I.

Trespass a. Public Policy Limits on the Rights to Exclude i. Trespass to Land: intentional entry on the land of another without their consent (unprivileged), intrusion on the property owned by another ii. Property: Right among people that concern things 1. Right to exclude people from the use and occupancy 2. Law protects property owners the exclusive right to exclusive possession of their property 3. Exceptions: Necessity, government entrance, police entry iii. State v Shack 1. Rule of Law: Real property rights are not absolute and necessity, private or public, may justify entry upon the lands of another a. Right to exclude is not absolute b. Property rights to not trump human rights iv. Desnick v. American Broadcasting Companies, Inc 1. Rule of Law: Trespass occurs when there is an interference with the ownership or possession of land a. The company did not interfere with the ownership of possession b. They also did not reveal any personal information b. Right of Reasonable Access to Property Open to the Public i. Uston v. Resorts International 1. Rule of Law: owners of property open to the public do not have the right to unreasonably exclude particular members of the public a. Can only exclude someone if they are disrupting the way the business is run b. Can kick out if they are causing a threat to public safety 2. Public Policy Reasons for Innkeepers a. Provide Necessity b. Hold themselves open, people rely on this c. They are usually monopoly- so dont have other choice c. Trespass Remedies i. Glavin v. Eckman 1. Rule of Law: Restoration costs are an appropriate measure of damages for loss of trees when the typical measures such as diminution in value of property or value of the cut timber fail to provide a fair and adequate measure of damages ii. Jacque v. Steenberg Homes 1. Rule of Law: Land owner has the right to exclude people from their land a. When nominal damages are awarded for intentional trespass, punitive damages can also be awarded (to deter people from not doing it again) d. Beach Access and the Public Trust i. Matthews v. Bay Head Improvement Association

II.

1. Rule of Law: The publics right to enjoy tidal lands includes a right of access over privately owned property a. The public owns the beach 2. Public Trust Doctrine: The government holds lands that are submerged beneath the water, or that are capable of being submerged, in trust of the publics benefit a. It ensures the public access to the beach b. State cannot sell land in the public trust 3. In this case the association was QUASI-PUBLIC and acted like a city municipality a. That is why they did not have the right to exclude ii. Thorton v. Supreme Court of Oregon 1. Rule of Law: Cannot put up fence on dry sand because it is customary for the public to use that land 2. Custom: 3. Must be ancient- Long and general usage 4. The right must be exercised without interruption 5. The customary use be peaceable and free from dispute 6. The public has always made use of the land in an appropriate manner 7. The custom must be obligatory 8. The custom must not be inconsistent iii. Prescriptive Easement: A legally enforceable right to make use of all or part of the property of another as a result of continuous and uninterrupted use of that property for a period of time as established by statute. iv. Taking: Government takes property and does not compensate the people Democratic Property a. The Anti-Feudal Principle i. De Peyster v. Michael 1. Rule of Law: When land is granted in fee simple, any condition placed upon the land that the grantee shall not alienate it or that he must pay a fee to the grantor at the time of any future sale is void because the condition is repugnant to the nature of fee simple a. Conditions restricting sale of land for fee simple estates are void b. Public utility, simplification of ownership, and the facilitation of exchange of property are all reasons why there can be no anti-alienation conditions on a fee simple 2. Alienation: Conveyance or transfer of property from one owner to another 3. Fee Simple: An estate in land characterized by ownership of the entire property for an unlimited duration and by absolute power over distribution b. Consumer Protection and the Subprime Mortgage Crisis i. Commonwealth v. Fremont Investment & Loan

III.

1. Rule of Law: Mortgage loans with the following 4 characteristics are likely to be unfair under the MA Consumer Protection Act: (1) the loans were adjustable with a preliminary rate or three years, (2) the initial rate was typically three points lower than the usual mortgage rate on 30 year terms, (3) the debt to income ratio would exceed 50% after the introductory period expired and (4) the loan to value ratio was 100% 2. In this case Fremont did not check to see if people would be able to pay back the loans 3. This constitutes unsafe and unsound banking practices Competing Claims to Property a. Property Rights Derived from Competing Sovereigns i. Johnson v. MIntosh 1. Rule of Law: The act of discovering sovereign the power to extinguish the native title of occupancy a. Natives just had right of occupancy 2. MIntosh claim was superior 3. Conquering entity had control of land 4. Transferring land: conquest, treaty, straight up buying a. Natural Law View i. Rights arise in nature, fundamental justice, outside of the government ii. Nature tells you what is right or wrong iii. People have to figure out what justice is iv. Role of the government is to enforce natural law, but not make new law b. Legal Positivism i. Property exists to the extent that the law lets it ii. We can own property because law protects our property ii. Tee-Hit-Ton Indians v. United States 1. Rule of Law: Mere possession does not constitute ownership for the purposes of the 5th Amendment a. Congress did not give the Indians ultimate title b. They dont get compensation bc the government owns the land c. The right of occupancy is not worth a lot, they just get to live there i. This is only because congress is being nice b. Labour and Investment i. International News v. Associated Press 1. Rule of Law: Publication for profit of news obtained from other news-gathering enterprises is a misappropriation of a property right a. News does not have a property nature b. No copyright for news

i. Congress did not intend for one person to have exclusive right ii. This also creates competition and lowers prices iii. Other side is that if we do copyright it, then it discourages invention c. Quasi-Property: It is packaged and distributed i. Its yours but your rights with it are restrictive d. Injunction: International can either pay for the use, find it themselves, give AP credit or wait until the news is not fresh or new anymore e. Dissent argues that once news is published it is open for the public to use c. Possession i. Pireson v. Post 1. Rule of Law: Property in wild animals is acquired only by occupancy, and pursuit alone foes not constitute occupancy or vest right in the peruser 2. Finding, chasing, wounding is not enough, only MORAL WOUND OR KILLING is enough 3. Capture Rule: Property rights only through physical capture 4. Social Policy: Encourage people to hunt a. Creates certainty regards to property rights 5. Two ways to look at the law: a. Formalism: Judge looks at the mechanics and applies the law b. Instrumentality: Looks at the law as an instrument of social change i. Law must change as people change ii. Baseball Case 1. Pre-possessory interest: Constitutes a qualified right to possession, which can support of cause of action for conversion a. Taken significant steps toward possession before you were interrupted 2. Remember it is a court of law, but also a court of equity- wants to do whats fair 3. In this case it was unfair to give either one the baseball because we would need to make assumptions 4. Usually when a ball is hit it does not have an owner and the first person to catch the ball would be the owner d. Oil and Gas i. Elliff v. Texon Drilling Co. 1. Rule of Law: The law of capture does not insulate a landowner from damages caused by the wrongful dainage of gas and disilate from beneath the land of another a. Cannot be negligent and waste oil (capture rule does not apply)

2.

Ownership of hard minerals: Whoever owns land above surface, they own minerals beneath the land 3. Non-Ownership Theory: Owner of a several mineral interest foes not have a preset right to posses the oils and gas in place, but has the right to only search, develop and produce it a. Surface owner does not own all the oil and gas underneath the surface b. Only ownership after capture 4. Ownership in Place Theory: Owner of land is deemed to own oil under the land, will lose ownership if someone captures it first e. Finders i. Willcox v. Stroup 1. Rule of Law: A rebuttable presumption exists that those in possession of property are rightly in possession, absent evidence of superior title in another a. In absence of clear and convincing evidence, person in actual possession of property has the tittle to the property ii. Charrier v. Bell 1. Rule of Law: Ownership in burial artifacts cannot be transferred to another under the theory of abandonment 2. Improvishment: When person is not at fault, or is not negligent and did not take action at his own risk iii. Lost Property: When the owner accidentally misplaced it iv. Mislaid: When the owner of the property intentionally left it somewhere and then forgot where she put it v. Abandoned: When the owner forms an intent to relinquish all rights to the property 1. The owner intends to give up any claim to the property Intellectual Property a. Patent Law i. Moore v. Regents of the University of California 1. Rule of Law: A person does not have a property interest in his cell tissue 2. Cells are based on genetic material that is common to all human beings 3. Once the cells were removed, he had no right to them 4. Public Policy: This would discourage scientific research otherwise 5. Dissent: Every individual has a property interest to his own body a. This constitutes unjust enrichment b. It doesnt make sense to say that Moore doesnt have a right to his body but the pharmaceutical company does c. It is unethical and unmoral not to allow Moore share the money they made b. Publicity Rule i. Martin Luther King, Jr. Center for social change v. American Heritage Products

IV.

V.

1. Facts: The center for social change (P) sued Bolen for the unauthorized development and marketing of a plastic bust of Dr. Martin Luther King Jr. 2. Rule of Law: Public figures have a right of publicity that survives the death of the figure, and this is inheritable and devisable, the measure of damages for violation of which is the value of the appropriation to the user a. Cannot use a public figures name without their consent for profit b. Do not have had to have exploited name before you died 3. Right of Publicity: The right of a person to control the commercial exploitation of his name or likeness Adverse Possession a. Definition: Allows a non-owner to acquire full ownership rights in real property if the non-owner actually possess property without permission of the true owner (meaning the formal tittle holder) in a visible manner for a period established by statute i. Elements: 1. Actual possession: The adverse possessor must physically occupy the property in some manner a. It is the ordinary use to which the land is capable and such a owner would make of it b. Must show actual possession by engaging in significant activities with the land such as building 2. That is open and notorious: Possessory acts must be sufficiently visible and obvious to put a reasonable owner on notice that her property is being occupied by a non-owner a. Dont have to show that true owner saw you possessing the land but that a reasonable owner would be able to see it through reasonable inspection b. Putting up a fence or wall, or building something on land is usually enough to put on notice 3. Exclusive: Generally means that the use is a type that would be expected of a true owner of the land in question and the adverse claimants possession cannot be shared with the true owner 4. Continuous: Means that the adverse possessor must exercise control over the property in ways customarily pursued by owners of that type of property a. Dont have to be there 24/7 b. Tacking: General rule is that the succeeding periods of possession by different persons may be added together i. Successors can add the original adverse possessors holding period only if they are in privity with one another ii. Privity: The original adverse possessor purported to transfer title to the property to the successor

5. Adverse or hostile: Use is non-permissive a. A showing that the true owner has permitted the use will defeat the claim 6. For the statutory period: many states toll the statute of limitations ii. Adverse Possessors State of Mind 1. Objective Test 2. Subjective Test a. Lack of permission: possessor lacked permission from the true owner b. Claim of right: A possessors intention to use the land as his own to the exclusion of others c. Intentional Disposition: Possessor must know that she is occupying someone elses property and intend to dispossess the owner i. Good Faith iii. Quiet Tittle: Asks the court to grant declaratory judgment that the adverse possessor has become the owner of the disputed property through adverse possession iv. Color of Tittle: Occurs when an adverse possessor has a deed that purports to transfer the land in question but its ineffective to transfer title because of a defect in the deed 1. In this case, occupation of any portion of the land described in the defective title is generally deemed to be actual possession of the whole lot described in the void deed 2. Does not matter how much of the land you actually use, it extends to all the boundaries described in the deed v. Easement: The limited right to use the property of others vi. Prescriptive Easement: Same elements of adverse possession, but have to show actual use instead of actual possession 1. Acquiescence: A person's tacit or passive acceptance; implied consent to an act 2. This whole thing can be overcome if the person was allowed to be on the land 3. Negative Easement: The lawful use of ones property does not put another on notice that she must bring a lawsuit to protect herself from losing her property rights vii. Claims against the government: Usually cannot claim adverse possession against the government b. Border Disputes i. Brown v. Goble 1. Claiming adverse possession to use their predeceors conduct on the property to meed the time requirements of adverse possession a. Question is: Did the adverse possessor do what a reasonable owner would do, given the character of the land? 2. Public Policy: Makes landowners take care of their land

VI.

c. Color of Title i. Romero v. Garcia 1. Rule of Law: An indefinite and uncertain description of property in a deed may be clarified by subsequent acts of the parties d. Squatters i. Nome 2000 v. Fagerstrom 1. Rule of Law: A determination of whether a claimants physical acts upon the land of another are sufficiently continuous notorious and exclusive does not necessarily depend on the existence of significant improvements, substantial activity, or absolute exclusivity 2. Exclusive Possession: Must not have shared with the owner or the general public 3. Standard of adverse possession must be exclusive as a normal reasonable owner 4. Quality and quantity of acts depends on character of land 5. Notorious requirement is important because it puts the original land owner on notice 6. Hostile- dont need to kick everyone off, just need to act like a normal owner e. Prescriptive Easements i. Community Feed Store v. Northeastern Culvert Corp 1. Rule of Law: A general outline of consistent use is sufficient to establish prescriptive easement a. Property rights can be acquired to another land id theres enough use going on i. Without consent and knowledge of an owner 2. Big difference between adverse and easement is that adverse you get title to the land, but easement you only get to use the land in question a. Also easement requires use, and not possession b. Cannot extend the use of land in an easement, just continue the use from before f. Unjust Enrichment versus Forced Sale i. Somerville v. Jacobs 1. Rule of Law: An improver who mistakenly improves the land of another is entitled to the value of improvements that the landowner bas benefited from 2. Generally the owner of the land is the owner of structures on the land 3. You dont want one party to be unjustly enriched 4. Court always want equity 5. DISSENT: Property owner should have the right to feel secure a. This decision favors the party that made the mistake Nuisance a. Protection of Use and Enjoyment of Land

Nuisance: On may not use her land in a manner that injures land of others Public Nuisance: Effecting the community at large Private Nuisance: Effecting only a few parties Substantial and unreasonable interference with the use and enjoyment of anothers land 1. Usually something that is offensive to the senses (smoke, dust, noise, odor) 2. Interest being protected neighbors right to enjoy their property 3. Looking at result rather than conduct 4. Involves physical harm to land or danger to people v. Temporary Nuisance: Can be alleviated by plaintiff stopping their activity vi. Permanent Nuisance: likely to continue forever vii. Trespass: Intentional invasion of the plaintiffs interest in exclusive possession of her property 1. Physical invasion onto land 2. Interest being protected is the persons possessory interest to the land 3. Granted absolute protection b viii. Negligence: prohibits unreasonable conduct 1. Always looking at conduct b. Defining Unreasonable Land Use i. Page County Appliances v. Honeywell Inc 1. Rule of Law: Lawful activity constitutes a nuisance if it unreasonably infers with anothers enjoyment of his property 2. Dont need to show negligence 3. Intent to create nuisance does not matter 4. Going to look at if reasonable to conduct business where they did ii. Fancher v. Fagella 1. Rule of Law: Living trees and plants, ordinarily are not nuisances, may become nuisances when the cause actual or imminent harm or danger to adjoining property 2. Land owner can bring action it nuisance causes actual or imminent harm to property 3. Land owner can cut encroaching plants (self help still remains) 4. Each case must be decided according to facts 5. Injunction is last remedy 6. Law favors money damages 7. Removal of tree is last thing you consider c. No Easement for Light and Air i. Fountainbleu Hotel Corp v. Forty-Five

i. ii. iii. iv.

VII.

1. Rule of Law: Existing owner has no legal right to the free flow of light and air from an adjoining parcel of land 2. This rule is excluded from private nuisance as long as the nuisance serves a useful function 3. The extension, in this case, has to have a beneficial function 4. Good social policy because it encourages property development d. Law and Economics i. Before damages were focused on the plaintiff ii. Courts not apply a cost benefit analysis 1. Most important aspect is the economic effect on the plaintiff and defendant iii. Boomer v. Atlantic Cement (marks turning point for property law in determining remedy) 1. Court only cares about economic analysis 2. Before this case, it was only yes nuisance or no nuisance 3. Introduced new remedy: Payment of continuing damages 4. Seen as a more efficient remedy because it increases overall utility e. Nuisance Doctrine Applied to Light i. Prah v. Maretti 1. Rule of Law: The doctrine of prior appropriation applies to the use of sunlight as a protectable resource 2. Court adds reasonable aspect 3. Private Nuisance reasonable rule cant unreasonably interfere with neighbors use and enjoyment of land 4. Have to consider harm to neighbor and cost to defendant in avoiding the harm Servitudes : Rules Governing Contractual Restriction on Land Use a. Servitudes i. Definition: A legal device that creates a right or an obligation that runs with the land or with an interest in land 1. A right or obligation runs with the land id it passes automatically to successive owners or occupiers of the land or the interest in land which the right or obligation runs ii. Easements: A servitude that is intended to be permanent and irrevocable 1. If the obligation is intended to continue even if the owner sells the land on which the road sits it is called a Burden a. The subsequent owners of the land have a continuing obligation to allow the road to be used by the easement owner b. If the right to use the land is intended to pass to future owners of the neighboring land, we say the right runs with the benefited or dominant estate

iii. Affirmative Easement: A right to do something on someone elses land iv. Negative or Restrictive Convents: All obligation restricting what one can do with ones own land v. Affirmative Convent: Is an obligation to do something for he benefit of another owner or owners vi. Express Easements: An express easement is voluntarily created in a deed, will, or other written instrument. It may arise either by grant or by reservation. In order to create an express easement, the writing must identify the parties, manifest an intent to create an easement, describe the affected land, and be signed by the grantor vii. Servient Estate: real property which has an easement or other use imposed upon it in favor of another property (called the "dominant estate" viii. Warranty Deed: Guarantee to buyer that the land has a clear and free tittle 1. Want to be able to rely on the deed ix. Trusts: A property arrangement in which an owner, called the settlor, transfers property to another person called the trustee, with instructions to made the property for benefit of a third party, called the beneficiary 1. The trustee is said to have legal tittle to the property x. Constructive Trust: One that exists in construction of the court regardless of any lack of express agreement between the parties 1. When one party has been wrongfully deprived either by mistake, fraud or for some other breach of faith, a court may impose upon the present holder of legal title a constructive trust for the benefit of that party 2. This is not a permanently revocable license, only for a reasonable time (for the reliance) b. Licesnes i. Licensee: The permission to be on the land is informal and revocable by the owner of the land 1. Generally not classified as servitudes because they can be revoked, cannot be transferred and cannot be inherited by will 2. Can be a narrow or broad license ii. Permission owners of land give to non-owners to be on their property 1. Permission is very temporary and usually revocable 2. Cannot revoke License based on discrimination c. Easement by Estoppel i. Easement by Estoppel: Preventing a real property owners from revoking a license if the owner grants the licensee the right to invest in improving the property or otherwise induces the licensee to act in a reasonable reliance on the license 1. Three Elements:

a. Need to license (permission) to access property in first place b. You as the licensee spend money on the property in good faith reliance that it wont be revoked c. Tacit approval by the land owner 2. The espopell part comes from the owners original consent ii. Holbrook v. Taylor 1. Rule of Law: Where use of a roadway, improvement to, and maintenance of a roadway all have occurred with the tacit approval of the landowner, the landowner is estopped from barring access to the improving party a. Policy: Equity, it would be unfair for licensor to revoke license when license has relied on the improvements to his property b. Facilitates productive use of the land c. If people are allowed to stay on land and rely on license, then they will put more work into fixing the land 2. Alternative: Discourages neighborly conduct d. Constructive Trusts i. Constructive Trust: One that exists in construction of the court regardless of any lack of express agreement between the parties 1. When one party has been wrongfully deprived either by mistake, fraud or for some other breach of faith, a court may impose upon the present holder of legal title a constructive trust for the benefit of that party 2. This is not a permanently revocable license, only for a reasonable time (for the reliance) ii. Dominant: Property that is retained by the owner when he splits the property by still has an easement over the property he sells iii. Servient: Land that has an easement iv. Rase v. Castle Ranch 1. Rule of Law: Where a buyer takes title with knowledge of an occupants expectation of long-term occupancy and subject to sellers condition that the occupants license not be terminate, the buyer holds the land in constructive trust for the occupants a. Cabin owners had implied insurance of permanent residence b. Not a revocable license because not definite e. Easments Implied from Prior Use

i. Easement by Prior Use: Arises when an owner of an entire tract of land or two or more adjoining parcels, after employing a part thereof so that one part of the tract or one parcel derives from another a benefit or advantage of an apparent, continuous, and permanent nature, conveys or transfers part of the property without mention being made of these incidental uses 1. Elements: (1) severance of title to land held in common ownership; (2) an existing, apparent, and continuous use when severance occurs, and (3) reasonable necessity for the use at time of severance. a. There must be servience in title (seller had common ownership of both pieces of land) b. Land must be divided into two or more parcels c. One parcel must be sold to the new owner d. One parcel must be retained by the previous owner 2. Will usually only be granted if (a) two parcels were previously owned by a common grantor, (b) one parcel was previously used for the benefit of the other parcel in a manner that was visible and continuous and (c) the use is reasonably necessary or convenient for enjoyment of the dominant estate ii. Granite Properties v. Maans 1. Rule of law: If a previous use is continuous and apparent, the degree of necessity required to create an implied easement is reduced f. Easements by Necessity i. Easement by Necessity: Two elements are generally required for an easement by necessity: (1) severance of title to land held in common ownership; and (2) strict necessity at the time of severance. Under the majority view, strict necessity exists when the parcel in question has no legal right of access to a public road. Some courts only require reasonable necessity. (Absolute necessity) 1. Policies: (a) To effectuate the intent of the parties and (b) promote the efficient utilization of property 2. Dont need to show prior use 3. However, proof of prior use is evidence that the parties intended an easement 4. Arises out of operation of law by facts without express agreement 5. Need HIGH degree of necessity 6. Usually involves landlocked parcels and owner tries to reach road 7. Owner is usually able to chose where the easement to the road is going to be

8. Easement is only for as long as it is necessary 9. Right of way by necessity may be dormant through several transfers of tittle and yet pass with each transfer ii. Statutory Regulation of landlocked land: Some states have enacted statutes empowering the owner of a landlocked parcel to obtain an easement over neighboring land for access to a public road by application to a public official and payment of compensation to the landowner whose property is burdened by the easement iii. Finn v. Williams 1. Rule of Law: Where an owner conveys a portion of his land that has no outlet expect over the land of the grantor, or of strangers, an easement by necessity over the retained land of the grantor g. Formal Writing Requirment- Statute of Frauds i. Statute of Frauds: Requires writing to transfer interest in real property h. Running with the Land i. Running with the Land: An easement that runs with the land is treated as if it were attached to that parcel so that any future owner of the parcel is benefited or burdened by the easement ( easements by implication, necessity, and estoppel run with the land) 1. Otherwise they run with the land if: a. The easement is in writing b. The original grantor who created the easement intended the easement to run with the land c. Subsequent owners of the servient estate had notice of the easement at the time of purchase of the serviette estate ii. Green v. Lupo 1. Rule of Law: An easement is not personal if there is anything in the grant to suggest that it was intended to be tied to the land retained or conveyed (it is appurtentant) iii. Transfer of Easement: Any transfer of title of the dominant tenement also automatically transfers the benefit of an appurtenant easement, absent an agreement to the contrary. The law governing the transfer of easements in gross, in contrast, is more complex. In some states, an easement in gross is transferable only if it is for a commercial purpose i. Appurtenant Easements i. Appurtenant Easement: If the benefit runs with the land, it is treated as if it were attached to the land (Test is the intent of grantor) 1. The benefit will be enforceable by future owners of the benefited land 2. Cannot be severed from the land

3. The owner of the dominant estate who sells the land cannot retain the benefit of the servitude while giving up the land 4. Nor can the beneficiary of the easement transfer the benefit of the easement to another while retaining ownership of the dominant estate 5. Passes automatically to whoever owns the dominant estate 6. When dominant estate is sold, the new owner also owns the appurtenant easement attached to the land ii. Cox v. Glenbrook Co. 1. Rule of Law: Where the grant of easement is unclear, the extent of the easement must be construed as broadly as necessary to carry out the purposes how which it was granted 2. In this case you could maintain and repair the road in the way the easement was intended to be used when it was made but not in a way that it causes a burden to the servient state 3. You can bring in parole evidence and other evidence to determine the intent of the parties iii. Divisibility or Apportionality- Most courts hold that the benefits of an appurtenant easement move to each portion of the dominant parcel upon its subdivisions and transfer of various pieces 1. When the easement in gross is nonexclusive- meaning the grantor, or owner of the servient estate, has reserved for herself the right to use the easement in conjunction with the guarantee, the easement is generally held to be non-apportionable; the grantor herself could sell further rights to others so long as those new easements did not interfere with the use of the existing easement by the first grantee 2. When an easement is exclusive- meaning the grantor has no right to use the easement in conjunction with the grantee- the easement is generally held to be apportionable. Since the grantee is not interfering with any rights the grantor might have to sell or lease the use to others j. Easement in Gross i. Easement in Gross: When the benefit does not run with the land, it is not attached to a particular parcel of land and there is no dominant estate (Test is the intent of grantor) 1. This is personal to the land holder 2. It benefits the land holder in a personal sense 3. Only when there is a servient land, no dominant land 4. Exclusive: Exclusive use by the GUARANTEE

a. The guarantor does not have rights to it (because they are not using it) b. When it is exclusive, the guarantee can grant third party rights to use it i. The guarantor cannot come back and say anything because the guarantor is not losing anything by this (the guarantor gave up his rights to it) ii. The easement is apportionable (guarantor is out of the picture) ii. Henley v. Continental Cablevision 1. Rule of Law: Easements in gross are transferable 2. Policy: Want to encourage technological developments a. This does not increase burden on the servient estate b. Still goes with the original intent to provide home owners benefits k. Creation of Covenants Express Agreements i. Winn-Dixie Stores v. Dolgencorp 1. Rule of Law: A covenant running with the land requires proof of the following three elements: (1) the existence of a covenant that touches the land (2) intentional that the covenant should run with the land (3) notice of the restriction by the party against whom the restriction is applied 2. Policy reason: Easier to carry out conditions, but a negative would be that conditions change so it is annoying to have these conditions on the land ii. Real Covenant: A promise concerning the use of the land 1. The benefit and burden run with the land iii. Affirmative Covenant: Promise to do something (build a fence) iv. Negative Covenant: Promise not to do something v. Horizontal Privity: exists between the promissor and the promissee who have mutual, simultaneous interests in the same land vi. Vertical Privity: Applies to subsequent owners vii. Equitable Servitude: No privity between the parties required viii. Restrictive Covenant: This is a good thing because it engages people in business 1. However, they cannot place an undue hardship on the other person 2. Also we dont want the competition to hurt the public ix. Run with the Land: Need to look at if reasonableness x. Non-compete agreement: Look at reasonableness 1. Look at how long the covenant is for

l.

xi. Equitable Servitude: Promise regarding the use of land, binding original owner and there successors and enforceable by injunction 1. Promise must be in writing 2. Original party must intend to bind successors 3. Touch and concern the land 4. Successor must have notice a. Difference between this and covenants are that there is no privity requirement b. This you get equitable relief xii. Residential Subdivisions: Uniform subdivisions to maintain long term desirability and therefore attract buyers 1. In most jurisdictions the developer records a declaration which has all the restrictions (covenants) on all the lots before the sale of any lots 2. In determining whether the developer wanted the covenant to apply to all the lots the question we need to ask is : Did the developer implement a common plan to bind all the lots xiii. Common Plan: An implied restriction 1. Everyone gets the burden and everyone gets the benefit 2. Any lot owner can enforce restriction against a different owner Implied Reciprocal Negative Servitude in Residential Subdivision i. Implied Reciprocal Negative Servitude: [a]n easement created when a landowner sells part of the land and restricts the buyer's use of that part, and, in turn, that same restriction is placed on the part kept by the landowner. Such an easement usu[ally] arises when the landowner creates a common scheme of development for smaller tracts that are carved out of the original tract 1. Invented to deal with the intent, notice and privity of estate issues that arise when a developer imposes grantee covenants on all lots in a residential subdivision 2. Even if some lands dont have the covenants, but are apart of a common scheme, then they are subject to the covenant a. Most of the time the buyer needs to know about the covenants through actual or implied knowledge 3. Common Scheme: A common plan can be shown by the presence of restrictions in all or most deeds to property in the area, a recorded plat showing the restrictions, the presence of restrictions in the last deed, observance by the owners of similar developments of their land, language stating that the covenant is men to run with the land

4. POLICY: Developer controls an area to increase the marketability of the lots, assuring prospective buyers that the subdivision is restricted to residential use ii. Evans v. Pollock 1. Rule of Law: A general plan of subdivision restriction need not apply to all tracts in a subdivision for the doctrine of implied reciprocal negative easements to apply 2. In this case the voting rights of the lake front property made all of them have the covenants, but the other lots were not subject to the covenants iii. Riley c. Bear Creek Planning Committee 1. Rule of Law: The lot in question was not subject to the covenant placed on the surrounding lots because it was not specifically written in the deed 2. Statute of frauds: requires writing 3. Parole evidence was not allowed 4. There was not common scheme and there was no intent shown in the deed 5. The deed is considered the final intent of the parties 6. HOWEVER: the Rileys could have benefited from the covenant because it increases the value of everyones property m. Interpretation of Ambiguous Covenants i. Blevins v. Association for Retarded Citizens 1. Rule of Law: Ambiguous restrictive covenants should be read narrowly to allow the least restrictive use of the land 2. In this case it was said that the covenant was to be applied to the structure on the land and not the use 3. Public policy: It should be interpreted broadly when the use is socially beneficial n. Changed Condions i. Changed Conditions: Covenants will not be enforced if conditions have changed so drastically inside the neighborhood restricted by the covenants that the enforcement will be no substantial benefit to the dominant estate 1. The change must be so radical as to defeat the essential purpose of the covenant or render the covenant valueless to the parties 2. Most common defense that is used 3. Policy: Obselete restrictions interfere with the use od the land 4. If there is only a small benefit to the owner but a big burden on other owners, than the covenant should not be enforced ii. El Di Inc. v. Town of Bethany Beach

o.

p.

q.

r.

1. A restrictive covenant will not be enforced where a fundamental change in the nature of the neighborhood has made the purpose sought by the covenant unattainable Relative Hardship i. Relative Hardship: A covenant will not be enforced if the harm caused by enforcement, that is, the hardship to the owner of the servient estate, will be greater by a considerable magnitude than the benefit to the owner of the dominant estate. If the hardship is great the benefit is small, the courts may refuse to enforce the covenant Other Equitable Defenses: i. Toleration: the complaining party may be barred from enforcing a covenant id he ahs tolerated or failed to object in the past (this may indicate abandonment of the covenant) 1. If he has violated the covenant himself 2. Has tolerated previous violations of the covenant by the servient estate 3. Has tolerated violations of the covenants by owners of other restricted parcels in the neighborhood covered by the covenant ii. Estoppel: If you orally say that you are not going to enforce the covenant, then you will be estopped from doing so (if servient estate relies on the oral representation) iii. Laches: If the covenant has been breached for ignored for a substantial period of time iv. Marketable Title Acts: Statutes that terminate the restrictive covenant v. Merger: If the burdened and benefited estate come under the ownership fo te same person, the covenant will terminate vi. Release: All people burdened and benefited can agree to terminate it in writing vii. Prescription: Open and notorious violation of the covenant without permission for the statutory period may terminate the covenant by operation of the statue of limitations Statutes i. Blakely v. Gorin 1. Building restrictions will not be specifically enforced even when they convey an actual and substantial benefit to the person seeking enforcement, it they impede reasonable use of the land for its most suitable purposes 2. The Mass court is not going to enforce covenants other than very limited circumstances 3. The court ruled that this is the must suitable use of the vacant lot Homeowners Association i. Homeowners Associations and Condominiums 1. Common interest communities that place land use restrictions

2. Each unit is owned by fee simple but the common area is owned by unity owners collectively 3. If a person defaults, bank foreclosures that specific unit 4. Every person that owns unit is a member of the association 5. Association is formed by filing a declaration (tells you what the management structure is going to be, powers of the association) 6. Declaration has covenants that has restrict the use of land 7. Declaration can be amended by voting by the unit owners 8. Who ever has the power to amend must reasonably do so s. Relations Between Unit Owners and Developers i. Appel v. Presely Cos 1. Provisions allowing amendment of subdivision restriction are subject to a requirement of reasonableness t. Racially Restrictive Covenant i. Limits the sale, lease, or occupancy of real property to members of a particular race a excludes members of a particular race or races ii. Fair Housing Act: Prohibits discrimination on selling and renting housing iii. Shelley v. Kraemer 1. The equal protection clause of the 14th amendment prohibits judicial enforcement by state courts of restrictive covenants based on race or color 2. There is state action because purpose and enforcement of agreement could only be secured by state action enforced by the court iv. Evans v. Abeny 1. If you cant effectuate the intent of the testator, then try to find intent as close as possible 2. It is to save trust from failing (good public policy) 3. Didnt violate equal protection act because their was no state action 4. The court was not needed to transfer property back to heirs u. Direct Restraints on Alienation i. Horse and Fish Pond v. Cormier 1. A restraint on alienation is valid only if it is reasonable in light of the justifiable interests of the parties 2. Public Policy: Freely transferable a. Legal system protects alienation b. Good for society and the market (law supports the utilization of land) c. Promotes efficiency to maximum use of land d. Good public policy to free current owners of restrictions 3. Fee simple absolute is the greatest ownership you can have (usually struck down) 4. TEST FOR ALIENATION: Reasonable Test a. Weigh how useful to society against consequences that may result is injury is court enforces it

5. Test for Charity: Due to unforeseen circumstances a. The sale is necessary b. And if it would be in the best interest of the charity c. The charity standard is more easily upheld v. Grantor Consent Clauses i. Northwest Real Estate v. Serio 1. Covenants restraining a grantees ability to sell property are inconsistent with a grant of fee simple and are thus invalid 2. The court says this is repugnant to fee simple because it takes away absolute power to alienate 3. Dissent: There are benefits to society by allowing developers to control the development 4. There is general public gain in deterring unwanted people because it de-values the property ii. Grantor Consent Clause: Need consent before you can transfer property w. Public Policy Limitations i. Davidson Brothers 1. Touch and concern not based on public policy 2. Moved to reasonable test 3. Modern courts recognize that covenants can increase the value of property 4. Holding: If a covenant is contrary to public policy the covenant is unreasonable and unenforceable 5. The covenant cannot hurt the community ii. Architectural Review Committees: Approving or disproving any structural changes proposed to the property 1. Many of the small particular things that are contained in the covenants 2. They use a reasonable test and a balancing test x. Rules and Bylaws i. OBuck v. Cottonwood Village Association, Inc 1. Condominium declarations and bylaws granting a board the authority to enact rules banning television antennae will withstand judicial scrutiny if they are deemed reasonable 2. Condo owners sacrifice some freedom of choice in their decision to line in this type of housing ii. Neuman v. Grandview 1. A categorical prohibition of all religious services in a common area to a condo does not unreasonably restrict any nit owners right to peacefully assemble 2. This new rule eliminated potential tension between various religious groups 3. When looking at rules enacted by the association, you look at two things: a. Condos are creatures of statutes, so you need to see if the statute is violated

VIII.

b. Not going to overturn burden unless it is unreasonable or it is a constitutional violation Present Estates and Future Interest a. Division over Time 1. Burdening land with future interests is usually not allowed 2. Law created restrictions so that land would not be burdened for a long period of time ii. Present Interests: The power to own property now, while the property lasts iii. Future Interests: Right to receive property at a future time 1. Allows someone to control the disposition of property even after death iv. Two Competing Goals: Individual Autonomy v. Social good and welfare 1. When looking at social welfare, need to consider that the property is being taken out of the market and also that if it is being tied up so it is difficult to alienate v. Todays Market: You want land to be able to move throughout society 1. Land not as social transactions by market based transactions vi. Fee Simple: Highest form of ownership 1. Its divisible, its alienable, not subject to any conditions other than zoning 2. Allows you to do whatever you want to the property 3. Law favors fee simple transactions and has policy of construing deeds as fee simple 4. It is more favored because property is easier to sell under fee simple tittle 5. Dont need very specific language for it to be fee simple vii. Defeasible Land: Has a present interest that terminates at a specified event viii. Indefeasible Estate: Something that cannot be undone ix. Fee Simple Determinable: Automatically returns property to grantor 1. While property is in the grantees hand, grantor could potentially get the property back 2. The condition does not have to be related to the land x. Fee Simple Subject to Condition Subsequent: Grantor only gets right to entry 1. If the deed has but if it can terminate possession xi. Difference between Determinable and Condition: Under determinable you can get the land back via lawsuit, but in condition, it is the grantors choice if they want the land back xii. Ambigous Conveyances: Look at the grantors intent xiii. Fee Simple subject to executor limitation: Ownership shifts to the third party rather than the grantor xiv. Life Estate: You only get the property for only life of the grantee 1. If it REVERTS back to the grantor it is called reversion 2. If it returns back to a THIRD PARTY it is called Remainder

b.

c.

d.

e.

f.

a. Contingent Remainder: Needs a condition. Will take effect only after the happening of an event that is not certain to happen (like completing law school) b. Vested Remainder: Only remainder that is not contingent when: i. Made to people identifiable at the time of conveyance ii. There are no condition precedent before they can get property xv. Difference between the two: Fee simple you can pick who the property goes to Fee Simple v. Deafisble Fee i. Wood v. Board of County Commissioners of Fremont County 1. Rule of Law: A grant in fee simple determinable must clearly state the estate will terminate if not used in accordance with the grant 2. The court said that time specifications are really important 3. Courts need to be certain that property has been conveyed in fee simple Fee Simple v. Life Estate i. Edwards v. Bradley 1. A conditional limitation imposed on a life estate is valid 2. Need to look at intent in the language 3. Cannot put condition fee simple ii. Vested Remainder 1. Absolutely vested remainder (doesnt change) 2. Subject to Open a. Divided among person born in the future 3. Subject to Divestment a. Can be destroyed by event that occurs after the conveyance Trusts and Cy Pres Doctrine i. Cy Pres Doctine 1. If you make gift by will or trusts (usually to changes or schools) the named recipient no longer exists, under this doctrine the trustee must make the gift to the organization that comes closest to the intended organization ii. Rule Against Creation of New Estates 1. Bundle of recognizable rights 2. Property law rejects any new package of rights 3. It conveyance doesnt fit under any categories of law, court will recognize and interpret it as one of the already created bundles 4. Cannot create a new type of inheritance Rules Against Creation of New Estates i. Johnson v. Whiton 1. Grantors may not create new types of inheritance, and any attempt to do so will result in the full fee being conveyed Waste

IX.

i. Waste Doctrine: retrains present property owner to maintain the land for future land owners ii. Affirmative Waste: Voluntary waste, voluntary acts of the tenant to reduce the property value iii. Permissive Waste: Failure of the tenant to exercise the ordinary care of a prudent man for the preservation and protection of the estate iv. Moore v. Phillips 1. A defense of laches or estoppel will not bar recovery in an action for permissive waste when no party was prejudiced v. Laches: An equitable defense against the enforcement of rights that have been neglected for a long period of time vi. Estoppel: An equitable doctrine precluding a party from asserting a right to the detriment of another who justifiably relied on the conduct g. Rules Against Unreasonable Restraints on Marriage i. Lewis v. Searles 1. All devises are in fee simple if there is not intent expressed to create only a life estate and it no further devise is made to take effect after the death of the devisee 2. Public Policy concerns that out limitations on peoples life choice Concurrent Ownership and Family Property a. Tenancy in Common and Joint Tenancy i. Common Ownership: Each person holds the right to concurrent possession ii. Four Unities: 1. Time, title, interest, possession 2. Have to aquire title, at the same time and have the same deed 3. Interest has to be identical 4. Each joint tenant has to have equal share and right to possession iii. Tenancy in Common: Doesnt have survivorship, when A dies, B does not get all the land iv. Joint Tenancy: Each person owns undivided fractional share of the entire parcel of land 1. Each co-owner have equal rights to simultaneous use of the property 2. Doesnt matter what percentage each owner has, doesnt effect your use and enjoyment v. Constructive Ouster: Once parties have adhered to divorce, the spouse who leaves the house may have a right to collect rent from they house they owned together if he was pushed out or for emotional reasons because of the divorce could not live there (this doesnt apply if you just leave yourself because of a another women) 1. Usually physical act, but with divorce also look at emotional b. Tenancy by the Entirety i. Tenancy by Entirety: Only available to married couples 1. Only recognized in half of the states 2. Four unities plus marriage

3. Provides right of survivorship 4. Married Womens Act: vested equal control in both spouses 5. TODAY: tenancy in entirety is single ownership and both spouses own the whole estate 6. Each party has entire interest in property 7. Up to creditors to check if held in entirety ii. Today most states just assume tenancy in common unless there is clear intent otherwise iii. Sawada v. Endo 1. The interst of a spouse in real property held in tenancy by the entirety, is not subject to levy and execution by his or own individual creditors absent consent of both parties Interest Alienable Interest Divisible Partition Available Tenancy in YES YES YES Common Joint Tenancy YES/ NO(converts NO YES to tenancy in common) Tenancy in NO NO NO Entirety c. Conflicts over Rent and Possession i. Olivia v Olivia 1. When a spouse departs a residence held as community property due to martial friction a constructive ouster is effected 2. In this case, first held in community property, but then tenants in common once the property was divided d. Family Conflicts over Use of Property i. Carr v. Decking 1. When co-tenants cannot agree what to do with the land, the remedy is partition (division of the land) 2. Co-tenant can lease interest without the consent of the other cotenant 3. The new, non-joining tenant, cannot demand exclusive possession against the lease, but may only demand to be let into co-possession for the duration of the lease e. Death i. Tenhet v. Boswell 1. A lease entered into by a joint tenant does no sever the joint tenancy (makes the joint tenancy into tenancy in common) a. Destruction of one of the unities destroys the joint tenancy and turns it into tenancy in common b. Joint tenancy carries right of survivorship which depends on NO breach of the utilities c. Partial alienation does not destroy it because it only creates a life estate

2. A lease entered by a joint tenant expires upon the death of the tenant a. Joint tenancy must be expressly declared otherwise tenancy in common b. Severance of joint tenancy requires clear and unambiguous intent to terminate the estate X. Leaseholds a. Categories of Tenancy i. Leaseholds: Property Interest 1. Landlord: Transfers property to tenant in exchange for periodic payments 2. Tenant transfers property back to landlord 3. Courts look at leases as property (Equity) 4. Commercial bases governed by traditional property law ii. Term of Years: Advance agreement that tenancy is going to run for a specified period 1. Future interest of landlord is reversion (when tenant gives land back to him) 2. If it reverts back to a third party, then remainder iii. Periodic Tenancy: Renew automatically at specific periods unless either the landlord of the tenants chooses to the end the relationship iv. Tenancy at Will: Either party has the right to terminate without notice v. Tenancy at Sufferance: Tenant who was rightfully in possession but wrongfully stayed after lease was over b. Regulation i. Regulation: Statute of Frauds 1. Interest be in Writing 2. Leases in writing to be enforceable 3. Terminate: give notice, court proceedings 4. Statutes generally by state ensure that landlord provides basic provisions ii. What Process is the Tenant Entitled To? 1. Depends on the what status the person has 2. If the person is a tenant, they are entitled to eviction hearings 3. Trespasser: Not much process required c. Tenants Good Faith Duty to Operate i. The College Block v. Atlantic 1. A covenant of continued operations will be IMPLIED into commercial leases containing a guaranteed minimum rent plus percentage if the covenant is contemplated by the parties and the guaranteed min is not substantial or adequate 2. Do not have to take possession of land unless there is an express provision that you have to stay and actually operate a business that you said you would 3. Landlord should have protected himself by putting in a provision

4. EXCEPTION: Implied Covenant: If rent is percentage lease, than courts look at it if the base rent is adequate 5. In order for each party to get what they bargained for, the court has to imply a covenant of good faith 6. Court says always first look to the intent of the parties 7. Then can look to industry standards d. Tenants Right to Assign or Sublet i. Assignment of Premises: Tenant assigns her entire remaining interes to a third person ii. Sublease: Something less than the remaining interest eg. One week iii. Main Distinction: in assignment, landlord can go after original lessee or can go after the new lessee 1. Sublease, landlord can only go after the original lessee iv. **Sublessor can sue sublessee v. Four Ways to Transfer Lease: 1. If your lease expresely allows transfer of interests to a sublease, landlord has no say 2. If your lease is silent 3. If your lease allows subletting, but with landlords permission a. Does lease require landlord to be reasonable? b. Is the lease silent to landlords discretion? c. Does the lease include that the lessor has sole discretion? 4. If your lease prohibits transfer in any context vi. Transferring Commercial leases: Traditional rule allows the sole discretion standard in residential standard vii. Kendall v. Earnest 1. Where a lease provides for assignment only with the prior consent of the lessor, such consent maybe withheld only where the lessor has a commercially reasonable objection to the assignment 2. 4 Standards you look at: a. Financial responsibility of the proposed assignee b. Suitability of the use for the particular property c. Legality of the proposed use d. Need for alteration of the premises e. Nature of Occupancy 3. Law favors alienability of property 4. Cannot unreasonably withhold alienation 5. Lessor can object but only on reasonable grounds 6. If people are this concerned, then they should include express provision in there contracts viii. Slavin v. Rent Control Board 1. A lease provision requiring the landlords consent to an assignment or sublease permits the landlord to refuse arbitrarily or unreasonably 2. The rent control board said that landlord had acted unreasonably

3. GOAL IS TO PROMOTE ALIENABILITY ix. Residential Leases: The lease may be assignable, but landlord does not have to consent e. Landlords Duty to Mitigate Damages i. Landlords Duty to Mitigate Damages 1. Most states require landlord to mitigate damages and find a new tenant to fill the vacant apartment 2. Even if landlord mitigates, he can still recover from the abandoning tenant 3. The landlord would be able to get the difference between the rent that the abandoning tenant paid and the rent the new tenant is paying ii. Rental Control: Tenant can raise rent anytime tenant moves out BUT if in rent control, they are limited to what they can do iii. Sommer v. Kindel 1. A landlord has an obligation to make a reasonable effort to mitigate damages when lessee surrenders meaning that he must make reasonable efforts to re-lease the premises 2. The MODERN rule is that landlord has to mitigate damages (implied warranty of habitability) 3. Leases are now seen as contractual 4. Although you dont have to rent the vacant unit before all other units, landlord has a duty to include the now empty unit as part of his stock f. Convenant of Quiet Enjoyment and Constructive Evicition i. Constructive Eviction: Offers the tenant an alternative remedy rather than a breach of contract case 1. Tenant can remain in possession of the unit, without paying rent 2. If a landlord engages in wrongful conduct that substantially interferes with your beneficial use and enjoyment of premises, it equals constructive eviction! (Because that means you are not able to properly use all parts of the premises) 3. Vacate premises, terminate lease and dont have to pay for the rent 4. Majority of states say that tenant who remains in premises and cant only use one part of the premises, cannot use constructive eviction (minority of states allow this ex. NY) ii. Blackett v. Olanoff 1. Where a landlord permits conduct of third persons that substantially impairs the right of quiet enjoyment of other tenants, it is constructive eviction 2. Breach flowed from NATURAL and PROBABLE CONSEQUENCES of landlords actions 3. Usually INTENT to DEPRIVE tenants is not required LOOK AT CONDUCT OF LANDLORD 4. In this case LL permitted activity that he had control over to continue

iii. Minjak v. Randolph 1. A tenant may assert the defense of constructive eviction for the nonpayment of rent even if he or she has abandoned only a portion of the demised premises due to the landlords acts 2. Landlords acts, SUBSTANTIALLY and MATERIALLY deprived the tenants of use and enjoyment of the loft 3. Landlords acts were INTENTIONAL and MALICIOUS 4. Have to look at the level of moral culpability g. Warranty of Habitability i. Warranty of Implied Habitability 1. Implied covenant of quiet enjoyment 2. Trend is to charge landlord with third parties actions when landlord has right to control third parties actions 3. Assigns burden or reparing residential premises on LL, regardless of if its written in the lease 4. If LL breaches, tenant has lots of options one being staying on premises and not paying rent ii. How WIH came about 1. Tenants are not renting land, but the house on the property 2. Tenants want an entire package that has heat and everything 3. Tenant does not have the skill to fix things themselves 4. More equity for tenants 5. Treating residential lease as contract iii. Javins v. First National Realty Corp. 1. Leasers of urban dwelling units contain and implied warranty of habitability, and breach of this warranty gives rise to the usual remedies for breach of contract 2. Tenant expects that apartment will be fit for habitation 3. Tenants payments depends on LL performance of his obligations 4. When LL signs lease, he ahs to maintain the property because the tenants are going to be paying the same rent throughout the lease, so only fair 5. Cannot be a small or minor violation h. Retalitory Eviction i. Retaliatory Eviction: Holds that a landlord is not free to evict tenant for retalication for complaints relating to property 1. Tenants have a right to safe housing 2. Modern law restraints landlords right to terminate 3. In most jurisdictions landlord does not need to give good cause 4. Evictions that are taken for improper reasons are not held up 5. Cannot evict for discriminatory reasons 6. Landlord cannot evict if tenant complains about premises ii. Hillview Association v. Bloonquist 1. Once a tenant uses relaitory eviction, landlord has to prove that it wasnt retaliatory

2. Tenants ma organize and join tenant assocations and may participate in activities designed to legitametly coerce a landlord unto taking action to improve living condisions without fear of retaliation but engaging in physical threats or violence is not a legitimate method of coercion 3. Landlord has the right to evict, but he needs a good reason 4. Need to look a landlords actions, and loot at if landlord had any good reasons iii. Poyck v. Bryant 1. Under warranty of habitability, landlord has obligation to maintain apartment to keep it safe 2. Need to maintain apartment for residential occupation 3. Landlord could have done something to prevent the smoke from coming into the apartment i. Remedies Available i. Tenant does not have to move out ii. Tenant has option of termination iii. Under Uniform Tenant Act: 1. Tenant has to give landlord notice 2. Tenant can sue in court and get specific performance 3. Landlord can reduce rent 4. Rent withholding- tenant iw willing to pay rent but not until the problem has been fixed (better to show that you were putting money aside to pay the landlord) a. Can sue for damamges b. Repair the problem yourself and then de-duct from the rent 5. Housing board remedies- call the authorities iv. Imperial Colleny v. Fout 1. A residential tenant who is dues for possession may assert retaliatory eviction as a defense a. Retalitory eviction by landlords can seriously jeopardize the effectiveness of sanitary codes b. Render warranty of habitability meaningless c. Tenant should not be punished for claiming benefits afforded by health and safety statues or for requiring landlord to fulfill his duties to perform maintenance 2. A retaliatory eviction defense must relate to the tenants exercise of rights incidental to the tenancy ** v. Robinson v. Diamond Housing 1. Need substantial business reasons, not enough to say that you wanted to take the unit off the market 2. Court said that landlord has to prove that he was unable to make repairs regarding the tenants complaints 3. Unexplained eviction followed by a successful defense of landlords violation of the warranty to habitability, if creates a

XI.

presumption of retaliation, which can be overcome with substantial business reasons j. Landlords Tort Liability towards Tenants 1. Based on allegation that landlords acted unreasonably, or didnt invest enough money into the safety of the environment 2. Have to look at if the harm was foreseeable 3. DUTY: landlord has a duty to provide a safe environment a. Based on a negligent standard 4. Landlord has to take reasonable measures to prevent harm and has to reasonably respond to foreseeable threats Zoning: Government Land Use Planning a. Definition i. Controlling land use, designed to prevent nuisances also about controlling type of structures that can be built ii. Regulates future developments iii. Statutory method, governed by local authorities iv. Today More emphasizes on lot by lot zoning 1. We values zoning decisions that are unique to each particular case 2. Flexible zoning, is effective zoning b. Conditional Zoning i. A use that is authorized by zoning ordinance if specific conditions are met c. Contract Zoning i. When someone offers money in exchange to change the zoning of a particular area (ex. Residential to commercial) ii. Darand v. IDC Bellingham 1. Rule of Law: The voluntary offer of a public benefits not related to mitigation of the proposed development of property does not, standing along, invalidate a legislative act of a local town meeting 2. Court will only invalidate the law when it is arbitrary, capricious, or unrelated to public health, safety, or general welfare 3. There was no contract zoning in this case because town members were not obligated to approve rezoning of parcel 4. Court does not invalidate the legislative act because of GIFT 5. Look to see if rezoning violates state law or constitutional provisions 6. Conduct should be illegal of it puts towns power on sale d. Prior Non-Conforming Use i. Zoning will allow prior non-conforming use (a use that previously conformed but now does not conform after re-zoning) 1. Usually have a lot of limitations/conditions on the non-conforming use 2. Cant expand the non-conforming use, cant change the nonconforming use into a different non-conforming use ii. Town of Belleville v. Parrillos 1. Rule of Law: An exisiting non-conforming use may continue only where it is a continuance of substantially the same kind of use that

to which the premises were devoted when the ordinance was passed a. Cannot make substantial changes that change the entire character of the business e. Variances i. Definition 1. A release from the requirement of a overall zoning scheme due to hardship 2. To give property owners relief from harshness 3. Balancing interests Neighbors v. Property owners ii. Cochan v. Fairfax County Board of Zoning Appeals 1. Rule of Law: The board of zoning appeals has no authority to grant a variance unless the effect of ordinance interferes with all reasonable beneficial uses of the property 2. Undue hardship occurs when zoning interferes with all reasonably beneficial uses of the property a. Property loses value if variance is not granted f. Special Exception i. Usually an undue use, things that impact property ii. Legislative decision, while particular use may be allowed accord to the zoning, certain limitations are still required with that use 1. Have to show that your use met the special instructions iii. Special exceptions protects people and surrounding uses from your legal use iv. Special exception involves a use that is authorized, but variance is a use that deviates from the ordinance g. Equal Protection i. 14 Amendment right to due process of law 1. Most zoning ordinances will be upheld unless it effects a group unequally 2. Rational basis test and different treatment of two classes of people is going to be upheld if the ordinance meets a rational government interest ii. Village of Willowbrook v. Olech 1. Rule of Law: An equal protection may be made by a class of one in instances where the plaintiff has been intentionally treated differently from similarly situated individuals and where there is no rational basis for the disparity in treatment a. The purpose of the Equal Protections Clause is to secure every person within the states jurisdiction against arbitrary and intentional jurisdiction b. All plaintiff has to allege is that actions were intentional or arbitrary (no need to show ill will) h. Environmental Regulations i. CERCLA- imposes liability on people who formally owned or presently owned a building that produced hazardous substances

ii. Offer environmental protections agency to respond to imminent and substantial danger to the public from a facility or harm to the environment iii. Acme Laundry c. Secretary of Environmental Affairs 1. Rule of Law: Once state has incurred assessment costs related to the contaminated site, it may place a lien securing both the costs already incurred and those that will be incurred in monitoring and supervision 2. Placing lien provides powerful incentive to a responsible party to conclude cleanup process as quickly as possible 3. To secure costs that government has and will occur i. Exclusionary Zoning i. Zoning that doesnt allow high density, multi-family property ii. One justification is that it provides aesthetic values, property values stay up iii. Southern Burlington County c. Township of Mount Laurel 1. Rule of Law: Municipal land use regulation must provide a realistic opportunity for law and moderate income housing 2. The city must zone for the welfare of ALL people 3. State has constitutional obligations to both rich and poor and the housing must be in proportion to the percentage of lower income housing residents in the city 4. Selective Growth: Excluding lower income housing and people