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Property Study Aids

TABLE OF CONTENTS
Recording Acts .............................1

Statute of Frauds...........................1

Doctrine of Equitable Conversions ..........2

Types of Recording Statutes ................2

Deeds ......................................2

Examples ...................................3

Shelter Rule ...............................4

Easements ..................................5

Appurtenant / In Grosse ....................5

Affirmative / Negative .....................5

Created by 4 ways ..........................6

Licenses ...................................6

Quasi - Easements ..........................6

Termination of Easements ...................7

Implied Easements ..........................7

Prior Use ..................................7

Strict Necessity ...........................7

Easements by Necessity .....................8

II. COVENANTS RUNNING W/ THE LAND - A COVENANT WHOSE BENEFIT OR LIABILITY CONCERNS THE LAND ITSELF SO THAT EVERY CONSECUTIVE GRANTEE IS TIED TO IT, NEITHER THE LAND NOR THE COV. BEING TRANSFERABLE W/O THE OTHER. AKA REAL COVENANT 2

A. REAL COVENANT » MUST BE CREATED BY A WRITTEN INSTRUMENT SIGNED BY THE COVENANTOR. IT IS AN INTEREST IN LAND WITHIN THE MEANING OF THE STATUTE OF FRAUDS. A COV. IS A FORMAL AGREEMENT. 2

B. EQUITABLE SERVITUDE » IS A COVENANT, THAT MAY RUN W/ THE LAND, AND IT MAY BE IMPLIED IN EQUITY UNDER CERTAIN LIMITED CIRCUMSTANCES. 3

C. REQUIREMENTS TO ENFORCE AN EQUITABLE SERVITUDE 3

D. CREATION OF COVENANTS 3

E. SCOPE OF COVENANTS 5

F. TERMINATION OF COVENANTS 5

III. ZONING (P.290 GILBERTS) 7

A. INTRODUCTION 7

B. NONCONFORMING USE 8

C. VARIANCES, SPECIAL EXCEPTIONS, AND AMENDMENTS 9

D. EXPANDING THE AIMS OF ZONING 12

IV. EMINENT DOMAIN - IS THE POWER OF GOVERNMENT TO FORCE TRANSFERS OF PROP. FROM OWNERS TO ITSELF. CAN'T TAKE W/O JUST COMPENSATION. CASE BY CASE BASIS AND VERY FACT SPECIFIC 14

A. PUBLIC-USE PUZZLE (HAWAII CASE) 14

B. PHYSICAL OCCUPATIONS AND REGULATORY TAKINGS 15

~ACQUISITION BY DISCOVERY, CAPTURE~

Johnson v. M'Intosh 1873 p.3 -- P claimed land by grants from Native Americans. D claimed same land by later grant from U.S. Gov't. P filed an ejectment to remove D. Issue: Can P have legitimately obtained title from N. Americans?

RULE: N. Americans cannot convey good title b/c they merely occupied the land and did not possess it. Conquest and discovery give title. Reasoning: N. Americans didn't maintain land like Westerner's, left it undeveloped. Ct. wants resources brought in, land used. Indians can occupy but not transfer title. Better deal for them--only other option from U.S. would be to get completely kicked off.

Helms - Burton Act 1996

if you confiscate and traffic property taken by Castro from U.S. Nationals, you will be penalized. Nationals can sue for property, not Cuban gov't but another private entity. Policy: Because Castro regime was never legitimate, they did not have good title. U.S. Nationals can then get their property back. (but it was taken in 1959)

 

~RECORDING ACTS ~

Statutes provide that land title records be maintained by the county recorder. Functions: 1.Protects subsequent good faith purchasers against prior unrecorded interests. 2.Preserves in a secure place important documents which could be easily lost in private hands. 3.Since real estate is a big deal (large purchase) you want to be certain about who has title.

 
*May not protect you against adverse possession* Recording Acts don't apply to adverse possession, only to written instruments

* If you are a bona fide purchaser, you are protected from past holders not recorded

* Recording acts don't affect the validity of a deed, mortgage, etc. They are valid whether you record or not. If you don't record, you may become prior unrecorded interest.

* Filed by an Index. Either through the names of grantor/grantee or through tract # index (more rare)


Statute of Frauds -- (commonlaw rule) a K for sale of interest in land must be in writing. No oral K's. Have to inquire whether a written instrument is required under the statute and whether there are any exceptions. Need 3 things: (1) a written instrument (2) whether it contains material terms (3) whether exceptions apply -- Ex: reliance / estoppel.

 

Doctrine of Equitable Conversions (Perversions)

1. risk of loss -- equity requires to be "done that which ought to be done" buyer is usually out of luck. Enforces K -- buyer still has to pay seller. Ex: House burns down, buyer bites it!

2. inheritance --when one of the parties dies, buyer owns property, seller owns $. To protect yourself: 1.buy insurance 2.put something in K to protect from risk loss and inheritance.

 

Luthi v. Evans 1978, p.694

In 1971 Owens conveys to Tours 7 specific leases in a "Mother Hubbard" clause. T records. In '75 O conveys to Burris the Kufahl lease which was technically covered under the MH clause. But when B checked the records the Kufahl lease was not included under the prior assignment to T. MH Clause = a clause stating that a mortgage secures all debts that a mortgagor may at any time owe to the mortgagee./ A provision in a deed that tries to sweap w/in it other parcels not specif. described. Issue: whether the recording of a MH clause which virtually gives everything away constitutes constructive notice to subsequent purchasers. RULE: The recording must describe the property being conveyed with sufficient specificity in order to impart constructive notice to a subsequent purchaser.

POLICY: people need notice, otherwise buyer would have to check the index every time the grantor conveyed something (an undue burden on the buyer).

efficiency policy: seller just has to find everything granted to previous person in the index and then record their specific property. Buyer then only has to check the record once.

* buyer loses if there is a faulty index recording. The recorder usually has gov't immunity. Seller is not at fault b/c seller did everything right.

Types of recording statutes:

1. race -- first to record wins (only 2 states have it)

2. notice -- subsequent purchaser only protected if they didn't have actual notice about the prior assignment and is a bona fide purchaser

3. race-notice -- must be without notice of prior assignment and records first

Deeds:
1. warranty deed -- gives warranty over defects in title
2. special warranty --
3. quitclaim deed -- gives title of everything owner has to the subsequent purchaser -- "whatever title I have, I give it to you".
 
Examples: p.713

1. O to A
O to H (inheritance) under race statute, B wins
H to B (bona fide purchaser) under notice statute, B wins
B records
 
2. O to A under notice, C wins -- at time of C's purchase, C has
O to B (bona fide) no notice of B's purchase
A records under race-notice, C wins -- C gets to stand in shoes
A to C (bona fide) of A so C wins b/c A records first. (sheltering
B records rule) this rule protects a purchaser
C records from someone already protected by a recording act
 
Board of Education v. Hughes p. 722
Ho to Hu (blank deed) Hu made payment, deed delivered, etc...but not valid
Ho to D & W
D to Bd
Bd records
Hu fills out deed -- becomes valid here
Hu records
D records

* the blank deed doesn't count as effective until filled out because it violates the Statute of Frauds. The blank deed doesn't contain all the material terms. Thus, the sale to Hu is not valid until he fills out the blank portion. Hu wins.
 
*under Race-Notice Jurisdiction. Recording Acts protect subsequent innocent purchaser. Moving transaction down makes Hu subsequent purchaser. Hu not first to record, but had no reason to look for subsequent purchasers.

Policy: Bd could have checked title and known the deed was not recorded and was not in chain of title. To protect, make D record (just bringing in deed and filing it). With a tract index, Hu would have seen the deed, but still wouldn't know where D got title Hu would then have had constructive notice. Reason title isn't good when deed is blank is b/c you only have Hu's word. Cts don't want to rely on someone's word especially when the outcome would be most favorable to that person.

Example:
O to A does not record
A to B records
O to C records
C wins over B. The A to B deed is not connected to chain of title. O to A link missing!

General v. Special Warranty Deed:
general -- D promises good title, but its not and Bd can collect against D. Contains all 6 of the usual covenants. It warrants title against defects arising before as well as during the time the grantor had title.
special -- asserts "I haven't done anything to make title fail" and Bd then loses against D. D hasn't done anything to make title bad. Bd loses. Only covers defects during the grantor's tenure, and not defects prior to that time.
 
Sabo v. Horvath p.727
L to Ho (quitclaim deed)
Ho records
U.S. Govt to L
L to S (quitclaim deed -- "I can't promise you anything but I'll give you everything I have" NO GUARANTEES)
S records

*under race-notice jurisdiction, S wins. Ho said he recorded first , but S had no way to find the transaction of L to Ho. Ct. called it a wild deed. (L to H)
 
* L has right and expectancy that he will have title to land. Only sells that right to Ho.

Policy: don't want to make S look at every transaction of L. Ho knew about the other transaction. Ho could therefore rerecord to give S notice. Ho could require L to tell him as soon as patent is issued to rerecord.

*ct. says purchaser by quitclaim deed can still be subsequent good faith purchaser.

Example: p.731
A to B -- not valid. A is estopped from claiming that deed is valid b/c A didn't have title.
O to A
A to C -- C is without notice, a subsequent good faith purchaser.

*NY a minority holds the other way, that C is not protected.

*Shelter Rule -- if you take title from someone who is protected by a recording act, then you get the benefit and are protected.

REGULATIONS OF PROPERTY USE
~Easements~

Defs: right to do something on someone else's land. Ex: right of way. Distinguishes it from possession. "Legal or equitable right acquired by owner of one piece of property (dom. est.) to use another's land (serv. est) for a specific purpose.

appurtenant: (p.232) attaches to property no matter who owns it. If attached to dominant tenement, can't be detached w/out consent of dominant and servient owners, and usually goes with it to successive owners. If unclear, law construes in favor of easement appurtenenant. An easement that benefits its owner in the use of another tract of land. Land benefited is the DOMINANT TENANT.

Ex:
BL ----- W ----- Rd easement over W is appt to BL
in grosse: personal. Don't need dominant estate. Benefits owner w/out regard to ownership of land. The term means that the easement isn't appurt. to other land. Land burd. is servient tenement.

affirmative/negative: dominant tenant can have affirmative right (ex: to have some right on land) or negative right (ex: right not to have view obstructed). Almost all are affirmative. Negative are usually handled in a covenant.

Willard v. First Church of Christ p.791
M owns lots 19,20. Church across the street. M sells 19 to P. Then P & W sign a deposit receipt for sale of 2 lots. At time of sale, P did not own lot 20. M says she would sell 20 provided the church could still use it for parking. M to P to W. W recorded unknowingly with easement for the church. ISSUE: can a grantor reserve an interest in the property to a 3rd party. HOLDING: (YES) ct. disposes of commonlaw rule which said no. Ct. does balancing test between grantor's interest and commonlaw rule. Since theres no evidence of reliance on rule, and parties negotiated as if there was an easement, rule will not be applied. ~ executory interest, right of reentry, remainder

*is W a bona fide purchaser protected by recording act? if he looked it up, he would have seen it. Since there was constructive notice, W is not protected by recording act.

*easement appurtenant / in grosse? "the church" -- it runs with the land, not with the specific institution. Therefore, its an appurtenant easement in fee simple determinable -- "so long as used as a church"

OR

solve problem w/ 2 different documents
. M to C in fee simple 2. M to P w/ understanding that P will
C to P reserving easement grant easement to C

Easements created in 4 ways:
1. by express written grant
2. by implication -- (p.238) limited to: a. Severance -- an intended easement based on appurt. use existing at the time the serv. estate is separated from dom. estate b. Necessity -- not just the state of being landlocked. Its created with the transaction that landlocks you.
3. by prescription -- ~adverse possession, Open, notorious, continuous, adverse, the prescriptive period will be for the same length of time as adverse possession. Most cts don't require exclusivity
4. by estoppel -- someone with license who makes improvements at substantial expense. The license then becomes irrevocable. Licensor can't revoke.

Licenses
revocable permission to be on property at will of licensor
licenses become a grant through easement by estoppel
 
Van Sandt v. Roysterp. 806
A private drain was built in 1903 which cut across various lots. B conveyed to J by gen. warranty deed one of lots. J knew lot 19 (servient estate) had sewer and that it was installed for benefit of common owner B. An easement was necessary for living on B's property. Action brought to enjoin 's from maintaining and using an underground sewer drain through and across 's land. ISSUE: was an easement by implication or prescription created. RULE: when a dominant estate is severed from a servient estate, you get an easement by implication. A quasi easement becomes a full blown easement when the property is severed. (Severed means separate ownership).

quasi-easement: use has to be previously apparent. It becomes apparent when grantee could by a reasonable inspection discover the existence of the use. Apparent does not necessarily mean visible.

Termination of Easements:
1. unity of ownership (merger) dom. and serv. estates become same owner
2. valid release that complies with Statute of Frauds
3. abandonment must be manifested by taking a physical act on property that shows intent to abandon
4. termination by Estoppel:
a) representation of relinquishment by dom estate holder
b) defense of posit in reliance by servient estate
5. serv. estate must stop use and keep it stopped for statutory period
6. necessity ends
 
Implied reservation of easement v. implied grant:
IR = if easement is implied in favor of grantor, some courts say this is only available if there is strict necessity. This is disfavored.
IG = if easement is implied in favor of grantee. This is favored.

Implied Easements broken down in 2 subcategories:


1. Prior Use -- (quasi-easement) Ex: Van Sandt.

looking at intent of parties

a. reservation v. grant (dominant/servient)

b. use is visible and continuous

c. whether its reasonably necessary, not just convenient. Differs from strict necessity. Reasonableness is standard.

 

2. Strict Necessity

 

 

Othen v. Rosier (strict necessity question) p.813

O could not prove in 1896 that he did not have other access to home, that it was necessary for him to cross property. Therefore, no easement by necessity. Necessity had to exist at the time when dominant and servient estates were severed in 1896. Easement by necessity is implied when a single tract of land is divided that creates a landlocked property. O has no easement either of necessity or by prescription. Easement by prescription is created from an open, adverse and continuous use over a stat. period

 

not easement by prior use: in 1896 not clear what prior use was

 

not easement by prescription: don't have element of being adverse. O had R's permission. Owner (R) was also using road -- thus, it wasn't exclusive either. O had been using road for 50 yrs. RELIED on it and no one stopped him. To act as owner of easement all you have to go is cross it.

 

Majority Rule: EXCLUSIVITY does not require showing that only claimant made use of the way, but that claimant's right to land does not depend upon a like right in others. Most cts don't require exclusivity.

 

prescriptive easement prior to 1906? -- since theres 10 yrs 1896-1906, why not get prescriptive title from that? Because he didn't necessarily use the same way every time, could have used different paths across property. Can't establish CONTINUITY.

 

*consent of owner is sometimes required in order to acquire easement by prescription. Opposite of adverse possession. If you could show use for 20 yrs, ct will allow it to be considered a grant. MINORITY OPINION. Most cts require no consent like adverse possession.

 

Scope of easement: intent of parties and use thats reasonably foreseeable or required. Evolutionary changes in use is ok. But abrupt changes are not required.

 

 

Easement by Necessity

 

Public policy: want to be able to use resources. Don't want it to go to waste because someone can't get to it. There is a presumed intent by the courts that a party will not create a land locked parcel. No one would ever landlock themselves. Some states hold that water access is enough so that an easement by necessity would not be granted.

 

easement by necessity ends when necessity ends.

 

 

Matthews v. Bay Head Improvement p.827

beach case. Issue: Whether the public has a right of access to dry sand when a private association owns the land leading up to the beach. HOLDING: public has as much rights to the dry sand area as reasonably necessary on the portions not leased to the Association. Inefficient decision because it doesn't settle problem. Ct hasn't said exactly how much property can be used.

 

Policy: public has right to navigate and fish. No one owns the ocean, shoreline. The public also has the right to swim and bathe. Does this include dry sand usage? Ct says yes. To enjoy swimming privilege, must have right to rest on dry sand. ~landlocked parcel.

 

dominant = an estate benefiting from an easement

servient = an estate burdened by an easement

1. Brown v. Voss p.835 (use for benefit of non dominant land) Issue: To what extent the holder of a private road easement can traverse the servient estate to reach not only the original dominant estate, but a subsequently acquired parcel when those 2 combined parcels are used in such a way that there is no increase in the burden of the servient estate. Facts: O grantees to A an easement of way over Whiteacre for the benefit of Blackacre, owned by A. A buys Greenacre, adj. to Blackacre and builds a building on Greenacre and Blackacre (straddles the borders of each). Access to this building is by the easement on Whiteacre. In this case O might be given damages rather than an injunction if, all things considered and injunction would be inequitable.


a) General Rule: an easement appurtenant to one parcel of land may not be extended by the owner of the dom. estate to other parcels owned by him whether adjoining or distant tracts, to which the easement is not appurtenant. The dom. owner cannot increase the scope of the easement by using it to benefit a non-dominant tenement. However P says there is no increase burden on the servient estate. The court said no! Any extension thereof to other parcels is a misuse of the easement.

b) BUT this court ruled that in addition to the general rule an essential criteria for injunctive relief is actual and substantial injury sustained by the person seeking the injunction. Here the P acted reasonably, there is no damage or increased traffic over the easement, it is still for single family use, and that the D watched for over a year as the P spent $11,000 on this building. Thus, the P would suffer hardship and the D would suffer no appreciable harm w/o the injunction. The injunction was denied.

c) General Rule for the Scope of Easement: to follow the intent of the parties (reasonably foreseeable of the changes or enlargements) and what changes are needed to preserve the usefulness of the easement to the dominant tenement.
 

~~~~ PROPERTY OUTLINE - PART II ~~~~

II. COVENANTS RUNNING W/ THE LAND - A COVENANT WHOSE BENEFIT OR LIABILITY CONCERNS THE LAND ITSELF SO THAT EVERY CONSECUTIVE GRANTEE IS TIED TO IT, NEITHER THE LAND NOR THE COV. BEING TRANSFERABLE W/O THE OTHER. AKA REAL COVENANT

A. Real Covenant » must be created by a written instrument signed by the covenantor. It is an interest in land within the meaning of the Statute of Frauds. A cov. is a formal agreement.

1. A real covenant cannot arise by estoppel, implication or prescription as can an easement. Must be in writing and will not be implied in any state.

2. If you satisfy the formal requirements you get damages.

3. You have to have privity (mutuality of interest) of estate in order for the burden to run w/ the land b/c an innocent purchaser might be held unknowingly to a requirement.

a) Horiz. Privity is required. It is not just a relationship b/w 2 people making a promise, it is a legal relationship b/w successive owners or relatives.

B. Equitable Servitude » is a covenant, that may run w/ the land, and it may be implied in equity under certain limited circumstances.

1. An ES which arises out of a promise, cannot be obtained by prescription.

2. With an ES you get injunctive relief.

3. No horizontal or vertical privity of estate is required in equity (no special relationship is necessary). Equity is enforcing a property interest analogous to an easement.

C. Requirements to enforce an Equitable Servitude

1. Intent  contracting parties must intend that the servitude be enforceable by and against assignees. The court finds intent based on the purpose of the covenant and all other circumstances.

2. Privity of Estate - ES enforcement is like an easement; you can get injunctive relief from someone who interferes with it. See also #3 above.

3. Touch & Concern - for both of the above it is required that the covenant touch and concern land. Neither is enforceable against a bona fide purchaser without notice. For the burden to run with the burdened land in equity the covenant must touch and concern land. Likewise for a benefit to run with land it must T&C land. Purpose: to permit courts to stop covenants from running when the social utility of the covenant is outweighed by the restriction on the burdened property. There must be a relation between benefit and burden that the performance of the promise has some reasonable prospect of promoting land utilization.

a) if you don't like a cov. for a particular policy reason (unreasonable, uneconomic or unfair) then you can say it does not T and C the land. This gives cts a way not to enforce an unreas. cov. Marketability and fairness are considerations in dissolving a covenant.

D. Creation of Covenants

1. Sanborn v. McLean p.866 A developer markets and sells off 30/50 lots by deeds containing covenants that say each will use his lot for residential purposes only. The developer tells them that in the remaining deeds similar covenants will be inserted to keep the area residential. Then the developer sells off 2 lots to gasoline co. by deeds containing no covenants. Rule: if the dev. had a scheme of an exclusively residential area AND the gas co. had notice of the covenants in the 30 prior deeds, the court will imply a covenant in the deed to the gasoline co. restricting their lots to residential purposes only.


a) Two Theories by which a prior purchaser in a subdivision can enforce an agreement made by the seller and another purchaser:

(i) At the time the purchaser bought the land, he received an implied reciprocal servitude in the seller's remaining land. When the seller later sells a tract the prior purchaser is enforcing this servitude against the subsequent purchaser with notice. This cannot be used where the developer does not have a scheme of reciprocal restrictions.

(ii) Equity is enforcing a K for the benefit of third party beneficiaries. In Snow express restrictions were for the benefit of the neighbors and that equity was merely permitting them to enforce the restrictions as third party beneficiaries.

b) Scheme - on the basis of a scheme it is inferred that the purchasers bought in reliance on the scheme and in the expectation of being able to enforce subsequently created ES's similar to the restrictions imposed on their lots. Look at the obvious intent of the seller; all facts (shape of lots, when sold).

c) Evidence of a scheme - the scheme must exist at the time the developer sells the first burdened lot within the scheme. Evidence includes a recorded plat with restrictions. OR a scheme can be shown by the fact that the developer inserted similar covenants in a substantial # of the deeds in the subdivision prior to the deed to defendant.
2. Snow v. Van Dam p.871 In this case, unless the lots of the P and D were included in one scheme of restrictions there is nothing to show that the restrictions upon one lot were intended to be applied (appurtenant) to the other lot. If there was a scheme of restriction, existing when the sale of the lots began which included the P and D land, and if the restrictions imposed on D were imposed in pursuance to that scheme then all of the Plaintiffs are entitled to relief.


a) Rationale: Where a burden devalues land public policy requires an accompanying benefit to other land resulting in a net increase in land value. Public Policy disfavors cov. that don't have the purpose of dealing w/ externalities affecting other land.
3. Eagle Enterprises, Inc. v. Gross p.889 Issue: whether the promise of the grantee's to accept and make payment for a seasonal water supply from their grantor is enforceable against subsequent grantees and may be said to run with the land (next seller will have to pay for water whether or not they want it). This failed the T and C part of the test b/c the water is of a limited social utility and constitutes an undesirable restriction on the land b/c the well water does not relate to their ownership rights.

4. Caullett v. StanleyInc. p.897 D sold vacant prop. to the P. In the deed the D reserved the right to build on the land. Then the P say they only contracted to buy the land and are trying to ignore that part of the deed. D is saying that when the P were ready to build, he would be the builder. If the deed was enforced the D would get a benefit in gross (a cov. benefiting a particular person and not a particular piece of land). It is not a valid cov. b/c: it was vague on how to enforce it, it did not T and C the land, and it is a restraint on alienation (a restriction on a grantee's ability to transfer or sell real prop; and are generally unenforceable b/c it is against pub. policy to not have the free alienability of the land.


a) Issue: whether this part of the deed was valid or not?

b) Rule: when the burden is placed upon the land and the benefit is personal to one of the parties and does not extend to his or other lands, the burden is generally held not to run w/ the land at law. The policy is strong against hindering the alienability of one prop. where no corresponding enhancement accrues to surrounding lands.

c) Case Law: "if a cov. will not run in equity b/c the benefit is in gross neither will a cov. run at law." You will not receive either damages or injunctive relief if the benefit is in gross.

d) Restatement: if the benefit is in gross the burden will not run in law but in equity. As long as the benefit of the cov. is in gross you will never receive $ damages, only injunctive relief.
E. Scope of Covenants

1. Shelley v. Kraemer p.903 Black family tried to move into area that was covered by a restrictive agreement in the deeds, allowing only whites to live there. Problem was that the cov. was valid b/w PRIVATE PARTIES, and the state would have to enforce it. Rule: In order for the SC to find that the restrictive agreement was unenforceable they had to find that there was state action depriving the tenant of constitutional rights. The action of state courts and judicial officers in their official capacity it to be regarded as action of the state w/in the meaning of the 14th Amendment, thus the judicial opinions of the 3 cases can be considered state involvement. Holding: in granting enforcement of the restrictive agreements, the States have denied P the equal protection of the law and so the action of the State courts cannot stand.

F. Termination of Covenants

1. How to get rid of a covenant:

a) each time you do a transaction you can alter the deed.

b) but it doesn't go away just b/c a future deed doesn't have it.

c) until you get a release from everyone you can't get rid of it.

2. Western Land Co. v. Truskolaski p.911 Homeowners tried to enjoin D from constructing a supermarket on a parcel w/in the subdivision. There was a restrictive cov. on the subdivision that said it was only for single family dwellings. Holding: the restrictive cov. remain of substantial value to the homeowners and that the changes that have occurred since 1941 are not so great as to make it inequitable or oppressive to restrict the prop. to a single family residential use. Rule: in order for the D to win, based on their theory that the conditions of the subdivision have changed, the courts require that 1) the change outside the subdivision must be so pervasive as to make all lots in the subdivision unsuitable for the permitted uses. OR 2) substantial change must have occurred w/in the subdivision itself. Additionally, change outside the subdivision that affects only the border lots is not sufficient to prevent enforcement of the cov. against the border lots.


a) This case was the "change of conditions in the neighborhood" defense to prevent termination of the cov.
3. Rick v. West p.918 P sold a lot to the D w/ a restriction attached that it would be for residential use only. The D is a single home on a 45 acre tract that was rezoned for industrial use. The D would not release the cov, and the P had a hard time selling the rest of the lots. Then P wanted to sell the large tract to a hospital. The D said no, b/c they relied on the restriction. Holding: Court said that according to the doctrine of equity restrictive cov. will be enforced unless the attitude of the complaining owner (D) on his cov. is unconscionable or oppressive (great hardship). There is no balancing test b/w the P situation and the D. That the D is insisting upon adherence to the cov. which is as valid as when it was made.


a) This case was the "relative hardship" defense.
4. Laguna Royale Owners Association v. Darger p.924 Issue: are these families owners or tenants. A group of 4 families wanted to share a condo and the condo board said no based on 1) that multiple ownership creates more wear and tear 2) the use the D proposed to make of the unit would violate the by-laws that the units were for single family residential use and 3) the use proposed would be inconsistent with the private single family residential character of Laguna Royale, taking into consideration the close community living they had. Rule: reasonable restrictions on alienation are allowed. The courts are split in terms of what is reasonable. This court's criteria for testing the reasonableness of the 3 points made be the condo is whether the reason for w/holding approval is rational, and whether the power was exercised in a fair and non-discriminatory manner.


a)Public Policy Point: this is very similar to a public act which make a rule for an entire community rather than a priv. agreement b/w two people. The characteristics of condo's are approaching (similar to) public bodies that must act responsibly and reasonably as opposed to arbitrarily.
III. ZONING (P.290 GILBERTS)

A. Introduction

1. The authority for zoning is vested in the state police power and must conform to the state's zoning act. Zoning ordinances are generally upheld unless they violate the constitution. There is a presumption of validity. When the govt. takes the land it must be for a public use and there must be just compensation. Zoning ord. are upheld as long as it leaves the owner with some reasonable use.


a) Zoning is nuisance law made predictable by declaring in advance what uses are harmful and prohibited in the various zones.

b) Zoning regulations shall be in accordance w/ a comprehensive plan for the community. When a new community is constructed, costs are imposed on the city, which then zoning places the costs on the developer who in turn passes it on to new residents.

c) Spot Zoning: is adjudicative and since it is more like a trial, you need documentation as to why the zoning is OK - a higher level of scrutiny. However, the cts are SPLIT on this.
2. Common Issues:


a) Is a subdivision bound by a restriction (looking for a common scheme)? If YES - can the common scheme be enforced.

b) Reciprocity: b/w the buyer and seller dealing w/ a common scheme. The reciprocity allows subsequent purchasers to get the benefit of that promise.
3. Village of Euclid v. Amber Realty Co. p.993 The Village passes a zoning ordinance that makes the prop. value plummet to a _ of its value. The owner who was against the ordinance did not even have a permit application to do anything w/ the land. Isn't this premature then? Lee says no b/c the ordinance has already damaged the value of the land. Rule: in general zoning ordinances are OK - Lee's policy reasons arethere is a presumption of validity b/c the legislatures can't be expected to come up w/ fine distinctions, so zoning must be considered on a case by case basis. This would not be a taking (even though the LC thought it was). He was not allowed to sell the land for commercial purposes and the ordinance was upheld.


a) Delegation of Power: the legislature cannot delegate discretionary power to an administrative body unless it lays down standards to govern the power (which we said would be difficult to specify). A delegation w/o standards is improper. However, today we are so used to the broad powers of administrators that the delegation of powers doctrine is not as well liked today as it was.
B. Nonconforming Use

1. PA Northwestern Distributors, Inc. v. Zoning Hearing Board p.1011 P opened an adult bookstore and 4 days later the Township Board published a public notice of its intention to amend the Zoning Ordinance to regulate "adult commercial enterprises." Now the P store is w/in the restricted zone and the amortization section states that the P has 90 days to come into compliance w/ the ordinance. D said that the benefits to the Township outweigh the harm to the P. Rule: A lawful nonconforming use establishes in the property owner a vested property right which cannot be abrogated or destroyed, unless it is a nuisance , it is abandoned, or it is extinguished by eminent domain (the power of a govern. entity to convert privately owned prop. to public use, subject to reasonable compensation for the taking). Long been the law that municipalities cannot compel a change in the nature of an existing lawful use of property. Holding: the amortization and discontinuance of a lawful pre-existing nonconforming use is unconstitutional. Can be looked at as a taking. The guy can keep his adult book store.


a) Policy Reasons: If municipalities were free to amortize nonconforming uses out of existence, future economic dev. could be seriously compromised. It could deter investors if they knew that the city could oust them at any time a new zoning ordinance came into effect.

(i) Reasons: If you are already using the prop. it is a vested right that can't be taken away. This case protects preexisting uses more than non preexisting uses - policy for this is the court likes to encourage use over idleness, the person has made productive use of the prop. or gave up other business opportunities.

b) Factors listed as relevant to an assessment of the reasonableness of a particular amortization period are:

(i) the nature and use in question

(ii) the amount invested in it

(iii) number of improvement

(iv) public detriment caused by the use

(v) character of the surrounding neighborhood

(vi) and amount of time needed to "amortize" the investment.

c) Concurring: said that it should be case by case basis b/c a community should be allowed to change its character.
2. Nonconforming use runs w/ the land, with sale, transfer, etc. The next person can continue the sue otherwise it would be an unconstitutional taking.

3. Preliminary plans for the use of the property b/f the ordinance occurs 2 ways to get relief:


a) the rights vest at some point earlier than at the opening of the business and you get to continues use as if it were preexisting

b) or you can rely on the governments actions. If you have a license from the Government to open a business then you can estopp the government ordinance w/ your license.
C. Variances, Special Exceptions, and Amendments - In appropriate cases and subject to appropriate conditions and safeguards, the Zoning Enabling Act can authorize special exceptions to the terms of the ordinance in harmony w/ its general purpose and intent and may authorize in specific cases such variance from the terms of the ordinance as long as it is not contrary to public interest. Dev. has to show that it does not hurt the community. There are two means of promoting flexibility of Zoning the special exception (special use permits or conditional use permit), and the variance.

1. Diff. b/w a Variance and a SE: a variance is authority extended to a landowner to use his prop. in a manner prohibited by the ordinance. A SE allows him to put his prop. to use which the ordinance expressly permits. A variance considers circumstances which were not originally contemplated by the zoning ordinance. A SE has already been considered and allowed by approval. Thus, a policy decision has already been made w/ a SE.

2. Amendments: same issues arise: flexibility v. power to make arbitrary decisions.

3. Variance: b/c of the difficulty in drawing zoning ordinances, the enabling act allows for a board of adjustment to grant relief by way of variance where the restrictions contained in the ordinance cause the owner "practical difficulty or "unnecessary hardship." The hardship must not be self created nor harm the public health, safety or welfare and not a substantial departure from the comprehensive plan. The 2 part test is


a) The undue hardship involves the underlying notion that no effective use can be made of the prop. in the event the variance is denied.

(i) Threshold standard: if zoning would not let prop. be used at all then you might show undue hardship depending on the facts.

(ii) Self-Imposed standard: if you know the requirements of the zoning or variance you can't complain.

b) Grant of the variance must not substantially impinge upon the public good and the intent and purpose of the zoning plan and ordinance.
4. Commons v. Westwood Zoning Board of Adjustment p.1021 The zoning ordinance requires a 20 ft building setback from the street. B/c of the shallowness of the lot, which was created b/f the zoning ordinance was enacted, it was not practicable to set back a new building 20 feet. This is a proper case for a variance. Ct said ok. If the shallow lot were created after the enactment of the zoning ordinance, the difficulty would be self-created, and a variance would be improper. The courts want a rational reason for why the variance test would fail  otherwise the board could make broad decisions w/out having to justify their opinion and there would be lots of room for abuse of discretion. This court says there has to be a detriment/impairment that must result from not complying with the zoning ordinance in order for a variance to be granted. A community purpose must be impaired, (has to be detriment in violation of the ordinance to the entire community)  not a personal purpose.


a) Policy: local zoning board has the authority to grant variances b/c they have to deal w/ the practical implications and the strange situations in a given community.

b) Reasons for variances: 1) provides flexibility b/c legislators can't foresee all problems. 2) a zoning ordinance w/ no exceptions allowed is unconst. b/c it constitutes a taking.

c) a use variance is more difficult to get than area variance b/c a use variance has the possibility of creating a bigger impact on a community than would an area variance. (sex shop v. 2ft more from curb).
5. Special Exception (special use or conditional use): Allowable where certain conditions specified in the ordinance are met. The theory that underlies the special exception is that certain uses can peacefully coexist w/ their neighbors when specified conditions occur. The board of adjustment is empowered to determine whether the conditions specified in the ordinance are met. Courts cannot predict all circumstances where people would want a variance - that is why we have SE.


a) Example: a zoning ordinance specifies that a nursery school is permitted in a residential district if adequate off street parking is provided, if no more than 30 students are enrolled and if play space is fenced in by a hedge. This is a SE.
6. Standards for SE: Legislative type power cannot be delegated to an administrative agency unless the standards are sufficiently clear to prevent gross arbitrariness. Delegation of power w/o standards is improper. Sometimes the standards set forth in the ordinance for granting a SE are vague. Despite the lack of procedural safeguards and standards, the majority of courts have usually upheld provisions for special exceptions w/o clear standards. They have held that the general purposes in view (health, safety, and gen. welfare of the community) are a sufficient safeguard to control the board's discretion.

7. Cope v. Inhabitants of the Town of Brunswick p.1030 P were denied a zoning exception to construct an apartment complex. On appeal they said that the ordinance was facially unconstitutional. Specifically, the ordinance improperly delegates to the Board the authority to permit the use of land for the construction of an apartment building. The problem is the parts of the ordinance that ask if the proposed use would "adversely affect the health safety or gen. welfare of the public and whether the use would alter the essential characteristics of the surrounding prop." Zoning bd says that P did not meet 2 criteria and so don't get exception. Holding: the ordinance improperly delegates legislative authority to the Board and its therefore void. The standards refer only to the same gen. considerations which the legislative body was required to address and resolve in enacting the ordinance. **There should be no discretion in the Board of Appeals as to whether or not to grant the permit if the conditions stated in the ordinance exist. That is up to the legislators. Since the Board found that the P were in compliance w/ all requirements of the ordinance except for those which we now find to be invalid, a permit for the exception should be issued. RULE: general standards in granting special use exceptions are unconstitutional BUT the courts are split over whether zoning bds should have the discretion to declare SE's.


a) A legislative body cannot delegate to the Bd. a discretion which is limited by legislative standards. Whether the use will generally comply with the health, safety and welfare of the public and the essential character of the area is a legislative question. The delegation is improper if the Bd. is permitted to decide that same legislative question again, w/o specific guidelines which permit the Bd. to determine what unique or distinctive charac. of a particular apartment building will render it detrimental or injurious to the neighborhood.(Bd is not representative of the people and is harder to reach by political process ­ therefore shouldn't make decisions about what is good for public health).

b) 2 theories of the SE (aka conditional use): 1) like Cope, reflects an effort by zoners to use SE as an essentially discretionary device: Listed uses will be granted an exception only if very general criteria (no adverse effects on health, welfare, and safety) are met. This approach gives zoners leverage over applicants, and so invites abuse. 2) an alternative approach to SE reduces discretion by listing detailed criteria regarding such things as design, location, hours of operation, standards of performance, and the like in the ordinance; if the proposed use meets the criteria, an exception must be granted. A variant like this permits denial of an exception even when the specific criteria are met, but puts on the zoning authorities the burden of showing why the use will have an adverse affect on welfare.
8. Fasano v. Board of County Commissioners of Washington County p.1036 P applied for a zone change (amendment) and the TC said no b/c there was no public need and the change was not consistent w/ the community plan. Issue: whether all zoning decisions by local governing bodies are legislative acts that should be accorded a full presumption of validity and shielded from less than constitutional scrutiny by the theory of sep. of powers. RULE: In proving that the proposed amendment is in accordance w/ the comprehensive plan the proponent must show that there is a PUBLIC NEED for a change of the kind proposed and that such need will be best served by changing the zoning of proponent's parcel AS COMPARED WITH OTHER AVAILABLE PARCELS. Courts have drawn a distinction b/w legislative actions (such as enacting a zoning ordinance for the entire city) and administrative action. For legislative actions, notice does not have to be given to each landowner affected, whereas for administrative actions, it does have to be given. POLICY: Administrative actions include variances, SE and the granting of permits. If placed in the legislative body those acts would not be judicially reviewable and would lead to arbitrary government. The dangers of arbitrary government (undue influence: the private economic interest on local government) outweigh the need for flexibility.

9. Arnel Dev. Co. v. City of Costa Mesa p.1042 Issue: whether small scale rezoning is essentially adjudicative Facts: the P wanted to build a dev. of single family residences and apt. buildings. A neighborhood assoc. objected by passing an initiative which rezoned the prop. to single family use, and the voters approved it. P brought this action. RULE: Court says that rezoning ordinances are a legislative act, thus permitting its enactment by initiative, doesn't violate the constitution. POLICY: This is legislative b/c it takes 10% of the registered voters to get an initiative started. The proponents must then get the maj. of the voters to support it. The initiative can support or oppose major projects which affect hundreds or thousands of person and often present questions of policy concerning the quality of life and future dev. of the city. It is not likely to be employed in matters which affect only an individual landowner and raise no policy issues. The concern that rezoning is considered legislative is that a few voters will impose their selfish interests upon an objecting city.

D. Expanding the Aims of Zoning

1. Aesthetic Zoning in General: Some courts would admit them as a secondary purpose, but most, if they wished to sustain the ordinance in question, pursued the prop. value rationale » What appears to be an aesthetically aimed regulation is often upheld b/c it protects prop. values and therefore need not depend for its validity on its curbing a merely aesthetic nuisance. Courts today are more inclined to accept the legitimacy of zoning based exclusively on aesthetic considerations.

a) one problem is that aesthetic standards are commonly expressed in amorphous terms that can easily lead to arbitrary treatment.

b) Aesthetic Regulation - State ex rel. Stoyanoff v. Berkeley p.1065 People want to build an ugly house in a pretty neighborhood and neighbors were MAD! The intrusion into this neighborhood of realtors' unusual and grotesque structure would have a substantial adverse effect on market values of other homes in the area. Most courts now uphold the power of city architectural review boards to deny building permits for proposed buildings that the board disapproves. B/c the standards these Boards apply are often vague and difficult to apply, they raise problems of improper delegation of power and equal protection of the laws. A favorite standard is that the building must "conform to the existing character of the neighborhood and not cause a substantial depreciation in the neighboring prop. values." Such a standard has been upheld, even when the "existing character" of the neighborhood is not entirely uniform. The court did not rest its decision on the legitimacy of aesthetics as a zoning obj, relying instead largely on protection of property values.

2. Exclusionary Zoning and Growth Controls: Southern Burlington County NAACP v. Mount Laurel p.1105 Question is whether a developing municipality like Mt. Laurel may validly, by a system of land use regulation, make it physically and economically impossible to provide low and mod. income housing in the municipality for various categories of persons who need and want it and thereby, as Mt. Laurel has, exclude such people form living w/in its confines b/c of the limited extent of their income and resources. Fair Share Test (RULE): There is a requirement that each community must provide its fair share of housing needs in the region. Holding: A city's zoning regulations which don't provide opportunity for a fair share of the regions need for low and mod. income housing were in violation of the STATE constitutional requirements of SUBSTANTIVE DUE PROCESS and EQUAL PROTECTION b/c the regulations were not concerned w/ the general welfare of all persons. This is the minority rule. The community didn't want the housing b/c it would bring in a lot of kids, which in turn would raise their taxes.


a)The ways to enforce on local municipalities opportunities for low income housing:

(i) award damages for violations

(ii) rezone for lower income housing

(iii) damages against the city itself (like the Yonkers case) - OR -

(iv) provide incentives for builders if they build low income units or have courts step in and switch the burden of proof so that once the P has won the builder gets a permit and the city would then have to show why you shouldn't get it. This is a builders remedy. - OR -

(v) In ML II legislature passed the Fair Housing Act which allowed a transfer of obligation to provide low income housing, you can pay a neighboring community who was already planning to rezone and let them build the low income housing. This is called a BUYOUT.

b) Ways to achieve court's purpose (p.1122 note 2):

(i) all houses have to cost a certain amt. (this is generally invalid).

(ii) min. floor area requirements (mixed decisions on this and often its invalid if not linked to density requirements).

(iii) min. lot size requirements (this is generally upheld).
3. Controls on Household Composition: Village of Belle Terre v. Boraas p.1080 Owners leased house to MT who co.-leased to BB. Then 4 other students moved into the house. None are related by blood or marriage. The Village served them w/ an order to remedy violations of their ordinance. The owners and tenants brought this action to declare the ordinance unconstitutional. The ordinance requires that if at least 2 people are related by blood or marriage there is no limit on the # of people that can live in the house. BUT if the people are unrelated entirely only 2 (maximum) can live in the home. Issue: Does an ordinance that est. a classification b/w households of related and unrelated individuals deprive them of = protection under the laws (specifically rights of association and privacy.) Holding: the court upholds the ordinance. The police power provides the authority to law out zones where family values, clean air, and quiet are a priority. TEST: for an ordinance to be valid all you need is a rational relation to a permissible state goal. In this case the goal was that the family values, etc. This test stands unless fundamental constitutional rights are in question. Some states rule opposite of Belle Terre.

IV. EMINENT DOMAIN - IS THE POWER OF GOVERNMENT TO FORCE TRANSFERS OF PROP. FROM OWNERS TO ITSELF. CAN'T TAKE W/O JUST COMPENSATION. CASE BY CASE BASIS AND VERY FACT SPECIFIC

A. Public-Use Puzzle

1. Hawaii Housing Authority v. Midkiff p.1146 Almost _ of the State's land was owned by a few. Legislature decided to break up the estates by condemning the land. This would make the land sales involuntary and the fed. tax consequences less severe, but you would still have redistricting. Issue: whether the Public Use Clause prohibits Hawaii from taking w/o just compensation, title in real property from lessors and transferring it to lessees in order to reduce the concentration of ownership. Holding: Hawaii can take the prop. and redistribute it. the acquisition by the State will effectuate public use. Rule: The taking must be rationally related to a conceivable public benefit. As long as you can draw a plausible connection to a public benefit it is OK. This gives deference to the legislature and the police power of the states. Policy: the legislature is better able to make the judgments b/c they are elected and accountable to the public. They have broad discretion to find the best solution, and judges don't have broad discretion. The legislature is closer to the source to figure out the public use. The courts have VERY LITTLE guidance on how to draw the limits on public use.

2. Poletown Neighborhood Council v. Detroit p.1156 Detroit wanted to condemn a neighborhood (non-slum) and convey it to GM to construct a plant. The neighborhood members sued to enjoin the project b/c it was a taking not for public use. Issue: whether the condemnation is for the primary benefit of the public or the private user. Holding: ct held that the condemnation was for public use. The court used a balancing test to decide whether it was private or public use.


a) the decision really shows that undue influence occurred over the State Legislature b/c Detroit was desperate to create jobs. GM exploited Detroit's situation to secure the location of their plan. Also, the state legislature is more subject to capture by small factions (and even smaller governing bodies). There is a higher chance for private benefit arising out of the legislative process. A fed. court is more deferential.

(i) Most state constitutions have a taking clause - which is a higher standard than the Feds. The distinction b/w the State and Fed. explains why state's are less likely to find a public use.

(ii) Still have to have a permissible purpose in taking. If the purpose is discriminatory then it might be stricken down as a public use. The majority in Poletown holds that you need substantial proof that there is a significant public use.

(iii) Justifications: W/ the police power you don't get compensated. You need a diff. standard b/w public use (compensation) and the police power.

b) Compensated Taking v. Uncompensated Zoning (Village of Euclid). The 5th amendment states that prop. can't be taken w/o compensation. This is a granting of power amendment, and its not a limitation of power. It presumes eminent domain power, not about the limits of police power.

c) To determine when compensation is required by the government you can challenge it by testing if there is a permissible purpose. If not then its invalid. To get your compensation you have to find the undue influence and publicize it.
B. Physical occupations and Regulatory Takings

1. Loretto v. Teleprompter CATV Corp. p.1164 Private cable comp. was given the right to install cable on landowners private prop. to provide cable to tenants. The landowner had to permit the installation and the compensation was $1. Issue: whether a minor but permanent physical occupation of an owner's prop. authorized by government constitutes a taking of prop. for which just compensation is due. RULE: A permanent physical occupation constitutes a taking. This rule is a per se test advantage of a per se test is predictability, easy application disadvantage of a per se test is that it is inflexible.


a) The court does mention that in other situations it will balance other factors like public interest.

b) Dissent: The dissent contests that it is a permanent occupation. They think the occupation is temp. b/c it lasts only as long as the landlord tenant relationship lasts. It is not a bright line situation. They want to balance the economic impact w/ the interest of the owner.
2. Pennsylvania Coal Co. v. Mahon p.1189 House situated over coal deposit. P wants coal, but if they take it the house will fall into a big hole. But the deed expressly reserves the P right to get the coal from under the property. There is also an express waiver that does not allow the D to collect damages from the removing of coal. PA passes a stat. which prohibits the mining of coal that causes subsidence of structures of homeowners. Decision: the SC said it WAS a taking and they used a BALANCING TEST. Holding: it is all right to diminish the value of prop. but if the extent of the diminution of value reaches a certain point it is a taking. (great test huh?)


a) This is NOT A NUISANCE b/c it concerns a private home. Thus, there is no public interest. And also not a nuisance b/c they provided NOTICE so no personal safety was at risk. The coal owner benefits by the regulation (which restricts the owners right to property) b/c they get partially compensated.

(i) on Dissent: They say its a use restriction. That it is nuisance control. Zoning is diff. from taking in that you get no compensation.
3. Nollan v. CA Coastal Commission p.1217 The P wanted to build a house that was in keeping w/ the neighborhood. The D said they would grant the permit for them to build subject to the condition that they allow the public an easement to pass across a portion of their property. Issue: is this a taking? Sub-Issue: is it a permanent physical occupation? Public benefit = increasing use of the parks and beach. Damage to P = public presence on prop. w/o their permission. They have a fundamental right to exclusion. The D is not just requiring an easement they are making it a condition to issue a permit which is like a land use regulation. TEST (Nexus Test): There must be a substantial and essential nexus b/w the condition and the original purpose of the building restriction. Court says there is no substantial nexus here b/w the access to parks and visual access to the beach. THIS IS A TAKING!!!


a) The D could have required the P to build the house bigger but not wider if they really wanted to unobstruct the view of the beach, so that the 2 goals would be the same. To avoid it being a taking the public easement would have to relate to the view of the beach.

b) Comparison w/ Matthew v. Bay Head: Here they took away the prop. owners right to exclude and gave the public the right to the beach. The Court made the association provide reasonable access to the beach. The distinction is that the D was a public trust and the P are a private landowner.

c) Comparison w/ State v. Shack: A lawyer could enter prop. to see his client and the landowner had no say. Here the distinction is that allowing access was not a taking b/c it was based on social policy - the tenants had rights that had to be protected. If it serves a valid government purpose maybe access is not considered a taking.
4. Lucas v. SC Coastal Council p.1241 P wanted to build houses, but he was the only one shunned from the business. When the Legislature enac6ted a ACT that had the direct effect of barring the P from building his homes on his land. TC said the regulation deprives P of any economic viable use of the land. Issue: whether the Act's dramatic effect on the economic value of P lots accomplished a taking a private property under the 5th and 14th Amend. requiring the payment of "just compensation." Rule: the Substantial Advancement Test - a regulation is a taking when an owner is deprived of all economically viable use unless it prevents what would have been a CL nuisance. Holding: SC said it was a taking! Statute is a nuisance control measure and Lee said the court has given too little guidance as to what is a taking, but the court offered two rules to help decide: 1) permanent physical invasion 2) denial of ALL economic use. Noxious Use Rule - was a rule overturned in this case b/c anything could be considered a noxious use. Lee said that past court decisions have applied a balancing test to see if there is a valid state interest in the name of the "noxious use test." This case added formality to this area, which makes it a tool for stricter governing.


a) In the PA Coal case the court said that all value was destroyed in a PORTION of the prop. The court looked at this as being 100%; so that a portion was considered ALL of the property. B/c the court in this case sidestepped determining what "ALL" means, provides flexibility when ruling on other cases.

b) What is a CL nuisance: state courts are able to decide if a nuisance exists in proportion to the flexibility offered by their CL.
5. Dolan v. City of Tigard (handout) P wanted to build a new store 2 times the size of the old one, and a paved parking lot. City wanted to widen the creek as a floodplain and a bike path. The city told the P you can build your store subject to the conditions of the flooplain and bike path. If the court used the Nollan Test then they would not have found it to be a taking b/c there was a substantial nexus. However, this court applied a new test of rough proportionality which has a heightened standard (don't have a specific degree, but higher degree of connection than just the nexus.) The court said that the floodpain was ok, but the bike path wasn't b/c it did not help prevent floods so no good rough proportionality. The city really wanted the bike path for the public, so they stuck it in as an easement for the floodplain. And w/ a public easement the owner's rights were taken away.


a) Dissent #1: determined that the owner would benefit the most from the flood control, so that this want's really a detriment to the owner. Another potential benefit to the owner is that the easement would attract more customers to his commercial property. The maj. isolated one element of prop. (right to exclude) and held that to be a taking. Dissent said that b/c the D violated only one prop. right out of the entire BUNDLE of prop. rights, that it wasn't a taking.

b) Dissent #2: Souter says that majority is announcing a new test of rough proportionality and not using it. The court really applies the old test (nexus test). Because the court examines it only on the level of whether there is or isn't a connection (following Nollan).
»» FUTURE INTERESTS »»

INTRODUCTION

Confers rights to the enjoyment of property at a future time.

E.G » "to my son A for life, and on A's death to A's daughter B and her Heirs." By creating a future interest in his granddaughter, B, to b/c possessory after A dies, the testator is able to control inheritance of the land not only at his death but also at his son's death.

It is a present legally protected right in property.

 

FUTURE INTERESTS IN THE TRANSFEROR

Reversion: the interest left in an owner when he carves out of his estate a lesser estate and does not provide who is to take the prop. when the lesser estate expires

All reversions are retained interests, which remain vested in the transferor..

If O granted the land to A for life, the land would revert (come back) to O at A's death. If O dies during A's life then O's reversion passes under his will to his heirs, and then they get it when A dies.

The hierarchy of estates determines what is a lesser estate. Fee simple is greater than a fee tail which is greater than a life estate.

A reversion is transferable during life and descendible and devisable at death.

 

Possibility of Reverter: arises when an owner carves out of his estate a determinable estate of the same proportion.

almost all deal w/ carving a fee simple determinable out of a fee simple absolute.

It is a future interest remaining in the transferor or his heirs when a fee simple determinable is created.

E.G » O conveys Blackacre "to Library Board so long as used for library purposes." O has a possibility of reverter.

Right of Entry: when an owner transfers an estate subject to condition subsequent and retains power to cut short or terminate the estate.

E.G. » O conveys Whiteacre "to Library Board but if it ceases to use land for library purposes, O has the right to re-enter and retake the premises."

 

FUTURE INTERESTS IN TRANSFEREES

Introduction

There are 3 types of future interests in transferees: vested remainders, contingent remainders and executory interests. A remainder or exec. interest cannot be retained by the transferor; these interests are created only in transferees. Once created a remainder or exec. interest can be transferred back to the grantor, but the name originally given the interest does not change.

TIP: When doing problems decide on the type of future interest (remainder etc.) and what kind of estate held as a future interest (in fee simple absolute etc.)

A remainder is a future interest that waits politely until the termination of the preceding possessory estate, at which time the remainder moves into possession if it is then vested. It is a future interest that is capable of becoming possessory upon the termination of the prior estate.

Remainders

Vested: when throughout its continuance, A, or A and his heirs, have the right to immediate possession, whenever and however the preceding freehold estates may determine.

Contingent: if in order for it to come into possession, the fulfillment of some condition precedent other than the determination of the preceding freehold estates is necessary.

 

RULE AGAINST PERPETUITIES

Provides that "No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest."

Applies only to:

contingent remainders

executory interests, and

vested remainders subject to open

The moment the future interest which is subject to the Rule is created, the courts test the interest to see if it passes the time limit.

If it is conceivable that one of the parties we created can qualify to claim rightful possession of the property, BUT ONLY AFTER the lives in being plus 21 years have expired then we have VIOLATED THE RULE AND THE INTEREST IS VOID.

 

RAP and Contingent Remainders:

"To A for life, then to A's first child who reaches age 25 and his or her heirs."

A has a life estate

A's first child to reach 25 has a contingent remainder in fee simple, and

O has a reversion in fee simple

Create, kill and count approach:

create a child for A: X

kill everyone who is alive now

count 21 years; how old is child X at the end of the Rule's time period? 21 years old

Future interest violates the RAP.

Validating life: person who will enable you to prove that the contingent interest will vest w/in the life of, or at the death of, the person, or w/in 21 years after the death of the person.

Cases

Brown v. Independent Baptist Church (p.302): The reason is the determinable fee might not come to an end long after any life or lives in being and 21 years, and in theory may never come to an end, b/c it is as long as it is a church.

Gifts to Classes:

If the gift to one class member might vest to remotely, then the whole class gift is void.. For a class gift to be vested under the RAP, the class must be closed (each and every member identified) and all conditions precedent for each must be satisfied by the 21 year period.

Wait and See Doctrine:

p.319; adopted in a maj. of states. Provides that a contingent interest is valid if it actually vests w/in the common law perpetuities period.

 

CO-OWNERSHIP

Common Law Concurrent Interests p.325

T in Common: separate but undivided interests in the prop.; the interest of each is decendible and may be conveyed by deed or will. Each tenant owns an undivided whole.

Joint Tenants: have the right of survivorship, when one JT dies nothing passes to the surviving JT or tenants, rather the estate simply continues in survivors freed form the participation of the decedent, whose interest is extinguished. If the JT is severed, it turns into a T in Common.

Tenancy by the Entirety: created only in husband and wife. Hold as one person at CL. Divorce terminates the T by E. Don't need a "strawman" to sever a T by E anymore, you can turn it into a T in C. Riddle v. Harmon (p.330)

Common Law Insists on 4 Unities: which if one is broken or not completed a JT is either not created or turns into a T in Common:

Time: the interest of each joint tenant must be acquired or vest at the same time.

Title: all JT must acquire title by the same instrument or by a joint adverse possession. A JT can never arise by intestate succession or other act of law.

Interest: All must have = undivided shares and identical interests measured by duration.

Possession: each must have right of possession of the whole. After a JT is created, one can give another JT exclusive possession.

 

*Presumption that you want a T in C unless specifically say JT.

 

Reasons to Terminate a Co-Tenancy

Partition in Kind: better to split the prop. up b/w the co-owners then to sell it. Take into account who is on the land and what they have done to it or invested in it. Don't want the little guy to lose out. *Maj. of courts prefer this.

Partition in Sale: bad b/c it sells the land for market value and splits the money according to the amount of prop. owned by each.

*Spiller v. Mackereth (p.353): talks about ouster and co-tenants when one wants the other to leave, has no right to etc.

 

 

MARITAL INTERESTS

Community Property Idea

idea of treating husband and wife as an economic unit; marital partnership. All prop. that is not community prop. is separate. Separate prop. is prop. acquired b/f marriage and prop. acquired during marriage by gift.

CL Marital Prop. System

the woman was not a legal person at marriage and so the husband got everything.

all personal prop. owned by her went to him.

States enacted the Married Woman's Prop. Acts:

husband worked outside the home and wife worked inside.

although she was given control over her prop. it was likely she had no control b/c she had no money.

Sawada v. Endo (p.369): Under the MWPA An estate by the entirety is not subject to the claims by creditors of one spouse during their joint lives.

Termination of Marriage by Divorce p.382:

Old CL: generally ignored the wife's contribution of services and no recognition of the marriage as a partnership of shared assets acquired during the marriage.

New CL: property is divided = now; 50/50. Based on a no fault divorce. Even on fault basis the courts tend to like the 50/50 anyway.

In Re Marriage of Graham (p.385): MBA being part of her interest case. Said it was not marital property to be divided.

Termination of Marriage by Death p.400:

CL: gave surviving widow 1/3 if there were surviving issues and _ otherwise. A surviving widower took everything.

Dower: a gift made by the bridegroom to the bride at the weeding. Law gave it to a surviving wife (all my worldly goods).

Attaches to land at the moment of marriage, if the land is then owned, or thereafter when the land is acquired.

Curtesy: at his wife's prior death, a widower was at CL entitled to a life estate in each piece of the wife's real property if certain conditions were fulfilled. It did not attach to land unless issue of the marriage capable of inheriting the estate were born alive.

Both of these are abolished now in almost all of the states.

Modern Elective Share: forced share legislation giving the surviving spouse an elective forced share in all property that the decedent spouse owned at death.

Community Prop. Compared w/ CL Concurrent Interests p.405