PROPERTY Issue OL

Cases

Term
Definition / Elements
RIGHT TO EXCLUDE v. RIGHT TO ACCESS
RULE OF CAPTURE
Prior in Time: First person to take possession of a thing owns it
1.
Possession Or
2.
Pursuit and mortally wounded, capture is practically certain
TRESPASS
Intentional intrusion on the property possessed by another
Elements:
1. Intent
a. Voluntary act
b. Not knowing not an excuse
2. Intrusion
a. Moment of entry
Exceptions:
1. Consent
2. Necessity
3. Public Policy
Remedy
1. Damages:
a. Nominal: Even if no other harm has occurred
b. Compensatory: Cost of restoring the property to its previous
condition or by the diminution in its market value
c. Injunctive: Order requiring someone to get off the property
2. Declaration: statement by the court that someone is trespassing
3. Criminal
RIGHT OF REASONABLE
The more an owner has opened his property to the public, the more
ACCESS TO PROPERTY
likely it is that the courts will find public rights of access to the
OPEN TO THE PUBLIC
property
REASONABLENESS
Property owners do not have aright to unreasonably exclude people
STANDARD
from their property.
Majority Rule:
Rule is limited to common carriers (Airlines, inns)
Minority Rule:
Property owners must have a legitimate business interest for excluding
someone disorderly, drunk, threat to security
CIVIL RIGHTS ACT 1964
Title II: Prohibits discrimination in places of public accommodation.
Elements of a claim:
1. Discrimination
2. Based on Race, Religion, National Origin
3. Public Place
Does not cover gender, age, sexual orientation
Private club exception
NJ LAW AGAINST
State law prohibiting discrimination in places of public
DISCRIMINATION
accommodation. Went further than federal law.
1. Place: As long as an organization meets in a physical place
2. Public Accommodation: evidence of
a. Broad solicitation
b. Support by government organizations
c. Previous recognition as a public organization
3. Distinctly Private Organization
a. Small exclusive membership
Difference from Federal Law:
1. Includes age, gender, familial status, sexual orientation
2. List of places is extensive and says but not limited to
3. Exceptions: private schools based on gender, religious orgs.
LEAFLETING IN
US Constitution does NOT require mall owners to allow access for
SHOPPING MALLS
leafleting.
Some state constitutions DO require mall owners to allow access (NJ)

Pierson v. Post

Uston v. Resorts

Uston v. Resorts

Dale v. Boy Scouts

Dale v. Boy Scouts

Lloyd v. Tanner
NJ Coalition
1

PROPERTY Issue OL
Term
Definition / Elements
RELATIONSHIPS AMONG NEIGHBORS
WATER RIGHTS
When owners develop land and expel water onto neighboring property,
the courts must determine whether this constitutes a valid exercise of
ht developers right to use her own land or a violation of the rights of
the neighbor to be free from flooding damage.
Majority View
Reasonable Use Rule: Allowed reasonable discharge of water,
provided there is no substantial harm. Decision of what is a reasonable
use is left up to the jury or judge depending on the circumstances of the
case
Minority View
Natural Flow / Civil Law Rule: Cannot discharge water in any way
other than through natural drainage paths.
Common Enemy Rule: Absolute right to cast off any unwanted water.
LATERAL SUPPORT
Adjoining landowners have an absolute duty to support their
neighbors land in its natural condition.
No absolute duty to support structure built on that land if the land in its
natural condition would not support such structures.
Only have a duty not to act negligently in removing support structures.
Liability:
Strict liability
RETAINING WALLS
Neighboring landowners have an absolute duty to maintain retaining
walls.
Liability:
Negligence
STRUCTURES ON LAND
No duty to support additional structures on the land that would not be
supported in the lands natural state.
Minority View:
Some states have statutes that require supporting structures.
SUBJACENT SUPPORT
Liability:
WITHDRAWL OF
GROUNDWATER
Liability:
LIGHT AND AIR
Minority:
NUISANCE

Remedies:

Surface owners have an absolute right to subjacent support for their

land.
Those who withdraw subjacent support for the surface are strictly
liable for damage to the land in its natural condition.
Many states impose a reasonable use standard requiring that owners
not withdraw water or oil beneath the lands of other if this will result in
a loss of support for the surface of neighboring land.
Negligence standard.
Owners are free to build in ways that interfere with neighbors interests
in light and air. (No easement for light and air)
Apply nuisance doctrine to determine whether it was an unreasonable
and substantial interference.
Unreasonable and substantial interference with anothers use and
enjoyment of their own property
Factors:
1. Manner in which activity is conducted
2. Place where it is conducted
3. Priority: who was there first
4. Nature of the activity being harmed
5. Gravity of the harm
6. Ease of abating harm
7. Utility of the conduct
Four Possible Outcomes:
1. Injunction
2. No Relief
3. Damages
4. Purchased Injunction

Cases

Armstrong v. Francis

Noone v. Price

Massachusetts State
Building Code

Friendswood
Development

Fontainebleau
Prah v. Maretti

Page County

Boomer Cement
DeSario

Term
ADVERSE POSSESSION

PRESCRIPTIVE
EASEMENTS

LICENSES
IRREVOCABLE LICENSES

EASEMENT BY ESTOPPEL

EASEMENT BY
CONSTRUCTIVE TRUST
SERVITUDES

Definition / Elements
Transfer of property to someone that is trespassing
CLEAR AND CONVINCING EVIDENCE
Elements:
1. Actual Possession
2. Open & Notorious
3. Exclusive
4. Continuous
a. Tacking
b. Seasonal use look at the land in the context in which it
would be used
5. Adverse or Hostile
6. Statutory Period
Limited rights to use the property of another in a specific way

PROPERTY Issue OL
Cases

Elements:
1. Actual USE
2. Adverse or Hostile
3. Open & Notorious
4. Continuous
5. Statutory Period
NOT:
1. No ACTUAL possession
2. No Exclusive
Must be used for the same purpose
Permission to enter someone elses land that is revocable at will.
Four circumstances where license is irrevocable.
1. License coupled with an interest (Ex. someone sells their property,
must still allow person to come onto the property to move the car)
2. Theater tickets
3. Easement by Estoppel
4. Easement by Constructive Trust
Owner is estopped from revoking the license if he induces the other
party to reasonably rely to his detriment on the license.
Elements:
1. Permission
2. Reasonable reliance upon that permission
3. To his detriment (Typically some kind of investment)
Court treats a property arrangement as if the grantor had created a trust
arrangement, regardless of grantors intent
Legal device that creates a right or an obligation that runs with the land
or with an interest in land.
Four Issues:
1. What are the formal requirements to create a right or obligation
that will run with the land? When are informally create
expectation enforceable by or against subsequent land owners?
2. When meaning is unclear, how should ambiguities be interpreted?
3. What are the substantive requirements for validity of servitudes?
a. Determining when land use restrictions are immediately void
as against public policy
b. Determining when rights or obligations, although valid as
contracts between the parties who agreed to them will not be
allowed to run with the land binding and / or benefiting future
owners?
4. How can servitudes be modified or terminated?

Brown v. Gobble
Nome 2000

Community Feed

Holbrook v. Taylor

Rase v. Castle Mountain

Term
EASEMENTS
Dominant Estate
Servient Estate
AFFIRMATIVE
EASEMENTS

NEGATIVE EASEMENTS
EASEMENT
APPURTENANT

EASEMENT IN GROSS
EXPRESS EASEMENTS
IMPLIED EASEMENTS
QUASI-EASEMENTS

EASEMENTS IMPLIED BY
NECESSITY

COVENANTS

Remedy

Definition / Elements
Irrevocable Servitudes
One who benefits from the easement
One that bears the burden
Right to do something on someone elses land

PROPERTY Issue OL
Cases

Right of Way: Obligation on landowner on which the road sits to

allow the neighbor to use the road for passage
Right to prevent people from doing things on your land
Easements that are intended to run with the land such that the benefit
of the easement will pass to any future owner of the dominant estate
and the burden will be imposed on any future owner of the servient
estates.
1. Intend to run with the land
2. In writing
3. Owner of the servient estate purchased with notice of the easement
Easements are not intended to be attached to the ownership of
particular parcels of land.
Requires common prior ownership
Easements implied by prior use
Elements:
1. Common ownership at some time in the past
2. Use of the servient estate for the benefit of the dominant estate
was obvious and apparent
3. Necessary and beneficial use of the land
An easement is implied by necessity.
Elements:
1. Common ownership sometime in the past
2. Absolute necessity
Land use restriction intended to run with the land. Normally enforced
by owners of the dominant estate against the servient estate.
Negative Covenants prohibit certain kinds of uses
Elements:
1. Writing
2. Intent for it to run with the land
3. Notice to future land owners
a. Actual
b. Inquiry
c. Constructive
4. Touch and concern
5. Privity
a. Horizontal Privity: Privity between the original parties of the
covenant. Relationship different from just being neighbors.
Examples:
i) Mutual covenants
ii) Conveyance of property from one to another
iii) Simultaneous Privity
b. Vertical Privity: Privity between original landowner and later
landowners who take over through the sale of property
i) Landlord/Tenant not usually vertical privity
Injunction
Damages (DIFFERENCE FROM EQUITABLE SERVITUDES)

Green v. Lupo
Cox v. Glenbrook

Granite Properties v.
Manns

Finn v. Williams

Kotseas

Term
EQUITABLE SERVITUDES

Remedy
IMPLIED RECIPROCAL
NEGATIVE SERVITUDE

DEFENSE FOR
TERMINATION /
MODIFICATION OF
COVENANTS

CONDOMINIUMS

HOMEOWNERS
ASSOCIATIONS

PROPERTY Issue OL
Cases

Definition / Elements
Land use restriction that is intended to run with the land.
Elements:
1. Writing
2. Intent
3. Notice
4. Touch and Concern
NOT:
1. Privity
Damages
Developed to deal with the intent, notice, and privity of estate issues
that arise when a developer imposes grantee covenants on a lot in a
residential subdivision and he intentional or inadvertently leaves the
restrictions off of some of the deeds.
Elements:
1. Common owner
2. Common Plan or Scheme: Original developer intended the lot to
be included in the plan
a. Declaration stating that the covenants are meant to be
mutually enforceable
b. Presence of restrictions in all or most of the deeds
c. A recorded map
d. Presence of restrictions on the last deed
e. Owners observance of other restrictions
3. Notice
1. Doctrine of Changed Conditions
2. Relative Hardship Doctrine: Compares benefit to burden. If the
hardship to the servient owner is great by considerable magnitude
than benefit to other owner
3. Acquiescence: Has tolerated violations of the covenant in the past
4. Unclean Hands: Has violated the covenant himself
5. Abandonment: So many landowners in the area violate the
common covenant that between their unclean hands and
acquiescence, the covenant becomes unenforceable
6. Estoppel: When dominant estate owner orally represents he will
not enforce the covenant to the owner of the servient estate, he
may be estopped from enforcing the covenant if it is shown the
owner of the servient estate changed his position in reliance of the
oral argument.
7. Laches: When someone waits so long to bring a suit to enjoining a
violation that the breaching D is unduly harmed by the delay itself.
8. Marketable Title Acts: Some jurisdictions require that people rerecord covenants after a certain period of time or it will terminate.
Common interest community where people give up certain rights in
exchange for certain benefits. Individuals own their units in fee simple
and own common areas as tenants in common.
Established by declaration
Condominium association with votes divided according to the size of
the units
Board has the power to manage common areas, pass rules regulating
behavior
Now regulated by statutes in most states
Residential subdivisions regulated by a homeowners association. Often
common areas are owned by a separate entity than the owners.

Evans v. Pollock
Riley v. Bear Creak

El Di
Blakely v. Gorin

PROPERTY Issue OL
Cases
Appel v. Presley
OBuck v. Cottonwood
Neuman v. Grandview

Term
REASONABLENESS
STANDARD

Definition / Elements
Condominium boards must act reasonable in making exceptions to
covenants and in enforcing covenants.

RESTRAINTS ON
ALIENATION
DIRECT RESTRAINTS ON
ALIENATION / TRANSFER
CONSENT TO SELL

Absolute restraints on alienation will be struck down, reasonable

restraints on alienation will be upheld.
Not enforceable unless a charitable group (standards are looser).
Traditional view against any restraint on alienation as repugnant to fee
will normally be applied
Usually not upheld unless in a cooperative.

RIGHT OF FIRST
REFUSAL

Will be upheld if seller is offered fair market value or equal price and it
is exercised within a reasonable time period.

Horse Pond Fish and

Game
Northwest
Riste v. Eastern
Washington Bible
Aquarian Foundation
Wolinksy

PROPERTY Issue OL
Term
Definition / Elements
Cases
ESTATES AND FUTURE INTERESTS
Types of Estates:
Future Interest
1. FEE SIMPLE
a. FEE SIMPLE ABSOLUTE
None
b. DEFEASIBLE FEES
i) FEE SIMPLE DETERMINABLE
Possibility of Reverter
ii) FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT
Right of Re-Entry
iii) FEE SIMPLE SUBJECT TO EXECUTORY LIMITATION
Executory Interest
2. LIFE ESTATE
a. LIFE ESTATE WITH REVERSION
Reversion
b. LIFE ESTATE WITH REMAINDER
Remainder
i) CONTINGENT REMAINDER
ii) VESTED REMAINDER
3. FEE TAIL
Reversion or Remainder
4. LEASEHOLD ESTATE
Reversion or Remainder
FEE SIMPLE
Estate could last forever.
The owner can leave it to her heirs or write a will determining who will
get it when the owner dies.
FEE SIMPLE ABSOLUTE
Absolute ownership
O to A or O to A and his heirs
Language in his heirs does not give any actual interest to heirs
Inheritable
Alienable
NO Future Interest
DEFEASIBLE FEES
Have the potential, though not the certainty, of infinite duration.
Terminate upon the happening of an event named in the original
conveyance, at which time ownership passes to the owner of the future
interest.
Inheritable
Alienable
1. Fee Simple Determinable
2. Fee Simple Subject to Condition Subsequent
3. Fee Simple Subject to Executory Limitation
FEE SIMPLE DETERMINABLE
Future interest vests in grantor automatically when the condition
occurs.
O to A, so long as used for residential purposes
as long as, during, while, unless
Subject to a condition, if condition is not met, goes back to O
Inheritable
Future Interest: Possibility of Reverter
FEE SIMPLE SUBJECT TO
Future interest vests in grantor if he asserts if after condition occurs.
CONDITION SUBSEQUENT
Does not automatically end, but ends after the condition occurs and the
grantor elects to re-enter and terminate.
O to A, so long as used for residential purposes, but if not so used, O
shall have a right of re-entry
but if, provided that, on condition that
Future Interest: Right of Re-Entry

Term
FEE SIMPLE SUBJECT TO
EXECUTORY LIMITATION

LIFE ESTATE

LIFE ESTATE WITH

REVERSION

LIFE ESTATE WITH

REMAINDER
LIFE ESTATE WITH
CONTINGENT REMAINDER

LIFE ESTATE WITH VESTED

REMAINDER

FEE TAIL

LEASEHOLD ESTATE

PROPERTY Issue OL
Cases

Definition / Elements
Future interest vests in a third party other than the grantor after the
condition occurs.
O to A, so long as used for residential purposes, and then to B
Same as fee simple determinable except the future interest belongs to a
third party rather than a grantor
Alienable
Future Interest: Executory Interest
Ends with someones death
Pass to either the grantor / heirs as a reversion or to a third party as a
remainder.
O to A for life
Unlike fee simple absolute, no ability to pass the property on after
death
Interest can be transferred
Dependent on As life
Future Interest: Reversion
Remainders are either vested or contingent.
O to A for life, then to B
Future Interest: Remainder, interests created in a grantee
Remainder belongs to an unascertained person or if there is a condition
that must be fulfilled before it can become possessory.
O to A for life, then to B if B graduates from college
Future Interest: Remainder
Belong to an ascertainable person and no conditions must be satisfied
before it becomes possessory.
O to A for life, then to B
Absolutely Vested: O to A for life, then to B
Vested Subject to Open: O to A for life, then to Bs kids
Vested Subject to Divestment: O to A for life, then to B, but if B has
flunked out of law school, then the property shall revert back to O
Future Interest: Remainder
Potential to last forever, ends if and when the first fee tail tenant has no
lineal descendants to succeed him in possession
to A and the heirs of his body
Abolished everywhere
Most states will convert it to a fee simple
Some states will convert it to a life estate and remainder
Estate lasts for a fixed time or by other agreement between a landlord
and tenant
O to A for 10 years
Landlord-tenant relationship
Future Interest: Reversion or Remainder

Term
RULE AGAINST
PERPETUITIES

Modifications

PROPERTY Issue OL
Cases

Definition / Elements
Invalidates future interests that could vest too far into the future
No interest is good unless it must vest, if it all, no later than 21 years
after the death of a life in being at the creation of that interest.
Applies To:
Contingent Third Party Future Interests (Not vested)
1. Executory Interests: O to A so long as used for hosp, then to B
2. Contingent Remainders: O to A for life, then to B if B graduates
3. Vested Remainders Subject to Open: O to A for life, then to As
children
4. Options: Courts view options as executory interests
Does Not Apply To:
1. Vested Interests
a. Reversions: O to A for life
b. Vested Remainders: O to A for life, then to B
c. Vested remainders subject to divestment: O to A for life, then
to B, but if
2. Contingent interests in the grantor
a. Possibility of Reverter: O to A so long as used for a hospital
b. Right of Re-Entry: O to A for use as hospital, but if not, then
B has right
1. Wait and See makes more future interests valid
2. Uniform Statutory Rule Against Perpetuities 90 Year period
3. Statutory Cut-off for Grantor Rights
4. Marketable Title Acts

Central Delaware
County Authority v.
Greyhound

PROPERTY Issue OL
Term
Definition / Elements
REGULATION OF THE MARKET FOR HOUSING
COMMON OWNERSHIP
When one or more people own land in common. Three Forms:
1. Tenancy in Common
2. Joint Tenancy
3. Tenancy in Entirety
TENANCY IN COMMON
A form of concurrent ownership where two or more persons own the
same property at the same time.
Characteristics:
1. Undivided Interest: Each T owns right to possess entire property
2. Ownership interests are fractional shares
a. Grantor can grant unequal interest
b. Determines percentage of profits on the sale that each will get
3. Each interest is:
a. Alienable
b. Inheritable
c. Devisable
JOINT TENANCY
A form of co-ownership that is characterized by a right of survivorship.
Characteristics:
1. Undivided Interest
2. Held in equal shares
3. Right of Survivorship: If one tenant dies, his interest
automatically passes to the surviving tenant (or is divided
according to the fractional interests of multiple tenants)
4. Not inheritable
5. Not devisable
6. Four Unities:
a. Time
b. Title
c. Interest
d. Possession
7. Sever: Through transfer. Destroys right of survivorship and creates
a tenancy in common
a. Lease does not sever the joint tenancy
b. Lease terminates with death
c. Use straw person to sever joint tenancy
TENACY BY ENTIRETY
A form of co-ownership available only to married couples.
Characteristics:
1. Undivided Interest
2. Cannot be transferred without the consent of the spouse
3. Right of Survivorship: Cannot deprive the spouse of the right to
possession or survivorship
4. Unities:
a. Time
b. Tile
c. Interest
d. Possession
e. Marriage
f. Many states have abolished the requirements that he parties
obtain their title at the same time
Differences from Joint-Tenancy
1. Indiv. Undivided interests cannot be transferred without consent
2. Cannot be reached by creditors of one spouse
3. Partition is not available divorce instead

Cases

Tenhet v. Boswell

10

Term
OUTSTER

CONSTRUCTIVE OUSTER

RIGHTS & OBLIGATIONS

OF CO-TENANTS

LANDLORD/TENANT LAW
LEASEHOLD ESTATES

TERM OF YEARS

PERIODIC TENANCIES

TENANCY AT WILL

PROPERTY Issue OL
Cases

Definition / Elements
When one tenant excludes the other tenant from possession
Elements:
1. Conduct that is sufficient to exclude the non-occupying tenants
2. Communication to the tenants an intent to exclude them
When tenants are excluded from a property because it would be
impracticable for the co-owners to occupy the property together.
Situations:
1. Physical Impracticability: The space is too small for all of them to
occupy it
2. Emotional Impracticability: Parties cannot reasonably be expected
to get along sufficiently well to live together
General Rule:
1. Right to possess the entire property
2. Right to transfer individual fractional interests
3. Right to share rents earned by the property in proportion to their
ownership interests
4. Right to lease fractional interest without consent of other coowners
5. Duty to share maintenance and upkeep expenses
Tenants differ from licensees because they are entitled to judicial
process. A landlord cannot use self-help to evict a tenant.
The transfer of possession of real property for either a determinate or
an indefinite period. When the leasehold ends, possessory rights revert
to the original owner. There are express and implied rights and
obligations on either side of the contract. Four Tenancies:
1. Term of Years
2. Periodic Tenancy
3. Tenancy at Will
4. Tenancy at Sufferage
Lease for a definite period of time
1. Definite period of time
2. Ends automatically at the end of the time
3. LLs Future Interest: Reversion
4. Term of Years & Reversion Interests are both alienable (Unless the
lease prohibits)
a. LL sale of property does not terminate the lease
5. Death does not terminate the lease
6. Long term leases (year or more) usually required to be in writing
a. Short term leases can be oral
Tenancy is for a period that is renewed automatically.
1. Indefinite period of time
2. Renewed automatically at the end of each period unless a party
gives notice of termination at the end of that period
3. Interests are inheritable and transferable (Unless lease prohibits)
4. Death does not terminate
5. In order to raise rent, must give notice of termination and then
begin a new rental
Tenancy can be terminated at any time by either party.
1. Unspecified period of time
2. Not transferable
3. If LL sells, terminates tenancy
4. Death terminates tenancy
5. Most states have modified to require notice

Olivas v. Olivas

See Text p. 579

11

Term
TENANCY AT SUFFERAGE

DUTY TO MITIGATE

ASSIGNMENT

SUB-LEASE

RIGHT TO ARBITRARY
REFUSAL
Majority Rule
Minority Rule
CONSTRUCTIVE
EVICTION IN LEASES

Remedy:
IMPLIED COVENANT OF
QUIET ENJOYMENT

Remedy:

PARTIAL CONSTRUCTIVE
EVICTION

PROPERTY Issue OL
Cases

Definition / Elements
When a tenant holds over on an expired lease.
1. Entitled to judicial process
2. LL can sue for eviction or create a new lease
3. Liable to the owner for the market value of the lease during the
period of occupancy
LL has a duty to mitigate damages by making reasonable efforts to find
a new tenant.
Most jurisdictions reject Wait and See in favor of this approach
Based on looking at leaseholds from the perspective of contract
doctrine instead of property doctrine
When a tenant transfers his entire interest to another party.
1. Entire unexpired term of the lease
2. Vertical privity between original tenant and the new tenant all
covenants in the original lease run with the land and are binding
on the new tenant (assignee)
a. New tenant is directly responsible for rent
b. LL can sue new tenant
3. Original tenant and LL also remain in privity
a. LL can sue old tenant
When a tenant transfer a partial interest to another party
1. Tenant transfers the leasehold for a shorter period or reserves the
right of re-entry
2. Vertical privity is missing and the original lease may not run with
the land
a. New tenant not directly responsible for rent, pays rent to old
tenant, who pays the LL
b. LL cannot sue new tenant
Whether a landlord has a right to refuse a sub-lease or assignment to
another person for any reason at all.
LL can refuse for any reason
LL must act reasonably in refusing (Especially in commercial leases)
When acts by the landlord (or a failure to act where the landlord has a
duty to act) so substantially interfere with the tenants quiet enjoyment
of the property that a tenant cannot live there and is constructively
evicted from the premises.
Standard:
Substantially and materially deprived T of beneficial use and
enjoyment of the property
High standard must be more than inconvenient or annoying
Tenant has the right to withhold rent
There is an implied covenant of quiet enjoyment in rental leases
providing that a landlord will not interfere with the tenants possession,
use, and enjoyment of the property.
LL can be responsible for the actions of other parties Especially if he
owns both properties
1. Tenant can leave the property and refuse to pay rent
2. May be entitled to damages including the cost of relocating
3. May be able to stay and withhold rent
When a portion of the premises have conditions that are so bad that a
tenant cannot live in them and has to move out.
Do not have to move out of the other portions.
Tenant is entitled to rent abatement on that portion of the premises

Sommers v. Kriddell

Slavin v. Rent Control

Kendall v. Ernest

Blackett

Minjak v. Randolph

12

Term
IMPLIED WARRANTY OF
HABITABILITY

Remedies:

RETALIATORY EVICTION
FAIR HOUSING ACT

DISCRIMINATORY
TREATMENT

PROPERTY Issue OL
Cases

Definition / Elements
In the 1970s, courts began implying a warranty of habitability.
A duty on the part of landlords to repair or maintain rental property to
keep it up to certain standards.
All things short of constructive conviction
Non-waiveable part of any residential lease
Cannot contract around these requirements
1. Termination of the tenancy (rescission of contract)
2. Rent withholding
3. Rent abatement
4. Damages
5. Injunctive or specific performance
6. Repair and deduct
7. Housing code remedies
A landlord cannot evict a tenant simply because he asserts his legal
rights protected by the implied warranty of habitability.
Protects against discrimination in housing based on race, sex, religion,
family status, disability, national origin.
Protects against:
1. Refusal to sell/rent
2. Discrimination in terms and conditions
3. Advertisements
4. Steering: Statements that a realtor makes about a neighborhood
Exemptions:
1. Religious organizations
2. Private clubs
3. Single family home sold or rented to an individual as long as
individual doesnt own 3 houses, no broker, no ad expressing
preference
4. Owner occupied multi-family homes
5. Smaller scale private transactions
Must prove discriminatory treatment using burden-shifting scheme.
1.

DISPARATE IMPACT

Prima Facie Case Discriminatory Intent

a. Member of minority group
b. Applied for and was qualified for an opportunity
c. Opportunity was denied
d. Opportunity remained open
2. D can prove another reason besides discrimination
3. P can prove that Ds arguments are a pretext
Disparate impact claims are available under Fair Housing Act. When a
facially neutral zoning ordinance has a different impact on different
groups.
Elements:
1. P must show disparate impact
2. D must show other justification
3. Court will require
a. Legitimate government interest
b. Proof that there is another way to satisfy this interest in a way
that has a less adverse impact

Jarvins

Hillview Associates
Imperial Colliery Co.

Asbury v. Brougham
US v. Starrett

Huntington
Mount Laurel

13

PROPERTY Issue OL
Term
Definition / Elements
PUBLIC LAND USE / PROPERTY & SOVERIGNTY
ZONING
Government prevents harm from incompatible uses by dividing a city
into zones, resolving competing land uses.
Limitations on Zoning:
1. Prior Nonconforming Uses
2. Variances
3. Vested Rights
PRIOR NONCONFORMING When owners established their structures before the new zoning and it
USES
would be unfair to apply these new limitations retroactively.
Elements:
1. Lawful use
2. In existence when the zoning ordinance was passed
Limitations:
1. Nuisance
2. Substantial change neighborhood would be adversely affected, it
would be inconsistent with surrounding zoning
3. Some juris. put a time limit or strictly restrict any changes of use
VARIANCES
Permission to deviate from zoning law with respect to a specific parcel.
Majority View:
Elements:
1. Impose an unnecessary hardship
2. Proposed use would not be contrary to the public interest and
would not substantially impair the purpose of the zoning plan and
ordinance
Standard is high
Run with the land and may have conditions attached
Note: Law is often ignored by boards and variances are granted when
there is no substantial change and no one objects
Minority View:
Practical difficulties: significant economic injury from enforcement of
the zoning ordinance
VESTED RIGHTS
When a party relied upon zoning code in his investments and is
protected from retroactive changes in the zoning law if the efforts and
expenditures were so substantial as to create vested rights in the
completion of the project
Majority View:
Elements:
1. Efforts and expenditures were substantial
2. Developer was acting in good faith
3. Usually need at least a building permit, but also will need more
Minority View:
Obtained site specific approval for the development
Do not need a building permit
EMINENT DOMAIN
Government condemns private property, pays the owner, uses it for
public welfare
TAKINGS
Fifth Amendment Takings Clause protects property owners from
uncompensated taking of their title or deprivation of their possessory
rights by the government.
Prohibits government from:
1. Taking private property
2. For public use
3. Without just compensation

Cases

Town of Belleville v.
Parrillos

Cochran v. Fairfax

Stone v. Wilton

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Term
AD HOC TEST

PER SE TAKINGS

PUBLIC USE

PROPERTY Issue OL
Cases

Definition / Elements
Balancing test using factors to determining whether something
constitutes a taking.
Factors:
1. Extent of Economic Harm
2. Interference with Investment-Backed Expectations
3. Character of Government Action
Regulations that are categorically deemed takings without regard to the
public interest served. No factual inquiry
Categories:
1. Permanent physical invasions of property
2. Deprivation of all economically viable use
a. Unless the use was a nuisance or something prohibited by
property law
Land can only be taken for public use, cannot be taken for private
transfer, even if the government is willing to pay.
Public purpose satisfies the public use requirement.

Keystone v. Bituminous
Coal
Penn Central v. NYC

Lorreto v. Teleporter
Lucas v. South Carolina
Coastal Council

Kelo v. New London

15