Property Carlson Spring 2012.docx

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Property Law Outline

Possession1. How Possession is established

a. First in Time Principle (Pearson v. Post, Popov v. Hayashi, Ghen v. ich, !"# v. $P% b. &udicial precedentc. !ndustry custom' (Ghen v. ich%d. &ohn Loce)s Labor Theory' eward *or invested labor' (!"# v. $P, Law o* $ccession' +anure

case, mi o* materials v. labor%e. "otions o* *airness*. eliance' (-an -aulenbur v. Lut/, Local 100 v. 2# #teel, O)ee*e, 3octrine o* areed

boundaries%. Occupancy Theory' is this di**erent *rom the First in Time Principle4' they are the same thinh. 2tilitarian Theory' (#mith v. 5hanel, 5heney 6rothers, 7eeble v. Hicerinill, !"# v. $P%i. 5onstructive Possession 8. Personality Theory' developed by Holmes' person)s roots sin in as time oes on (5harlie)s

shac in -an -aulenbur%. 3iscovery Principle' (&ohson v. +)!ntosh%l. 5on9uest Principle' (&ohson v. +)!ntosh%

:. Popov v. Hayashi'a. Facts' Popov tried to et control o* the ball, but people 8umped on him and it *ell out o* his hand

and Hayashi piced it up b. ule' ;here an actor undertaes sini*icant but incomplete steps to achieve possession o* a

piece o* abandoned personal property and the *ailure to continue the e**ort is interrupted by theunlaw*ul acts o* others, the actor has a leally coni/able pre'possessory interest in the property.' "otions o* Fairness

c. 5onclusion' !* both parties have su**icient possession then they must split the value0. Pierson v. Post

a. Facts' Post was pursuin a Fo with his hounds on a beach when Pierson illed the *o and tooit away

b. ule' you cannot claim possession without woundin, damain, or trappin a wild animal'&udicial Precedent

c. 3issent' i* someone has made an e**ort to capture a wild animal, a *reeloader should not come inand steel the pursuers 8ust rewards' Labor Theory

d. 5onclusion' no riht to possession o* wild animals unless one does somethin to sini*icantly*acilitate capture o* the animal'

e. #ide "ote' #ometimes it)s better to create a clear cut rule that could easily be applied to mostcases'

<. #tandard v. ulea. $dvantaes o* rules

i. Less litiation

ii. +ore clear cut b. $dvantaes o* standards

i. ule may not comport with common understandinii. Fleibility=*airness' as the importance increases, you may want more *leibility

iii. The rule may not be able to anticipate all circumstances>. 7eeble v. Hicerinill

a. Facts' P setup a decoy pond to capture wild*owl. 3 intentionally tried to prevent P *romcapturin wild*owl by hanin out at the pond and unloadin his un in order to scare the birdsaway



b. ule 1' theory o* malicious inter*erence with trade (similar to Popov case%.

c. ule :' $buse o* riht' an owner abuses her property riht when she eercises that riht with thesub8ective intent o* harmin someone

d. 5onclusion' !* he had setup his own pond on his own property there would be no crime. 5ourttries to promote economic e**iciency and innovation to promote the social ood' utilitariantheory o* property

e. ;ays to reulate the dispute'

i. 5reate a /onin ordinance

ii. "eihbors could barain with one another

iii. Hicerinill could pursue a nuisance claim in torts

iv. "eihbors could contract with one another to limit their uses

?. Ghen v. ich'a. Facts' Ghen ills the whale, but @llis *inds it and decides to sell it to ich without report his

*indin (breain custom%. b. ule 1' opportunistic possession would hurt a particular industry and should be prohibited

(utilitarian theory%c. ule :' The custom o* the industry is that the person to *irst harpooned it or *astened a line to it,

possesses it (!ndustry 5ustom%A. @ternalities

a. ;hen a resource user enaes in particular behavior that creates particular costs or bene*its thatthe resource user is not tain into consideration

b. 7eeble was imposin an eternality on Hicerinill by buildin a pond that too away the ducs

*rom HicerinillBs pond.C. 5ustom

a. Good reasons to rely on custom includei. eliance= epectation

ii. 6usiness e**iciencyiii. 6ased on #ocial norms and relationships'iv. Out o* the realm o* 8urisprudence

b. 5ustom may not be a ood thin becausei. !t miht *avor the status 9uo= and the eistin business elite

ii. !t miht sti*le innovation=e**iciencyiii. 5ustom *avors maret players not consumers (doesnBt tae third party interests into

account%

D. $nimal Law as applied to "atural esources

a. Fuitive resources' Oil, water, and natural as are considered *uitive resources because theywander *rom place to place underneath the round

b. ule o* capture' the rule *or the etraction o* theses natural resources is essentially the same asthose used *or animals (the rule o* capture% because they are both able to move across boundaries.



c. Forced Poolin' *orces landowners to 8oin their neihbors in sinin an areement to lease theirland to as companies *or as etraction purposes

i. Forced poolin may be more economically e**icient and environmentally *riendly (lesswells%' this arument is supported by the utilitarian theory

ii. However, e**iciency isn)t everythin, other *actors to consider include how you valuewealth maimi/ation, as well as competin values lie privacy, dinity and property

rihts

iii. Forced poolin can sometimes occur with approval o* the owners o* :>E o* the land

1. Harold 3emset/

d. Three *orms o* ownership

i. 5ommunal

ii. Private

iii. #tate

e. He claims that i* a property is owned in common, then it is liely to result in more eternalitiesthan i* it is owned in private

*. Traedy o* the commons' with respect to commons property, society will act contrary to thecollective best interest o* the roup, even thouh the individual acts with their own sel*'interest

. Other ways to limit eternalities include

i. #mall cooperative roups

ii. Governmental manaement

iii. Pro rata sharin

$dverse Possession1. @lements o* $dverse possession

a. @ntry is re9uired because adverse possession depends on a statute o* limitations runnin aainsta cause o* action and entry creates a cause o* action

b. There must be actual use to put true owner on notice

i. Howard' ordinary and typical useii. Petis and @win' 1:1

c. @ntry must be su**iciently open and notorious that they would put reasonably attentive propertyowners on notice that someone is on their property

i. +anillo' actual nowlede o* minor encroachmentd. 2se must be eclusive, meanin it cannot be shared and it cannot be by someone else)s

permissione. @ntry must be continuous *or the statutory period, but not literally constant

i. Howard' tacin and summer occupancy



ii. This may matter with successive true owners i* the possession runs aainst someone whoonly owns a li*e estate. !* the true owner only owns the li*e estate, then there are oin to be compleities. $ li*e estate is a willed property that allows someone to live in an areauntil their death

*. @ntry must be adverse and under a claim o* riht, or, as it is sometimes epressed, hostile andunder a claim o* title

i. !n 5$, an added element o* adverse possession is the need to pay property taes *or astatutory period o* > years

ii. Lut/' ood *aithiii. +anillo' +aine 3octrien v. 5onneticut 3octrine

:. Prescriptive ihts v. $dverse Possessiona. 6y adverse possession one may ac9uire the title or ownership and the eclusive possession o*

land *ormerly belonin to someone else b. prescription ives rise to rihts o* use, such as rihts o* way and other easements but title to the

land remains with the oriinal owner 0. -an -aulenburh v. Lut/

a. Facts' Lut/ built a home and *armed a parcel o* land that was purchased by -an -aulenburh.-aulenburh and the part o* the land he built his arae on, he did so by accident

b. ule' without a ood *aith claim to the land, one cannot claim adverse possession

c. 5onclusion' Lut/ was success*ul in ettin an easement on the land, but was unsuccess*ul in hisadverse possession claim. Lut/) mistae was that he admitted durin the easement trial that theland beloned to -an

d. Possible solutions in the case

Lut/ ;in Lose

Property Lut/ ets land -- ets land

Liability Lut/ pay -- pay

<. Three standards *or adverse possession' the state o* mind is determined by looin at the adverse possessors actions

a. Ob8ective standard' !ntent is irrelevant b. Good'*aith standard' ! thouht ! owned itc. $ressive Trespass #tandard' ! new ! didn)t own it, but ! intended to mae it mine

i. $ressive trespassers are sometimes nown as s9uatters>. easons *or adverse possession

a. Punishin the sleepin property owner b. econi/e the adverse possessor)s reliance on the propertyc. eward the person that maes the best use o* the land

?. 5laim o* title v. 5olor o* titlea. 5laim o* title is simply one way o* epressin the re9uirement o* hostility or claim o* riht on

the part o* adverse possessor

b. 5olor o* title, on the other hand, re*ers to a claim *ounded on a written instrument or a 8udmentor decree that is *or some reason de*ective and invalid

c. #ometimes claim o* title alone won)t do and color o* title may be necessary to establish anadverse possession claim

d. ;hen you are claimin with a color o* title, and you improve a small plot o* the land, you et thewhole land. 6ut i* you have a claim to title, and you improve only a small part o* the plot, youonly et that small plot

A. 5onstructive possession' actual possession under color o* title o* only a part o* the land covered by thede*ective writin is constructive possession o* all that the writin describes

C. +anillo v. Gorsia. Facts' 3)s *ence encroaches on P)s land and P wants an in8unction to have 3 remove his *ence





e. Principle :' tacin is permitted i* successive occupants are in privity and privity is established i*the deed trans*errin the land was in the *orm o* a contract' the purpose o* privity is to rewardthe leitimate purchaser

*. T!57I PO!"T' i* the law does not re9uire a ood *aith claim o* riht, then it shouldn)t re9uirea ood *aith privity

. $naly/e *actorsi. There was no actual or constructive notice because the initial surveyor ot it wron and

the problem was visible

ii. 7untos improved the landiii. They were ood *aith possessorsiv. The Howard)s seemed deceptive in their action to sei/e the 7unto)s land

h. 3istinction' 6uchanan v. 5assell stated that land adversely sei/ed and included in a deed can betaced. Howard v. 7unto etends 6uchanan to mean that land, not described in a deed andadversely sei/ed, can be taced.

10. 3isabilities and the #tatute o* Limitations' !* a disability is in place at the time the statute o* limitations beins to run, the party with the disability will be iven an additional 1 years to claim the property

$c9uisition by eliance in the +aretplace1. O)7ee*e v. #nyder

a. Facts' P tries to recover a paintin that was stolen *rom her nearly > years ao and on which the

statute o* limitations has run b. $naly/e options' the court could have decided the case as dismissed because i* it arued that the

statute o* limitations accrues when the paintin was stolen

c. #cope o* holdin' discovery rule acts as a limitation to adverse possession o* stolen or lost property that is not real estate

d. Principle' 3iscovery ule' a cause o* action will not accrue until the in8ured party discovers, or by the eercise o* reasonable dilience and intellience should have discovered, *acts which*orm the basis o* a cause o* action' it does not apply to real estate

i. $pplies on a case by case basis because re9uirement *or due dilience may be reater asthe value o* the oods increase

e. $naly/e *actorsi. The adverse possession was not open and notorious, re9uirin the discovery rule to

remedy the problem*. @**ects

i. Places the burden on the oriinal owner to encourae owners to see out their propertyii. @ncouraes ood *aith purchases *rom leitimate art dealers

iii. 3iscouraes tra**icin o* stolen oods

. $lternative ule' Guenheim ule' removed the re9uirement *or due dilience on the trueowner and claimed that accrual bean when the true owner claimed the property

eliance !nterest in Property1. 2nited #teel ;orers v. 2# #teel 5orporation

a. Facts' the manaement promises the worers that i* the plant becomes pro*itable, it will not beclosed. The worers, in reliance on the promise, were able to have the plant mae a pro*it. Themanaement decided to close the plant anyway, and the worers tried to prevent the closure

b. elational "otion o* Property (#iner%' !nstead o* reconi/in that the company had an absoluteriht, the court should have reconi/ed the company)s relationship with the worers and their



correspondin riht as consistin o* a bundle o* rihts and privilees. @very riht has acomplimentary duty and every privilee has a complimentary no riht.

:. Juestions $nswered by the Pro*essor a. $ssume $ sells to 6 who sells to 5. 5an 5 tac the use o* $, i* $ and 6 were in privity and 6

and 5 were in privity4 Yes.

b. 5an you describe a scenario where an ob8ective standard *or a claim o* riht a**ects the privityre9uirement o* tacin4 This is all hypothetical but the requirement of privity is reallyabout ensuring that good faith possessors are transferring their interest via a deed.

Privity ensures that hostile trespassers can’t tack. But if you’re in a jurisdiction thatdoesn’t care about state of mind then you shouldn’t need privity to tack since thedoctrine of claim of right would be indierent as to whether you’re a good faithpossessor or a hostile trespasser.

c. 5an you adversely possess *rom the overnment4 #ay, *or eample, ! build a cabin in a state parand occupy it continuously *or the entire duration o* the statute o* limitations. !s it mine now4

You can’t! generally speaking. There’ s a little blurb at the end of the adversepossessor that describes attempts to adversely possess against the gov’t.

0. ;ho)s #hould be +ain the ules' Leislature v. &udiciary

"egislature #udiciary

$ore time %ommon law is a core judicial function

&esources 'ot beholden to interest groups

%ase facts don(t bind Promote non)majoritarian values

*+pertise,capacity to study %ase by case adjudication may be superior to broadstatute writing

-emocratic and moreaccountable

ction)forcing

/nterests represented may bebroader

$ore accessible

"egislature can overturn itself The legislature can always overturn a law

General Principles o* !ntellectual Property' $c9uisition by 5reation1. The main con*lict in these types o* cases is between the public interest in creativity and innovation and

the private interest in payment *rom wor product:. J2@#TI!O"' !* materials belonin to two di**erent roups are mied, who owns them4 i* the

materials are very valuable the owner o* the materials owns the miture, unless the labor substantiallyincreased its value, then the laborer owns the miture (paint and canvas and painter%

0. !"# v. $Pa. Facts' !"# is accused o* piratin $P)s news by copyin news *rom $P)s bulletin boards b. elational Theory o* Property'

i. Public' The news is common property and no one has a riht to property a*ter thein*ormation has been published or made public. There*ore, one can tae the news *rom anewspaper and spread the in*ormation ratuitously

ii. 5ompetitors' However, competitors have a duty to conduct their own business as not tounnecessarily or un*airly in8ure the other. !n which case, althouh there is no propertyinterest *or $P as between them and the public, the property interest between them andtheir competitors remain, because otherwise they would be un*airly in8ured

c. Holdin' The *orm and content are not copyrihtable as to the public, but the *or is copyrihtableas to competitors

d. $nalysis o* Factors'



i. Labor Theory' $P epended labor, money, and sill to attain the news and !"# is bene*ittin *rom that without havin to pay *or the cost o* it

1. 5ounter' $P miht be *orced to innovateii. Policy $rument' 6y strippin $P o* their pro*it, !"# threatens the entire news industry

(Ghen v. ich' whalin will cease as an industry%1. 5ounter' (opposite o* Hicerinill where the court *elt that competition would be

ood' can be distinuished%' may lead to cheaper price, di**erent type, better9uality *or consumers

<. 5heney 6rothers v. 3oris #il 5orp.a. Facts' P can)t patent desins because they chane every season, but he wants to prevent 3 *rom

imitatin the most popular desins b. Principle' Iou can eclude others *rom en8oyin what you made, but you can)t eclude others

*rom imitatin itc. !"# v. 5heney 6rothers'

i. 5ourt notes that 5heney 6rothers) desin probably wasn)t oriinal in the *irst placeii. ;hat)s at stae seems more trivial in this case

>. #mith v. 5hanela. Facts' advertiser was tellin consumers that their product was similar to a speci*ic type o* 5hanel

per*ume

b. 5onsumer !nterests' imitation can be compared to the oriinal to help the consumer mae thechoice between the cheaper imitation and the more epensive brand name

?. ;hite v. #amsuna. Facts' ;hite claims #amsun violated her publicity riht by creatin a robot in an advertisement

net to a wheel o* *ortune that appropriated her identity b. iht o* Publicity' a ind o* property interest, assinable durin li*e, descendible at death. The

property interest includes name, lieness, and other aspects o* oneBs identity. The riht o* publicity is rooted in the riht o* privacy

c.

+eans o*Protection

3uration 3eree o*Protection

&usti*ication "otes

Patents : years +ost' monopoly First in TimeKLabor Theory

"ature can)t be patented

5opyrihts Li*etime plus Ayears a*ter death

#econd +ost "eed to becreative' Feist

Trademars 2ntil abandonedor made eneric

Least Providesvaluable in*o toconsumers

5an drawcomparisons

e*lections on $c9uisition and Posession

1. +oore v. 25 eentsa. Facts' doctor used tissue samples *rom patient)s ecised cells to create a very pro*itable ene line b. 3e*inition o* Property' the essential element is dominion or the riht o* use, control, or

dispositionc. easons aainst +oore)s ownership

i. Labor theory' the doctor put in the e**ort to patent a cell line that is distinct *rom the cellstaen *rom +oore

ii. The doctor was relyin on patentin lymphoines, which are common to everyoneiii. 2tilitarian arument' Iou don)t want to sti*le research and innovation by *orcin

researchers to discover the pediree o* their research materials



iv. !nstitutional competence' Leislature should decide whether patients deserve a portion o*the pro*its *rom cell lines derived *rom their enes

d. easons *or +oore)s ownershipi. The spleen is really valuable and +oore provided the *undamental inredient

ii. Personality theory' the spleen was a part o* +ooreiii. Publicity=Privacy ihts' the spleen was uni9ue to +oore

:. iht o* trans*erability' re9uires the riht to eclude and the riht to include. Generally, courts are moresympathetic to in*rinements on the riht to eclude than on the riht to include.

0. &ac9ue v. #teenber Homesa. Facts' 3 delivered mobile home over P)s land and aainst P)s protestations b. Policy aruments

i. #ociety has an interest in protectin the rihts o* the landowner ii. #ociety has an interest in protectin people)s trust in the e**icacy o* the leal system

c. Holdin' 6ecause nominal damaes would not be enouh to deter this type o* behavior, punitivedamaes are appropriate

<. #tate v. #hac a. Facts' a health service provider and a lawyer entered P)s lands aainst P)s protestations b. Ho*eldian reasonin' the worers that the health service provider and the lawyer came to serve

had a !GHT to that service and the *arm owner has a correspondin 32TI not to prevent them

*rom accessin that rihtc. Principle' necessity may 8usti*y trespassd. #hac v. &ac9ue

i. The court in #hac chooses the riht to health and leal services over the riht to ecludeothers. The court in &ac9ue chooses the riht to eclude others over the desire *ore**iciency

ii. ;hen owners rant rihts o* access to others, they are not unconditionally *ree to revoethose rihts

iii. ;hen people create relations o* mutual dependence involvin 8oint e**orts, and therelationship ends, property rihts may be redistributed amon the parties to protect theleitimate interests o* more vulnerable persons

iv. Property rihts are distributed *rom owners to non'owners to protect interests, distributeresources, and *ul*ill needs o* vulnerable parties

The iht to 2se and Juiet @n8oyment ("uisance%1. +oran v. Hih Penn Oil

a. Facts' re*inery emits ases :'0 per wee that mae people sic. P sees in8unction aainst plant b. 2nintentional "uisance v. intentional nuisance

i. The di**erence between the two is intentionality. #tated di**erently, it is nowlede o* thee**ects o* a behavior, not the state o* mind when the acts are committed

ii. 2nintentional nuisance is rare, and usually only taes place when the harm occurs manyyears a*ter the *act (lead pain or asbestos cases%

iii. !* the nuisance is intentional, then it must also be unreasonable

iv. !* the nuisance is unintentional, then it must also be nelient or recless orultraha/ardous

v. $n act is intentional i* 1. $cts *or the purpose o* causin it:. 7nows that it is resultin *rom his conduct0. 7nows that it is substantially certain to result *rom his conduct

c. 3id the court in this case rely on a threshold test or a balancin test4d. 2nreasonableness in nuisance has two de*initions

i. 5ommon law' rather than weihin the costs and bene*its, the relevant in9uiry is thelevel o* inter*erence that results *rom the conduct''particularly, whether it crosses somethreshold point o* liability



ii. estatement' The ravity o* harm caused outweihs the utility o* the actorBs conduct andi* the utility is reater, then the compensation would not mae the continuation o* the business un*easible (utilitarian theory o* property%

1. Factors that determine the ravity o* a plainti**)s harma. @tent and character o* harm b. #ocial value o* usec. #uitability o* locality in 9uestiond. 6urden on the plainti** *or avoidin the harm

:. Factors that determine the social utility o* plainti**)s conducta. #ocial value (8obs% b. #uitability o* locationc. !mpracticability o* avoidin harm

i. !* the social utility o* a de*endants conduct outweihs the ravityo* the harm to the plainti**, the plainti** can still be compensatedunless payin damaes would *orce the de*endant out o* business

ii. The estatement only taes into consideration the plainti**Bs uni9ueharms, while it taes into consideration all the bene*its o* thede*endants behavior, includin to the community. The harms couldinclude harms to the environment, *or eample.

e. The 7os Theorem' Traditionally people thin o* nuisance as one party causin harm to another.However, nuisances are reciprocal in nature. $ is bein a nuisance to 6 by playin the drums, but6 is bein a nuisance to $ by bein present and restrainin his drum playin. $lso, with theabsence o* transaction costs, it doesnBt matter where you place the in8unction because the partieswill barain *or the outcome.

i. However, settlements with multiple parties include hiher transaction costs and the possibility o* a holdout

*. !ntentional trespass v. !ntentional Torti. Trespass is treated lie other intentional torts, while nuisance is sub8ect to in9uiries

reardin reasonableness and amount o* timeii. "uisance involves intanible thins, while trespass involves tanible thins

iii. "uisance can be *ound in spite*ul acts (e.. buildin a *ence or leavin arbaesomewhere near an opposin parties house%

iv. 5ourts care more about the riht to eclude:. $mphitheatres v. Portland +eadows' drive'in theater sued amusement pars *or briht lihts, court held

that nuisance law protects ordinary uses, not abnormally sensitive ones0. @stancias 3allas 5orp. v. #chult/

a. Facts' loud air conditionin prevented the house *rom bein used *or normal uses b. Holdin' court decides to rant an in8unction, despite the *act that the apartment buildin had so

many other residents and the cost o* preventin the harm was reat.c. 6i Picture' ;hen balancin interests, inter*erin with normal use plays a bi role

<. 6oomer v. $tlantic 5ement

a. Facts' cement plant is causin cracs in people)s homes and respiratory problems *rom all thedust

b. 5ourt)s optionsi. Grant in8unction, but postpone e**ect to ive time *or technoloical advancements

ii. Grant in8unction, conditioned on payment o* permanent damaesc. Taretin !ndividuals' it would be un*air to taret a particular cement company when the

pollution is industry wided. Problems with permanent damaes

i. +ay be payin *or damaes in the *uture that a party may not create'ii. 3i**icult to measure damaes



iii. !* a party receives damaes, they miht sell their property to someone else and *uture property owners may not sue

iv. +aybe periodic damaes are better, but they re9uire a lot o* transaction costs>. #pur !ndustries v. 3el ;eb 3evelopment

a. Facts' P can)t sell his homes because o* the odor and *lies caused by 3)s cattle *eeder b. 3i**erence between private and public nuisance

i. Private nuisance' one a**ectin a sinle individual or a de*inite small number o* personsin the en8oyment o* private rihts not common to the public

ii. Public nuisance' one a**ectin the rihts en8oyed by citi/ens as a part o* the public, hasnothin to do with land

iii. #ince the private nuisance is limited to a *ew people, the remedy is usually damaes,whereas the public nuisance a**ects a lare number o* people and deserves an in8unction

c. elie*' when land developers brin residents to an aricultural area, they should pay *or the costo* the relocation o* the aricultural activity because their actions are short'sihted and they are pro*itin *rom it

d. $lternative #cenario' i* a city naturally rows to border an aricultural land, a court *inds no*ault with the city or developers and rants an in8unction (The di**erence here is that the city didnot row naturally4%

e. 5omin to the nuisance de*ense' movin into a vicinity o* a nuisance does not completely bar a

suit *or damaes or in8unctive relie*, but it is a relevant *actor *. 5ircumstances that bear upon whether somethin is unreasonable (#ite 5ases *or these *actors%

i. ;hether there is inter*erence with public health, sa*ety, peace, com*ort, or convenienceii. ;hether the conduct is proscribed by statute or ordinance

iii. ;hether the conduct is o* a continuin nature or has produced a permanent or lon'lastin e**ect

. Four possible ways to resolve a nuisancei. $bate the activity in 9uestion by rantin the plainti** in8unctive relie* (+oran and

@stancias%ii. Let the activity continue i* the de*endant pays damaes (6oomer%

iii. Let the activity continue by denyin all relie*

iv. $bate the activity i* the plainti** pays damaes (#purs%h. iht to *arm de*ense' when residences encroach on *armin areas, they cannot sue *or nuisance

because there is a riht to *arm provision codi*ied in a local statutei. Problem with applyin nuisance to environmental law

i. "uisance litiation is epensive and compleii. Plainti**s may su**er a small part

iii. &udes are ill'e9uipped to deal with cases involvin scienti*ic epertiseiv. &udes lac the political competence to mae lare'scale decisions

8. Potential remediesi. 5lass actions suits

ii. Provisions o* attorneysB *ees to plainti**s brinin suit in the public interest

iii. #pecial environmental courts. $nswerin "uisance Juestions

i. Private or Public "uisance or trespass4 (is the intentional or unintentional analysis thesame *or both4%

1. !ntentionala. Threshold Test (6oomer, @stancias, +oran%

i. @ceeds threshold1. !* the ravity is reater than the utility, en8oin:. !* the utility is reater than the ravity, damaes

ii. 3oes not eceed threshold1. 5omin to the "uisance



:. iht to Farm0. $bnormally sensitive plainti**

b. estatementi. 5haracter and etent o* harm

ii. Opportunity to abateiii. #uitability o* use

1. Gravity reater than utilitya. @n8oin

:. 2tility reater than ravitya. !s the harm serious4 (6oomer%

:. 2nintentionala. "elience b. Gross neliencec. eclessness

l. The primary di**erence between the threshold test and the estatement Test is that under thethreshold test, i* the harm is not serious, the plainti** can still be compensated *or it

m. Thin about remediesi. 2n9uanti*iable harms willin to en8oin

ii. +ultiple parties unwillin to en8oin because parties may not settle

iii. +andatory in8unctions vs. prohibitory in8unctionsiv. !* you are thinin about main the plainti**s pay, thin about the practicality o* that

happeninTains

1. 7elo v. 5ity o* "ew Londona. Facts' state tries to eercise eminent domain to build new property and attract businesses b. Principles

i. 5anBt tae private land to ive as private property to another ii. 5anBt trans*er private land between private parties *or *uture public use

iii. 5anBt tae with the purpose o* bestowin a private bene*it on a partyc. Public 2se'

i. Open or usable by the public (narrow%ii. Promotes a public purpose (broad%

d. Holdin' in this case, economic development constitutes a public usee. 3e*erence' courts should de*er to the leislature on whether somethin constitutes a public use

and how much needs to be taen to promote that public use*. Precedent 5ases

i. 6erman v. Parer' trans*ormin a blihted area into a well'balanced community throuhredevelopment constituted a valid public use

ii. Hawaii Housin $uthority v. +idi**' redistribution o* land to prevent oliopolyconstituted a valid public use. !t doesnBt matter that it was trans*erred to privateindividuals.

. Factors to eercise eminent domaini. $ state statute allows *or the eminent domain

ii. $ plan that shows that there was a lot o* thouht put into ith. easons to de*er to the leislature

i. !t is a democratic decision'main processii. 5ity overnments may be more responsive

iii. Government)s can pass statutes preventin eminent domain i* they wanti. Three traditional types o* land trans*ers

i. Trans*ers o* private property to public ownership (as *or road%ii. Trans*ers to private parties such as common carriers who mae the property available *or

public use





a. Facts' the owners o* Penn 5entral want to build on top o* it, but the city wants to maintain it *orits historic sini*icance

b. Positive @ternalities' the maret does not tae into consideration all the positive eternalities o*Penn 5entral, lie the reat view o* the buildin *rom people)s apartments

c. General $nalysis *or 3eterminin a Taini. The economic impact o* the reulation on the claimant,

ii. The deree o* inter*erence with the distinct investment'baced epectations1. $ tain is less readily *ound when the investor had a su**icient amount o* time to

reali/e his investment'baced epectation:. @istin reulations may be *actored into the price o* an investment

iii. 5haracter o* the overnmental action1. $ tain is more readily *ound when there is a physical invasion:. $ tain is less readily *ound when the reulation promotes the common ood0. 5ourts are more de*erential with the riht to use than the riht to eclude

d. "o Tain becausei. eciprocity o* $dvantae' 6y becomin a landmar and bein sub8ect to preservation,

the owners o* Penn 5entral et more income *rom the tourists that come to visit itii. 3iminution in -alue' there has not been a 1E diminution in value because the air

rihts can be trans*erred, so it is still valuable

iii. 5onceptual #everance' need to loo at the buildin as a whole, not at 8ust the air rihts part

e. General ;el*are' $esthetic value can be considered part o* the eneral wel*areA. Lucas v. #outh 5arolina 5oastal 5ouncil

a. Facts' 5ouncil prevents Lucas *rom developin its plots because o* threat posed by hurricanes b. Functional 6asis' the overnment could hardly o on i* to some etent values incident to

property could not be diminished without payin *or every such chane in the eneral lawc. ule' i* a reulation denies an owner economically viable use o* his land, resultin in a 1E

diminution in value o* the property *or its intended purpose, then there is a tain, unless thereare ob8ectively reasonable and relevant precedent that would eclude those bene*icial uses in thecircumstances in which the land is presently *ound

d. $**ect on Precedent' This case 9uali*ies Hadachec because preventin a nuisance is no loneran automatic eercise o* police power

e. Total Tain !n9uiry (when do we use this in9uiry4%i. The deree o* harm to public lands and resources, or ad8acent private property, posed by

the claimant)s activityii. The social value o* the claimant)s activities and their suitability to the locality in 9uestion

iii. The relative ease with which the alleed harm can be avoided throuh measures taen bythe claimant and the overnment

*. Harm Preventin v. 6ene*it 6estowini. $ overnment reulation is more leitimate i* it is harm preventin, than i* it is bene*it

bestowin

ii. The newer the reulation, the more liely it will be *ound to be bene*it bestowiniii. Lucas arues that this law bestows a bene*it onto nearby homeowners

. 3issenti. "ew rule prevents leislatures *rom evolvin their de*initions o* nuisance

ii. 3evelopers will be encouraed to create smaller plots to reali/e 1E diminutionC. Pala//olo v. hode !sland

a. Facts' P)s lands were desinated as wetlands and he was prevented *rom developin them b. 2nanswered Juestions

i. ;hen a leislative enactment can be deemed a bacround principle o* state law orwhether those circumstances are present here

ii. 5ourt avoids the 9uestion o* what the value o* the parcel should be measured aainst



c. 3iminution in -alue' The property as a whole (valued at 0.: million% still has value because asmall portion o* it can still be developed (the small portion is valued at :%

d. Limitation on "otion o* 6acround Principles' the tains analysis is not limited to reulationsthat eisted be*ore the ac9uisition o* property. This rule would disallow claims by heirs orsuccessors and insulates overnment i* the reulation is not challened upon its enaction.

D. Tahoe'#ierra Preservation 5ouncil v. Tahoe eional Plannin $encya. Facts' buildin moratorium in Tahoe prevented landowners *rom developin their lots b. #everance' you cannot separate in time or space and must loo at the property as a whole

c. !nverse condemnation action' claimant, rather than the overnment, institutes a suit allein thata tain has occurred and seein recompense *or it

d. First @nlish ule' i* a overnment reulation results in a tain, then the overnment must pay 8ust compensation *rom the time the reulation *irst wored the tain until the time theovrnment rescinds the reulation or chanes it in such a way that no tain occurs (Tahoeleaves this rule untouched%

e. Possible Forms o* 5ompensation *or temporary tains' *air rental value, option price, intereston lost pro*its, be*ore and a*ter valuations and bene*it to the overnment

*. $ins v. 5ity o* Tiborn' the lanuae o* a substantially advancin leitimate state interest is noloner appropriate or relevant

1. "ollan v. 5ali*ornia 5oastal 5ommission

a. Facts' "ollans wanted to develop their beach*ront property, but the state re9uired an easement inechane *or the buildin permit

b. 5ontrast to Traditional Tains $nalysis' 5ityBs are issuin buildin permits and in the processare eactin somethin in return *or the permit that would normally be unconstitutional (why isthe analysis di**erent because there is an eistin structure4%

c. Permit' !* the city had created an easement without a permit, then there would have been a taind. Principle' easements constitute permanent physical occupations resultin in a taine. "eus Test' unless the permit condition serves the same overnmental purpose as the

development ban, the buildin restriction is not a valid reulation o* land use but Man out'and'out plan o* etortionM

*. 3isconnect' the commissionBs oal is visual access, but the condition re9uires lateral physical

access.. Pruneyard #hoppin 5enter v. obbins' not a tain because the store was able to restrict the

times the solicitors were able to come onto their propertyh. There would be no tain i* the "ollan)s were denied a buildin permit because there wouldn)t

be a 1E diminution in valuei. 6i developers donBt want to have a bi *iht with these types o* reulatory aencies because it

would be di**icult *or them to have *uture developments and deal with those parties11. 3olan v. 5ity o* Tiard

a. Facts' P)s buildin permit was made conditional upon his allottin the state some land *or *loodcontrol and tra**ic improvement

b. easons why this is a tain

i. 3iscriminatory' 3idnBt apply to the entire city, but conditioned on a speci*ic buildin permit

ii. Public v. Private' 3idnBt limit use, but *orced her to ive up landc. 5ourtBs neus standard' a rouh proportionality between the overnmentBs actions and their

stated ob8ectivesd. 6urden' when creatin conditional permits the burden is on the overnment to 8usti*y the

re9uired dedication. The burden shi*ts when the city has a /onin ordinance, where the burden ison the challenin party

e. The re9uired neus is lacin because thei. eason'5ity never stated why a public reenway is re9uired *or *lood control

ii. Proo*' 5ity didnBt demonstrate that their plan is liely to lead to their intended oal



iii. iht' !n addition, this inter*eres with PBs riht to eclude*. ;hat i* the city in 3olan ased *or impact *ees instead o* the land. 3oes that impact *ee

constitute a tain4 The 5$ #upreme 5ourt says yes it is sub8ect to the same rouh proportionality analysis

1:. N $ttac uidea. @minent domain

i. !s it *or public use (7elo%1. 3e*inition o* public use should be de*erential toward the leislature

:. @conomic development is a public use because it is *or a public purpose0. ;hat i* it is private to private 8ust to 8usti*y more ta revenue' open 9uestion<. 5an also have leislation that limits the power o* municipalities to eercise their

power o* eminent domainii. ;as the compensation 8ust (we donBt really spend a lot o* time on this' usually based on

*air maret value plus epenses% b. eulatory tains

i. Permanent Physical Occupation (Loretto%' public interest doesn)t matter.ii. 1E diminution in value' (Lucas%

1. !* there is 1E diminution in value then there is no reciprocity o* advantae:. @ceptions'

a. Hadachec' i* you were eercisin police power to prevent a harm then notain' Lucas undermines this because any overnment reulation can becouched in terms o* preventin harm

b. "uisance= Limitation on title' Pala/ollo' what happens when a propertyowner buys a property with the challened reulation already in place'maes clear that it is still possible to brin a tains challene *or postadoption purchases

c. 6acround principles mae the use unlaw*ul (Lucas%iii. 5onceptual severance' you can sever when the bacround property laws create distinct

property interests1. Penn 5oal' leislatively created severed property

:. Tahoe' canBt temporally sever *or the most part (limited to moratorium%0. Tahoe= Penn 5entral' loo at the parcel as a whole

iv. Penn 5entral)s Tains $nalysis1. @conomic impact is important, especially the deree to which it inter*eres with

investment baced epectationsa. The court has sustained very lare devaluations in economic value

(Hadachec, Penn 5entral, @uclid%:. 5haracter o* the overnment action

a. !* it is an inter*erence with the riht to use, it is tolerated, but i* itinter*eres with the riht to eclude, then there is a problem

b. $lso, courts donBt lie parties bein sinled out

c. @actions' buildin permit with individuali/ed ad8udication is conditioned on deedin land *oran easement or a *ee simple

i. !s there an essential neus between the eaction and the impact o* the development' "olan

ii. !s the eaction rouhly proportional to the harm that the overnment is tryin to o**set'3olan

iii. !mpact *ees are an open 9uestioniv. !* it is a straiht*orward eactions test, then no need to analy/e under "olan and 3olan

1. !* there is an eception o* bacround principles under Lucas, then there is noneed *or the Penn 5entral analysis. !* it is the case that you can have a 1Ediminution in value, then you can have a diminution in value less than CE. Only



stop the arument there i* you have a slam dun arument under one o* theeceptions, otherwise continue on to the Penn 5entral analysis

@states1. !mportant vocabulary includes

a. @state' an interest in land which is or may become possessory and is measured by some period o*time

b. Testator (testatri%' the leal term desinatin to whom the will belonsc. 6e9ueathin' leavin personal property by will

d. 3evisin' leavin real property by wille. Trans*errin' ivin property durin one)s li*etime*. 3evisee' recipient o* real property. 6ene*iciary=Leatee' recipient o* personal propertyh. Heir="et to 7in' a person who inherits under statute a*ter a person dies. "o livin person has

heirs, only heir apparenti. !ssue' descendants includin children and rand'children 8. @scheat' to return to the state. $ncestors' parentsl. 5ollaterals' aunts, uncles, cousins, nephews, nieces, siblins

:. ;ill #ubstitutes

a. Trusti. Trust' separates the burden o* property manaement *rom the bene*it o* ownership.

$voids probateii. #ettler' person who establishes a trust

iii. Trustee' person who manaes a trust b. Li*e !nsurancec. Pension 6ene*iciaryd. &oint $ccounts

0. @state system concerns dividin property interests over time. "@@3 TO !3@"T!FI TH@ !"T@@#T$"3 @#T$T@ TOG@TH@

a. Fee simple absolute or *ee simple' as close to unlimited ownership as the law reconi/es. !t is the

larest estate in terms o* duration and it may endure *orever b. 6oth *uture and possessory interests are leal interestsc. 3octrine o* ;aste' desined to prevent the present possessor *rom wastin the value o* the

property so as to protect the *uture interest. However, the reater the present possessor)s interestin terms o* duration, the reater the *reedom o* usin the property.

i. $**irmative waste' arisin *rom voluntary acts that cause in8ury by substantially reducinthe value o* the property

ii. Permissive waste' arisin *rom a *ailure to act due to nelienced. "umerus 5lausus' re9uires that owners create only leally reconi/ed property interests, which

have a standardi/ed *orm. The e**ect is the restriction o* *reedom o* ownershipe. ule o* Perpetuities' "o interest is ood unless it must vest, i* at all, no later than :1 years a*ter

the death o* some li*e in bein at the creation o* the interest (duration o* someoneBs li*e plus :1years%. $pplies to continent remainders, eecutory interests, and vested remainders sub8ect toopen, not to reversions, possibilities o* reverter, rihts o* entry

*. Li*e estates' *ee simple *or the duration o* the devisee)s li*e, then reverts bac to devisor . eversion' the interest le*t in an owner when he carves out o* his estate a lesser estate and does

not provide who is to tae the property when the lesser estate epires' is inheritable andtrans*errable

h. 3e*easible @state' it can terminate, prior to its natural endpoint, upon some occurrence. 3esinedto control land and behavior by promotin *or*eiture i* a condition is violated

i. Fee simple determinable1. esults in automatic termination o* the interest upon a condition



:. e9uires durational lanuae0. Possibility o* reverter' can be trans*erred to heirs

ii. Fee simple sub8ect to condition subse9uent1. 3oes not result in automatic termination, but re9uires the devisor to tae action:. e9uires conditional lanuae0. Trans*eror)s iht o* entry<. 3e*ense to riht o* entry includes laches

iii. Fee simple sub8ect to eecutory limitation

1. $ *ee simple determinable or *ee simple sub8ect to condition subse9uent with a*uture interest in a third party (can you have a riht o* entry in a third party4%

:. @ecutory interest' any *uture interest in a rantee that is not a remainder is aneecutory interest. !* it cannot become a present interest at the natural end o* all prior interests simultaneously created, then it)s a *uture interest in a third partythat must cut o** or cut short someone elseBs interest in the land.

i. Two types o* *uture interests in a third partyi. emainder' interest created in someone other than the rantor that is capable o* becomin

possessory at the natural termination o* a prior possessory estate that is created in thesame conveyance. !t is primarily the interest that directly *ollows the li*e estate becausethe li*e estate naturally epires. There are two types o* remainders, continent and vested.

;ithin vested remainders there are three inds1. absolutely vested remainder (not sub8ect to chane and the person desinated will

et it or his heirs will%,:. vested remainders sub8ect to open (come out o* class i*ts' lie i* it is willed to

children or randchildren' and the class can theoretically add more members%,' i*you see a i*t with M$ *or li*e and to $Bs childrenM and $ has no children, it is acontinent remainder, but when $ does have children, it becomes a vestedremainder sub8ect to open,

0. vested remainder sub8ect to divestment or vested remainder sub8ect to limitation'these are *ollowed by eecutory interests

ii. 5ontinent remainders occur either

1. on the happenin o* an event that is not certain to happen:. !* remainder oes to a person who cannot be ascertained at the initial time o*

conveyancea. !* you see a continent remainder, it will be *ollowed by an alternative

continent remainder i* it is iven to a third party<. !nterests retained by the trans*eror

a. everter b. iht o* entryc. Possibility o* reverter

>. !nterests created in a trans*ereea. -ested remainder

b. 5ontinent remainder c. @ecutory interest

?. !* the *irst *uture interest created is a continent remainder in *ee simple, the second *uture interest in atrans*eree will also be a continent remainder. !* the *irst *uture interest created is avested remainder in*ee simple, the second *uture interest in a trans*eree will be divestin eecutory interest

A. Line o* #uccessiona. "o issue and spouse' spouse ets everythin b. One issue and one spouse' both et hal* c. Two or more issue and one spouse' spouse ets one third and the remainder is split amon the

childrend. !* no issue or spouse, then ancestors et it



e. !* no issue, no spouse, and no ancestors, then the collaterals et it*. !* there is no heir, then the property escheats

C. 5oncurrent !nterests (as opposed to consecutive interests%a. Tenancy in common' separate but undivided interest, donBt need to own e9ual shares, but they

still have the riht to possession o* the whole. Tenancy in common can be conveyed at di**erenttimes and by rant or will. 3oes not carry with it a riht o* survivorship. 5an be reached bycreditors be*ore and a*ter tenants death

b. &oint tenancy' re9uires *our unities time, title, interest, and possession. 5anBt eclude or e8ect the

co'owner. !t carries with it a riht o* survivorship. ;hen 8oint tenant dies, his share is divided tothe remainder in e9ual shares. &oint tenancy is not inheritable. $ creditor cannot sei/e the interesto* the 8oint tenancy a*ter the initial personBs death.

c. Tenancy by the entirety' can only be created to husband and wi*e and coupleBs who are leallyallowed to marry. !n a tenancy by the entirety, both parties need to convey. ;ill be destroyed bydivorce. !t has all the same re9uirements o* time, title, interest, and possession as 8oint tenancy.(5$ doesnBt reconi/e this, because it has community property%

d. 5ommunity Property' Option is only available to married couples. #pouses own the property>=> and the approval o* both is re9uired to convey or trans*er property. There is no riht o*survivorship and a party)s respective share o* the property can be conveyed in a will. $ taadvantae includes receivin a stepped'up ta basis *or income ta purposes when the property is

sold.D. iddle v. Harmon

a. Facts' ;i*e tried to destroy 8oint tenancy by conveyin property to hersel* b. Holdin' in order to avoid usin a straw man, a party will be allowed to destroy a 8oint tenancy

by conveyin property to themselvesc. $ person can also purchase property and convey it simultaneously to himsel* and another to

create a 8oint tenancy1. 3el*ino v. -ealencis

a. Facts' -ealencis wouldn)t sell her land to the 3el*ino)s who souht to have it partitioned by sale b. Two *orms o* partition

i. Partition by sale (typically throuh an auction%' *re9uently include one o* the co'tenants

ii. Partition in ind or physical partitionc. : elements that must be present to partition a land by sale

i. $re the physical attributes o* the land such that a partition in ind is impracticable orine9uitable

1. ;hen there are a lot o* parties, then the court chooses sale over physical partition:. !* the land is awwardly shaped or disproportionate in some way, the court may

choose physical partitionii. ;ould the interests o* the owners be promoted better by a sale

d. Owelty' compensation a*ter a partition desined to mae appropriate ad8ustments. easons torant owelty include

i. Partition in ind results in one cotenant ettin a more valuable part than the other

ii. Partition by sale yields a hiher price than it otherwise would because one o* thecotenants made certain valuable improvements

e. Precedent 5asesi. $r Land 5o. v. Harper' Lonstandin ownership and emotional ties trumps decrease in

economic value o* the propertyii. &ohnson v. Hendricson' the land would be more pro*itable id sold collectively rather

than individually so sale by auction is warranted11. emedies available to cotenants

a. Partition b. Ouster' re9uires a physical act that prevents a cotenant *rom enterin



i. a cotenant cannot adversely possess aainst another cotenant without that adverse possessor ivin clear and une9uivocal notice o* their intent to possess

c. $ccountin' determines who has spent what and what they should be credited *or d. Oweltye. 5ontribution' re9uirin the other party to pay their share o* taes or repairs

i. !* one party is livin on the land and the other isn)t, the one livin on the land can)trecover contribution to the etent that it would be covered by *air maret rent

ii. !mprovements are discretionary cannot be souht as contributions. The improver bears

the bene*it and the burden o* the improvement by himsel* 1:. $ttac Guide *or concurrent interests

a. ;hat type o* tenancy is this b. ;hat type o* responsibilities and rihts come with this tenancyc. ;hat types o* tenancies are available i* it *alls apart

10. Property in +arriae and 3ivorcea. !n re +arriae o* Graham' a deree is not considered community property because

i. !t has no value on the open maretii. !t is not inheritable

iii. !t is the outcome o* years o* education and hard wor iv. 5an)t be conveyed, assined, or pleded

b. +ahoney v. +ahoney' a worin spouse could receive reimbursement alimonyc. $nti'nuptial areements tend to be upheld i* the low'earnin spouse was in*ormed.d. 5an)t contract away your rihts to child supporte. 1 years is re9uired *or a partner to collect alimony*. +iratin couples' once the property has been initially characteri/ed, the ownership does not

chane when the parties chane their domicile unless both parties consent to the chane inownership

1<. Three ways the character o* the property can be determineda. !nception o* riht' the character o* the property is determined at the sinin o* the contract b. Time o* -estin' title does not pass to a party until all the installments are paid, and hence

remains community property

c. Pro rata sharin' the community payments purchase a pro rata share o* the title1>. +iratin couples

a. ;hether property is characteri/ed in accord with the community property system or in accordwith the common law property system depends upon the domicile o* the spouses when the property is ac9uired.

b. Once the property has been initially characteri/ed, the ownership does not chane when the parties chane their domicile unless both parties consent to the chane in ownership

1?. -arnum' advantaes in marriae that same'se couples may be deprived o* a. Power o* attorney b. !ntestacy statutes and an elective share opportunityc. Tenancy by the entirety or community property

d. !mmiration issuese. Pre*erential ta treatment*. Pensions, bene*it prorams, social security

1A. How do *orced share provisions wor and what assets do they re9uire44Leasehold @states

1. Three type o* leaseholdsa. Term o* years

i. e9uires speci*ic startin and endin datesii. 3oesn)t re9uire notice o* termination

iii. e9uires a new document to be renewediv. "either party may terminate without the other party)s consent



b. Period tenancyi. $ lease *or a period o* some *ied duration that continues *or succeedin periods until

either the landlord or tenant ives notice o* terminationii. 5ommon Law hal* a yearBs notice is re9uired to terminate a periodic tenancy. Iear lease

usually re9uires si months notice, but in most 8urisdictions one month is enouhiii. For any periodic tenancy less than a year, notice o* termination must be iven e9ual to the

lenth o* the period, but not to eceed si monthsc. Tenancy at will

i. $ tenancy at will is a tenancy o* no *ied period that endures so lon as both landlord andtenant desire

ii. $ unilateral power to terminate a lease can be enra*ted on a term o* years or a periodictenancy

iii. Generally dis*avored because it causes a lot o* hardship on the person that wants to retainthe tenancy

iv. 3eath o* the landlord terminates the lease:. Factors that determine the type o* lease

a. !ntent o* the parties b. 3oes the tenant have an eclusive riht to possessionc. How much control does the tenant have over the premises

d. $re there speci*ic dates sete. !s the nature o* the lease commercial or residential' we protect residential leases more*. ;hat di**erence would it mae' a lease creates the landlord'tenant responsibilities

0. 3i**erence between a sub'let and an assinmenta. $n assinment is an assinment o* the *ull interest le*t b. #ub'let is *or anythin less than the *ull interest

i. 5ourts now allow suits *or third party bene*iciaries. Landlord can sue sub'tenantii. #tatute o* Frauds' all leases over a year have to be in writin

<. 7endall v. Pestanaa. Facts' Pestana did not want to accept the new sub'tenant without more onerous terms per his

ability to veto a sub'tenant accordin to the contract with the main tenant

b. ule' the 3iscretionary power o* the lessor to terminate the contract should be eercised inaccordance with commercially reasonable standards. Factors to consider include

i. Financial responsibility o* the proposed assineeii. #uitability o* the sue *or the particular property

iii. Leality o* the proposed useiv. "eed *or alterations o* the premisesv. The nature o* the occupancy

c. 5ounter ule' *actors that donBt 9uali*y as valid commercial considerations includei. personal taste

ii. convenienceiii. sensibilities

iv. hiher rent which was never part o* the oriinal baraind. Holdin' the landlord did not have the riht to eercise his discretionary power to eact more

moneye. "ote' The 5$ leislature passed a law statin that i* you are eplicit about the discretionary

clause, then you can re*use to consent *or any reason*. Factors that *avored Pestana

i. eliance interest on current lawii. The contract provision

iii. #ub8ectivity about who you want to do business with>. #ommer v. 7ridel



a. Facts' uy wasn)t able to pay the lease and ased to be released, but the landlord re*used andsued him *or two years o* rent

b. P)s claim' P has an unlimited supply o* available apartments and the landlord could potentiallymae twice the pro*it by preventin 3 *rom escapin the lease and leasin to another customer'court claims this reasonin is *lawed because every apartment is uni9ue

c. 3uty o* landlord to mitiate damaesi. 6urden o* Proo*' the landlord has the burden o* provin reasonable dilience in

mitiatin damaes because he is in a better position to do so

ii. Factors that help prove the mitiation o* damaes1. O**ered or showed the apartment to any prospective tenants:. $dvertised it in local newspapers

a. The tenant may attempt to rebut such evidence by showin that he pro**ered suitable tenants who were re8ected

iii. +itiation miht result in a hiher rent *or the landlord or the ability to sue the eistintenant *or the di**erence in rent

iv. +ost 8urisdictions do not accept the releasin o* the apartment as a surrender o* the premises

d. Holdin' the landlord does have a duty to mitiate based on contract principles when the tenantwron*ully vacates

?. este ealty 5orp. v. 5ooper a. Facts' 3)s o**ice ept ettin *looded so he vacated be*ore the lease was up and P sued b. 5onstructive eviction

i. ;as there a positive act4ii. ;as there a provision in the lease that wasn)t met4

iii. ;ere latent de*ects disclosed at the beinnin o* the lease4iv. 3id the landlord promise to repair somethin4v. ;ere the common areas not bein maintained4

vi. !s the landlord abatin a nuisance on the propertyvii. "ew &ersey #tandard' did the landlord omit to do somethin he should have4

c. The implied contractual covenant o* 9uiet en8oyment o* land is a statutory creation that is not

present in common law. ;ithout an implied or epress covenant o* 9uiet en8oyment, can a tenantclaim an omission by the landlord4

d. Precedent *or constructive evictioni. Hiins v. ;hitin' *ailure to supply heat as covenanted in the lease so that the apartment

was unlivable on cold daysii. $nderson v. ;aler ealty' cloed drains that cause o**ensive odors and daner to

healthiii. ;hite v. Hannon' landlord nowinly permits another part o* the property to be used *or

lewd purposese. !lleal Lease 3octrine' i* you moved into an apartment and there were housin code violations at

the time you entered into the lease, you could pay the landlord less in rent

A. Hilder v. #t. Peter a. Facts' 3 withheld > because her place was a slum, even thouh she didn)t move out b. ;arranty o* habitability' (ets raised when someone is evicted *or non'payment o* rent%' in the

rental o* any residential dwellin unit an implied warranty eists in the lease that the landlordwill deliver over and maintain, throuhout the period o* the tenancy, premises that are sa*e, cleanand *it *or human habitation

i. 5annot be waived (althouh in some circumstances it may be waived i* barainin poweris e9ual%

ii. $pplies to oral and written contractsiii. !t covers latent de*ects and patent de*ects, but not de*ects caused by the tenantiv. Property does not need to be abandoned, unlie constructive eviction



v. @ception' 3oesn)t apply to sinle *amily residences, lon'term leases, commercialleases, and casual leases by non'commercial landlords

vi. Landlord must be noti*ied o* the de*ect and iven reasonable time *or repair c. 3eterminin whether the warranty o* habitability has been breached

i. 3oes the de*ect violate a buildin or housin code4ii. 3oes the de*ect impact the health or sa*ety o* the tenant4

iii. Has the landlord been noti*ied4iv. +inor violations o* buildin codes are not a breach

d. Possible emedies available to the tenanti. #ee damaes *or paid rent'

ii. Pay the di**erence between the value o* the dwellin as warranted and the value o* thedwellin as it eists in its de*ective condition

iii. ;ithhold rent' shi*tin the burden o* suit on the landlordiv. #ee punitive damaes when the landlord, a*ter receivin notice o* a de*ect, *ails to repair

the *acility that is essential to the health and sa*ety o* his or her tenantv. escission o* the lease

vi. e*ormation' rewrite the contract with a lower rentvii. #peci*ic per*ormance' sue to *i problem

viii. $ schedule *or housin violations

i. elocation costse. < doctrines

i. !mplied warranty o* habitabilityii. 5onstructive eviction

iii. Juiet en8oymentiv. !lleal leases

*. Juestions on pae >:C. Fair Housin $ct

a. @cluded Groups' reliious orani/ations, private clubs, and sinle'*amily housini. However, it will apply i* these orani/ations are rentin more than three homes or are

usin a pro*essional real estate aent' 3oes this eception apply to both reliious

orani/ations and private clubs4 b. FH$ bars discrimination based on race, ender, color, reliion, handicap, and *amilial statusc. 3on)t need to show intent to discriminate, a discriminatory impact is enouhd. Prevents discrimination in rentin, sellin, advertisin, and *inancine. The 1C?? 5ivil ihts $ct di**er *rom the Fair Housin $ct in that it

i. Only pertains to racial discriminationii. 3oes not deal with discrimination in services, *acilities, and advertisin

iii. 3oesnBt re9uire discriminatory purpose or the shi*tin o* the burden o* proo* D. #an Fernando -alley v. oommate.com

a. Facts' website allows people to *ind roommates based on seual orientation, ender, and *amilystatus

b. easons FH$)s prohibition on discriminatory advertisin doesn)t cover roommatesi. History' 5onress meant to ive protected classes housin opportunities, not to et

involved in the personal arranements between two peopleii. Loical' i* 5onress would allow eceptions *or sinle'*amily housin, it would allow

eceptions *or roommatesiii. #tatutory 5onstruction' when in doubt, avoid construin a statute that would create a

con*lict with the constitution. !n this case, it miht create a con*lict with the 1 st $mend.$nd the riht to privacy

Law o* #ervitudes1. Two ma8or types o* servitudes

a. @asements' (a limited interest in someone else)s property% ' a**irmative and neative





ii. 3oesn)t encumber the land with invisible easementsiii. @liminates *raudiv. Prevents litiation

i. 6ene*its o* easement by estoppeli. "ot everyone nows an easement has to be in writin

ii. "ot somethin appropriate *or neihborly relationsiii. There may have been a reat deal o* reliance

?. -an #andt v. oyster

a. Facts' P discovers that there is a sewer runnin throuh his property and tries to prevent hisneihbors *rom usin it

b. @asement by implicationi. @asement by implied rant' owner sells land and rants an easement over his land

ii. @asement by implied reservation' owner sells land and reserves an easement over thesold land' hiher burden to show implied reservation than to show implied rant

c. Juasi @asement' uasi easements are created when the 9uasi dominant tenement is conveyed toanother party, i* the 9uasi easement is o* an apparent, continuous, and necessary character'

i. i* apparent and visible are not synonymous, what does apparent mean4d. eservation by implication' ordinarily, a rantor cannot reserve a riht i* they convey an

absolute interest in property. However, a reservation by implication may eist i* it is strictly

necessarye. @lements necessary *or *indin an easement by implication

i. 2nity' @istence o* a prior 9uasi easement on a commonly owned lotii. 3ivision' #everance o* the land creatin an servient and dominant tenement

iii. "ecessary' The type o* necessity re9uired by the 8urisdiction1. #trict necessity' there is no other way to reach the land:. easonable necessity' uses that would otherwise lead to disproportionate e**ort

and epenseiv. The etent to which the parties new o* the easementv. estatement Factors (whether the claimant is the conveyor or the conveyee, whether

reciprocal bene*its result, the manner in which the land was used prior to the conveyance%

*. @asement by necessity' @asement is necessary to the en8oyment o* the claimantBs land and thenecessity arose when the claimed dominant parcel was severed *rom the necessity' is aneasement by necessity a sub'*actor o* an easement by implication4 ;ouldn)t you need to *ind aneasement by necessity in order to *ind an easement by implication4

A. Othen v. osier a. Facts' Hill sold land to Othen and osier and others and Othen needed to drive throuh osier)s

land to access the street b. @asement by estoppel' no easement by estoppel because Teas does not reconi/e onec. !mplied eservation' there is an implied reservation o* a riht o* way when an owner sells land

and renders himsel* landloced. However, that implied reservation does not eist in the absenceo* privity between the conveyer and conveyee

d. @asement by prescription' de*eated in this case because use was not eclusive and road had aate which indicates that permission was ranted

i. 5laim o* rihtii. 5ontinuous use (not possession o* land%

iii. Open and notoriousiv. $ctual usev. For the statutory period

vi. @clusivity' may mean that claimant)s riht to use the land was not dependent upon a lieriht in others

1. !n easement cases, the two elements that are contested are eclusivity and claimo* riht



:. Owner may disrupt adverse use by ivin owner)s written notice o* his intent todispute

e. Holdin' unity is de*eated because the land purchased by Othen that rendered him landloceddid not contain a 9uasi easement over the land he is now claimin an easement over

*. "ote'i. in some states, a landloced owner can condemn an easement and pay the servient

tenement damaes.ii. !n the absence o* such a rule, the landloced owner will have to neotiate *or an easement

or see an easement by necessityiii. Government can)t have an easement by necessity because it has the power o* eminent

domainiv. $re all beaches in 5$ accessible *rom the water to the mean hih'tide line4

C. Three doctrinal re9uirements necessary to sue a party in restrictive covenantsa. "otice b. !ntent to bindc. Touch and concern the land

D. @asement vs. !nde*easible Possessiona. @asement remedy' damaes, in8unction, or en*orcement o* a lien b. !nde*easible *ee remedy' *or*eiture

1. #helly v. 7ramer a. Facts' homeowners created a racially discriminatory restrictive covenant b. The court is able to arue a @P5 violation even thouh this is a private action because the

covenant can only be en*orced by the stateonin

1. ;hy have /onin4a. Protect land value (*avored by property owners% b. "uisance law addresses harms a*ter they occur, not be*orec. Tries to separate uses that come into con*lict with one another

:. Two di**erent types o* /onina. 2se /onin

i. 5reatin districts and reulatin the type o* use in each districtii. Hihest use is sinle *amily housin

iii. Lowest use is the dirtiest, includin industrial use b. $rea /onin

i. 5reates space between homes' setbac re9uirementsii. Heiht re9uirements

0. ;ays to et out o* /onin ordinancea. -ariance' two thins you need to sustain a variance

i. @ceptional and undue hardship, main the property unusable i* you donBt et itii. !t wonBt be detrimental to the area

1. #ome 8urisdictions re9uire the consent o* neihbors *or a variance

:. Iou can also try to et a conditional use permit' is a conditional permit avariance4

b. #tatutory eceptionc. #ue to invalidate the ordinanced. Get a /onin amendment

<. -illae o* @uclid v. $mber ealty 5o.a. Facts' the city separated the land into use, heiht, and class /ones b. &udicial de*erence' as lon as the leislative 8udment is *airly debatable, the court will uphold

the ordinancec. Police Power' the city)s power to pass /onin ordinances comes *rom the state)s police power,

which the state deleates to the cities throuh an enablin statute



d. Holdin' 6ecause there isn)t a speci*ic challene, but rather a challene to /onin in its entirety,the ordinance will be sustained

>. 3istricts are raded *rom hihest use (sinle'*amily% to lowest use (harm*ul industry%. 5umulative/onin allows hiher uses to build in lower use areas, but not vice versa.

?. : possible aruments aainst /onin that could have been made in this casea. ;hether the police power could be eercised to /one property without deprivin the plainti** o*

substantial due process o* law b. The severe reduction in value o* the plainti**Bs land by the /onin ordinance e**ected a tain o*

plainti**Bs property, which cannot be done under the >th $mendmentA. 5ity o* Ladue v. Gilleo

a. Facts' city restricts the postin o* sins on one)s property b. Precedent 5ases

i. Linmar' homeowners couldnBt place *or sale sins and the court declared that theordinance was restrictin peopleBs *irst amendment rihts

ii. +etromedia' ordinance promotin tra**ic sa*ety and aesthetic interests could 8usti*y/onin ordinance, but the speci*ic ordinance was unconstitutional

iii. -incent' court upheld ordinance that prevented the postin o* sins on public property toavoid visual clutter

c. Two problems with the ordinance

i. 2nder'inclusive' because the city may be *avorin one side o* the debateii. Over'inclusive' because the city is inhibitin *ree speech throuh a medium that is cheap,

uni9ue, and not easily replaceableC. -illae o* 6elle Terre v. 6oraas

a. Facts' city doesn)t allow more than three people who aren)t related by blood to live toether b. Precedent

i. 6erman v. Parer' can use police power to et ride o* slums, but canBt use it to mae thecommunity more attractive

ii. #eattle Trust 5o. v. obere' canBt have /onin ordinance that sub8ects people to theirneihbors sel*ish motives

c. Leitimate city concerns include overcrowdin, tra**ic, health, sa*ety, morals, eneral wel*are

d. 5on*lict iht to association and riht to privacy. #imultaneously over and under inclusivee. Holdin' the city has a leitimate interest in preventin urban problems arisin *rom other *orms

o* dwellin*. "ote' 5ourt stries down a law that tries to de*ine the *amily narrowly4444

D. #outhern 6urlinton 5ounty "$$5P v. Township o* +ount Laurela. Facts' poor people are bein ept out o* the community by /onin ordinances that limit the

number o* occupants in a house and create lare tracts o* property, which increases the cost o*housin and simultaneously increases property values and lowers property taes because there isa lesser demand on public services and more valuable property to ta

b. $reas o* attac in a /onin problemi. @uclid' de*erence to leislature

ii. First amendment issues, substantive due process, riht to association' ommate.comiii. Fair Housin $ct' donBt have to show intentional discrimination, discriminatory a**ects'

countered by a reasonable business 8usti*icationc. The state is eercisin police power throuh /onin. !n eercisin the state power, the city must

uphold the interests o* the state. This includes considerin reional interests when main localdecisions.

d. 5ircumstances that permit limited developmenti. @nvironmental or ecoloical concerns

ii. Iou are a developed community

Documents

Property Carlson Spring 2012.docx