to another (Owelty).
 Partition-by-Sale: There are two requirements for partition-by-sale:
 (1) The physical attributes of the land are such that a partition-in-kind is
impracticable or inequitable.
 (2) The interests of the owners would better be promoted by a partition-by-
sale.
 Judicial discretion in administering this action is broad, although the rules
governing contribution traditionally confine this discretion. The proceeds are
paid out according to the interests in the land.

Sharing the Benefits and Burdens of Co-ownership: Property rules which determine how the benefits and
burdens of ownership are to be shared by the co-owners.
 Possession and Ouster
o Each co-tenant (tenant in common, joint tenant, or tenant by the entirety) has the right to possess
the entire property. As such, the majority rule is that a co-tenant using the whole property,
absent ouster, does not owe rent to the other co-tenants.
o Ouster: is where the occupying tenant acts to prevent the others from using the property. Ouster
may occur if the occupying tenant changes the locks or if the occupying tenant makes use of the
property in a way that no other use can be made of any part of the property and refuses to make
room for another’s use. Generally, before the ousted co-tenant can bring an action for ouster, the
co-tenant must make a demand for access to the property and be denied access.
 Spiller v. Mackereth: Warehouse and ouster case; S and M co-owned a warehouse;
does occupying co-tenant have an obligation to pay rent to non-occupying co-tenant?
 Court held that if Spiller had refused Mackereth’s access to the property, then
she would have been able to recover based on Ouster. In the absence of
ouster and an agreement to rent, Spiller held no liability to Mackereth for rent.
 2 ways to show ouster
 Co-tenant exercises a payment on the co-tenant

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  Actual refusal of access
 Contribution
o A co-tenant who expends money for some matter related to the co-owned property may want to
be reimbursed for his expenditure. A co-tenant seeks contribution when he demands his co-
tenants pay for their pro-rata share of the expenses.
 Taxes, Mortgage payments, Interest, Insurance, and other carrying charges: A
co-tenant paying more than his share of taxes, etc generally has a right to contribution
from the other co-tenants, at least up to the amount of the value of their share in the
property. Court recognizes that failure to pay would result in foreclosure, thus, must
enforcement reimbursement of the paying co-tenant.
 Repairs and Improvements: In most jurisdictions, a co-tenant making or paying for
them has no affirmative right to contribution form the other co-tenants in the absence of
an agreement. This is considered the rule by “weight of authority and of reason.”
This is a subjective matter as to whether repairs or improvements are made. (Unless
there is an agreement=enforceable contract)
o Accounting is an equitable proceeding; where a co-tenant rents the property to a third party for
the co-owned property.

Marital Property
 Historic Basis for Marital Property (English System=Common law)
o Historically, single women (feme sole) could hold property effectively and with the same
authority of a man
o Once a woman became married, she became a feme covert. She was covered by her husband’s
protection. What she received from her husband was a promise to take care of her and protect
her from harm
o The time in which she was married was known as her coverture
 In this state of marriage, a woman who had personal property before marriage, had to
give her personal property to her husband. She was allowed to keep her paraphernalia
(clothing, bedding, jewelry).
 The personal property that she had as a single woman she had to give over to her
husband, but she was not giving him title outright. She was giving him use and control.
She also had to give her husband any wages that she earned.
o The state of marriage from the husband’s point of view was known as jure uxoris (term to
connote the fact that the husband had the right to use his wife’s land)
o The wife did not have the right to convey the property during their joint lives
o The wife’s property was subject to the husband’s creditors because it was under the use and
control of the husband
o If the couple had children, the father would benefit from the legal doctrine of curtesy  husband
had use/control of wife’s property through the end of his natural life. The objective of the
doctrine was to provide for the children whose mother died in an untimely manner
o A woman who precedes her husband in death benefits from dower  the wife is given a life
estate in 1/3 or ½ of freehold land of which the husband seised during the marriage
o If the husband did not leave his wife’s dower interest in his will, the law will step in and give the
wife her dower that she is entitled to
o Common law is in 40 states
 Married Women’s Property Acts
o Statute enacted by the individual states in the 19th century that stated that marriage would not be
a hindrance on a woman vis-à-vis owning property. Put married women basically on same
foundation as men. Eliminated property disabilities of married women=single women.

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 o A man could not make decisions on the property w/o consulting his wife
o A married woman would not be disabled in regards to her right to own property
o Sawada v. Endo: Hawaii case; Whether the interest of one spouse in real property, held in
tenancy by the entireties, is subject to levy and execution by his or her individual creditors?
 No, an estate by the entirety is not subject to the claims of the creditors of one of the
spouses during their joint lives
 Important in the interest of family solidarity and protecting the children
 Creditors are not entitled to special consideration
 Community Property System (Continental System=France/Spain=American Southwest)
o Views the marital unit as one or a universal shared partnership, where the husband and the wife
work as a unit for their mutual benefit.
o Any earnings during the marriage are community property. Any assets that are bought in before
the marriage are separate property. Income that is earned during the marriage is split 50/50 and
any assets that come into the marriage are split 50/50.
o Gifts and inheritance received during the marriage would remain with the individual spouse’s
property unless the couple decides that they are to be shared by the couple.
o Community Property is in eight states (Louisiana, Texas, New Mexico, Arizona, California,
Nevada, Washington, and Idaho). However, there have been two later additions: Wisconsin and
Alaska.
o Community Property v. Common Law Concurrent Interests
 Husband and wife: Community property can only exist b/t husband and wife while a
TiC/JT can exist between any two or more persons and is driven by title.
 Conveyance of share: In community property spouses, can’t convey their undivided
one-half share except to the other spouse. In a TiC/JT, a spouse can convey their share to
a third party, change the form of the estate, or seek partition.
 At death: In community property, a deceased spouse may dispose by will their half of
the property since there are no survivorship rights. If there is no will, the property
automatically goes to the surviving spouse.
 Sale after death: At death of one spouse, the entire community property receives a
“stepped-up” tax basis for federal income tax purposes.
 Distribution of Marital Property Upon Divorce
o Two Systems of Property Interests for Married Person in the U.S.
 Elective Share: System by which a widow could choose between recovery under the
husband’s will or alternatively take her elective share as provided by the state’s law.
 Equitable Distribution: empowered judges with equity to distribute the marital assets as
they saw fit in furtherance of fairness. There would be some different distribution at
divorce. It does not mean a 50/50 split
 Factors Judges Consider:
 Length of marriage
 Age of the parties entering into the marriage
 Opportunity Costs - What sacrifices did the individual spouses make in the
interest of the marriage?
 Needs of the parties
 Education and employability of the parties
 Whether someone contributed as a homemaker
 How did they contribute to the accumulation of assets
o Professional Degree or Career as Marital Property
 In re Marriage of Graham: MBA case; Whether a MBA degree constitutes marital
property which is subject to division by the court?
 Court held that the MBA was not property to begin with and it is not marital
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 property. The Court defined property as something that has an exchange value,
and an MBA does not have an exchange value.
 An MBA does not have the characteristics of traditional property. It is earned by
an individual that cannot be transferred to another, gifted, sold, devised, etc.
 Compensation for spouse’s contribution to what was already earned is easier/more
equitable than future earnings
 Goes both ways for Lockean Labor Theory
 Goes both ways for Utilitarian argument (we want to create incentives for self-
investment)
 Elkus v. Elkus: Opera singer case; Whether celebrity status constitutes marital property
subject to equitable distribution?
 Court held that the wife’s career was considered property and because the
husband had contributed a great deal to the development of her career, he was
entitled to equitable distribution at their divorce.
 He was the voice coach, gave up his career as singer/performer to support her and
raise the children, and argued enhanced earning capacity of established career.
 Equitable distribution defines the “economic partnership” concept of the marriage
relationship.
 Lockean – For creation of a persona
 Utilitarian – We want to increase incentives to invest/move property to highest
and best use

 Right of Domestic Partners

o Common law marriages are now recognized in only 11 states
 Was widely recognized in the 19th century when travel and horseback to the county
courthouse to obtain a license might be a long journey
o To have a common law marriage;
 The co-habiting parties must manifest their intent to be husband and wife and hold
themselves out to the public as husband and wife
 If the jurisdiction recognizes common law marriage, the couple married by common law
have the same rights as a couple married w/ license and ceremony
o Common law marriage was abolished
 Because it “was thought to generate litigation and encourage perjured testimony about an
agreement to marry by a co-habitant seeking the benefits of lawful marriage at the
termination of the relationship”
 With the development of modern transportation and roads, it was no longer needed
 A certified marriage made proof easy for gov’t benefits, pensions, and property claims,
which increased dramatically in the 20th century
 Common law marriage dignified immorality among persons in the lower socio-economic
class who were more likely than the well-of to enter into such as arrangement
o In the 1960’s, many couples began to live together w/o holding themselves out as being married
 Even common law marriage, where recognized, would not give property rights to persons
no claiming to be married
 The law of contracts was then brought into play in an attempt to give a partner (usually
the female partner) some share in the gains accumulated during the co-habitation
o An unmarried couple’s property rights were litigated under contract law
 In CA, the S.Ct broke new ground by holding that a contract for property division or
support can be implied from the conduct of the parties
 Marvin v. Marvin – “The parties’ intention can only be ascertained by a … searching
inquiry into the nature of the relationship.” Marvin has been applied to same-sex couples

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  Monroe v. Monroe – NY Ct of Appeals rejects Marvin’s enforcement of an implied
contract. In NY, only a written or oral express contract to share earnings and assets
between unmarried partners is enforceable
 Hewitt v. Hewitt – Illinois rejected enforcing any contract between unmarried co-
habitants, express or implied. In Illinois, a contract between unmarried partners to share
acquisitions is unforceable on the ground that this would, in effect, revive common law
marriage, abolished by the legislature
o The contract approach to the rights of domestic partners, with its reliance on the express or
implied intent of the parties, has not produced what many regard as equitable results upon
separation of the partners.
o ALI’s approach is premised on the “principle that legal rights and obligations may arise from the
conduct of the parties w/ respect to one another, even though they have created no formal
document or agreement setting forth such an understanding.”
 Principles require that domestic partners of the same or opposite sex share for a
significant period of time a primary residence and a life together as a couple
 If the partnership terminates while both partners are living, the couple’s property is
divided according to the principles set forth for the division of marital property
 If the partnership terminates at the death of one partner, the surviving partner’s rights
depend upon the state’s law of intestate succession
o Goodrich v. Department of Public Health: Massachusetts gay marriage case; Can the
commonwealth of Massachusetts deny civil marriage to same-sex couples?
 Court held that under Massachusetts constitution, advantages and burdens of opposite sex
marriages must be extended to same-sex marriages (alimony, equal division at divorce,
intestate succession, elective share, tenancy by the entirety).
 Equal Protection is being violated by denying these privileges.
 Lawrence v. Texas (USSC) – Ct affirmed that the core concept of common human dignity
protected by the 14th Amendment precludes gov’t intrusion into the deeply personal
realms of consensual adult expressions of intimacy and one’s choice of an intimate
partner
 The gov’t creates civil marriage  there are 3 partners to every civil marriage (2 spouses
and the State). Only the parties can mutually assent to marriage BUT the terms of the
marriage are set by the Commonwealth. Only the parties can agree to end the marriage
BUT the Commonwealth defines the exit terms.
 Marriage bestows enormous private and social advantage on those who choose to marry.
Civil marriage is an esteemed institution, and the decision whether and whom to marry is
among life’s momentous acts of self-definition
 Marriage license grants valuable property rights to those who meet the entry
requirements: Joint Massachusetts tax filing; T by E; Extension of the benefit of the
homestead protection; Automatic rights to inherit the property of a deceased spouse who
does not have a will
 Civil marriage has long been termed a “civil right”
o Baker v. State: Civil unions in Vermont
 Court held that privileges that were extended to heterosexual married couples will be
extended to same-sex unions, including non-property rights. Not extending these rights
to same-sex unions violates the Vermont state constitution.
 Without the right to marry—or more property, the right to choose to marry—one is
excluded from the full range of human experience and denied full protection of the laws
for one’s “avowed commitment to an intimate and lasting human relationship.”

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IV. ISSUES IN COMMODIFICATION

Commodification of Human Organs

 NOTA(National Organ Transplant Act) was added to clarify the Uniform Anatomical Gift Act which
addressed the issue of organs, but did not say whether organs could be paid for.
 Kidneys and livers are the most demanded organs for transplant. There are 84,000 people currently on
the transplant list nationwide.
 Arguments for a market in human organs
o Increase supply to satisfy demand–creates an economic opportunity for the poor
 Increase the quality of the supply (Utilitarian argument)
 Better chance of good match
 Young kidneys=fresher organs
 Increase information available
 Reduce the public costs, such as dialysis, medicare/aid patients
 National market: allowing for live individuals to sell their organs would allow for a
national market
 More transplants=more expertise=better survival rate
 Increased efficiency
o Rebutting human dignity concerns: Already done with hair, plasma, gametes
 Saves lives
 Fairness to donor
 Don’t be paternalistic
 Reduces family strife and pressure to donate
 Helps the poor
o Regulation of market
 Federal agency for license non-profit oversee
 Waiting period to assure full consent
 Minimum age
 Counseling of the donor
 Price controls-minimums so that there is no exploitation
 Minimum income levels for donors to prevent economic duress
 Arguments against market
o Exploitation of the poor, they will be the ones most in need of money and will sell organs when
they other wise would not
o Poor will not get top dollar for organs b/c they may not have had the best healthcare during their
life (Counter-argument is that the poor mainly are beneficiaries of the transferred organs)
o Reduces altruism/invites family squabbles (Counter-argument is that it takes pressure off family)
o Morally repugnant/akin to prostitution (selling your body)
o Doesn’t counter the black market because it is changing social norms; increases tolerance/access
to this activity
o Counter-distributive justice argument  other high risk employment activity is reversible (you
can stop working at a mine)
o Will organ go to the highest bidder or the most in need?
o Will the organ go to the those who can pay and not necessarily best match
o Discrimination
o Decreases research in dialysis alternatives
o Less material available for research
o No incentive to care for the body if there is a large market for organs.

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 o It’s reasonable to sell kidney when you are young, but what if you need it later?
o Human dignity is offended
 Duress of the ill, poor, otherwise weak
 Religious considerations
 Need to address live versus dead sales
 Is increased life always a good thing
 Looking at animals as alternatives

Commodification of Reproduction
 Commodification of reproduction has become a part of life
 Baby M (NJ S.Ct)
o Ms. Sterm was not the biological mother  To what extent did this motivate the court?
o There was a concern about economic disparities (free choice for Ms. Whitehead)
o Life is a “pearl beyond price”/children are beyong market/there are things that money can’t buy
o The Ct ruled that this transaction is void against public policy
 Market for babies works
o Concern for discrimination between poor/rich on grounds of race
o “Trading up” phenomenon
o No inquiry made for whether or a good parent (that really matters)
o Concerns for involuntary servitude (no consent by child)
o A child is not your property/is not yours to sell
o May create an oversupply of children (may bring down price/cheapen life)
o Children in homes that can care for them
o Healthier babies being born
o Women will be more selective about their mates-increased quality
o Decrease the amount of foster children
o Extend benefits to more individuals in society
o Decrease abductions
o Eliminate the middleman and other intermediariesshifting wealth from rich to poor
o Decrease abortions
o High risk couples could choose not to procreate, but still have a child
o Homosexuals, single-parents, and parents over 40 may have a better chance
o Satisfy the demand of couples
o Decreases opportunity costs- enables women to have higher opportunity costs to buy children
and allows women who have lower opportunity costs can be paid to have children
o Argument based on how well the market works
 Increased quantity-to meet demand, more women will produce children for the market
 Decreased cost-the market will drive prices down through increased competition
 Improved information-more information will be generated about children’s genetic and
other make-up to allow for better matching of prospective parents’ preferences
 Creates new jobs for people with few or lesser job opportunities
 Shifts wealth away from middlemen/intermediaries(lawyers who currently “find” the
babies and draw up the contracts) to the producers
 Market doesn’t work
o Increase abortions
o Increase abductions
o Psychological harm to children
o Psychological harm to mothers

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 o Potential for misconception objection
o Who will care for the children with birth defects?
o Problem of older parents
o Class exploitation
o Children who need homes won’t be able to find them
o Adverse affects on mothers
o Trivializes life
o Less healthy children because of lack of things like breastfeeding

Commodification of Race
 Commodification of race is a major issue in property.
 State v. Mann
o Borrowed slave was shot at by the man who borrowed her: Was it an indictable offense to beat
and shoot a slave whom he was renting?
o Ruffin decides that slaves are property– renter has absolute dominion over the slave
o Trespass on chattel = you harmed my property  The law did not recognize the criminal
prosecution for harming a slave b/c the slave was not recognized as a person (no legal
personhood)
o Mann as the renter of the property stands in the shoes of the owner and has all the rights of an
owner (albeit for a limited time period), had a 3rd arty during the course of the lease, Mann could
have brought an action for trespass against chattel b/c during the lease Lydia is his property
(Mann has complete control and can take the same actions to discipline her as her master)
o If race is commodified through the institution of slavery, is there still a market value for race?
o Parallels Johnson v. McIntosh: Issue of Sovereignty v. Property Rights
o Judge also distinguishes between the parent-child relationship and the teacher-student in
analogizing it to slavery. Child and student have freedoms whereas the slave does not.
 Whiteness as privilege
o Whiteness as property–if you are 100% white then you have an interest that is inalienable
o Harris Article: refers to her grandmother’s passing as a trespassing to whiteness (property) that
she is taking a stick in the bundle
o Affirmative action could be seen as this type of trespass against whiteness as property;
trespassing on a privilege that whites have
o Commodification of land where white people dies as opposed to land where black people died
(battlegrounds, etc.)
o Race is still commodified
 In employment (wage disparities, disparities in jobs/access/level)
 In advertising (lightening of skin)
 News anchoring (lighter skin/tone)
 Access to real property
 Access to education/public education (property taxes)

Commondification of Culture
 Spiritual “property” – Is it owned by anyone, or are humans only caretakers?
 Inherited property?
 No single living person owns
o Communal/community property (partnership/groups)

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V. LANDLORD/TENANT LAW

Lease v. License
 Historically, a lease was considered a conveyance of property interests for a limited period of time
 Today, a lease is an agreement whereby the owner of the property (the lessor) contracts to grant a lessee
exclusive possession of specific real or personal property. It typically is for a definite term and in
exchange for rent.
o Both a conveyance and a contract
 Conveyance that create property rights/property interest (a lease transfers possessory
interest in land)
 Lease creating contract rights (leases usually contain a number of promises, or covenants)
 LL and Tenant both hold sticks
 LL (ownership)
 Tenant (possession, albeit temporary)
o Gives rise to the right of quiet enjoyment
 During the course of the lease, as long as you’re paying rent, you
have the right to enjoy the property w/o violation by the LL
 The property rhetoric became less apt as people moved into more urban settings
 When you have a system that conceptualizes a lease as a conveyance of land, the breach by the tenant
(i.e. not paying rent) does not authorize the LL to breach the right of quiet enjoyment. The idea of a
lease changed to thinking of it more as a property and contract entity– there are both contract and
property principles that govern the lease relationship.
o Property Theory Conveyance Theory (Traditional Theory):
 Independence of Covenants (Breach by one party does not authorize breach by another)
 If one party breaches a material covenant, then the non-breaching party’s only
remedy is an action for damages. He must continue performing their covenants,
which are considered independent
 LL can sue for damages to uncover unpaid rent
 Tenant can bring separate damages action for violation of quiet enjoyment
o Contract Theory (Modern Theory):
 Dependence of Covenants (Breach by one authorizes breach by the other)
 If there has been a material breach by one party of his covenant or if there is a
breach of material covenant, then the other party is released from his covenant.
 Ex. The landlord’s failure to provide the tenant with quiet enjoyment of the
property would relieve the tenant from his responsibility to pay rent
 Statute of Frauds – American statutes provide that leases for more than one year must be in writing
 Form leases and the questions of “bargaining power”
o The written lease can be a long document
o A lease contemplates a continuing relationship between the LL and Tenant
o LLs use form lease w/ no negotiation over terms
 Does this indicate that tenants lack bargaining power? Not necessarily
 Underlying problem is not form leases, but monopoly power

Freedom from discrimination in rental housing

 LLs were once free to discriminate as they wished in selecting tenants but are constrained today by the
federal Fair Housing Act of 1968.
o Protected Classes under FHA
 Race, Color, Religion, National Origin, Sex, Familial Status (protect families with
26
 children), Disability
o Classes Not Protected under FHA
 Sexual Orientation, Marital Status, Age, Profession/Occupation, Income/Ability to pay,
Family Status (presence of status)
o There are two exemptions to the Fair Housing Act:
 For a house that has four or fewer rental units, where the landlord is living in one of
them, the FHA does not apply. The only FHA provision that applies is non-
discrimination in advertising
 When the landlord owns three or fewer single family homes, and is not using a realtor
to rent or sell them, then the FHA does not apply
 *Non-discrimination in advertising always applies*
 Civil Rights Act of 1866 was provided to prevent racial discrimination in private and public housing. It
was largely unenforced for about 100 years until Jones case
 3 Step Burden Shifting Scheme:
o The plaintiff has to make a PFC that they have been discriminated against
 stating that they are a member of a protected class
 unfavorable action was taken by LL to them on the basis of one of these classes
o The defendant states that there was a non-discriminatory reason for the action that was taken
 articulate what the non-discriminatory reason is
o Shifts back to the plaintiff to prove that the non-discriminatory reason is merely a pretext for
discrimination

Sublease v. Assignment
 There are two distinct categories of tenant transfers
o Assignment: A transfer of the whole of the unexpired term of the lease. It need not be a transfer
of all of the premises. An assignment of a portion of the premises for the unexpired remainder of
the term is called an assignment pro tanto. (T1 has transferred all sticks in the bundle to T2)
o Sublease: A partial transfer of less than the full remaining term of the lease. (T1 retains some
sticks in the bundle).
 Typically, with a sublease, the T1 has retained some interest temporally. The sublease
period is for a shorter period than the original lease.
 Ex: L leases to T for a term of three years at a monthly rate of $1,000. One year
later T1 “subleases, transfers, and assigns” to T2 for a period of one year from
date.” (This is a sublease because the original tenant has retained an interest)
 With subleases, the original tenant can leave their belongings on the property
 Tests To Determine Whether Sublease or Assignment
o Formulistic Test: Whether the original tenant retained some interest in the property temporally
or materially. Do the parties intend to create a new LL/T relationship between LL and T2?
(Doesn’t get us very far)
o Modern Test (Rule of Intent): What was the intent of the parties when they entered into their
relationship? Has T1 retained possessory interest?
 If so, then there is a sublease.
 If instead T1 transfers the property for the entire remaining period of the lease, then there
is an assignment
 *This test is only relevant only to privity of estate analysis which exists between a
LL and a T and a LL and a T’s assignee, but not b/t a LL and a T’s sublessee
 Who Can The Landlord Sue?
o The landlord can sue whomever they are in privity of estate with under a property theory or
privity of contract with under a contract theory
27
 o In privity of estate under property theory
 In an assignment, T2 has privity of estate with the LL. T1 does not.
 With a sublease, if T2 fails to pay rent, the LL cannot sue the subsequent tenant under a
property cause of action. The LL would have privity of estate with T1, and not T2.
 Landlord has privity of estate with one tenant at a time
 Ernst v. Condit (1964): Ps leased a tract of land to T1 (Rogers), who then amended the
lease with T2 (Condit), who consequently retained sole possession of the land. T2 failed
to pay rent and Ps sued.
 Agreement b/t T1 and T2 was an assignment because although T1 expressly
agreed to remain liable to Ps for the lease, T1 did not have a reversion interest or
right to re-enter either express or implied.
 The Ct gets the right answer, but gets the analysis wrong  Whether T2
has an obligation to LL does not determine whether it’s a sublease or
assignment
o Under privity of contract, the LL can sue multiple tenants
 If the landlord and the first tenant have negotiated a release from the lease, then they are
not in privity of contract. As long as the lease persists, the landlord and the original
tenant are in privity of contract.
 The subsequent tenant can be sued under the contract theory so long as the subsequent
tenant has undertaken some or all of the covenants of the original lease.
 Privity of contract is established between the landlord and the tenants if the jurisdiction
recognizes the landlord as a third party beneficiary of the agreement between T1 and T2

 Ex. If T2 is in possession, and T2 defaults on rent, and T2 is a sublessee, then the LL

cannot sue T2 under a property theory because he is not in privity of estate with T2. The
LL can sue T2 under a contract theory if privity of contract exists
 *If LL sues T1 when T2 defaults on rent, then T1 can sue T2 via a subrogation
theory, or T1 can sue T2 on the assignment or sublease agreement itself as a matter
of contract law*
o If the lease says “can’t assign or sublease without LL’s consent”, then LL can refuse to consent
for any reason or no reason
 Kendall v. Pestana (1985): San Jose airport case; Kendall seeks declaratory and
injunctive relief against D for failure to consent to an assignment of a lease and such
conduct is unreasonable and against freedom of alienation.
 Court held that there has to be a commercially reasonable requirement on
restraints on alienation in commercial real estate leases
 There is also the implied contractual duty of good faith and fair dealing

Judicially determined duties of landlord and tenant

 Tenant duties; landlord rights and remedies
o Doctrine of Waste:
 The duty not to commit waste is breached if the tenant makes changes that affect the vital
and substantial portion of the premises that would change the characteristic appearance
o Doctrine of Self-Help
 One way that LL regained possession of premises if the tenant failed to pay rent or
defaulted
 The LL would go on site and retake possession by changing locks, putting tenants
belongings out of the property
 As a result of the violence that could ensue between LL and tenants, jurisdictions began
to prevent the use of self help
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  Berg v. Wiley (1978) – The Tenant is Possession: Wiley leased land to Berg to use as a
restaurant which gave Wiley control to seize back land if used contrary to what was
stipulated in lease. Berg made renovations to the property and Wiley subsequently
changed the locks on the door.
 Ct. held that there is no evidence that Berg intended on abandoning property or
surrendering leasehold given her testimony and circumstantial evidence.
 Court held that even if self help was available to the LL, it was not going to be
authorized because the self-help was not peaceable by the LL. LL cannot conduct
their business outside of the realm of the law.
 Modern trend forbids self help that is not judicially determined
 If the tenant fails to pay rent, the LL does not have to provide the leased
premises
o Doctrine of Destraint
 Authorizes LL to take tenants personal property and hold it ransom or sell it in order to
recoup unpaid rent
 It varies from court to court as to whether due process is required before LL can exercise
destraint
 LL would have to call upon the sheriff or the marshal to seize the property. Because the
authorities are involved, notice is required
o Summary Eviction
 Due process given to tenants before a court will authorize an eviction
 Typically 30 days notice
 If there is no tenant defenses and there has been 30 days notice, then there will be an
eviction
 LL’s duty to mitigate damages upon T’s premature abandonment of leased premises
o When T abandons leasehold prematurely, LL has three choices:
 At common law, the LL can do nothing and wait for rent to come due
 This law is no longer applicable where courts or statutes require LL to mitigate
damages.
 Sommer v. Kridel (1977 – The Tenant Who Has Abandoned Possession: D
entered lease agreement with Sommer but changed mind. Sommer failed to
answer the letter and kept the apartment vacant and then demanded rent from D.
Issue: Whether a lease is a conveyance of property OR a contract?
 Court held that LL must mitigate its damages pursuant to contract
principles. Proof of mitigation is placed on the landlord.
 The LL is required to treat the apartment as vacant stock and not show it
in preference to other apartments unless prospective tenant specifically
requests.
 The decision in this case only applies to residential leases.
 If the lease was a conveyance, the LL cannot disturb “quiet enjoyment”
and cannot re-let so therefore, cannot mitigate damages. (LL could not
disturb the unit during the full lease term; Ct says this is not smart, not
economical).
 Lease as contract theory enables LL to breach “quiet enjoyment” in
response to T’s breach of duty to pay, and LL can mitigate damages, LL
can still bring action for damages for T’s failure to pay rent, BUT LL has
to take reasonable steps to mitigate damages (LL bears the burden of
proving that LL demonstrated action to mitigate damages)
 Landlord can re-let for tenant’s account
 Landlord can accept tenant’s surrender, thereby rescinding the lease, and hold the tenant

29
 liable only for unpaid back rent
 Landlord duties; tenant rights and remedies
o Initially, the duty to repair leasehold premises lay with the tenant, and not the landlord
o Over time, a covenant of quiet enjoyment was implied with leases in most jurisdictions. This
meant that the LL must desist from disturbing the tenants enjoyment of premises during the lease
term, but also that the LL must maintain the premises for the T’s beneficial enjoyment
o Doctrine of Constructive Eviction: a tenant claiming constructive eviction can stop paying
rent, but the tenant must move out in a reasonable period of time
 Reste Realty Corp. v. Cooper (1969): P failed to fix a leak in the premises, which
impeded on D’s ability to enjoy the property in piece in damages. D notified the P of her
intention to leave and subsequently left the premises. P sues to recover rent claiming D
abandoned premises before termination date.
 Court held that the tenant had been constructively evicted.
 She could claim it because when she moved in she could not tell that it was going
to flood when it rained.
 She had not leased the driveway or the retaining wall. The defect was a latent
defect and she could not have detected this defect.
 Because she moved out in 10 days that satisfied the reasonable time period (T has
to give notice and reasonable opportunity for LL to cure, or fix the problem;
can stop paying rent only if T has vacated in a reasonable amount of time)
o Implied Warranty of Habitability
 Doctrine that a tenant can claim under a contract theory that when you enter into a lease,
there is an implied understanding that the premises are satisfactory for their purposes
(can’t be waived due to the concern for inequality of bargaining power between the LL
and T; it is implied into all residential leases).

 Can assert IWH defensively as justification for withheld rent in face LL’s eviction action
 Can withhold some or all rent depending on degree of defects/state of unit
 Defects must impact health/safety/or may violate housing code (does not have to
violate housing code b/c some municipalities do not have housing codes); have to
be substantial defects, not merely diminimis defects (applies to both latent and
patent defects)
 The IWH has been applied minimally in commercial contexts because the landlords and
tenants in those capacities have bargaining power
 40 states and D.C. have adopted the IWH doctrine
 Hilder v. St. Peter (1984) – Implied Warranty of Habitability (IWH): P subject to
horrible living conditions which D failed to repair and P made many improvements using
own money.
 Court held that there was a violation of the IWH.
 The IWH applies to latent and patent defects
 Latent: those that are not visible to reasonable inspection
 Patent: those that are readily apparent, but the LL is not excused from
liability for them
 The defect has to be non-de minimus: It has to be substantial for a tenant
to take advantage of the IWH, the landlord has to be noticed so that the
landlord has a reasonable time to fix the defects
 A tenant cannot make a claim under the IWH for a defect that he has
caused
 Remedies for the tenant
 Rent Abatement-the tenant reduces the rent payment proportional to the extent of

30
 defects in the apartment. Ex: 500-50=450 (what the tenant would pay)
 Compensatory damages- tenant can repair and deduct expenses or tenant can also
collect for discomfort
 Punitive damages may be available for landlord’s willful conduct
 Escrow (withholding money from a LL and waits for the LL to sue for the amount
withheld, shifts burden on LL to bring suit in court).
 Retaliatory Eviction
 When there are IWH laws, rent control laws, anti-discrimination laws, the first 90
to 180 days, any eviction that the landlord attempts is presumed to be retaliatory
and therefore prohibited by the law
 After the 180 days have lapsed, the tenant can still claim a retaliatory eviction, but
the burden is on the tenant to prove that it is a retaliatory eviction
 If you can show that there was retaliatory eviction, you can recover on
compensatory or punitive damages based on the wantonness of the landlord

The problem of affordable housing

 Chicago Board of Realtors, Inc. v. City of Chicago (1987): The Chicago City Council enacted a
Residential Landlord and Tenant Ordinance. The ordinance was not a rent control measure; rather, it
essentially codified the implied warranty of habitability and, beyond that, established new landlord
responsibilities and tenant rights.
1. Posner says that the Chicago Ordinance harms poor tenants because it raised the rent and
screening of applicants. A reasonable profit seeking landlord would screen the tenant
applications far too scrupulously to determine who is able to pay (prices increase, supply
decreases)
2. There was concerns for the net effect that there would be less apartments and that the effect
could be discriminatory

3. Because there is less housing available, the landlord will most likely advertise by word of mouth
and then there will be some disparate effects in terms of race, class, and ethnicity
4. There is a strong correlation in using income as a factor. It will most likely have an impact on
race
5. Posner stated that the ordinance benefitted middle class tenants and not poorer tenants.
6. Posner argues that if the government gave money to low income tenants, that would better serve
the low income tenants
7. This ordinance will help the middle class, probably lobbied for and supported by middle classes
(serves their interest – they vote more than lower economic class; they will benefit more than
lower economic class b/c they will get quality housing for a price they can afford)

VI. EMINENT DOMAIN

Eminent Domain: Power of the government to force transfers of property from private owners in exchange for
payment of just compensation (market value).
 It was originally understood as a power of the sovereign
 The authority of eminent domain is not enumerated in the Constitution
1. Fifth Amendment doesn’t grant ED power, but confirms it; “Nor shall private property be taken
for public use, without just compensation.”
 Possession has been stripped, legal title has been stripped, and at the point of eminent domain is a
transfer in title to the original property owner to the government that condemned it or to the original

31
 property owner
 It is the physical seizure of the property by the government for a public use, which may either involve
ongoing physical operation by the government, or the transfer of physical possession by another private
entity.
 Must analyze:
1. Is there a public use? If there is a valid public use, then you can move on to just compensation
2. Is there just compensation? Look at Fair Market Value (FMV)
Public Use
 Public works and services, actual public uses where the land is being used in an ongoing basis
o Narrow understanding includes: Schools, roads, post offices, parks
 In 1896, the Supreme Court held that the federal government could exercise eminent domain for historic
preservation purposes – Gettysburg Electric Railway v. United States (1896)
 The Supreme Court has also held that the use of eminent domain to condemn neighborhoods with urban
blight, was a public use –
o Berman v. Parker (1954) – D.C. condemned large tracts of land to make way for new streets,
shops, public housing, private low-income housing. Public use justification was to eliminate
“urban blight,” and that EmDo should be exercised to erase that blight. USSC upheld EmDo,
there are times that require exercise of this power for spiritual and aesthetic reasons.
 Most cases regarding EmDo are handled at the state level
o World Trade Center: In 1968-69, there are a number of developers interested in the World
Trade Center development. In order to create the parcel, they had to condemn 16 acres of going
businesses (small-time electronics shops). The case was litigated in the NY’s highest court, and
it was upheld that the public use was World Trade. The thought was that New York was losing
ground in the financial battle with other cities.

 The government cannot take property for “private” use and there must be a public purpose
o Hawaii Housing Authority v. Midkiff (1984): Upholds Hawaii’s condemnation of private land
and immediate transfer to other private holders on the grounds that, historically Hawaii was
owned by fewer than 70 people. People owned the fixtures on the land and the owners leased the
land. Federal tax law made it too costly for owners of the land to sell the land  Perpetuation of
oligopoly; Hawaii Housing Authority condemned the title so there wouldn’t be any taxes.
 Court holds that creating a fair market is a public use
 O’Connor states that it is quite clear that the court should keep its eye on what the
legislature’s goal. Gov’t action was needed to breakup oligopoly. Civic
republicanism  afforded people more opportunities for land ownership and they
become contributing members of society.
 The Court adopts a standard of deferential judicial review in regards to the state
 The Supreme Court should not substitute its judgment for what the legislature has made
 Police power was the limiting rubric, but within that the public purpose is liberal and
many people who care about private property were gravely concerned about this opening
from private use to public property
 It has gravely concerned those who care about private property rights
o Poletown v. City of Detroit (1981): City of Detroit wanted to tear down Poletown in order to
construct a General Motors plant. Detroit was willing to condemn the neighborhood because
there was a severe economic depression in Detroit and the GM plant was thought to bring many
jobs to Detroit (public use) which would generate income taxes.
 Ralph Nader represented the residents of Poletown and argued that the transaction was a
Private to Private transfer b/c the gov’t was merely handing GM the property; not a valid
use of EmDo
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  Michigan S.Ct says that there was both public and private benefit, and that a higher
standard of review has to be used. It says that when there is such an obvious private
benefit being derived, that we must assure ourselves as between the public and private
benefit, that it is principally public. Ct upholds under economic necessity.
o Kelo v. City of New London (2005): There were seven parcels and they were going to be used
for public development, etc. The plaintiffs attacked the public use rationale for the development
tracts stating that the public use was really a private use and that the gov’t was masking the
transfer. Issue: Whether the city’s proposed disposition of this property qualifies as a
“public use” w/in the meaning of the Takings Clause of the 5th Amendment.
 The Court looked at what other states had done, and a majority of them had allowed
private-to-private transfers. Courts are usually deferential will not substitute its judgment
for that of the legislature b/c the legislature does the grassroots work; if there is a
reasonable nexus between means and ends, then the Ct will not question.
 The Court upheld the condemnation of the private property; Ct stated that when there was
both a public and private benefit, the court will assure that there is a public benefit.
 Dissent: There should be a heightened standard of review. When there are private-to-
private transfers, and the gov’t is merely a pass through, you should stop and scrutinize
the transfer in detail . There’s a parallel to Midkaff in that there’s an effect on
stakeholding b/c property ownership represents investment in civic gov’t.
o County of Wayne v. Hathcock (2004): Case involving a government plan to stimulate an ailing
economy by condemning unblighted land adjacent to Detroit Metropolitan Airport and
transferring it to private parties for the purpose of development.
 Court overrules the decision in Poletown
 It holds that Poletown’s conception of a public use did not have any support in the
Court’s EmDo jurisprudence
 It held that the condemnations that were proposed did not pass the constitutional test
because they do not advance a public use as required by the Constitution.
 3 Acceptable bases of EmDo power:
1. Actual public use of property (historic understand) – schools, roads,
post offices
2. Ongoing public oversight supervision of property – public utilities,
particular railways, power lines, sports arena
3. When the exercise of EmDo itself eliminates urban blight, it does not
matter what comes after (Berman v. Parker)

Just Compensation
 Just compensation is the Fair Market Value (FMV) of the property as of the date of the condemnation
(what a reasonable purchaser and a reasonable seller agree to in the absence of threatening
condemnation)
 Originally understood to be limited to the land, not the fixtures on land; after a century or more, was
broadened to include fixtures on land
 Basic rule is that going concern value of a business(its business good will) is not recompensed in a just
compensation award
 Going concern value: business good will. It is a value above and beyond the market value of land that
reflects the client relationships and the business acumen of any particular business owner
 “A good plumber should be able to continue his business in almost any location and do as well.”
 Relocation expenses are not standard part of just compensation award

VII. LAND USE CONTROLS

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Judicial Control of Land Use: The Law of Nuisance
 Sic Utere Tuo: Using one’s property so as to not interfere with your neighbor’s use of his property
 Externalities: a function of transaction costs, and encourage the misuse (the inefficient use) of
resources.
 Statutorily created and common law (created by judicial decision)
 Restatement, Ad hoc/Fact specific Balancing Test – Identify all the arguments made by the non-
nuisance actor and the nuisance actor. You don’t have to draw a conclusion, but you should list the
possible remedies.
1. Social Utility of Nuisance Actor’s Conduct
 Utility of that particular land use, how socially valuable?
 Job creation/employment opportunities
 Suitability of nuisance actor’s particular use to that property
 How easy is it for nuisance actor to limit the negative effect externalities
2. Gravity of Harm to the Non-Nuisance Actor
 Social utility of non-nuisance actor’s use of property
 Extent of harm, how substantial is the harm?
 Suitability of non-nuisance actor’s use to that property
 Mirror image of suitability of nuisance actor’s particular use to that property
 How easy is it for the non-nuisance actor to avoid harm?
 Two Classes of Nuisance Claims:
1. Nuisance at law
2. Nuisance in fact: Nuisance depends on the circumstances and depends on the facts– apply the
flexible balancing test that weighs the balancing of the harm

 Morgan v. High Penn Oil Co. (NC S.Ct 1953): P’s hotel business was experiencing
negative externalities (nauseating gases and odors) from nearby oil refinery operated by
D. Trial ct awarded damages (temporary – past damages). S.Ct upheld damages and
applied nuisance test:
 Flexible balancing test:
 Gravity of the harm caused to the non-nuisance actor
 Utility of the nuisance actor’s conduct
 Something will be deemed a private nuisance: If there is substantial harm and that
actor’s conduct is intentional (w/ knowledge of effects) and unreasonable under
the circumstances OR If the consequences are not intentional, but it involves a
type of high risk activity/abnormally dangerous activity which builds on the
concept of unreasonableness
 If Morgan had come to the area after High Penn, they may have had to indemnify
High Penn’s injunction (High Penn was an oil refinery and anyone moving to the
area would see the obvious of the results of High Penn’s operation); BUT Morgan
was there first, so coming to the nuisance was not an issue.
 *Normally nuisance law does not attend to especially sensitive plaintiffs.
There has to be substantial harm* (Prah v. Moretti)
 Public Nuisance: They affect public rights specifically, public rights to health and welfare.
o Public nuisance is not focused on individual landholders, but the effects of a particular set of
actions on public health and welfare more broadly.
o The remedies at stake and the nature of proof are different when looking at a public nuisance.
o Spur Industries, Inc. v. Del E. Webb Development Co. (AZ S.Ct 1972): Bullshit case;
developer builds residential housing near a cattle feedlot business. Main issues are: (1) since
34
 feedlot owner was in area first, may he be enjoined in an action by developer and (2) may the
developer indemnify the operator who must cease operation or move b/c of the residential area?
 The Court held that coming to the nuisance by Del Webb was irrelevant to determine
whether or not Spur’s activities were deemed a public nuisance.
 The Court held that Webb had to indemnify Spur from having to cease its operation and
move its operation as a result of the injunction.
 Five Possible Outcomes for Nuisance Action:
o No nuisance found; no remedy ordered
o Nuisance found; injunction granted against ongoing nuisance conduct
o Nuisance found; nuisance actor pays damages for past; no injunction
o Nuisance found; ongoing damages paid
o Nuisance found; nuisance actor enjoined, but non-nuisance actor must indemnify costs of move
(Spur)

Private Control of Land Use: The Law of Servitudes

 Intro
o Land use arrangements arising out of private agreements:
 Usually involve two or more parcels of land
 Purpose of the agreements is to increase the total value of all the parcels involved
 Usually the effect of the agreements is to burden one parcel of land for the benefit of
another parcel
 Burdens and benefits are often reciprocal
 These agreements create interests in land, binding and benefiting not only the practices to
the agreement in question, but also their successors (commonly called servitudes)
o Traditional Servitude Law
 Two major types: Easements and Covenants (Real and Equitable)
 All servitudes fall into five types:
 A is given the right to enter upon B’s land (A’s interest is an easement)
 A is given the right to enter upon B’s land and remove something attached to the
land (A’s interest is a profit; profit a prendre – right to enter another’s land
w/o liability for trespass and remove resources)
 A is given the right to enforce a restriction on the use of B’s land (A’s interest
may be treated as a negative easement, a real covenant, or an equitable
servitude)
 A is given the right to require B to perform some act of B’s land (A’s interest
may be a real covenant or an equitable servitude, depending on the remedy
that is sought)
 A is given the right to require B to pay money for the upkeep of specified
facilities (A’s interest may be a real covenant or an equitable servitude,
depending on the remedy that is sought)
 Easements
o Definitions
 An irrevocable right to use another’s property for a specific purpose
 Affirmative: Easements granted by an owner giving a neighbor the right to enter
or perform an act on the owner’s land
 Negative: Easements forbidding one landowner from doing something on his land
that might harm a neighbor; Right to prohibit a property holder form using his/her
property as he/she otherwise lawfully could
 Four Negative Easements Recognized at Common Law (in England and the U.S.)
(i.e., could be negotiated for as express negative easements)
35
  Can’t block windows (access to light)
 Flow of air across window (can’t block air)
 Lateral support of structure (not land)
 Flow from artificial (not natural) stream
 Four Newly Recognized Negative Easements (in the U.S.) (again, could be expressly
negotiated for)
 Unobstructed View (in California and elsewhere)
 Solar Energy
 Environmental Conservation Easements
 Historical Preservation Easements
 Easement appurtenant: Benefits the easement holder in their ownership of land;
requires both dominant tenant and servient tenant; easement attaches to and benefits the
dominant tenant (estate); usually transferable along w/ the dominant estate to successive
owners; can be made personal to the easement owner only and not transferable to others
 An easement appurtenant remains attached to the land unless and until the
servient and dominant tenants agree to detach it.
 If A negotiates to get across B’s property to get to a hiking trail, A holds an
easement appurtenant in a capacity as an owner of land
 Easement in gross: Benefits the easement holder in their individual capacity, and not as
the owner of land (dominant tenant may or may not own all of the land); gives the right to
some person w/o regard to ownership of land
 The benefit of an easement in gross does not remain attached to the land. It is
attached to the dominant tenant.
 Where intent of the parties is unclear, courts will construe an easement as
appurtenant rather than in gross.
 An easement can change from appurtenant to gross

 Dominant Estate: Owned by the person who enjoys the easement over another’s
property (dominant tenant)
 Servient Estate: Property over which the easement travels, which is owned by the
servient tenant
o Creation of Easements
 Express Grant/Agreement: Parties negotiate for an easement; one party explicitly
articulates/grants an easement to the other
 Parties negotiate scope, including use, location and duration of easement
 Must be reduced to writing pursuant to the Statute of Frauds, if for more than one
year
 The party bound by the easement must sign the document(servient tenant)
 Must be filed in public records to put successors on notice (Benefited party would
have an interest in ensuring it be filed).
 Prescription: For the relevant statutory period (often mirroring that for adverse
possession but you get use of land, not possession/title); use must be:
 Continuous- uninterrupted for the statute of limitations period; need not be 24/7,
but must be regular
 Adverse- in some jurisdictions, presumption of permissive use where easement.
Holder wannabe is a family member or “good neighbor”
 Notorious- not secretive
 Exclusivity is not a requirement. Use is shared with the landowner, and
sometimes with other easement holders as well.
 Holbrook v. Taylor (1976): Action involving establishment of the right to use a
roadway by prescription and by estoppel.
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  Evidence shows that appellee used roadway for the transportation of
labor and supplies to build $25,000 home and made improvements to the
roadway after the home was built all with the appellants consent and
knowledge from 1964-1970 (time of lawsuit).
 Ct held there was no prescriptive easement b/c owners granted
permission for haul road
 Ct held Easement by Estoppel b/c there is an irrevocable license
(Holbrook is estopped from interfering w/ Taylor’s use of the road)
 Taylor gained reliance interest b/c of the money invested in the
development, he built his home
 Implied by Prior Use
 Common law test
 Common ownership of parcel before severance
 Quasi-easement said to exist if owner makes use of one part of land for
benefit of another part. Commonly owned land must be subsequently
severed. At moment of severance, quasi-easement must be in use (i.e.,
use must pre-exist severance for easement implied by prior use to be
recognized). – You don’t have an easement (right of way) across your
own property
 Continuous, Apparent, and Permanent: Pre-existing use for which implied
easement is claimed must have existed in a continuous, apparent, and permanent
manner prior to severance of commonly owned parcel
 Necessity of easement at moment of severance
 Strict necessity is required in the case of implied reservation (where the
parcel benefitted by the easement remains in the possession of the
original owner).
 Reasonable necessity is required in the case of an implied grant, where
the parcel benefitted by the easement is transferred to a new owner.
 Van Sandt v. Royster (1938): Action bought to enjoin defendants from using and
maintaining an underground lateral sewer drain through and across plaintiff’s
land.
 The original owner of the lot in question (John J. Jones) knew that the
sewer drain was installed for the benefit of the lots owned by Mrs. Bailey,
the common owner of the lots.
 The easement was necessary to the comfortable enjoyment of the grantor’s
property. If land may be used w/o an easement, but cannot be used w/o
disproportionate effort and expense, an easement may still be implied in
favor of either the grantor or grantee on the basis of necessity alone.
 P purchased lot with notice b/c at the time of purchase there was a
thorough inspection of the property. They knew that the house was
equipped with modern plumbing which needed drained into a sewer.
 Implied by necessity
 Common law test
 Common ownership of parcel before severance (see “Implied by Prior Use”)
 Necessity of easement must exist at time of severance (see “Implied by Prior
Use”)
 Strict necessity required (doesn’t matter whether implied reservation or implied
grant; don’t have to do that analysis for this type of implied easement).
 Easement implied by necessity remains in force only so long as strict necessity
persists
 Othen v. Rosier (1950): P bought suit to enforce a roadway easement on lands of
37
 D claiming the easement both of necessity and by prescription.
 Evidence shows that P’s use of the roadway was merely permissive and
only constituted a license, which did not become a prescriptive right.
 Generally, the hostile and adverse character of the user necessary to
establish an easement by prescription is the same as that which is
necessary to establish title by adverse possession. If the enjoyment is
consistent with the right of the owner of the tenement, it confers no right
in opposition to such ownership.
o Succession to Easements
 The easement appurtenant presumptively transfers to successors (i.e. both benefit and
burden run with the land)
 Easements-in-gross of a personal nature (family member, friend) do not transfer (though
even that may be subject to change as the law grows and evolves), while transferability of
other easements-in-gross depends on intent of parties. Commercial easements-in-gross
are often understood as transferable.
 Miller v. Lutheran Conference & Camp Association (1938): Case regarding
rights of boating, bathing, and fishing b/t two brothers Frank and Rufus. Is Rufus
allowed to grant licenses to the defendant?
 An assignment cannot be commercially used and licenses thereunder
granted w/o the common consent and joinder of the present owners, who
with regard to them must act as “one stock.”
o Scope of Easements
 Use
 Must be limited to defined area
 Must be reasonable, not unduly burdensome
 Focus on the original purpose for which the easement was created
 May evolve to keep up with technology
 Both the easement holder and the landowner can use the easement, but the
landowner cannot interfere with that of the easement holder.
 Location
 Once established, location can only be changed by the servient tenant
 Servient tenant cannot unduly burden dominant tenant’s rights when relocating
easement
 Duration
 Can take duration or a fee simple, fee simple determinable, life estate, leasehold,
etc.
 Need to know whether easement had been expressly negotiated when entered into,
whether it was a prescriptive easement or easement by implication
 Brown v. Voss (1986): P sued D for use of an easement and D counterclaims for
damages and injunctive relief against Ps for using the easement other than for parcel B.
To what extent may the holder of a private road easement traverse the servient estate to
reach not only the original dominate estate, but a subsequently acquired parcel when
those two combined parcels are used in such a way that there is no increase in the burden
on the servient estate?
 P made no unreasonable use of the easement in the development of their property.
 Specific rules re: scope depending upon manner of creation of easement:
 Express easement: look to document creating the easement for scope provisions
 Prescriptive easement: use and location of the easement fixed by actions giving
rise to the creating of the prescriptive easement, i.e., use during the prescriptive
period
 Easement by implied prior use: use and location that existed at time of severance
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 and that gave rise to the implication continue to govern
 Easement by implied necessity: need for use and location that existed at time of
severance govern scope
o Termination of Easements
 Pursuant to terms of express easement: the easement document may specify a duration
beyond which easement expires
 Mutual agreement to release: servient and dominant tenants agree to terminate
easement
 Merger of dominant and servient estates: easement doesn’t exist unless dominant and
servient estates are owned by different people. If they come to be owned by one person,
easement is extinguished automatically.
 Abandonment: dominant tenant must show intent to abandon, not mere disuse
 Misuse of the benefit: typically concerned with unreasonable overuse. Courts are
reluctant to extinguish the easement altogether. More likely to enjoin the overuse.
 EmDo/Condemnation
 Easement by Necessity terminates when strict necessity no longer exists
 Preseault v. United States (1996): P’s bring suit claiming that the federal government,
acting through the ICC, took their property when it authorized the conversion of the
former railroad right-of-way to public trail use. Under the authority of the Rails-to-Trails
act and by order of the ICC, did taking of property occur?
 When a railroad for its purposes acquires an estate in land for laying track and
operating railroad equipment thereon, the estate acquired is no more than that
needed for the purpose, and that typically means an easement, not a fee simple
estate.
 Given that the easements in this case are limited by their terms and as a matter of
law to railroad purposes, the court was unable to read into Vermont law a breadth
of scope for the easements that is well outside the parameters of traditional
common law understanding.
 Evidence shoes that the government abandoned the easement in the 1970s
 When the Federal Government puts into play a series of events which result in a
taking of private property, the fact that the Government acts through a state agent
does not absolve it from responsibility, and the consequences of its actions.
o Analyzing easement problems
 Was an easement created? Consider tests for creation of express, prescriptive, implied by
prior use, implied by necessity easements.
 Does the scope of the easement allow easement claimant to use land as she/he is doing?
 Does easement bind the current owners?
 Has easement been extinguished?
 Covenants
o Definitions
 Covenant: A promise related to the land (contract); a way for neighbors to agree on
potentially conflicting land uses so as to minimize unanticipated/anticipated externalities;
typically will increase land value/minimize negative externalities; allows for greater
flexibility/creativity; can take any form, some limitations, but essentially you can promise
to almost anything
 Affirmative covenant: a promise to do something
 Negative covenant: a promise not to do something
 Real covenant: enforceable only at law (for money damages); can only be
created expressly; if greater than or equal to one year in duration, must be in
writing per Statute of Frauds; elements necessary to bind and benefit subsequent

39
 owners:
 Intent to Bind Successors (whether original agreement explicitly binds
“heirs and assigns”
 Touch and Concern
 Privity of Estate (Horizontal Privity, Vertical Privity)
 Equitable servitude: enforceable in equity (for injunctive or declaratory relief);
can be created expressly or impliedly; elements necessary to bind and benefit
subsequent owners:
 Intent to Bind Successors (whether original agreement explicitly bind
“heirs and assigns”
 Touch and Concern
 A matter of “you know it when you see it”
 Asks whether a reasonable person upon calm reflection and
hindsight (knowing what has transpired since the original promise)
would have intended the covenant to run w/ the land
 Whether the agreement has an effect on land value
 Single family residences – often seen as “touch and concern” b/c it
will increase land value
 Notice (provided through recording of deed or other document)
 Tulk v. Moxhay (England, 1848): P owned vacant land in Leicester Square and
sold piece of it to D which included a covenant for D not to make certain changes
to the land. P filed for an injunction when D intended on making certain changes
to the land.
 A party can not use a purchased piece of land that is inconsistent
with the contract entered into by his vendor, and with notice of
which he purchased.
 The price would be affected by the covenant, and nothing could be
more inequitable than the original purchaser should be able to sell
the property the next day for a greater price, in consideration of the
assignee being allowed to escape from the liability which he had
himself undertaken.
o Common law test for whether the burden of a real covenant runs to successors (whether
the successor to originally burdened party can be sued for money damages for violating the
terms of the original covenant)
 Intent of original covenanting parties to bind successors. E.g., covenant cites “heirs
and assigns.” Intent standing alone is not dispositive of whether successors will be bound
 Notice of covenant to successors: Actual or constructive notice is typically required
 Covenant must touch and concern the land and cannot be merely for personal benefit
 Horizontal Privity: Need one of these three relationships between the original
covenanting parties and need for covenant to arise in the context of this relationship:
 Grantor/Grantee – when A has sold a portion of land to B
 Landlord/Tenant
 Dominant tenant/Servient tenant with respect to the underlying easement
 Vertical Privity: successor must have the same interest in the property as the original
covenanting party. (Adverse possession in the chain of title between original
covenanting party and present-day successor is interest cuts off Vertical Privity (whether
test is one of strict VP relaxed VP)).
 Strict Vertical Privity: A2 holds exactly the same property interest at A and there
has not been intervening adverse possession
 Relaxed Vertical Privity: A2 holds some of the sticks in the bundle as A held and
there has been no intervening adverse possession
40
  No Vertical Privity: There has been adverse possession in the line of title between
A and A2.
o Common law test for whether the benefit of the real covenant runs to successor (whether
the successor to the originally benefited party can sue the originally burdened party for
money damages for violating the terms of the covenant)
 Intent of the original covenanting parties to bind successors
 Touch and concern the land
 Relaxed vertical privity
o Common law test for whether both the benefit and burden of real covenant run to
successors (i.e. where both parties are successors in interest to the original covenanting
parties)
 Apply both tests (i.e., apply all factors as relevant)
o Common law test for whether the burden of an equitable servitude runs to successor
(whether successor to originally burdened party can be sued in equity for violating the
terms of the covenant)
 Intent of the original covenanting parties to bind successor
 Notice to successor in interest
 Touch and concern the land
o Common law test for whether the benefit of an equitable servitude runs to successor (i.e.
whether successor to originally benefited party can sue the originally burdened party in
equity for violating the terms of the covenant)
 Intent of original covenanting parties to bind successors
 Notice to successor in interest
 Touch and concern the land
 Relaxed vertical Privity
o Common law test for whether benefit and burden of equitable servitude run to successor
(i.e., where both parties are successors in interest to original covenanting parties).
 Apply both tests (i.e., apply all factors as relevant)
o Termination of Covenants (in addition to the ones for termination of easements)
 Neighborhood Change: When the benefit the covenant was designed to achieve has been
frustrated by significant change in neighborhood conditions, burdened party is relieved of
covenant
 Legislative Change: When the terms of the covenant are no longer allowed by law, it is
extinguished
 Mutual Release
 Waiver and Abandonment
 Waiver: when the defendant who is being sued had previously failed to perform
other parts of the covenant was allowed to perform the other parts of the
covenant.
 Abandonment: whether the percentage of those abiding by the covenant can be
deemed abandoned
 Durational Language in the Covenant: it could say that the covenant ceases to be
enforced after a certain period of time
 Merger of the servient dominant estates
o Covenants and Discrimination
 Between 1948 and 1968, there was a window where parties could still enter into racially
restricted covenants so long as they never sought judicial enforcement.
 It was only in 1968 with the adoption of the FHA, that legislated against all forms of
housing discrimination and racially restricted covenants became illegal standing on their
own
41
 
Shelley v. Kraemer (1948): Group of homeowners entered into a mutually benefiting
covenant that excluded anyone who was non-white from buying property. An African-
American couple bought property and moved in, the neighbors sought to invoke the
covenant and get the couple to move out. The African-American couple claimed that the
covenant violated the Equal Protection Clause to the 14th Amendment
 Even though it was a private action, the Court held that judicial enforcement of
the covenant would state a violation of Equal Protection
 The case stands for the principle that racially restrictive covenants would not be
judicially enforced
o Common Interest Communities
 Co-op societies, condo associations, and homeowner associations
 Co-ops require a great deal of financial data because each person owns a share of the
building, and your finances become important to your neighbors
 In a condo, you own your apartment and there is a commons fee
 Homeowners associations enforce the covenants for which the subdivision developer
writes into the deeds of the property
 The homeowner’s can enforce covenants against each other
 Homeowner’s associations will seek to enclose to the homeowners who have violated the
covenants and have stacked up many fees

Legislative Control of Land Use: The Law of Zoning

 History
o Zoning looks to the overall welfare of society and not just the individual interests of neighbors
o Zoning and urban planning came out of social phenomenon of immigration and industrialization
o Euclidean/Cumulative Zoning
 U1- Single Family Residence, U2 - Two family, U3 - Apartments, U4 - Small
commercial, U5 - Larger commercial, U6 - Institutional/Sewage, etc.
 The entities looked at in regards to zoning are towns, municipalities, etc. (Zoning
enabling act)
 In the earlier part of the 20th century, a Standard State Enabling Act was enacted, where
the policy would provide its power to local jurisdictions; zoning board would take
testimony of parties, but it would also hear from a range of interested parties. Once it
heard testimony, it would issue a comprehensive plan.
o Village of Euclid v. Ambler Realty (1926): What is the constitutionality of the Euclid ordinance
regarding zoning laws? First zoning case to come to the Supreme Court
 Supreme Court deems zoning constitutional on its face. It likens zoning to traffic
regulation
 If the legislature acted reasonable, then the plan would be upheld, if the legislature acted
arbitrarily, then the constitutional challenge would be recognized
 The Court held that the plan adopted by the city was sufficient to promote the public
health and welfare
 Zoning is a reasonable part of the state’s police power
o Advantages of Zoning
 It is not ad hoc or post hoc. It is not on an individualized basis
 It allows fire stations and police stations to be planned properly
 It promotes public health and welfare from singling out s.f.r’s from apartment buildings
and other residences
 Maintaining property value-concrete economic developments
 There is also the fact that the property values will be safeguarded if there is an assurance
o Disadvantages of Zoning
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  There is a concern of who is going to have the free access
 It restricts the free alienability of the land
 Zoning presents racial and economic barriers
 There is age segregation which has some significant problems with the willingness to
fund public schools
 There is less integration into the community
 Urban sprawl
 There would be more pollution due to the increased use of cars
 Overconsumption of land
 Alienation/isolation of neighbors
o Control of Household Composition
 Village of Belle Terre v. Boraas (1974): P is a village in LI, NY which has restricted
land use to one-family dwellings and D, who is one of six college students at the nearby
University, seek an injunction and a judgment declaring the ordinance unconstitutional.
 Court rules that D’s claims do not apply in this situation; the case at bar deals with
economic and social legislation where legislatures have historically drawn lines
which are respected against the charge of violation of the Equal Protection Clause
if the law be “ ‘reasonable, not arbitrary’ ” and bears “a rational relationship to a
[permissible] state objective.
o Exclusionary Zoning
 Purpose is to minimize or eliminate unwanted effects- externalities in a given district
whether the effects be caused by typical nuisances, by apartment or commercial uses in a
high-class single family residential zone, or by group homes
 However, zoning measures like these usually are used at the disposal of the zoners regard
as their proper place in the community.
 Today, exclusionary zoning has the purpose of closing communities to unwanted groups-
typically people of low income who might put a heavy burden on the public fisc yet at the
same time contribute little to it, resulting in increased property taxes and reduced land
values throughout the community.

 Southern Burlington County NAACP v. Township of Mount Laurel (1975): P

claims that D’s system of land use regulation unlawfully excludes low and
moderate income families from the municipality such as multi-family units.
Concern w/ number of school-aged children residing in Mt. Laurel
 Did not violate FHA familiar status provision because it was not a part of
the FHA at the time.
 Argument was that the zoning was broadly over supplied in terms of the
space that had been set aside for industrial uses.
 Municipality has an obligation to create housing for all types of
citizens, especially if it plans to create industrial areas which will
create jobs for certain types of employees of varying income levels.
 D, by use of its land use regulations, make realistically possible the
opportunity for an appropriate variety and choice of housing for all
categories of people who may desire to live there, including low and
moderate income housing.
 D must permit multi-family housing, w/o bedroom or similar restrictions,
as well as small dwellings on very small lots, low cost housing of other
types and, in general high density zoning…(pg. 929)
 Mount Laurel won the decision and it had 90 days to respond, but the Ct.
did not manage the town very closely.

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 o Inclusionary Zoning
 Any number of devices designed to require or encourage developers to supply low-to-
moderate income housing.
 Property is being taken for public use w/o just compensation
 Permit/privilege being granted, you don’t have a right to develop w/in this zone, and that
does not merit a taking of just compensation

Regulatory Takings Law

 Regulatory Takings-it is the non-physical taking, possession rights remain with the title holder, as do
regulatory rights; the gov’t hasn’t actually taken the property, but it has so closely governed the property
that its tantamount to a takings
o Background
 Though the government has not physically appropriate your land, and has not assumed
title to it, it has nevertheless impacted your ownership of land
 The central issue in takings law is whether the regulation of your property, which
decreases your rights to, and/or value of, property, “takes” your property
 Historically, when a regulatory taking was found, the remedy was to strike down the
statute as presenting a regulatory taking.
 The Supreme Court observed that a possible remedy for regulatory takings would be just
compensation
 Since 1922 (Penn Coal), the Supreme Court has said that a regulation could be
considered a taking of property even if it didn’t physically appropriate the property
 Government regulation is an important part of making society work
o How to determine when a regulation is a taking: To determine whether there is a taking, the
Supreme Court has applied either the categorical rule, or the balancing test
 Categorical Rules - These are per se rules: “If this, then that”
 Start the analysis with the categorical rules: “If situation X, then answer is Y”
 If you can satisfy this logical analysis, then there is no need to proceed any further
 Each categorical rule tells us what the USSC thinks about property

Categorical Rules established by the Supreme Court (do analysis for both the
government and the private property owners)
 If the regulation is nuisance/harm preventing, then no regulatory
taking (Hadacheck)
 USSC believes sic utere principle, if a regulation/statute prevents
you from committing a nuisance, nothing has been taken from
you b/c you never had a right to commit a nuisance in the 1st
place
 If regulatory taking mandates a Permanent Physical Occupancy
(PPO), then it is a regulatory taking (Loretto)
 USSC believes that the right to exclude others/liberty to
exclusive possession stick in the bundle is considered one of the
most important sticks in the bundle
 If Total Taking of Value (TTV), then it is a regulatory taking (Lucas)
 USSC believes that what is most valued in property is the
financial value; TTV of economic value

 Balancing Test
 If the categorical rules do not apply, then move onto the balancing test, which is

44
 “ad hoc” and fact-specific; it’s what solves most regulatory takings claims (95%
or more)
 Test adopted by Justice Holmes in Penn Coal. He balances what interest would
be served by the statute versus what property rights are effected by enforcement
 It weighs the public interest animating the regulation (numerator), which may be a
regulation, statute, executive order, zoning order against the extent of impact on
private interest, extent of diminution in value (denominator)
 When the public interest is so small that it is zero, you are likely to state a takings
 Two Principal factors considered in the balance:
 The extent of the economic impact on the private property owner
 The nature and extent of the public interest
 Hadacheck v. Sebastian (1915): P was convicted of a misdemeanor for the violation of
an ordinance of the City of Los Angeles, which makes it unlawful for any person to
establish or operate a brickyard or brick kiln, or any establishment, factory or place for
the manufacture or burning of brick within described limits in the city.
 P claims that his business is not a nuisance or detrimental to health, that there will
be extreme burden to him to move his business b/c cannot move the clay, he
would lose a lot of money, and the residential development came to him.
 Ct. states that while harsh, there is a need for city municipalities to assert its
police power to create progress and stunting development would hold cities back.
 If there are private interests that stand in the way, then they must yield to the good
of the community.
 Penn Coal Co. v. Mahon (1922): D bought bill in equity to prevent the P from mining
under their property in such way as to remove the supports and cause a subsidence of the
surface and of their house. There is a statute w/in the state that regulates the mining of
anthracite coal and evidence shows that the statute is admitted to destroy previously
existing rights of property and contract.
 Holmes balances the interest that would be served by the statute versus what
property rights are affected by the enforcement
 He puts little weight on the public interest, “This is a case of a single private
house.”Once the public interest is defined as minimal, you can guess that a taking
is going to be found
 Holmes’ opinion verges on if it is a total taking of value, then it is a taking
 Holmes’ states that sometimes regulation goes so far that it tramps upon a
property owners use and value of the land
 Average Reciprocity of Advantage (ARA): idea that the apparent losers under a
government program might not be losers at all (or not, at least, big losers) because
they are simultaneously benefited by the very action that burdens them.
 Holmes is using a strategy of conceptual severance: a tactic used by private
property enthusiasts who have a strategic interest in defining the private property
right at stake as narrowly as possible, and then to show that the statute defines that
taking as narrowly as possible
 Brandeis’ Dissent:
 He argues that you must think of the extent of the private interest to the
whole property (diminution in value is modest); owning land doesn’t give
absolute rights
 Brandeis says that the balancing test is too subjective
 He defines the public benefit issue as the prohibition of a public
nuisance, and where a statute aims at eliminating a public nuisance,
that it cannot be a taking  Categorical Rule Analysis #1
 If the statute raises a public benefit below the status quo, then there is no
45
 taking ever
 If the statute raises the public benefit above the status quo, then there may
be a taking
 Penn Central v. City of New York (1978): - Quintessential Balancing Test Referece in
Regulatory Takings Test: Question presented is whether a city may, as part of a
comprehensive program to preserve historic landmarks and historic districts, place
restrictions on the development of individual historic landmarks- in addition to those
imposed by applicable zoning ordinances- w/o effecting a “taking” requiring the
payment of “just compensation.” Case involves application of NYC’s Landmarks
Preservation Law to the parcel of land occupied by Grand Central Terminal has “taking”
its owners’ property in violation of the Fifth and Fourteenth Amendments.
 Justice Brennan uses a balancing test to show that there has not been a taking
 Brennan recognizes that whether something is harm preventing or benefit
conferring is highly manipulable.
 He goes forward to the balancing test where he does find the public interest to be
significant
 Public interest is great: Historic preservation, promoting tourism,
promoting quality of life, promoting economic well-being of city.
 Private interest/impact is modest: Landmark Preservation Law preserves
DIBE (distinct investment-backed expectations) and RIBE (reasonable
investment-backed expectations). Penn did not have RIBE if the Act
preserves use of the property as a train station.
 Rejects conceptual severance
 Brennan applies the Average Reciprocity of Advantage (ARA) test to Penn
Central and finds that the individual property owner benefits at least as much as
its burdened by the regulation because the property is still economically viable
and the train station is a historical landmark
 It was unreasonable to use the property as a 55-story office building when
historically, the land has been used as a railroad station. Penn Central has
availability of TDRs (Transferrable Development Rights).
 Penn Central should have been aware of the public policy at the time (landmark
preservation movement w/ law and public upset over the destruction of Penn
Station)
 Rehnquist/Stevens Dissent: Case should be remanded to the Ct of Appeals to
figure out whether just compensation is necessary. The Landmark Act, when
enacted, initially didn’t have a TDR provision (later amended to include TDRs to
make it takings-proof). Any continuous property owner knows that Penn Central
cannot get top dollar. If the cost of preserving Grand Central was spread across
the city, the that cost would be pennies per year. WHY ME? Fairness argument
 Why should the cost of depriving Penn Central of its air rights be totally on
Penn Central? Why no condemn the air rights and provide just compensation
(FMV, paid by NYC taxpayers)
 Notes: This case is considered under the Balancing Test and not the Categorical
Rules Analysis b/c:
 Gov’t couldn’t really argue that the building is a nuisance b/c zoning laws
allowed the building; however, just because something is allowed under
zoning laws, that doesn’t mean that its barred from being considered a
nuisance.
 PPO had not yet been recognized by the Supreme Ct; the problem with
this argument is the TDRs
 TTV  still had the present use, still have the RIBE
46
  Private property owner could argue that the means taken by NYC is inefficient in
obtaining the goal/purpose
 Loretto v. Teleprompter Manhattan CATV Corp. (1982): This case provides the
question whether a minor but permanent physical of an owner’s property authorized by
government constitutes a “taking” of property for which just compensation is due under
the Fifth and Fourteenth Amendments of the Constitution. Case involves a NY state law
providing that landlords must permit a cable television company to install its cable
facilities upon his property. In this case, D occupied portions of P’s roof and side of her
building.
 The value at stake in this case was the right to exclude, the right to be free from
trespass
 Marshall is saying that one of the most important property rights is the right to
exclude, and if you no longer have the right to exclude, then you are suffering a
compensable loss
 Marshall does not use a balancing test; He stops his argument at step 2, and says
that there is a PPO, so therefore it is a taking
 For Marshall, the only relevance of the balancing test goes towards the just
compensation
 Blackmun’s Dissent: Applies the average reciprocity of advantage analysis and
says that she is at least as benefited as she is burdened
 Lucas v. South Carolina Coastal Council (1992): South Carolina enacted legislation,
which requires owners of coastal land in “critical areas” to obtain a permit from the South
Carolina Coastal Council prior to committing the land to a use other than the use the
critical area was devoted to prior to the legislation. P, who had bought coastal land for
the intention of building residential housing for $975K, was prohibited from doing so by
new legislation, which barred him from any permanent habitable structures on his two
lots. A state trial court found that the Act made Lucas’ property valueless. P claims
taking.
 When the owner of real property has been called upon to sacrifice all
economically beneficial uses in the name of the common good, that is, to leave his
property economically idle, he has suffered a taking.
 South Carolina’s protection of the shoreline constitutes police powers to mitigate
the damages of development on the beach/dune area for the public interest.
 Scalia holds for majority: Articulates TTV (100% taking of value) rule w/
exception: if it was a common law nuisance, at the time of Act, it will not be
deemed a taking.
 Where the State seeks to sustain regulation that deprives land of all
economically beneficial use, it may resist compensation only if the use
prohibited is a background common-law nuisance or property principle.
 Must check to see if there is a nuisance at the time of the State action
(S.C’s legislation to protect coastline).
 Per se nuisances required by Courts, more importantly by State. Public
nuisance defined State legislature.
 Blackmun’s Dissent
 No RIBE  the two beachfront lots were the last two lots available on
the island in the Wild Dunes development b/c they had been underwater
for the last 40 years (not as desirable as others). Lucas had been a
developer living on site for the better part of the last 15-20 years and
knew the history of the lots; he knew of the concern of conservation of
the coast line. Lucas’ land still has some value (examples that Blackmun
provides are unlikely given the money Lucas paid for the land). Lucas
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 could sell the land to neighbors (most economically advantageous use of
the property)  would give neighbors greater protection against erosion;
protects neighbors from having anything on the property that they find
offensive
 Stevens’ Dissent
 Criticizes Scalia’s “per se” rule/categorical ruling
 Scalia’s bright-line rule leads to confusion and are not always
applicableif 100% economic loss, then a taking (Scalia’s new rule);
but if 95% economical loss, then no taking
 STEVEN’S IS WRONG  FN 27 @ pg. 1009  Stevens’ analysis errs
in its assumption that the landowner whose deprivation is one step short
of complete is not entitled to compensation. Such an owner might not
be able to claim the benefit of the categorical formulation, but there is
the balancing test.
 First English Evangelical Lutheran Church of Glendale v. County of Los Angeles
(1987): Addresses why compensation was not granted for inverse condemnation action
where claimant institutes a suit against the government alleging that a taking has occurred
and seeking recompense for it. A forced purchase, rather than a forced sale, is the
claimant’s objective.
 Supreme Court does not actually find a taking on these facts
 In dicta, it observes what the appropriate remedies should be in takings cases.
 Suggests that just compensation is due to private property for period
between enactment of offending regulation and its declaration of taking by a
court.
 If a government regulation results in a taking, then the government
must pay just compensation from the time the regulation first worked
the taking until the time the government rescinds the regulation or
changes it in such a way that no taking occurs.
 Threatens government with huge costs anytime they enact a regulatory
taking ordinance against private property.
 Private property owners: just compensation is fair b/c gov’t should pay for
taking away land. The public should incur the cost if the taking is to benefit
society and private property owner should not bear the cost and subsidize
the public good. Therefore, just compensation is fair.
 Hence, undue delay- normal delays brought on by the development
permitting process and the like are put to the side- results in liability for a
temporary taking.
 Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002):
the question presented is whether a moratorium on development imposed during the
process of devising a comprehensive land-use plan constitutes a per se taking of property
requiring compensation under the Takings Clause of the United States Constitution. P’s
challenge that the temporary moratorium is a taking b/c there is diminution in value of
the land (conceptual severance of a temporal/time-based nature).
 A temporary restriction that merely causes a diminution in value is not a
regulatory taking. A fee simple estate cannot be rendered valueless by a
temporary prohibition on economic use, because the property will recover value
as soon as the prohibition is lifted.
 The rule that any deprivation of economic use, no matter how brief, constitutes a
compensable taking surely cannot be sustained.
 P’s broad submission would apply to numerous “normal delays in
obtaining building permits, changes in zoning ordinances, variances, and
48
 the like,” as well as to orders temporarily prohibiting access to crime
scenes, businesses that violate health codes, fire-damaged buildings, or
other areas we cannot now foresee.
 Distinguishing feature between 32 month moratorium and First English
 The moratoria was agreed upon to maintain status quo (temporary in its
intention)
 The Kohler Act in First English was temporary in its enforcement, not
temporary in its intention
o Major classes of argument re: Takings Pros and Cons
 A categorical rule does not apply
 Balancing test: If for the government, you argue public interest outweighs the private
impact. If for the developer, you argue the opposite
 Extent of diminution in value
 No taking is reasonable/adequate rate if return still available
 Taking is substantial diminution in value vs. no taking even if a substantial
diminution in value
 Taking if deprived of all economically beneficial use
 May be a taking if substantial impact on investment-backed expectations
 Utility v. Why Me?
 Argument that the government takes is that its obligation is to serve the
public good. The government has made this utilitarian calculus that it
must get the most from the public in the most benefiting way.
 The response is that you can certainly do good, but why do individuals
have to bear the cost? The government should pay just compensation to
the individual who is harmed.
 Courts vs. Legislatures as proper venues for determining land uses- fairly constant
them beginning with Euclid.
 The court should not substitute its judgment for the legislature. If dealing
with exaction, you want to apply an essential nexus.
 Courts should not stand in the way of natural development. In Euclid,
Ambler Realty argued that the natural development of the land was in the
direction of greater industrialization, and that the zoning plan stood in its
way, and show not be upheld by court.
 Average Reciprocity of Advantage (ARA): Concept came from Justice Holmes
in Penn Coal, where you weigh the benefit of the regulation to the particular
property owner to the burden of regulation to that same private property owner
 Public safety/nuisance: Remember here the tension over whether something is
defined as harm-preventing or benefit-conferring:
 Does it bring you back to a neutral point from the sub-par position that had
arisen? Then it is harm-preventing (no taking)
 Does it raise you above neutral to a better position than where started?
Then it is benefit-conferring (May be a taking)
o Theories on Takings Law
 There is a struggle between classical liberal economics and civic republicanism
 Justices and writers support the idea of allowing the government to regulate for the public
good, recognizing that someone may suffer overall for regulating the public good
 The other side of the argument is who is going to invest in property knowing that the
government is going to regulate it in some way
 Michaelmann: If a private property owner has a reasonable investment backed
expectation in developing property, that must be recognized by the government and by
the court
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 Rubenfeld: Usings; his thesis is how to reconcile eminent domain law on the one hand
and takings on the other. Have a rule where the government pays just compensation
whenever property is used
 In regulatory takings, the government should pay just compensation when it is deriving a
use benefit from the property.

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