Table of Contents

Acquisition of Property by First Possession..............................................................................5

Acquisition by Discovery....................................................................................................................5
Johnson v. M’Intosh (taking over the Indians land)..........................................................................5
A. Acquisition by Capture.....................................................................................................6
b. Pierson v. Post (battle over the fox)..........................................................................................6
c. Ghen v. Rich (Whalers)..............................................................................................................7
B. Right to Exclude...............................................................................................................9
a. Jacques v. Steenburg Homes (crossing private land to deliver homes after they said no)......9
b. State v. Shack (no legal advice for the migrant farmers)..........................................................9
C. Right to Abandon...........................................................................................................11
a. Hawkins v. Mahoney (Escaped inmate requested his personal belongings when he was
returned 2 days later)......................................................................................................................11
b. Pocono Springs Civic Association, Inc. v. MacKenzie (bought a lot to build a house – no
sewage system)................................................................................................................................11
D. Right to Destroy.............................................................................................................13
a. Eyerman v. Mercantile Trust Co. (old lady wants house destroyed but gated community
wants no new neighbors).................................................................................................................13
E. Acquisition by Find.........................................................................................................14
a. Armory v. Delamirie (chimney sweep found the jewel, Apprentice at jewel shop would not
give it back to him)...........................................................................................................................14
b. Hannah v. Peel (soldier finds lost broch in house owner never lived in)...............................15
c. McAvoy v. Medina (customer finds purse in barbershop with money it)..............................15
F. Adverse Possession........................................................................................................16
a. Van Valkenburgh v. Lutz..........................................................................................................18
c. Howard v. Kunto (summer homes).........................................................................................19
d. O’Keeffee v. Synder (adverse possession of a painting).........................................................20
G. Acquisition by Creation..................................................................................................22
a. International News Service v. Associated Press (east coast news printed stolen news from
the west coast).................................................................................................................................23
b. Feist Publications, Inc. Rural Telephone Service Co. (copying phonebook designs)..............24
H. POSSESSORY ESTATES..............................................................................................................25
Fee Simple Absolute (FSA)................................................................................................................25
Life Estate........................................................................................................................................25
Restraints on Alienation...................................................................................................................25
a. White v. Brown (confusing will cause issues beyond the grave)............................................26
b. Baker v. Weedon (dead guy looking out for young wife).......................................................26
Fee simple defeasible.......................................................................................................................26
 Fee Simple Determinable.........................................................................................................26
 Fee Simple Subject to Condition Subsequent (FSSCS)...............................................................27
 Fee Simple Subject to Executory Limitation (FSSEL).................................................................27

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 a. Mahrenholz v. County Board of School Trustees (transferring land to a school for school purpose
FSSEL)..............................................................................................................................................................27
a. Mountain Brow Lodge No. 82, Independent Order of Odd Fellows v. Toscano (no selling to anyone
that isn’t us)...................................................................................................................................................27

I. Future Interest...............................................................................................................29
i. possibility of reverter...............................................................................................................29
ii. right of entry............................................................................................................................29
iii. Reversion.................................................................................................................................29
iv. Remainder...............................................................................................................................29
Types of Waste.................................................................................................................................32
Remedies for Waste..........................................................................................................................33
J. Restraints on Alienation.................................................................................................33
K. Co-ownership and Marital Interests...............................................................................34
a. There are 3 varieties of co-tenancy..........................................................................................34
b. Types, Characteristics, Creation...............................................................................................34
i. Joint Tenancy............................................................................................................................34
ii. Tenancy in Common.................................................................................................................35
iii. Tenancy by the Entirety............................................................................................................35
c. Severance of Joint Tenancies...................................................................................................35
d. Granting of Mortgage..............................................................................................................36
a. Harms v. Sprague (lien on my half of the property)...........................................................................36
e. Lease........................................................................................................................................37
1. Swartzbough v. Sampson (conveyance to third party severs tenancy entirety)....................37
f. Partition...................................................................................................................................37
1. Delfino v. Vealencis (garbage business v. residential housing)..........................................................38
g. Relations Among Concurrent Owners......................................................................................38
h. Sharing the Benefits and Burdens of Co-ownership.................................................................38
L. Leaseholds: The Law of landlord Tenant.........................................................................40
a. The Leasehold Estates..............................................................................................................40
i. The Term of Years....................................................................................................................40
ii. The Periodic Tenancy...............................................................................................................40
iii. The Tenancy at Will..................................................................................................................41
i. Garner v. Gerrish (only I get to terminate the lease).........................................................................41
iv. The Tenancy at Sufferance: Holdovers.....................................................................................41
b. The Lease.................................................................................................................................42
c. Selection of Tenants.................................................................................................................42
d. Duties, Rights and Remedies....................................................................................................42
i. Village Commons LLC v. Marion County Prosecutor’s Office (flooding in the office)........................43
ii. Condition of the Premises........................................................................................................44
iii. Remedies.................................................................................................................................45
e. Tenants Duty...........................................................................................................................46
f. Transfer and Sale by Lessor; Assignment and Subletting by Lessee..........................................46
g. Assignment..............................................................................................................................47
h. Rights of parties after Assignment...........................................................................................47
i. Sublease..................................................................................................................................48
j. Covenants Running with the Land............................................................................................48

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 i. Elements:.................................................................................................................................48
M. Judicial Land Sue Controls: The Law of Nuisance........................................................50
a. Morgan v. High Penn Oil Co.....................................................................................................50
e. Defenses Defendant May Raise...............................................................................................51
f. Remedies.................................................................................................................................51
i. Estancias Dallas Corp. v. Schultz..............................................................................................51
ii. Boomer v. Atlantic Cement Co. (Restatement Test – profitable business to pay permanent
damages)..........................................................................................................................................52
iii. Spur Industries, Inc. v. Del E. Webb Development Co. (residential housing next to cattle
feed)52
g. Lateral and Subjacent Support.................................................................................................53
h. Water Rights............................................................................................................................53
i. Air Rights.................................................................................................................................54
N. Private Land Use Controls: The Law of Servitudes..........................................................55
a. Introduction: Classifying Servitudes.........................................................................................55
b. Creation of Easements.............................................................................................................55
1. Express.....................................................................................................................................55
2. Implication...............................................................................................................................56
Van Sandt v. Royster (sewage coming through)............................................................................................57
3. Necessity..................................................................................................................................57
Othen v. Rosier (1 man, 4 conveyances, 2 people)........................................................................................57
4. Prescription..............................................................................................................................58
5. Estoppel...................................................................................................................................59
Holbrook v. Taylor (easement is revoked after P’s build a house).................................................................59
c. Transfer and Subdivision of Easements....................................................................................59
d. Termination of Easements.......................................................................................................59
e. Licenses...................................................................................................................................60
O. Covenants Running with the Land..................................................................................61
c. Covenants Enforceable in Equity: Equitable Servitudes...........................................................61
Sanborn v. McClean (building a gas station in a strictly residential area).....................................................62
2. Tulk v. Moxhay (I knew of the covenant but my deed didn’t mention it).........................................63
d. Termination of Covenants........................................................................................................64
a. Nahrstedt v. Lakeside Village Condominium Association, Inc. (1994).................................................64

P. Zoning............................................................................................................................65
 Euclid v. Ambler Reality Co. (cumulative ordinance)..............................................................65
1. State Ex Rel. Stoyanoff v. Berkeley (aesthetic zoning - denied permit to build modern house
in traditional neighborhood)............................................................................................................65
i. Zoning Administration.............................................................................................................66
1. P.A. Northwestern Distributors, Inc. v. Zoning Hearing Board (you have 90 days to take the porn and
go) 66
ii. Exclusionary zoning..................................................................................................................67
iv. Southern Burlington County NAACP v. Township of Mt. Laurel (no housing for the poor people).....67
 Kelo v. New London (big company to create jobs in town)..................................................................68
 Hadacheck v. Sebastian (clay business gone due to ordinance)..........................................................68
i. Implicit Takings – Regulatory Takings......................................................................................69
a. Loretto v. Teleprompter (you must provide the tenants cable)........................................................70
b. Pennsylvania Coal Co. v. Mahon (keeping subsurface rights to mine coal)......................................70

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ii. Historical and Environmental Preservation..............................................................................71
Penn Central Transportation Co. v. Mahon (no office building on grand central)......................................71
iii. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002) (temporary
regulation is not a taking)..............................................................................................................................72
iv. Murr v. Wisconsin................................................................................................................................73

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Acquisition of Property by First Possession
Acquisition by Discovery
 Rights of Possessors - One who obtains title to goods by acquiring them from,
and with the consent of, their prior owners.
1. Discovery – sighting or finding of unchartered territory.
2. Conquest – taking possession of enemy territory through force, followed by
formal seizure of the defeated territory by the conqueror.
3. Occupancy – the person who is on land has legal rights to the land.
Theories of Property Rights
1. First in Time – prior in time is venerable in right.
2. Locke’s Labor Theory - Every man has property in his own person.
a. The labor of his body and the work of his hands are his.
b. Whatsoever he removes out of the state of nature, he mixes his labor
with it and joins to something that is his, makes it his property.
c. Right to exclude the common right of other men.
Relevant Cases
Johnson v. M’Intosh (taking over the Indians land)
 Rule: Discovery of land gives exclusive rights to settle, possess,
and govern new land, and absolute title to soil, subject to certain
rights of occupancy only by natives.

Plaintiff Defendant Reasoning

Contends superior title
because it came directly
from Indian nations who
owned the land previously.
Humanity demands a
Superior title because of wise policy that requires
direct conveyance of that the rights of the
land from the US govt. conquered to property
remain unimpaired, but
a private citizen may
not purchase land from
Native Americans -
considered merely as
occupants, to be
protected, while in
peace, in the possession
of their lands, but
deemed incapable of
transferring the
absolute title.

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A. Acquisition by Capture
 There are few situations where one may obtain title or a rough equivalent, by
the mere fact of possessing the article: (1) wild animals, (2) the finding of lost
articles; and (3) adverse possession.
i. Wild animals (ferae naturae) - no one owns animals that are wild by nature;
therefore, no one has 'title' to them or a 'vested' right to own them.
a. Achieving first possession and thus ownership, requires the following 4
elements:
 Maintaining pursuit, and/or;
 Fatally wounding or killing the animal
 Intent to appropriate the animal to individual use, thereby 
 Depriving the animal of its natural liberty (bringing it within
the hunter's control)
ii. Fugitive Resources
i. Resources that wander from place to place.
 Ie. oil, gas, water
ii. Rule of capture is applied oil and natural gas – landowner has property right in
oil and gas produced from wells on the owner’s land, whether or not it migrated
from other lands.
iii. Groundwater – first governed by rule of absolute ownership (whoever captured
the water, was its owner)
iii. Tragedies of Commons and Externalities
i. Tragedy of commons – collective action problem – individual interest to exploit
a collective resource, but it is in the community’s interest that the collective
resource be managed sustained.
 Resources in common will always be abused absent coercive
intervention by the gov’t.
ii. Externality – when an actor makes a decision without taking into account the full
effects – negative or positive – of that decision because these effects fall on
others – “external” to the actor.
 Hold out – payments must be made to a group in order to
carry out a transaction.
 Free rider – efforts are made to extract contributions from
members of a group in order to carry out transactions that will
confer collective benefits on the group (contributors and non-
contributors alike).
Relevant Cases
b. Pierson v. Post (battle over the fox)
 Rule: Mere pursuit of an animal does not give one a legal
right to it, must mortally wound or greatly maim whilst the
pursuit of the person inflicting the wound continues, that is
sufficient for a legal right to the wild animal.

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  Dissent: Bodily touch is not imperative, provided that the
animal is within reach, or the hunter has the reasonable
prospect of taking the animal; and the hunter has the
intention to convert the animal to his/her own use. (hot
pursuit = possession)

Plaintiff Defendant Reasoning

Acquired right to
possession by being in hot
pursuit of the wild animal,
in uninhabited,
unpossessed land.
In the sake of certainty
Mere pursuit gives no and preserving peace
legal right to the fox, he and order – occupancy
became property of can be established by a
Defendant who pursuer to in actual
intercepted and killed possession by: (1)
the wild animal. wounding,
circumventing or
ensnaring so as to
deprive of natural
liberty; and (2) subject
to the control of the
pursuer.

c. Ghen v. Rich (Whalers)

 Rule: A person establishes a property right over whales when
he takes possession of the carcass and takes practical steps to
secure it, in accordance with local custom.

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Plaintiff Defendant Reasoning
The court can look to
The party who harpoons Unaware of the identity custom and usage
the whale is the owner of the person that killed within an industry to
even if someone else later the whale. determine the rule of
discovers it on the shore. law regarding the
ownership of property -
the industry would
suffer if whalers could
so easily lose the fruits
of their efforts by
allowing another party
to lay claim to the
whales they took the
effort to hunt down.
(Locke’s Labor Theory)
d. Popov v. Hayashi
 Rule: When an actor takes significant but incomplete steps to
achieve possession of a piece of personal abandoned property
and it's interrupted by the illegal acts of others, the actor has
a legally recognizable pre-possessory interest in the property.

Plaintiff Defendant Reasoning

Possession occurs when an
individual intends to take
control of a ball and
manifests that intent by
stopping the forward
momentum of the ball
whether or not complete
control is achieved.
A person who catches a
baseball that enters the
stands is its owner – a
ball is caught if a person
has achieved complete
control of the ball at the
point in time that the
momentum of the ball
and the momentum of
the fan while attempting
to catch the ball ceases.
Popov failed to establish
by a preponderance of
the evidence that he
would have retained
control of the ball after
all momentum ceased
and after any incidental
contact with people or
objects – so did not
achieve full possession.

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B. Right to Exclude
 Grants an absolute right to exclude some persons on a whim and admit others
only by mutual consent.
o A series of intentional trespasses, can threaten the individual’s very
ownership of land.
 Policy argument: Private landowners should feel confident that
wrongdoers who trespass upon their land will be appropriately
punished - so are less likely to resort to self-help remedies.
 Society has an interest in punishing and deterring intentional
trespassers beyond that of protecting the interest of the
individual landowner. . . An interest in preserving the integrity of
the legal system.
Patent Law
 Right to exclude others from making or using an invention without the patent
holder’s permission.

Right Not to be Excluded

 The individual right to equal access to the means of labor and/or the means of
life.
o Property’s foundation is multiple and include individual autonomy,
personhood, security, equal dignity, and community.

Relevant Cases
a. Jacques v. Steenburg Homes (crossing private land
to deliver homes after they said no)
i. Rule: Under Wisconsin law, a jury has discretion to award punitive
damages for intentional trespasses, even if compensatory damages
were not warranted and only nominal damages were awarded.

Plaintiff Defendant Reasoning

Denial of a legal right to
exclude all others.
Punitive damages serve
Intentional trespass but as a deterrent to illegal
no harm was caused to activity where the
the land. damages are greater
than the profit to be
gained by that
misconduct.

b. State v. Shack (no legal advice for the migrant

farmers) -

9
 i. Rule: The ownership of real property does not include the right to
refuse access to individuals providing government services to
workers who are housed on the property.

Plaintiff Defendant Reasoning

A man’s right in his real
property is not absolute –
migrant workers are
outside the mainstream of
communities in which they
are housed and are
unaware of their rights and
opportunities and the
services available to them.
Rights in real property
Rights in the land justify are not absolute and are
refusing access. limited by the
maintenance of the well-
being of those people
that the owner permits
on his land – necessity,
public or private may
justify entry upon the
lands of another – one
should use his property
not as to injure the right
of another.

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C. Right to Abandon
i. Elements of Abandonment:
i. Owner must intend to relinquish all interests in the property, with no intention
that it be acquired by any particular person
ii. There must be a voluntary act by the owner effectuating the intent.
 Policy Argument - Benefits of abandonment
o Facilitates the transfer of a resource from someone who does not value it
very highly to someone who does, that it allows an owner to transfer a
resource without having to devote effort to discovering who might want
or deserve it, and that the availability of a right to abandon a resource
may prevent an owner from exercising his right to destroy or deplete a
resource.

Relevant Cases
a. Hawkins v. Mahoney (Escaped inmate requested his
personal belongings when he was returned 2 days
later).
 Rule: Abandoned personal property may be appropriated by
anyone, unless such property has been reclaimed by the prior
owner first.

Plaintiff Defendant Reasoning

A request that property be
returned prior to it being
claimed by anyone else, is
an effective rebuttal –
evidence of intention not to
abandon personal property.
Even though Hawkins
Hawkins escape expressed intent to
evidenced his intent to abandon the property
terminate his ownership when he escaped, he
of the property – the successfully rebutted
prison became the new the presumption of
owner of the property, abandonment by
to do with it what it requesting that the
please. property be returned
before another person
took ownership. By
doing so, Hawkins
reclaimed ownership of
the property.

b. Pocono Springs Civic Association, Inc. v. MacKenzie

(bought a lot to build a house – no sewage system).
 Rule: In order to legally abandon real property, the owner
must successfully divest himself of all right, title, claim, or
possession of the land.

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Plaintiff
Conduct manifests an intent
to abandon – no obligation
to pay land fees.
Defendant Reasoning
The person who has the
Ownership of land is a record title is presumed
perfected title-fee to be in possession of
simple- you cannot the property. Perfect
simply abandon a perfect title cannot be
title. abandoned.
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D. Right to Destroy
i. A fee simple interest in property cannot be abandoned.
ii. Personal property can be abandoned.
a. Eyerman v. Mercantile Trust Co. (old lady wants
house destroyed but gated community wants no new
neighbors).
 Rule: When a landowner attempts to compel his successor in
interest to do to the land something against public policy, the
law steps in and pronounces the condition void.

Plaintiff Defendant Reasoning

A landowner has few
restraints on what it may
do with land, while they are
living.
The taking of property
Destruction of the by inheritance, or will is
property would decrease not an absolute or
the value to her natural right, but one
beneficiaries and would created by the laws of
decrease the property the sovereign power –
values in the State may foreclose the
neighborhood, without right absolutely, or it
providing any benefit to may grant the right
anyone – against public upon conditions
policy. precedent.

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E. Acquisition by Find
 General Rule - A finder of property acquires no rights in mislaid property, is
entitled to possession of lost property against everyone except the true owner,
and is entitled to keep abandoned property.
i. Abandoned property – items intentionally and voluntarily relinquished, with no intent
to reclaim.
ii. Finders of lost articles - the finder of lost property holds it, at least for a certain time,
in trust for the benefit of the true owner; custodian or bailee for the true owner; the
finder has rights superior to those of everyone except the true owner.
i. Possession derived from trespass - even if the possessor has obtained
possession wrongfully, he will be entitled to recover from a third person who
interferes with that possession.
ii. Damages – most courts allow the possessor the right to recover the full value of
the object from the third party who has taken it.
a. C/L action of trover – entitles the plaintiff to the objects value, and lets the
defendant keep the object.
iii. Article lost by possessor – a possessor who loses the property after finding it or
otherwise acquiring it may recover it from the third person who subsequently
takes it.
iv. Conflict with the owner of real estate – when the person who finds the item is
not the owner of the real estate in which it is found:
 Trespasser – the owner of the real estate where the object is
found gets it.
 Lost property – property that has clearly not been
intentionally deposited by the owner is likely to be awarded to
the finder.
 Mislaid property – an object that was intentionally put in a
certain place, and then forgotten by its owner. Such mislaid
objects are usually held to have been, in effect, placed in the
“custody” of the landowner, therefore, the finder does not
obtain the right to possession.
Relevant Cases
a. Armory v. Delamirie (chimney sweep found the jewel,
Apprentice at jewel shop would not give it back to
him).
 Rule: A person who finds a piece of chattel has a possessory
property interest in the chattel, which may be enforced
against anyone except the true owner of the chattel.

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Plaintiff Defendant Reasoning
When someone has
Prior possessor prevails Person who found the acquired possession of
over a subsequent object is not the true property, even if by tort,
possessor. owner – thus has no they have a right to that
rights of possession to property against a third
the thing in question. party/wrongdoer – to
prevent an endless
series of unlawful
seizures.
Not always followed –
when a subsequent
possessor is honest,
often prevails.

b. Hannah v. Peel (soldier finds lost broch in house

owner never lived in).
 Rule: A finder of lost chattel on another’s property has rights
to that chattel superior to the rights of the property owner.

Plaintiff Defendant Reasoning

One does not necessarily
The fact that the brooch Claimed the property on possess a thing which is
was “lost” inside D’s house the ground that he was lying unattached on the
was happenstance and the owner of the house. surface of his land (lost)
conferred no possessory even though the thing is
interest on D. not possessed by
someone else.
c. McAvoy v. Medina (customer finds purse in
barbershop with money it).
 Rule: An item that is mislaid, voluntarily intentionally placed
and forgotten, is left in custody of place it was left (owner of
establishment/home) though unintentionally.

Plaintiff Defendant Reasoning

One who finds lost property
has possessory rights to it
against everyone except its
true owner.
Putting an item in a
This property is not particular location and
under the same forgetting to pick it back
circumstances, to be up is not the same as
treated as lost property losing the item. The
in that sense in which a plaintiff had no claim to
finder has a valid claim the item.
to hold the same until
called for by the true
owner. 15
F. Adverse Possession
 Policy Argument - If a man neglects to enforce his rights, he cannot complain if,
after a while, the law follows his example.
 The owner of real property who fails to bring an action of ejectment should be
penalized by having his title taken away from him ONLY if he could reasonably
be expected to know that another person has entered their property and was
asserting claim to it.
Elements of A.P claim:
 ACTUAL – a reasonable percentage of the land claimed by the adverse possessor
must be actually used.
o Constructive possession under COT – where one holds a defective, but
written title to a described parcel of land, and takes actual possession of
only a small portion; he may be held to have constructive possession of
the entire parcel.
 EXCLUSIVE - must not be sharing control of the property with the true owner,
and the property must not be available to the public generally.
 “OPEN AND NOTORIOUS” - use of property is similar to that which a typical
owner of similar property would make of it.
 CONTINUITY OF POSSESSION - continuous throughout the statutory period
o Interruption by non-owner – an entry onto the property by a third
person may interrupt the adverse possessor’s possession.
o Abandonment – possession is deemed to end – if he returns the
statutory period resets.
o Seasonal possession – if the property is such that seasonal use is all that
most owners of similar property would make. The possession is deemed
to be continuous, and the 12 months of the year will count towards the
statute of limitations.
o Tacking – possession by two adverse possessors, one after the other, may
be “tacked” if the two are in “privity” with each other.
1. if two successive adverse possessors are not in privity (do not have
some continuity of interest), then tacking will not be allowed.
2. For tacking, need to fulfill privity requirement:
a. voluntary transfer of estate from previous AP, or
b. voluntary transfer of possession from previous AP
accompanied by an erroneous deed

 Claim of Right – a reasonable basis for the belief that the property belongs to
the adverse possessor or property owner.
o Objective (actions)
 Actions of a possessor must look like they claim ownership, even
if he is not actually claiming title over the true owner.
 Majority view – Policy Argument

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 a. If we care about certainty and clarity – this position
makes the most sense.
b. State of mind is irrelevant - requirement of showing
subjective intent of the possessor adds unnecessary
complication to the inquiry.
o Subjective (intent)
 If he knew the land wasn’t his and still would not claim it, he is
not adversely possessing the land.
 Minority view
o Good faith - “I thought I owned it.”
 The adverse possessor has a bonafide good faith belief that he
has title.
 Policy Arugument
a. If we want to create disincentives for trespass, this
position makes the most sense.
o Bad faith (aggressive trespass) – reasons for?
 Formalistic – only actually adverse if bad faith.
 Required state of mind – “I thought I didn’t own it, but I intended
to make it mine.
 ADVERSE – without the owner’s consent.
o Hostility is determined by looking at the possessor’s actions, and his
statements to the owner and to others.
 Squatter – one who takes possession of land while
acknowledging he has no right to be there may NEVER gain title
by adverse possession, no matter how long his occupancy of the
land was undisturbed.
o Boundary Dispute - mistaken but honest belief he has claim to the
property in question.
 Majority – one who possesses an adjoining landowner’s land,
under the mistaken belief that he has only possessed up to the
boundary of his own land, meets the requirement of “hostile”
possession, and will become an owner by A.P.
 Minority – the possessor in this kind of mistaken boundary
situation does not hold “hostilely, if It can be shown he would
not have held the land had he known that he lacked title to it.
Length of Time Required
 Statutory period - basic length of time the property must be adversely
possessed. Can be shortened if one pays taxes on the property or has “color of
title.”
o Disabilities – if the true owner is under a disability, he is given extra time
within which to bring an ejectment action.
 An action to recover title to or possession of real property shall
be brought within 21 years after the cause of action accrued,

17
 but if the person entitled to bring such claim, at the time the
cause of action accrues, is within the age of minority, of
unsound mind, or imprisoned, such person, after the expiration
of 21 years from such time the cause of action accrues, may
bring such action within 10 years after such disability is
removed.
o Disability must exist at time adverse possession began – disability is
immaterial if it did not exist at the time the cause of action accrued.
Rights of the Adverse Possessor (before statutory period ends)
 Prior to the end of the statutory period, the adverse possessor has not obtained
title to the property but he has some rights, against persons other than the true
owner.
o Suits against third person – the adverse possessor is entitled to bring a
trespass action against one who enters the land.
o True owner – if the owner brings suit before the expiration of the
statutory period, he can recover mense profits, an amount equal to the
reasonable value of the land for the period that the adverse possessor
has held it.
Rights After Expiration of the Statutory Period
 Adverse possessor gains title.
 Easements may not be extinguished – holder of an easement normally does not
have a right of action against a mere possessor, so there is nothing for the
statute of limitations to run against.
 Not against interest of government – generally, it is not possible to gain title by
adverse possession to land owned by federal government, or by a state or city.
o “Time does not run against the king.”
o Only the legislature may divest the State of title.
o Possession of public lands by a third party constitutes a public nuisance
that no period of acquiescence will justify.
o We are not imposing an undue burden on municipalities by expecting
them to discover within the relevant period of limitations what property
they own and who possesses it.
Adverse Possession of Chattels
 The burden of proof is on the owner because she should know where property is
located and can be reasonably expected to know if the elements are met.
 The effect of the expiration of the statute of limitations – like adverse possession
– will be to vest title in the possessor.
 Permits tacking by parties in privity - not separate acts of conversation that
would start the SOL running anew.

Relevant Cases
a. Van Valkenburgh v. Lutz

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 i. Rule: A party takes adverse possession of a property owned by
another when he takes actual possession of it, encloses it and/or
makes improvements to it, for statutory period of years.

Plaintiff Defendant Reasoning

The circumstances were not The fact that Lutz knew

enough to hold that Lutz he did not own the land
did anything to the land is irrelevant because,
“under claim of title,” which despite that knowledge,
the court defined to mean he took steps to exert
“hostile” to its true owners. control over the property
as his own.
b. Mannillo v. Gorski
i. Rule: A minor encroachment upon the land of another is not
considered to satisfy the open and notorious requirement of adverse
possession.
ii. Maine Doctrine: If a party through ignorance, inadvertence, or
mistake occupies up to a given fence beyond his actual boundary –
no
Connecticut Doctrine: state of mind is irrelevant

Plaintiff Defendant Reasoning

If an innocent trespasser
Possession was not of the Encroachment by the of a small portion of
requisite hostile nature. mistaken belief that one land adjoining a
owns the land is boundary line cannot
sufficient to establish without great expense
title by adverse remove or eliminate the
possession. encroachment, or such
removal is impractical or
would cause great
hardship the true owner
may be forced to convey
the land so occupied
upon payment of fair
value thereof without
regard to whether the
true owner had notice.
c. Howard v. Kunto (summer homes).
i. Rule: Tacking is allowed if there is proper conveyance and previous
possessor was also adversely possessing the land.

19
Plaintiff
Defendants have failed to
prove a continuity of
possession to permit
tacking of the adverse
possession of defendants
and their predecessors.
Defendant Reasoning
Previous owner's use of
Succession of trespasses, land does count towards
even though there are subsequent possessor's
no appreciable interval statute of limitations.
between them, should Use still continuous if
not, in equity, be allowed under ordinary use.
to defeat record title. Summer homes need
only be used in that
season and this suffices
as continuous use.

d. O’Keeffee v. Synder (adverse possession of a

painting).
i. Rule: The SOL for replevin will begin when the owner should have
through due diligence discovered facts that form the basis for a
cause of action.
ii. In determining whether the Plaintiff is entitled to the discovery rule
the trial court should determine:
i. whether the Plaintiff used due diligence to recover the
paintings at the time of the alleged theft;
ii. whether at the time of the alleged theft there was an
effective method for the Plaintiff to alert the art world of
the theft; and
iii. whether registering the painting with an art organization
would have put a reasonably prudent purchaser of art on
constructive notice that someone other the possessor was
the true owner.

Plaintiff Defendant Reasoning

Adverse possession.
SOL is to stimulate
Succession of trespasses, activity and punish
even though there are negligence and promote
no appreciable interval repose by giving security
between them, should and stability to human
not, in equity, be allowed affairs.
to defeat record title-
Nothing short of public
display should be
sufficient to alert the
true owner and start the
statute running.

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 Modern trend – the true owners cause of action accrues “when she first knew,
or reasonably should have known through the exercise of due diligence, of the
cause of action, including the identity of the possessor.
 Discovery rule – if the true owner, immediately after the loss, fails to use
reasonable diligence to find the possessor, and the use of such diligence would
have identified the possessor, the statute of limitations will begin to run
immediately, even if the possessor keeps the property hidden.
o Even if the possessor displays the property openly, if the owner fails to
learn that the possessor has it (and this failure is not due to the owner’s
lack of diligence), the statute of limitations because open and visible
possession of personal property may not be sufficient to put the original
owner on actual or constructive notice of the identity of the possessor.

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G. Acquisition by Creation
i. Policy Argument - If too little ownership is given to the creator, people will not have
adequate incentive to invest time and money in creating and exploiting the idea. But
if too much private property is created in ideas, this would limit our autonomy and
block desirable economic activity by creating insuperable transaction cost.
i. Non-rivalrous – use of it does not interfere with the use of it by other people.
ii. Non-excludable – difficult to prevent people from using it.
iii. Often defended on the basis of Locke’s labor Theory - the fruits of your labor
are not always yours alone to exploit, and you do not always have full rights of
property in your own person.
Patents
 A patent is a limited duration property right relating to an invention, granted by
the United States Patent and Trademark Office in exchange for public disclosure
of the invention. 
 To be patentable, an invention must be:
o Novel – invention must be new, not previously invented or discovered
 “First in file” system – inventor must promptly “file” the invention
with the Patent and Trademark Office, or risk forfeiting
patentability, before:
 Someone else files for a patent on the same invention
 The invention is disclosed in print; or
 The invention is put in public use, on sale or otherwise
made available to the public.
o Nonobvious - differences between the claimed invention and the prior
art are such that the claimed invention as a whole would have been
obvious before the effective filing date of the patent.
o Useful
Copyright
a. protects the expression of ideas, embodied in books, articles, musical forms,
works of painting and sculpture, motion pictures etc.
o Copyright Act – gives certain rights to owners of “original works of
authorship” that are fixed in any tangible medium of expression.”
 To be copyright infringement:
 Ownership of a valid copyright
 Copying of constituent elements of the work that are
original.
o Rights given to the copyright holder:
 Right to reproduce
 Right to prepare derivative works
 Right to sell, rent or lease copies
 Right to preform work publicly
 Right to display the work publicly

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 o Material must be “original” but not “novel” as in never having existed
before.
o Ideas and facts not copyrightable – only original “expressions” of ideas
or fact can be protected.
o When protection begins – as soon as the work is created in a tangible
medium; whether or not there is a copyright notice on the work.
o Registration – not required in order to gain copyright protection –
however, the owner cannot bring a copyright infringement action
without first registering.
o Duration or protection – depends on what type of person owns the
copyright
i. Author – lasts for the life of the author plus 70 years, after which
the work enters public domain and may be used by anyone.
ii. Work for hire – (1) the work was prepared by an employee within
the scope of her employment – work belongs to employer or (2) the
work was specially order or commissioned – work belongs to
commissioning person
1. Will enter public domain typically 95 years after its first
publication.
Trademarks
b. Name, symbol, type of packaging or other means of identifying the producer of a
good or service.
c. Trade secret – legal term referring to any information, whether or not
copyrightable or patentable, which is not generally known or accessible, and
which gives competitive advantage to its owner.
d. Lanham Act – federal statute protecting trademarks; applies only to goods not
services
o Service mark – used to identify a service rather than a good.
e. Gives the owner of a “mark” the exclusive right to use the mark in connection
with the sale of a particular good or service in a particular geographic area.
i. Entitles owner to get an injunction against anyone else who adopts
the same or other confusingly similar mark.
Relevant cases
a. International News Service v. Associated Press (east
coast news printed stolen news from the west
coast).
i. Rule: A quasi-property right exists in published news such that
appropriating the published news gathered by another for further
commercial purposes constitutes unfair competition in trade.
ii. C/L – property rights is limited to the chattels which embody his
invention - others may imitate at their pleasure.
iii. Hot news doctrine – a news gatherer may recover from D when:
i. Gathering/collection process involves significant
expenditures

23
 ii. Collected news is time sensitive
iii. D free rides on collected material
iv. Free riding directly competes with news gatherer market.
v. The freeriding is likely to diminish incentives.

Plaintiff Defendant Reasoning

While there is no
Violation of property rights News is not within the continuing property
– constitutes an unfair operation of the right against the public
competition in business copyright act - news is in uncopyrighted news
abandoned to the public matter after it is initially
for all purposes when it published, a commercial
is published in the first news source does retain
newspaper. rights to the material
against other news
sources.
b. Feist Publications, Inc. Rural Telephone Service Co.
(copying phonebook designs)
i. Rule: To be granted copyright protection, works must be original,
meaning that they entail some minimal degree of creativity.

Plaintiff Defendant Reasoning

Violation of property rights
– constitutes an unfair
competition in business
Facts are not
Not all copying is copyrightable, and
copyright infringement. although compilations of
facts may be, they are
not copyrightable per se.
Compilations still must
be original works of
authorship in that they
consist of some degree
of minimal creativity.

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H. POSSESSORY ESTATES.
i. Estate - an interest in land with 2 characteristics:
i. May become possessory
ii. Measured in terms of duration.
ii. Freeholder – owner status
i. Fee simple (absolute or defeasible)
ii. Life estate
iii. Non-freeholder – lessor status
i. Estate for years
ii. Periodic estate
iii. Estate at will
iv. Estate at sufferance
Fee Simple Absolute (FSA)
 Most unrestricted estate – infinite duration
 Inheritability – if the owner of a fee simple dies without any direct descendants,
and without a will, then his collateral relatives will inherit the property.
 C/L – necessary to use “and his heirs” to create FSA. – today, not necessary.
o Life estates was assumed at C/L
Life Estate
 Estate is measured in terms of the life of the grantee.
o Has the exclusive right to lease out the premises, but not beyond the
term of life tenant’s own life.
o May convey any interest in the property, up to and including the entirety
of his own interest.
o Cannot sell without the permission of all future holders or court order.
o Duties of the life tenant
 Waste: an unreasonable impairment of the value the property will
have when the holder of the future interest takes possession.
 Affirmative waste – acts that substantially reduce the
value of property.
 Permissive waste – failure to take reasonable care of
property.
 Ameliorative waste – altering the land in a way that
increases value but changes it substantially (not permitted
at C/L – today, generally accepted).
 Per autre vie – estate measured by some other person than the grantee’s life-
span.
o Upon the death of a life tenant, the estate may continue, since the
measuring life may still exist.
Restraints on Alienation
 Express restraint – withholds from the grantee power of transferring his interest
in the deed. (void)

25
  Use restraint – if the grantee attempts to transfer his interest, it is forfeited to
another person. (valid)
 Mountain Lodge and Falls City Test
Relevant Cases
a. White v. Brown (confusing will cause issues beyond
the grave)
i. Rule – Rules of construction of an ambiguous will favors a
conveyance of fee simple absolute.

Plaintiff Defendant Reasoning

Courts have preferred
Vested with a fee simple Will conveyed only a life the construction which
title. estate. disposes of the whole of
the testator’s estate if
that construction is
reasonable and
consistent with the
general scope and
provisions of the will.
b. Baker v. Weedon (dead guy looking out for young
wife)
i. Rule: The courts role in determining whether to allow the sale of
land affected by a future interest, is to consider whether selling the
land would prevent waste of the property and to consider whether a
sale is necessary for the best interest of all the parties, including the
life tenant and the contingent remaindermen. (judicial sale of land)

Plaintiff Defendant Reasoning

The sale of burdened
Proceeds be invested to Selling the property is property should be
provide her with an not in the best interest of “necessary for the
adequate income. the remainder-men. benefit of all parties.”

Fee simple defeasible

 Although one who holds a fee simple defeasible may use and hold property
forever, or convey it, or have it be inherited by his heirs, he must use it
subject to a restriction.
 Fee Simple Determinable
o Automatically comes to an end when a stated event occurs or fails to
occur – reverts back to the grantor as a FSA.
o Any words with a durational aspect constitute FSD – “so long as,” “while
used for,” “during the continuance,” “until.”

26
 o FSD is accompanied by a future interest – possibility of reverter
 C/L – possibility of reverter descended to heirs upon the death of
the owner of such interests – neither interests are transferable
during life.
 Fee Simple Subject to Condition Subsequent (FSSCS)
o Does not automatically terminate but may be cut short or divest at the
transferor’s election when the stated condition happens.
 Grantor must re-enter and retake the premises for property to
revert back.
 Unless and until entry is made, fee simple continues
o “but if,” “provided, however,” “on the condition that,” signify a FSSCS.
o FSSCS is accompanied by a future interest of right of entry or power of
termination.
 C/L – right of entry was not transferable – today transferable and
devisable.
 Fee Simple Subject to Executory Limitation (FSSEL)
o Defeasible fee with a future interest in a 3rd party – when a grantor
transfers a FSSCS and creates a future interest in a 3rd party rather than
himself.
o FSSEL is followed by an executory interest.
 Condition that is broken does not transfer to a 3rd party.
 Anyone who receives the property through the first party must
follow the condition/limitation.
Relevant Cases
a. Mahrenholz v. County Board of School Trustees
(transferring land to a school for school purpose FSSEL)
i. Rule: A person who holds a “right of re-entry for condition broken”
must take steps to reclaim the property after the condition has been
broken in order to secure title in the land.

Plaintiff Defendant Reasoning

Deed conveyed a FSD
followed by a possibility of
reverter.
The phrase “for school
Deed conveyed a FSSCS purposes only” was not
followed by right of re- a full grant subject to a
entry for condition condition, but rather a
broken. limited grant. This
limited grant created a
fee simple determinable,
meaning that the grant
automatically
terminated when the
land is no longer used
“for school purposes.”

27
 a. Mountain Brow Lodge No. 82, Independent Order of
Odd Fellows v. Toscano (no selling to anyone that
isn’t us).
i. Rule: When real property is conveyed between parties, any
limitation on the grantee’s rights to alienate the property is void as a
matter of public policy, but, limitations on the acceptable uses of the
property by the grantee are enforceable.
i. Formalist test – based on form
ii. Based on the effect – effect of alienation

Plaintiff Defendant Reasoning

Language creates a FSSCS
and is valid and
enforceable.
It is not an impermissible
Restrictive language restraint on alienation to
amounts to an absolute convey land with the
restraint on its power of intent that it only be
alienation and is void. used and enjoyed by a
particular person or
entity.

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I. Future Interest
i. A future interest confers rights to the enjoyment of property at a future time.
ii. 5 kinds of future estates:
i. possibility of reverter – when a FSD comes to an end, possession reverts
to the grantor.
 possibility of reverter is inheritable under the intestacy
statute, and devisable by will.
 Becomes possessory automatically upon the happening of a
stated event.
 Since it not certain it will occur, the word possibility is used.
ii. right of entry – if the holder of an interest in land conveys all or part of his
interest, the transferor is said to have a right of entry – ability to take back the
estate if the condition subsequent occurs.
 Becomes possessory if the transferor exercises her right to re-
enter or retake upon the happening of the stated condition.
iii. Reversion (created in the grantor) – non-contingent prospect of getting the
property back - created when the holder of a vested estate transfers to another,
a smaller estate; interest which remains in the grantor.
 Not necessary that the grantor specifically reserve a reversion
in himself; as long as the estate conveyed is legally smaller
than the grantor’s original estate, he retains a reversion.
 At C/L, if an owner created a freehold estate for a term of
years, the grantor was not said to retain a reversion – instead
continued to hold the seisin in the land.
 If a reversion can never become possessory, it is said to have
been divested.
iv. Remainder (created in someone other than grantor) - A remainder is a
future interest that is capable of becoming possessory at the termination of the
prior estate – never cuts off a prior interest, awaits its natural termination.
i. Grantor must convey a present possessory estate to one transferee.
ii. Must create a non-possessory estate in another transferee, by the
same instrument.
 C/L - No remainder after any kind of fee simple.
 Whether a future interest is a remainder is when the prior
interest is a life estate.
Vested – (1) certain to become possessory whenever and however the prior
estate terminates (no condition precedent attached) and (2) can say at the
moment of creation who will take possession.
1. Have always been transferable during a lifetime.
i. Indefeasibly vested – certain to become possessory at some future
time – will suffice that either the remainderman or his successors in
interest will someday take possession.

29
 ii. Vested remainder subject to open – possible to point to one or more
persons and say that they or the successors are certain to have a
possessory interest someday, but there remains a chance others will
share this interest.
iii. Vested remainder subject to complete divestment – cannot be said
with certainty interest will ever become possessory – defeasance may
occur through natural termination or divestment.
1. Naturally expired before all prior interests ended.
2. Executory interest – cuts off the remainder prior to natural
termination.
3. If a grantor retains a right of entry if the remainderman
does not meet a certain condition, the remainder is vested
subject to divestment.
Contingent – not certain to become possessory - (1) remainder is subject to a
condition precedent that might not occur by the time the prior estate terminates
or (2) the remainder has been created in favor of a person who is at the time of
creation either unborn or unascertained (heirs of a living person).
i. Condition precedent – some condition must be met before the
remainder could possibly become possessory is by itself enough to
make it contingent.
ii. Alternative contingent remainders – a condition precedent involves
survivorship.
iii. If the condition is incorporated into the clause that gives the gift,
then the remainder is contingent.
iv. if one clause creates and the subsequent clause takes the remainder
away, it is vested (subject to divestment).
v. C/L – not transferable inter vivos (during lifetime), was not assignable
(unreachable by creditors)
vi. At C/L – doctrine of destruction – a contingent remainder was
destroyed if it did not vest upon termination of the proceeding life
estate.
 “but if” – indication that the remainder is vested subject to
divestment -being taken away.
 “then if” – indication of condition precedent, contingent
remainder
 where it is not clear whether the remainder is contingent or
vested, most courts show a preference for the vested
construction.
Destruction of a Contingent Remainder at C/L
 C/L – a contingent remainder was deemed “destroyed” unless it
“vested at or before the termination of the preceding freehold
estates.
o Rule regarding seisin – freehold interest could not spring out
of the estate of the grantor at some future time.

30
 o “Springing” would take place at a time other than the time
when the original conveyance was made (violates the rule
against springing interest).
 A contingent remainder could be destroyed at C/L – 1) normal
expiration (natural termination before the condition precedent was
satisfied) 2) merger of the supporting freeholds
 Merger – estate preceding a contingent remainder (life estate) was
absorbed by a larger estate.
o Whenever successive vested estates are owned by the same
person, the smaller of the two estates is absorbed by the
larger – for doctrine to apply, the two vested estates must
not be separated by a 3rd vested estate.
Contingent Remainder that cannot be destroyed
 If the contingent remainder vest at precisely the same moment that
the supporting prior freehold terminates.
Alienability of Remainders
 Vested remainders have always been alienable inter vivos
 Even if the vested remainder is subject to partial or total divestment
or defeasance, remainder is subject to same possibility of divestment
in the hands of the person who acquires it.
 Contingent remainders are inalienable at common law – present
view, contingent remainder is alienable, devisable and descendible.
v. Statute of Uses and Executory Interest
 Seisin – a person who has possession of land under a claim of
freehold.
 Executory interest – future interest in a transferee that can
take effect only by divesting another interest or cutting short
prior interest.
i. Livery of seisin (feoffment)- required that the transferee
immediately take possession after the livery seisin.
ii. C/L restrictions – no “springing” or “shifting” interest
1. Springing interest – estate that would take effect in the
future by springing out of its present owner.
a. Ie. “to A and his heirs and after A’s marriage to D.”
2. Shifting interest – grantor could not give to a grantee an
estate which would cut another estate short. Bc livery of
seisin was to take effect immediately rather than in the
future.
a. FSD could be followed only by a possibility of
reverter in the grantor, and not by a shifting interest
in a third person.
b. There could be no interests in a third party after a
FSSCS.

31
 3. No gap between the end of an estate and the start of a
succeeding remainder.
4. Statute of Uses – Court of Chancery gave relief to the rigid
rules of C/L and fairness – facilitated executory interests

vi. Waste - Whenever ownership of property is divided between a present and

future interest, there is the possibility that the acts of the present holder will be
to the detriment of the future interest.
a. Doctrine of waste – if present interest’s acts:
 1) substantially reduce the value of the future interest; and
 2) are unreasonable under the circumstances, the holder of
the interest has a cause of action.
b. Traditionally, any structural change, even one that improved the value of
the property, was deemed waste – today it is not automatic.
c. A claim of waste can arise against any holder of a present interest that
amounts to less than a fee simple absolute – most commonly committed
by a life tenant, for tenant for a term of years.
d. Waste cannot be committed by someone who holds in fee simple (FSD,
FSSCS, FSEL), because it is far from certain that these interests will ever
end.
 Courts are much more reluctant to find that a given act
constitutes waste.
e. At C/L, concept of waste requires damage to the holder of the future
interest.
f. Doctrine is also applied where one holder of a present interest interferes
with the rights of another present interest.
Types of Waste
Voluntary waste
i. An affirmative act causes unreasonable permanent damage to the
holder of the future interest.
ii. Ameliorative waste at C/L - value of the property may actually have
been increased – still waste
iii. Holder not liable for damage committed by a third person or acts of
God.
Permissive waste
i. Omission by the present holder to care for the property adequately –
obligation to keep the land and buildings in a reasonable state of
repair.
Equitable Waste
i. Holder of a legal fee simple is immune from legal liability for waste -
Court of equity will grant relief if his conduct will damage the
prospects of the holder of an executory interest.
1. Court may enjoin the conduct under the doctrine of
equitable waste.

32
Remedies for Waste
iii. If the future interest is sure to become possessory, the court will generally award
damages based on the diminution in value of the future interest stemming from the
waste.
iv. If the future interest is not certain to become possessory, an injunction may be the
only relief that the court may award – acts being enjoined are referred to as
equitable waste.
v. Sale by judicial order – where a tenant wishes to alter the property substantially,
court may in some states, order the property sold.

J. Restraints on Alienation
i. Grantor may not provide explicitly, that the grantee may not alienate the property.
ii. Restraints upon the alienation of a fee simple are void.
iii. Life estate may be subject to restraints.
iv. Certain types of use or disposition of property are upheld by the court.
a. Defeasible estates can be viewed as permissible restraints on alienation.

33
K. Co-ownership and Marital Interests
a. There are 3 varieties of co-tenancy:
i. Joint tenancy (includes right of survivorship)
ii. Tenancy in common (does not have the right of survivorship)
iii. Tenancy by entirety (which exists only between husband and wife, and
which includes survivorship and indestructibility.
b. Types, Characteristics, Creation
i. Joint Tenancy.
1. Two or more people own single, unified, interest in real or
personal property.
2. Each joint tenant has the right of survivorship – the surviving
tenant has the entire interest in the property.
a. Deceased tenant does not have the ability to leave his
interest by will.
b. The interest is extinguished at the moment of the
decedent/joint tenant’s death so there is nothing to pass
by will of intestacy.
3. Each of the joint tenants owns the “entire” interest – each joint
tenant is entitled to occupy the entire premises.
4. At C/L a joint tenancy exists only where the four unities: interest,
title, time and possession.
a. Unity of interest – joint tenants have identical interest, as
to the share and duration of their interest.
b. Unity of title – joint tenants must acquire title by the
same deed or will.
c. Unity if time – each joint tenant interest must vest at the
same time.
d. Unity of possession – all the joint tenants have a right to
possess and enjoy the entire property.
5. Creation – at C/L presumption that any co-tenancy was a joint
tenancy, unless a clear intention to create a tenancy in common
was shown.
a. Today we presume that a co-tenancy is a tenancy in
common unless there is a clear intent to establish a joint
tenancy.
i. Ie “to A and B as joint tenants.”
6. Creditors – an unsecured or judgment lien creditor of one joint
tenant does not have rights against the interest of the other joint
tenant.
a. The surviving joint tenant usually takes the property free
and clear of the deceased tenant’s creditor – decedent’s
and creditor’s interest cease to exist at the moment the
debtor/joint tenant’s death. Harms v. Sprague.

34
 ii. Tenancy in Common
1. Tenancy in common, like the joint tenancy, is an estate shared by
two or more people in the same property at the same time.
2. Tenants in common have a separate “undivided” interest – no
right of survivorship.
3. Each tenant in common takes his share as an individual, where in
contrast to joint tenants who take a single unit.
4. Joint tenants have a right to make a testamentary transfer of his
interest – if he dies without a will, interest will pass under the
statues of descent.
5. Tenant in common may convey his undivided interest, or lease it
to a third party.
a. Most states now have either a stator or case law
presumption in favor of tenancies in common rather than
joint tenancies.
b. Tenant in common may convey his interest to a third
person without the consent of co-tenant.
6. Tenant in common may not make a conveyance that in any way
binds another tenant in common who does not participate in that
conveyance.
7. If one tenant in common purports to grant a mortgage on the
property, or allows a judgment to be entered against him that is a
lien on his property, the mortgage or lien will be effective only
against that tenant’s own undivided interest, not the interests of
the other co-tenant.
iii. Tenancy by the Entirety
1. At C/L, the husband and wife were regarded as one person.
2. Four unties required in the case of joint tenancy must be met for a
C/L tenancy by the entirety:
a. interest, title, time and possession, and the parties must
be married.
3. Surviving spouse has a right of survivorship.
4. There is no way to terminate the tenancy while husband and
wife are both still alive and still married.
5. Creation – at C/L, any conveyance to two persons who were
husband and wife necessarily resulted in a tenancy by the
entirety – rebuttable presumption.
a. Modern view universally treats husband and wife as two
individuals.
6. Severance:
a. 1) mutual agreement between husband and wife; and
b. 2) divorce.

c. Severance of Joint Tenancies

35
 i. Severance will normally result in the creation of a tenancy in common.
ii. A conveyance by one joint tenant to a third party will cause a severance.
– create tenancy in common because 3rd party lacks unity of time or title.
iii. Motive of conveying join tenancies is irrelevant.
iv. A conveyance by one tenant in common to a stranger will produce a
tenancy in common as between the stranger and the remaining original
joint tenants, but the joint tenancy will continue as between the original
members.
1. Riddle v. Harmon (no need for a straw man)
a. Rule: A joint tenant may terminate a joint tenancy by
conveying his or her interest in the property, with or
without the knowledge of the other tenant(s), to another
party.

Plaintiff Defendant Reasoning

A conveyance by a joint
tenant to himself, made for
the purpose of terminating
the joint tenancy, does
have that effect.
The grounds for which
One cannot enfeoff the old archaic rule was
oneself – a transfer of laid down has long
property presupposes vanished, and the rule
participation by at least should not persist from
two parties. blind interest of the past.

d. Granting of Mortgage
i. Jurisdictions are not in agreement as to whether the granting of a
mortgage by one joint tenant severs the joint tenancy.
1. Issue depends on whether the state treats a mortgage as
representing a transfer of title, or as merely being a lien to secure
repayment.
ii. Title theory – mortgagor, by granting the mortgage, is deemed to
transfer title to the property to the mortgagee. (not a severance but a
conveyance)
1. If the mortgage is defaulted upon, the mortgagee can foreclose
on the undivided one-half interest of the mortgagor.
iii. Lien theory – mortgage is deemed to be merely a security for
repayment, and not transfer of title – not a severance because right of
survivorship is not destroyed.
1. The mortgage is not enforceable if the mortgagor dies before the
other tenant.
a. Harms v. Sprague (lien on my half of the
property).
i. Rule: A lien placed on one joint tenant’s interest in
jointly held property does not destroy a joint
tenancy.

36
e. Plaintiff Defendant Reasoning
Since B’s interest cease
P takes the whole property B’s execution of the to exist the moment he
by right of survivorship, and mortgage severed the died, so did the lien on
D2’s mortgage was joint tenancy. his interest – execution
extinguished on B’s death. of a mortgage does not
severe a joint tenancy.
Since the unity of title
has been preserved.
Lease
i. If one joint tenant executes a lease – most courts hold that such a lease is
not a severance, nor is it invalid.
1. Swartzbough v. Sampson (conveyance to third
party severs tenancy entirety).
a. Rule: A joint tenant may, without the consent of his
cotenant, convey or burden his share of the property only
to the extent of his interest in the property.

Plaintiff Defendant Reasoning

When a joint tenant
f. The lease is null and void the grantee (3rd party) in leases out his interest in
because it was executed possession of jointly held a property, that lease
under her objection, which land takes the interest provides the lessee with
was known by her husband. that his grantor (co- only as much interest as
tenant) had, and shares the joint tenant had in
with the other joint the first place; the
tenants the right to the cotenant retains her
land – joint tenants have interest in the land as
unity of possession, well.
neither has a right of
exclusive possession.
Partition
i. Joint tenancy can be severed by partition – dividing up and distribution
of the land (“in kind”) or the sale of the land and distribution of the
proceeds.
1. Partition in kind – fair way to divide the property, so that each
tenant can be given a parcel proportional to his interest.
a. Preference for partitioning in kind.
2. Partition by sale – where a partition in kind is not possible or
would be unfair to one party, the court will order the property
sold, and the proceeds divided.

37
 a. Courts will approve a partition by sale if and only if the
physical characteristics of the property prevent division
of the property in kind, or if the division in kind would be
extremely unfair to one party.

ii. Any tenant in common or joint tenant may bring an equitable action for
partition.
1. Delfino v. Vealencis (garbage business v.
residential housing).
a. Rule: When dividing jointly held property, a partition in
kind is favored over a partition by sale.

Plaintiff Defendant Reasoning

Resists partition of sale
because she does not want
to move her home or
relocate her business.
Where the party who is
Does not want the opposing partition of
property partitioned in sale lives on the
kind because then the property or uses it for a
residential value would business, courts are
be less valuable. especially reluctant to in
effect evict that party by
requiring that the entire
parcel be sold – burden
is on the party
requesting partition by
sale to demonstrate
these requirements are
met.

g. Relations Among Concurrent Owners

i. Each co-tenant has the right to occupy the entire premises or recover fair
market value from lessee if tenant refuses him use and enjoyment of
testate.
ii. Improvements – no right to contributions without agreement. But gain
benefits with sale.
iii. Rents and profits – account to co-tenants for amounts received – net
expenses.

h. Sharing the Benefits and Burdens of Co-ownership

i. Ouster can occur when one tenant occupies the property and refuses the
cotenant’s demand to allow use and enjoyment of the property.
1. a demand or an attempt to enter the property is essential –
person must be prevented from entering and using the premises.
a. Spiller v. Mackereth

38
 i. Rule: A cotenant in common, having an undivided
right to the entire property, does not owe rent to his
cotenant unless he agrees to, or unless he has
effected the ouster of his cotenant.

Plaintiff Defendant Reasoning

Tenants in common each
own an undivided interest
in the whole property, so
each has the right to enjoy
using the full property
without paying rent.
Because there was no
If one cotenant asserts physical attempt to
ownership of the enter the premises
property in such a followed by rejection,
manner as to deprive his the tenants in common
cotenant of his rights to had no obligation to pay
the property, then an rent to each other.
ouster has occurred and
the ousted cotenant is
entitled to compensation
for his interests.

39
L. Leaseholds: The Law of landlord Tenant
a. The Leasehold Estates
 Key feature about a leasehold is that it is an estate in land, typically
created by a conveyance.
o Since a tenant was deemed to receive an estate in land, his rights
and duties were treated as independent of the landlord’s rights and
duties.
o A breach of the promise did not relieve the tenant from the duty of
paying rent – rent was owed as payment for the estate.
o Promise to do repairs could be enforced only by a separate
contractual suit brought by the tenant.
o The tenant, the term of his lease, is entitled to exclusive possession.
Modern
 Move away from the doctrine of independent covenants.
 Warrant of habitability – with respect to residential premises, the landlord
makes an implied warranty of habitability, the breach of which entitles
the tenant to terminate the lease and move out, withhold rent, or use
rent monies to make the repairs himself.
 Tenant’s duty to pay rent is dependent upon the continued existence of
buildings on the property – thus, destruction of one’s building relieves
tenant of duty to pay rent.
 The estates that are not freehold (instead leasehold) are: (includes a duty,
on the tenant’s part, to pay rent)
i. The Term of Years – any estate for a fixed period of time
1. Most common type of leasehold.
2. No notice needed to terminate.
ii. The Periodic Tenancy (PT) – continues from one period to the next
automatically
1. Continues indefinitely, until terminated by one of the parties by
proper notice.
2. Possible to be created by express agreement – normally created
by inference.
a. Ie. lease with no stated duration, invalid lease
3. In a holdover situation, a PT will result in leases a year or more.
4. PT will automatically be renewed for a further period unless one
party gives a valid notice of termination.
a. At C/L 6 months -notice was necessary to terminate year-
to-year
i. A full period’s notice was necessary where the period
was less than a year.
b. Today most states require only 30-day notice.
i. Where a notice is not sufficiently in advance of the end
of the current period, most courts now allow it to be

40
 automatically effective as of the end of the following
period.
iii. The Tenancy at Will
1. Has no stated duration and may be terminated at any time by
either party.
2. At C/L, no prior notice of termination is required, as it is for
periodic tendencies.
a. modern statutes give a tenant at will a right to prior
notice.
3. Parties could create a tenancy at will expressly, by agreeing that
either may terminate at any time – such a tenancy is created by
implication.
4. Tenant might take possession under a void lease; his possession
would create a tenancy at will, but this would be transformed
into a periodic tenancy as soon as he made the first payment.
5. Periodic tenancy at will terminate automatically:
a. Upon the death of either party; or
b. or upon a conveyance of the reversion by the landlord.
c. An assignment by a tenant of his interest also terminates
the tenancy.
d. Sublease does not terminate.
i. Garner v. Gerrish (only I get to
terminate the lease)
1. Rule: A lease which grants the lessee the right to
terminate the tenancy does not grant the same
right to the lessor unless expressly stated in the
document.

Plaintiff Defendant Reasoning

Lease granted him sole right A lease terminable by
to terminate the tenancy the lessee is a lease at
will for both the lessee
and the lessor.
Providing the lessor with
the right of termination
is contrary to the terms
of the agreement and
goes against the will of
the contracting parties.

iv. The Tenancy at Sufferance: Holdovers

1. Exists where a tenant holds over at the end of the valid lease.
2. When a tenant holds over after his lease has ended, the landlord
has a right of election to:
a. Evict the tenant
b. Hold him to another term as tenant, even if the tenant has
manifested no desire to remain for an additional term.

41
 3. Tenant will be held to same provisions of previous lease, unless
changes were decided before termination of prior lease.
Modern courts
1. If the tenant retains possession of any portion of the premises, he
will generally be considered to be holding over as to the entire
premises.
2. Courts recognize extenuating circumstances, particularly where
only a very short holdover period is involved.
3. Landlord may be found to have waived his right to treat the
tenant as a holdover.
4. Termination or renewal is binding on the landlord. If he starts
one proceeding, it is too late to go back and start another.
b. The Lease
i. SOF – contract provision requiring a writing for any contract not to be
performed within one year of the making of the contract.
1. Lease is not necessarily void because it is required to be in writing
and it is not.
ii. Leases beyond a certain length must be recorded in the public records.
1. A failure to record where recordation is required is that the lease
is not binding upon a subsequent purchaser from the landlord.

c. Selection of Tenants
d. Duties, Rights and Remedies
i. Quiet Enjoyment and Constructive Eviction
1. Tenant has a “right to quiet enjoyment” of the leased premises.
Right can be interfered with when:
a. 3rd party asserts a title superior to the landlord
i. only if the 3rd party asserts his paramount title in such a
way that the tenant is evicted, may the tenant
terminate the lease and recover damages.
b. Acts of the landlord
i. If the landlord merely interferes with the tenant’s use
or enjoyment of the property, there is a constructive
eviction.
ii. No general duty imposed on the landlord to control the
conduct of other residential tenants.
1. Except when others tenants use their portion of
the premises for immoral or lewd purposes or
objectionable conduct takes place in the common
areas under the landlord’s control.
c. Condemnation
i. Government may decide to take all or part of the
leased premises by its right of eminent domain, or
condemnation.

42
 ii. If the entire premises are taken, the lease terminates,
and the tenant does not have to pay any further rent.
iii. Where only a portion of the premises is taken (even a
majority portion) the C/L rule is that the lease is not
terminated – tenant is required to continue paying the
full rent.
iv. The government must pay the fair value of any property
which it condemns.

2. The Implied Warranty of Habitually

a. Actual eviction - If the tenant’s possession of all or part of
the premises is literally taken away from him, the eviction
is actual.
1. Total: ousted the tenant from a geographical
portion of the premises.
a. May regard the lease as terminated and
refuse to pay rent.
2. Partial: May refuse to pay rent, even though he
remains in possession of the rest of the premises.
– landlord cannot apportion his wrong.
b. Constructive eviction
i. If it is merely his use or enjoyment of the property that
has been substantially impaired the eviction is
constructive.
ii. The majority rules that the tenant is not entitled to
terminate the lease, or to stop paying rent, unless he
abandons the premises within a reasonable time.
iii. If the tenant stays on the premises, his only remedy is
to sue for damages.
iv. Defense of constructive eviction has been used where
the tenant claims that the premises were rendered
uninhabitable due to the landlord’s failure to keep them
in repair.
1. Requirement that the tenant promptly abandon
the premises makes the defense unusable
particularly for slum-dwellers who lack the funds
to find alternative housing.
Relevant Cases
i. Village Commons LLC v. Marion County
Prosecutor’s Office (flooding in the office).
1. Rule: Under Indiana law, a tenant who has been wrongfully
evicted may abandon the premises and stop paying rent, even if
the exclusive-remedy provision provides that the tenant may

43
 not terminate the lease or withhold rent if the landlord
breached.

Plaintiff Defendant Reasoning

A landlord’s wrongful The lease limits the
eviction relieves the tenant remedies available to the
of the obligation to pay rent MCPO in the event of the
Landlord’s breach to
suing for an injunction
and damages.
The Landlord evicted the
MCPO, and it is the
Landlord’s acts that
alleviated the MCPO’s
duty to pay rent.

ii. Condition of the Premises

C/L
1. C/L caveat emptor to the landlord-tenant relationship – unless
the parties explicitly agreed otherwise, the tenant took the
premises as is.
2. Landlord was not deemed to have made any implied warranty
habitability – landlord did not have a duty to repair.
3. Doctrine of independence of covenants – the breach of a
covenant by one party would not relieve the other party of his
duties.
4. Hardships of the C/L position were somewhat ameliorated by use
of the constructive eviction doctrine.
a. Tenant could show that, due to the landlord’s failure to
make repairs, the premises were rendered virtually
inhabitable, she could claim that she had been
constructively evicted; no duty to pay rent and can sue for
damages.
Modern
1. A general duty upon the landlord to keep residential premises in
repair.
a. EXCEPT: 1) the defect was the fault of the tenant; 2)
defect was caused by a sudden non-man-made force
(tenant has the right to terminate but not the right to
collect damages or withhold rent); 3) defect was caused by
the conduct of a third person
2. Implied warranty of habitability in all residential leases.
a. Policy Argument - Today, the landlord is likely to be more
sophisticated regarding the details of housing units,
therefore, it is appropriate to hold that all residential
leases carry with them an implied covenant that the
dwelling is safe, clean, and fit for human habitation.

44
 3. Building code violations is at least some evidence of
inhabitability.
a. Hilder v. St. Peter
i. Rule: All residential rentals include an implied
warranty of habitability, which cannot be waived or
disclaimed.

Plaintiff Defendant Reasoning

Historically, residential
Breach of warranty of Landlord was not leases were governed by
habitability. deemed to have made the theory of caveat
any implied warranty lessee, wherein the
that the premises were lessee took the property
fit or habitable – as it was and could not
landlord did not have a complain of defects. The
duty to repair. lessee was presumed to
have at least equal
knowledge as the lessor
regarding the
transaction, and could
refuse to enter into a
lease with someone if
the dwelling were
insufficient – that is not
the case today.
iii. Remedies
1. Where the breach of the warranty is a material one, and the
landlord refuses to correct it after reasonable notice, the tenant
generally has the right to vacate the premises and terminate the
lease.
a. Relieved from the need to make future rent payments,
entitled to collect damages.
b. In the case repairs are needed, she may make repairs and
deduct cost from rent.
c. Generally, the tenant has the right to terminate the lease
only if he has vacated the premises.
d. Tenant loses the right to terminate if he had not moved
out by the time the landlord cured the defects.
2. Jurisdictions where an implied warranty of habitability is
recognized, once the premises fail to be in habitable condition,
the tenant may refuse to pay all or part of the rent to the
landlord, until the defects have been cured.
3. Premises destroyed or suddenly damaged -

45
 a. C/L view – tenant required to keep paying rent. Rationale
was that the tenant has purchased an estate in land, and
assuming that the land itself was not destroyed, he has
gotten what he bargained for.
b. Statutes typically provide that if the premises are
destroyed or so damaged that they are no longer
habitable, the tenant may terminate the lease and stop
paying rent.
e. Tenants Duty
i. Tenant normally has a duty to pay rent.
1. The tenant may not raise the defense of an implied warranty of
habitability to justify his non-payment of rent.
ii. If the tenant abandons the premises before the scheduled end of the
lease term, the landlord has 3 choices:
1. Accept a surrender
a. L loses the right to collect from T rent accruing after the
surrender.
2. Re-let on the tenant’s behalf; or
a. The landlord has the right to inform the tenant that he is
attempting to re-let on the tenant’s behalf.
b. Since there is no termination of the original lease, and the
tenant will remain liable for:
i. All rents coming due if no new tenant is found.
ii. The difference between the rent paid by the new tenant
and the rent reserved in the original lease.
3. Leave the premises vacant and sue for rent as it comes due.
a. L has no duty to try to find a new tenant.
b. Minority of courts hold the landlord has a duty to
mitigate, by attempting to find a suitable replacement
tenant. (lease today is seen as an exchange of promises
rather than a conveyance).
f. Transfer and Sale by Lessor; Assignment and Subletting by
Lessee
i. Unless the parties to a lease agree otherwise, either may transfer his
interest.
ii. The original parties to a lease are both in privity of estate and privity
of contract.
1. If one of them assigns his interest, privity of estate between
them is ended, but not the privity of contract.
2. A party to the original lease will not normally be able to escape
liability by assigning his interest.
iii. A landlord may sell his reversion in the property, and the tenant may
either assign or sublease his right to occupy.

46
 iv. SOF - if the duration of the assignment or sublease is such that an
original lease of the same duration would have to be in writing, the
transfer must be in writing.
g. Assignment - assignment is the transfer by the lessee of his entire interest in
the leased premises.
i. Principal significance of an assignment establishes a new landlord-
tenant-relationship between the assignee and the original party who
did not assign – privity of estate.
ii. Privity of estate – since an assignee is in privity of estate with the non-
assigning original party, the assignee obtains the benefit, and bears the
burden, of any covenants running with the land.
iii. Any promises made in the lease which “touches and concerns” the land
runs with the land, and affects any assignee.
iv. Assuming that the lessee’s assignee does not make any specific
promise of performance when he takes the assignment, his liability to
the lessor is based upon privity of estate – being in possession of the
premises, he is liable for performance of promises made by the lessee
whose burden runs with the land.
1. Since the assignee’s liability is founded upon privity of estate, the
liability applies only for the period when the assignee is actually
in possession.
v. If there is an assumption of duties by the assignee, the assignee is now
bound by privity of contract as well as by privity of estate.
1. Privity of contract between the tenant and assignee means:
a. Tenant may sue the assignee if the covenants are not
performed – even if the relationship rested solely upon
privity of estate.
b. If the assignee has made an explicit promise, his privity of
contract liability to the tenant remains even after a
further assignment.
c. In most states, the landlord is a 3rd party beneficiary of
the assumption agreement between tenant and assignee.
i. The landlord and the assignee are now in privity of
contract – the assignee will be liable for duties incurred
during his actual possession, but also for duties incurred
after a further assignment.
ii. Landlord’s assignee has the burden of covenants whose
burden runs with the land, and has the benefit of
covenants whose benefit runs with the land.
h. Rights of parties after Assignment.
i. Original tenant, when he makes a promise in the lease that relates to
the leased premises, is bound to keep the promise both by privity of
estate and by privity of contract.

47
 ii. Only way T can escape from his privity of contract with L is if, in
conjunction with the assignment, he gets a release from L of his privity
of contract liability.
iii. When the landlord has made a promise whose burden runs with the
land, the tenant will lose the right to sue on this promise if he assigns
to someone else, and the breach occurs after the assignment.
i. Sublease - a sublease creates a new landlord-tenant relationship between
lessee and sublessee – no privity of estate between the lessor and the sublessee.
i. If the lessee does not pay the rent, or otherwise permit a breach of the
lease, the lessor may terminate the lease, and evict the sublessee.
ii. The lessee continues to be liable to the lessor following a sublease,
both under privity of contract and privity of estate.
iii. A sublease by a tenant does not establish privity of estate between
sublessee and lessor.
iv. Sublessee is not liable to the lessor on covenants running with the
land; instead, the lessee and the sublessees become in privity of estate
– liable to the lessee on covenants running with the land.
j. Covenants Running with the Land
i. Elements:
i. Any promise has two sides:
1. A burden (someone must perform the promise) and a benefit
(someone will gain from the performance by the other)
2. Burden of a promise made in a lease will run with the land
(enforceable against an assignee of the promisor) if that promise
“touches and concerns” the promisor’s assignee’s interest in the
land.
3. Benefit of a promise will run with the land (enforceable by an
assignee of the promise) if it “touches and concerns” the
promisee’s assignee’s interest in the property.
a. A promise to pay money/pay taxes, make repairs relates
directly to the land, runs with the land both as to benefit
and burden.
k. Fair Housing Act
i. Fair Housing Act, Title VIII of the Civil Rights Act of 1968 prohibits
housing-related discrimination only if based on race, color, national
origin, or religion, sex, handicap and familial status.
ii. FHA applies to various types of activities – sales, rentals, advertising,
brokering, and financing, if done in connection with residential real
estate.
iii. One must not make, print or publish, any notice, statement, or
advertisement that indicates any preference, limitation, or
discrimination or an intention to make any such preference, limitation
or discrimination.

48
 iv. The main way in which a realtor is likely to violate the FHA is by
engaging in the practice of racial steering.
1. The broker shows minority customers mainly housing in heavily-
minority areas.
2. The broker doesn’t tell minority customers about the availability
of housing in non-minority areas.
v. Redlining: declining to provide loans in minority neighborhoods.
vi. The most important type of local governmental action that may violate
the FHA is the enactment of “exclusionary zoning.”
vii. FHA does not seem to prohibit a landlord from discriminating on the
basis of sexual orientation

49
M. Judicial Land Sue Controls: The Law of Nuisance
I. An Introduction to the Substantive Law
a. Public nuisance is an interference with a right common to the general public.
b. Private nuisance is an interference with a property owner’s right to use and
enjoy his property.
II. Elements for proving nuisance:
a. Is the conduct a nuisance?
b. Inteference must be substantial.
c. Plaintiff must show that the defendant’s conduct was negligent, intentional (he
knows with substantial certainty that such interference will occur), or
abnormally dangerous.
d. Conduct was unreasonable
i. Even if the defendant intentionally interferes with the plaintiff’s rights,
he will have a kind of “privilege” to do so, unless the interference is not
unreasonable.
1. Jost /Threshold test – courts just examine conduct – social and
economic value is irrelevant (See Boomer)
i. Nature of the neighborhood, zoning of the area.
2. Restatement – whether the gravity of the harm outweighs the
utility of the actor’s conduct.
3. Alternative 1 test: intentional invasion is unreasonable for
purposes of nuisance law if: (1) the gravity of the harm caused
outweighs the utility of the actor’s conduct; or if, (2) the harm
caused by the conduct is serious and the financial burden of
compensating is possible while still keeping the business going.
4. Alternative 2 test: an intentional invasion of another’s interest in
the use and enjoyment of land is unreasonable if the harm
resulting from the invasion is severe and greater than the other
should be required to bear without compensation.”

a. Morgan v. High Penn Oil Co.

i. Rule: A party who intentionally and unreasonably
commits a non-tresspassory invasion of another’s
land may be held liable for private nuisance, even
if the party was not negligent.
ii. Nuisance per se (at law) – activity or structure
that is always a nuisance, under any circumstances
or conditions.
iii. Nuisance per accidens (in fact) – an activity or
structure that is only a nuisance due to the place it
is located or the manner it is done.

50
 Plaintiff Defendant Reasoning
High Penn intentionally
An action for private The evidence is not and unreasonably
nuisance may be sufficient to establish invaded Morgan’s
maintained even though either an actionable or property with toxic
the party producing the abatable private fumes, thus preventing
nuisance was not negligent. nuisance – operated a Morgan from using and
legal business and the enjoying the land. Thus,
emission of the gases Morgan had a cause of
was not negligent, but action for private
rather inevitable so not a nuisance, even absent a
nuisance per se. showing of negligence.
High Penn is likely to
continue its activities,
and an injunction is
warranted to ensure the
nuisance is abated.
e. Defenses Defendant May Raise
i. Assumption of the risk (“coming to the nuisance”) – plaintiff has
purchased his property with advance knowledge that the nuisance
exists.
1. Courts are more likely to hold that “coming to the nuisance” is a
defense if defendant’s activity is suitable for the area where it
occurs, and the plaintiff’s own use is out of step with that area.
f. Remedies
i. 3 possible remedies for private nuisance:
1. if the harm has already occurred, he can recover compensatory
damages.
a. If it appears that the nuisance will be a permanent one
he can and must recover damages, past and prospective,
in one action.
2. If the plaintiff can show that damages would not be a sufficient
remedy, he may be entitled to an injunction against continuation
of the nuisance.
a. Balancing Test – the plaintiff must show that the harm to
him actually outweighs the utility of the defendant’s
conduct.
i. Estancias Dallas Corp. v. Schultz
1. Rule: A trial court must engage in
balancing the equities when determining
whether an injunction is appropriate to
abate a nuisance.

51
 Plaintiff
suffered substantial injury
in the loss of enjoyment of
their home, and that injury
is likely to continue if the
injunction is not entered.
ii. Boomer v. Atlantic Cement Co.
Plaintiff
the pollution Atlantic
produces as a byproduct of significantly more
its operation is a nuisance
and causes damage to the
plaintiffs’ properties –
seeking injunction.
iii. Spur Industries, Inc. v. Del E. Webb
Defendant Reasoning
if the injury to the
defendant and the public
would be slight when
compared to the injury
to the plaintiff, the
injunction should be
granted.
(Restatement Test – profitable
business to pay permanent
damages)
1. Rule: Permanent damages, rather than an
injunction, are appropriate when the
damages resulting from a nuisance are
significantly less than the economic benefit
derived from the party causing the harm.
Defendant Reasoning
An injunction is
Operations provide appropriate in cases
where a nuisance would
economic benefit to otherwise persist after a
defendant than the trial. Since the
damage caused to economic benefit of
plaintiffs - By awarding keeping the factory
an injunction that will be open is greater than the
lifted once permanent harm suffered by
damages are paid, D Boomer, the most
may keep its business equitable solution is to
open, and P will be award an injunction
compensated for the that will be lifted once
harm he may suffer. Atlantic pays
permanent damages to
Boomer.
Development Co. (residential
housing next to cattle feed).
1. Rule: When the public develops land in the
vicinity of a public nuisance, the action
creating the nuisance must be ceased by
the party responsible for its creation,
52
 however, said party is entitled to
compensation.

Plaintiff Defendant Reasoning

Operations had been in Since a public nuisance
D was a public nuisance existence for some time exists D may be enjoined
(affected a significant prior to Webb’s purchase from operating its cattle
number of members in the of its land – should not operations. However, D
community) that must be have to close down his is entitled to
enjoined. business. compensation from P, as
P attracted buyers to
purchase lots in the
vicinity of the nuisance
after D had been
operating its cattle
business.
3. Self-help abatement
g. Lateral and Subjacent Support
i. Every landowner is entitled to have his land receive the necessary
physical support from adjacent and underlying soil.
ii. Lateral – right to support from adjoining soil
1. This right is absolute only when the land is in its natural state.
iii. Subjacent – right to support from underneath the surface (applicable
only where there has been a severance of the surface and sub-surface
rights)
h. Water Rights
i. Diffused surface waters – waters which have no predictable flow
1. At C/L was seen as the “common enemy of man,” – owner is
privileged to dam against them, throw them back upon the land
they came from, or deflect them onto adjoining lands.
ii. Waters in water course (streams and lakes) – issue centers on who has
the right to use the land.
iii. 2 incompatible approaches to the conflict:
1. C/L “riparian rights”
a. Owning land abutting a stream or lake
b. No advantage is gained by priority of use – a riparian
owner has no greater rights than a first timer.
c. Today, courts apply a “natural flow” approach, each
waterfront owner is entitled to the flow of streams and
level lakes in their natural condition.
d. Riparian owner is only entitled to only as much of the
water as he can put to beneficial use upon his land, with

53
 due regard for the equal and correlative rights of other
riparian owners.
e. In determining “reasonable use” courts distinguish
between natural and artificial uses.
i. Absolute right to all or any part of the water for
“natural’ uses, without regard to the effect his use
has on other owners downstream. (preferred
status)
2. Statutory “prior appropriation”
a. Water may be appropriated by a non-riparian owner.
iv. Groundwater – water below the surface
1. American – reasonable use of groundwater drawn from under
his property – may not divert the water to other property which
he may own.
2. English – landowner is given an absolute interest in all the water
which he can draw to the surface of his own land. – even if water
comes from below the surface of another owner’s property.
i. Air Rights.
i. “He who owns the soil owns upward into Heaven.”
ii. If sovereign immunity prevents a trespass action, the landowner may
nonetheless claim that the direct overflights constitute a taking of his
property – which cannot be done without just compensation.
iii. A landowner may have property interest in the sunlight which would
naturally strike their property especially where a landowner uses
sunlight as a source of energy.

III. Nuisance Law and Environmental Controls

54
N. Private Land Use Controls: The Law of Servitudes.
a. Introduction: Classifying Servitudes
i. Various rights which one may have in the land of another.
1. Easement – privilege to use the land of another.
a. Affirmative easement – permitted to make physical use of
another’s property.
b. Negative easement – enables its holder to prevent the owner of
land from making certain uses of that land.
c. Easement appurtenant – one which benefits its holders in the
use of a certain piece of land.
i. Its benefit must be intimately tied to a particular piece of
the land.
ii. Benefit which can only accrue to one who is in possession
of a particular parcel
iii. Dominant tenant – the land whose benefit the
appurtenant easement is created.
1. Holder of the easement has an implied right to
maintain the property used in the easement.
iv. Servient tenant – land that is burdened, or used by the
easement.
1. Owner of the servient estate is not required to
repair or maintain the property used in the
easement.
d. Easement in gross – benefit is not tied to any particular parcel
of land.
2. Licenses – privilege to use the land of another, not in writing.
3. Promises concerning he land; covenants (enforced at law) and
equitable servitudes (enforceable in equity)
b. Creation of Easements
i. 5 ways to create an easement:
1. Express – most straight forward way of creating an easement is by
deed or will.
a. Must meet the SOF – must be in writing, signed by owner of
servient estate
i. In most states, a lease less than one year does not have to
be in writing.
ii. If the easement is one which must satisfy the SOF, and the
parties fail to do so, a license will generally be created.
b. Easement by reservation – owner of land may convey that land
to someone else, and reserve for himself an easement in it.
i. SOF normally requires a writing signed by the party to be
charged; by accepting the deed, and recording it, binds
himself as to the reservation even without a signature.

55
 c. Stranger to the deed - at C/L, it was not possible for an owner
of land to convey that land to one person, and to establish by
the same deed an easement in a third person.
i. Modern courts have abandoned this rule, permits an
easement to be created by a deed in a person who is
neither the grantor nor grantee.
d. Scope: Where the easement is created by an express written
conveyance, the terms of that conveyance will normally control
– if the conveyance is ambiguous, the court will look at the
circumstances surrounding its making to determine the parties’
intent.
2. Implication
a. Exception to SOF.
b. Elements for an easement by implication:
i. Land is being severed from the common owner.
1. Owner sells part and retains part; or
2. Sells pieces simultaneously to more than one
grantee.
ii. Use for which the implied easement is claimed existed
prior to the severance – apparent and continuous prior to
that severance.
1. An express provision in the deed to the effect that
no easement exists will prevent creation of an
implied easement.
iii. Must have been a quasi-easement, in favor of one portion
of the property and against the other portion, while both
were under common ownership.
1. The use must be one which the grantee either in
fact knew about when he received his interest, or
could have learned about with reasonable
inspection (apparent).
iv. Easement is at least reasonably necessary to the
enjoyment of what is claimed to be the dominant
tenement.
1. where the implied easement is created by grant,
courts require only “reasonable” necessity.
2. Where the easement is reserved, most courts
require that to be strictly or absolutely necessary.
a. Ie. running a sewer line another’s property,
easement to receive sunlight for solar energy
c. Scope: The court will look to the use as it existed prior to the
conveyance.
d. Easement in gross cannot be created by implication.
Relevant Cases

56
Van Sandt v. Royster (sewage coming through)
a. Rule: An easement will be implied in favor of a grantor for
sewer pipes running under the grantee’s land, because the
grantee is charged with notice, as the existence of such pipes is
apparent even if it is not visible.
b. quasi-easement - landowner uses one part of her property to
benefit another.

Plaintiff Defendant Reasoning

enjoined Van Sandt from The fact that pipes are
interfering with Royster’s buried and not visible
use of the pipes. does not mean that the
easement is not
apparent. Easement for
the pipe was necessary
for the use and
enjoyment of the other
parcels.
3. Necessity
c. Elements of easement by necessity:
i. Necessity must be strict rather than reasonable.
ii. Parcels must have been under common ownership just
before the conveyance;
iii. Necessity must come into existence at the time of and
caused by, the conveyance that breaks up the common
ownership.
d. Prior use is irrelevant.
1. Ie. landlocked parcels and access to a public road
can only be gained via right of way of adjoining
property.
Othen v. Rosier (1 man, 4 conveyances, 2 people)
a. Rule: No easement by necessity is created where the
easement exists out of mere convenience.

57
 Plaintiff
no other means of reaching
Othen’s land for the past
forty years – easement by
necessity.
Defendant Reasoning
Granted a license to use In order to prove an
the land, revocable at easement by necessity,
any time. the purported easement
holder must show that,
at the time of the
conveyance, the
easement is necessary
for ingress and egress to
and from the dominant
property. If the owner
has knowledge and
grants consent (actual or
implied) to use the land,
no easement by
prescription can be
create.

4. Prescription – possessory estate in land may be gained by adverse

possession.
e. At C/L, lost grant it was assumed the holder of the claimed
servient estate granted an easement to the holder of the
claimed dormant estate.
f. Elements of easement by prescription:
i. The use must be adverse to the rights of the holder of the
servient tenement, and not with the latter’s permission.
1. It must not be in subordination to the servient
owner’s rights – merely a license, revocable at any
moment.
2. Use does not have to be hostile.
3. It is possible for a use to begin as a permissive one,
and then shift to an adverse one and vice versa.
ii. Use must be open and notorious throughout the statutory
period – owner of the servient tenement is put on notice
that the use is occurring.
iii. Use must be continuous and uninterrupted
1. the attitude of the non-subordination on the part of
the user must be continuous, and the use itself must
be reasonably continuous measured by the needs of
the user.
a. A minor trespass will not qualify as
continuous.

58
 2. use does not need to be exclusive – only the
attitude of the non-subordination, not the physical
use, must be continuous.
3. If, at some point during the prescriptive easement
period, the dominant tenement comes to be owned
by the same person who owns the servient
tenement, even if a tenant on the dominant
property uses the easement, this use will not be
hostile, and hostility will be interrupted.
g. Scope: the allowable use is determined by reference to the
adverse use that continued during the statutory period and
created the easement.
5. Estoppel
h. Elements of an easement by estoppel claim:
i. Should reasonably have foreseen that A would
substantially change his position in reliance on the belief
that O would not revoke his permission.
ii. A has INDEED substantially changed his position.
iii. Treating the permission as permanent is the only way to
prevent injustice.
i. Exception to SOF.
Relevant Cases
Holbrook v. Taylor (easement is revoked after P’s build a house)
j. Rule: Where the owner of land has granted a license to another
to use and make improvements upon the land, and the licensee,
relying on this permission, does use and make improvements to
the land at considerable cost, that license is irrevocable.

Plaintiff Defendant Reasoning

Once a landowner has
induced action on the part
of a licensee by giving the
licensee permission to use
and improve the land, and
that use and improvement
results in considerable
expense to the licensee, the
landowner does not have
the right to revoke the
license.
A license is revocable at The Holbrooks initially
any time. gave the Taylors
permission to use and
make improvements
upon the road and,
relying on this
permission, the Taylors
incurred considerable
costs maintaining and
improving the road and
building their house. As
a result, the Holbrooks
may not revoke their
permission

59
c. Transfer and Subdivision of Easements
i. When the title to the servient estate is transferred, the burden of the
easement remains with the property.
ii. An easement appurtenant will normally pass with the transfer of the
dominant estate, even if the deed of transfer does not mention the
easement.

d. Termination of Easements
i. Ways in which an easement may terminate:
1. Natural expiration – if the term of the easement is not specified, the
easement will be found for an unlimited duration.
2. Purpose no longer applies – easement might be for a certain purpose,
and will terminate when that purpose is no longer relevant.
3. Merger – if ownership of a servient estate and of the appurtenant
dominant estate come into the hands of one person, the easement
appurtenant is destroyed.
4. Destruction of the servient estate
5. Prescription – servient owner or a third person may use the servient
property in a way inconsistent with the easement, for the statute of
limitations period.
6. Release – execute a release in writing, surrendering the easement.
7. Estoppel
8. Abandonment – only permitted in certain circumstances; words alone
will never be sufficient.
a. For the easement to be abandoned, an intent on the part of the
easement holder to abandon it, coupled with actions
manifesting the intent.
b. Mere non-use of the easement, even for a long period, is
typically not enough to show the requisite intent to abandon
9. Revocation – easement is not revocable at its grantor’s will. Both
parties must agree.
e. Licenses
i. A right to use the licensor’s land that is revocable at the will of the licensor.
ii. A license is not required to satisfy the SOF and may be created orally.
1. Any oral grant of the right to use the grantor’s property must, if it is
valid at all, be a license and this ordinarily be revocable.
a. Ie. right to use a parking lot
iii. Lease v. license
1. A license merely confers the non-exclusive right to use the premises in
a particular way. A lease gives the lessee exclusive possession of
specified premises for a stated time.
iv. Some situations where the courts restrict or eliminate the revocability of a
license.

60
 1. Use would have been an easement but did not meet the SOF, and
licensee makes substantial expenditures on the land in reliance on
the licensor’s promise that the license will be permanent or of long
duration (license by estoppel).
f. Negative Easements
i. Conservation/solar easements

61
O. Covenants Running with the Land
a. A covenant running with the land is a contract between two parties which,
because it meets certain technical requirements, has the additional quality that
it is binding against one who later buys the promisor’s land, and/or enforceable
by one who later buys the promisee’s land.
b. The Traditional Approach
ii. Covenants Enforceable at Law: Real Covenants
1. A promise that is subject to legal rather than equitable relief – when
the covenant is breached, the relief granted is money damages.
iii. Elements of restrictive covenants running with the land:
1. SOF; must be in writing.
2. Intent to run
3. Privity
a. For the burden to run:
i. Must touch and concern the land.
ii. Horizontal privity (Some land transfer between original
promisor and promisee) – if no horizontal privity, sue
under equitable servitude
iii. Vertical privity (between original covenant party and party
burdened now)
iv. Party against whom it is to be enforced must give away
entire estate of the original promisor, in the durational
sense.
b. For the benefit to run:
i. Must touch and concern the land.
ii. Vertical privity – relationship between the promisor and
his successor in interest (A->C) or the relation between the
promisee and his successor.
iii. Benefit may be enforced by anyone who has taken
possession of the promisee’s property with the
promissee’s permission.
4. Touch and concern the land.
c. Covenants Enforceable in Equity: Equitable Servitudes
i. An agreement that creates an equitable property interest in the burdened
land – promisee may enforce the agreement without showing that
appreciable damage or injury to his property will occur from a breach.
ii. Elements of equitable servitude claim:
1. Must satisfy SOF
a. If not satisfied, one can prove common scheme, common owner
and intent to apply.
2. Privity is not generally required.

62
 a. Servitude may be binding on successors who were strangers to
each other’s title, as long as they have notice.
3. The burden can run even though the benefit does not touch and
concern the land.
a. Touch and concern requirement will nearly always be met on
the burden side.
4. For the benefit to run, the original parties must be fairly specific
about who may enforce the promise.
a. Ie. general development plan, express provision in the deed,
existence of a general building plan,
b. Implied reciprocal servitude - early purchaser acquires his land
in expectation that he will be entitled to the benefit of
subsequently created servitude.
i. Exception to the SOF
ii. Prior purchaser must show that a general building plan
existed at the time he brought.
5. A subsequent purchaser from the promisor will be bound only if he
had notice prior to taking.
a. Actual notice – was told of the covenant
b. Constructive notice – recordation of history of deed in public
office.
c. Inquiry notice – could have asked around
iv. A suit at law on a covenant running with the land can only culminate in
money damages.
1. Where the promise is a negative one, involving a restriction on
building, money damages are not usually the desired relief – an
injunction against the forbidden construction is the relief generally
desired.

Sanborn v. McClean (building a gas station in a strictly residential

area).
1. Rule: Where the owner of two or more related lots conveys one with
restrictions for the benefit of the retained lot(s), the restrictions are
deemed to apply also to the retained lot(s).

Plaintiff Defendant Reasoning

Deed made no mention McLeans should have
Seeking injunction against D of a covenant. been able to observe
building a gas station when that the lots surrounding
he restricted from doing so. his contained houses
which conformed to a
general consistent plan,
which at a minimum
puts them on inquiry
notice that the land was
uniformly burdened with
63
similar covenants.
 i. Shelley v. Kraemer (only whites allowed)
1. Rule: State court enforcement of a racially restrictive covenant
constitutes state action that violates the Equal Protection Clause of the
Fourteenth Amendment.

Plaintiff Defendant Reasoning

Restrictive covenant State court enforcement
Restrictive covenant – violates the Equal of the restrictive
enjoin D’s from taking Protection Clause of the covenants against the
possession of property. Fourteenth Amendment. Shelleys would deny
them equal protection in
the exercise of their
property rights. States
may not make available
the full coercive power
of government to allow
private individuals to
deny the Shelleys’ rights
on the basis of race.
Policy Arguments
i. Covenants and restrictions are sometimes used not to control land use, but
to facilitate the selection of neighbors.
ii. Covenants and restrictions often attempt to preserve the residential quality
of a development.
2. Tulk v. Moxhay (I knew of the covenant but my
deed didn’t mention it).
d. Rule: One who purchases property with knowledge of restrictive
covenants burdening the land must honor the covenant.

d. Plaintiff Defendant Reasoning

Tulk brought suit in equity
for injunction against D – to
enforce restrictive covenant
on the subsequent
purchaser of property
adjoining his land.
Termination of Covenants
ii. Servitude can be modified or terminated if all parties so agree.
Deed made no mention It would be inequitable
of a restrictive covenant. to permit Elms to sell
property that he knew to
be burdened to another
party and receive
compensation for the
land as though it were
free and clear, for this
would render the intent
of the original covenant
meaningless.

64
 1. SOF requires that modification or termination be in writing, just as
the original servitude had to be in writing.
iii. Abandonment – requires unequivocal evidence of an intent to abandon by
the benefitted party.
iv. May be modified or terminated by court order when conditions have so
changed that it is impossible to accomplish the purposes for which the
servitude was created.
e. Common Interest Communities
i. Homeowners’ associations and condominium associations enact rules,
regulations, and restrictions governing items such as pets, satellite
dishes, the parking of vehicles, etc.
ii. Generally, courts enforce such restrictions; however, courts impose a
requirement of reasonableness.
1. Restrictions will be valid unless “irrational” or “wholly arbitrary.”
a. Nahrstedt v. Lakeside Village Condominium
Association, Inc. (1994): “we conclude, as a matter of
law, that the recorded pet restriction of the Lakeside
Village condominium development prohibiting cats or dogs
but allowing some other pets is not arbitrary, but is
rationally related to health sanitation, and noise concerns
legitimately held by residents.

65
P. Zoning
 Principal type of public land-use regulation existing in American – generally done on
the local, municipal level, with the power to do so coming from the state police power.
 Regardless of the grounds upon which a zoning regulation is attacked, the attacker has
the burden of proof.
 Permissible objectives of zoning include protection of the “public health, safety morals,
and general welfare.”
o “use” zoning is the most important kind of zoning – municipality is divided into
districts, in each of which only certain uses of land are permitted.
 Euclid v. Ambler Reality Co. (cumulative ordinance)
 Rule: Municipal zoning regulations are constitutional, unless they
are clearly arbitrary and unreasonable, having no substantial
relation to the public health, safety, morals, or general welfare.
 Policy Argument - Pre 1930s, courts refused to allow aesthetic
zoning because 1) it is unfair to allow the majority to impose its
tastes upon everyone; 2) it is impossible to formulate standards
that are sufficiently precise to avoid discrimination and corruption
in enforcement.

Plaintiff Defendant Reasoning

Ordinance was used to Ordinances restricting
The value of the land was regulate density of industrial use of
reduced and the ordinance property, maintain the property may be over-
was an unconstitutional community’s attractive inclusive, going beyond
violation of P’s due process appearance, to avoid an dangerous and offensive
and equal protection rights. overburdening of public uses and forbidding the
facilities. innocent as well, but this
is unavoidable and
generally valid.
1. State Ex Rel. Stoyanoff v. Berkeley (aesthetic
zoning - denied permit to build modern house
in traditional neighborhood).
a. Rule: As an exercise of their police powers, states may
authorize local governments to make zoning regulations
regarding aesthetic matters for the general welfare of the
community.
b. Needs to be an increase in adjacent properties for
aesthetic value to hold – cannot be the only factor to
uphold a zoning ordinance.

66
 Plaintiff Defendant Reasoning
Statutory provision Aesthetic considerations
Stoyanoff claimed that the authorizing zoning are a matter of general
regulations were regulations aimed at welfare. Although
unconstitutionally vague protecting the character Stoyanoff’s house was
and gave no guidance to of the neighborhood and not patently offensive, it
the board - use restrictions preserving property was different enough to
caused an effective taking values. raise a concern
of property without due regarding neighborhood
process of law. character and property
i. values.
Zoning Administration
a. The relevant date of determining the existence of a non-conforming use is the
effective date of the ordinance – by this date the use must be a reasonably
substantial one – mere preparation for the use is generally not enough.
ii. Many municipalities have responded to this problem by amortization
provisions – the non-conforming use may continue only for a certain
length of time following enactment of the zoning restriction (owner will
have time to amortize/recover his investment, and to make plans to
continue the use somewhere else if he wishes).
iii. Minority of states hold that amortization amounts to an improper
taking of private property – federal Constitution prohibits the
amortization technique, because it amounts to a taking without due
process of the law.
1. P.A. Northwestern Distributors, Inc. v. Zoning Hearing
Board (you have 90 days to take the porn and go).
a. Rule: An amortization clause in a zoning ordinance which
affects lawful land use constitutes a “taking” under the
Pennsylvania Constitution.

Plaintiff Defendant Reasoning

Ordinance called for P,
owner of an adult
bookstore, to close and
relocate – this constitutes a
taking of his property
without just compensation.
P was given time to Any amortization and
recover investment. discontinuance of a
lawful pre-existing non-
conforming use is per se
confiscatory- if
municipalities were free
to amortize non-
conforming uses out of
existence, future
economic development
would be seriously
comprised because
zoning changes to force
67
a cessation of business
may deter investors.
ii. Exclusionary zoning – use of zoning laws to exclude certain types of persons
and uses, particularly racial and ethnic minorities, and low-income person.
b. A municipality whose zoning practices fail to advance the general welfare of the
region may violate both the state constitution and the state enabling act.
iv. Southern Burlington County NAACP v. Township of Mt.
Laurel (no housing for the poor people).
1. Rule: A town, through enactment of land use regulations, must
provide the opportunity for low and moderate families to live in
the town and may not constructively prevent them from doing so.
2. Builders Remedy – court order sanction that developer disregard
zoning ordinace.

Plaintiff Defendant Reasoning

Town’s zoning scheme
failed to serve the general
welfare of the region as a
whole, and thus violated
the State Enabling Statute
– municipalities must zone
primarily for the living
welfare of people and not
for the benefit of the local
tax rate. Town intent is
irrelevant – statute’s effect
matters.
Town simply desired to A municipality may not
make sure that any new foreclose opportunities
housing would pay its for low- and moderate-
own governmental way income housing, and
– a large portion of the must offer an
underdeveloped land opportunity for such
was allocated for housing – at least to the
industrial and extent of the
commercial purposes municipality’s fair share
because such uses of the present and
produce attractive tax prospective regional
relatables. need therefor.

68
Q. Eminent Domain
o Condemnation proceedings – the government decides that a certain parcel is
necessary for public use and brings a judicial proceeding to obtain title to the
land; court decides upon the just compensation due to the owner.
o Supreme Court has construed the requirement of “public use” quite broadly,
giving great deference to legislative judgments in this field.
 Adequate legitimate state interests include – maintaining residential
zoning, preserving landmarks, and protecting the environment.
 So long as the state’s use of its eminent domain power is “rationally
related to a conceivable public purpose,” the public use requirement is
satisfied.
 The fact that property is turned over to some private user does not
prevent the use from being a public one as long as the public can be
expected to derive some benefit.
 Kelo v. New London (big company to create jobs in
town).
o Rule: A state’s use of eminent domain to condemn
property from private individuals and redistribute it to
other private individuals constitutes a “public use” under
the Fifth Amendment if it is rationally related to a
conceivable public purpose.
o Dissent: all private property is now vulnerable to being
taken and transferred to another private owner, so long
as it might be upgraded (given to an owner who will use it
in a way that the legislature deems more beneficial to the
public.

Plaintiff Defendant Reasoning

The city’s decision to take
non-blighted property for
the purpose of economic
development was not a
public use and therefore a
taking that requires just
compensation.
The requirement of The requirement of a
public use can be met public use did not mean
even though the that the property had to
government is pursuing be made open to, or
the diffuse goal of used by, the public at
“economic large. All that is required
development,” and even was that there be a
if it is doing so by “public purpose” behind
condemning parcels in the taking.
non-blighted areas to
create jobs, generate tax
revenue and revitalize
downtown area.

69
  Hadacheck v. Sebastian (clay business gone due to
ordinance).
o Rule: The state police power includes the power to
regulate land use, and must not be arbitrarily exercised.

Plaintiff Defendant Reasoning

the police power to
regulate land use was
exercised in a manner
specifically intended to hurt
him and his business.
Although the business The fact that Hadacheck
was not a nuisance per had already been
se, the city was engaged in the business
permitted to legislatively when the city limits
declare it to be a were expanded to
nuisance for the purpose include his land does not
of improving the health make the land use
and comfort of the restriction arbitrary.
community. Such regulation is
necessary for the
appropriate
development of the land
within the city; a city
would be permanently
locked in primitive
conditions if pre-existing
use meant that the city’s
police power could not
be exercised.

i. Implicit Takings – Regulatory Takings

a. Taking Clause - the power of the government to take private property for public
use.
i. In the cases where zoning regulations impair an owner’s use of his
property, the Court has been especially reluctant to find a compensable
taking – a zoning ordinance will not be stricken as violative of due
process unless it is clearly arbitrary and unreasonable, having no
substantial relation to the public health, safety, morals or general
welfare.
b. Federal Constitution and individual states may impose limits on zoning. (due
process clause, takings clause, equal protection clause.
c. Elements for a land use regulation to avoid being a taking, it must satisfy 2
requirements:
ii. Must substantially advance legitimate state interests
iii. Must not deny an owner economically viable use of his land.
1. If the court finds that the private property has been “taken” by
the government, compensation must be paid.

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 2. If the state merely regulates property use in a manner consistent
with the state’s police power, then no compensation needs to be
paid, even though the owner’s use of his property, or even its
value, has been substantially diminished.
Relevant Cases
a. Loretto v. Teleprompter (you must provide the tenants
cable)
i. Rule: A permanent physical occupation authorized by government is a
taking requiring the payment of just compensation without regard to the
public interests that it may serve or the fact that it only has a minimal
economic impact on the property owner.
ii. Policy Argument - A permanent physical occupation requires payment of
just compensation because it destroys the property owner’s opportunity
to exercise three basic property rights:
1. (1) the owner may no longer fully possess the property or
exclude others from possessing it;
2. (2) the owner can no longer exclude others from using his or her
property, and cannot make any personal non-possessory uses of
it; and
3. (3) the owner cannot properly dispose of the property because a
permanent physical occupation typically strips the property of
most or all of its economic value.

b. Plaintiff Defendant Reasoning

Area taken by the cable A permanent physical
Installation of cable boxes is relatively small. occupation requires
facilities on her building by compensation for the
Teleprompter was an property owner because
unconstitutional taking of it is more serious and
her property. intrusive than either a
temporary intrusion or
an intrusion that merely
restricts the use of
property.
Pennsylvania Coal Co. v. Mahon (keeping subsurface rights
to mine coal)
i. Rule: While the use of property may be regulated, overregulation will
be considered a taking.
ii. Diminution in value - the more drastic the reduction in value of the
owner’s property, the more likely a taking is to be found.

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ii. Plaintiff Defendant Reasoning
The state is acting to The statute does not
Regulation so utterly prevent harm to the seek to correct a public
impaired the right to mine public. nuisance, because only
coal that it was nearly the one home is involved,
equivalent of an and it does not intend to
appropriation or protect personal safety,
destruction of the coal. since Mahon knew the
risks involved in
purchasing the land –
it’s a taking.
Historical and Environmental Preservation
a. A historic district is a group of buildings or a neighborhood exhibiting a
common style or historical or architectural interests, and when taken as a
whole, the area is worth maintaining because it reflects the life style or
architecture of a given period.
b. Historic district ordinances have been subjected to two main legal attacks:
a. They are arbitrary and discriminatory because they lack sufficiently
precise standards to guide the board in issuing construction permits
b. Constitute a “taking” without compensation, prevents the owner from
making a profitable use of his property

Penn Central Transportation Co. v. Mahon (no office

building on grand central)
1. Rule: Balancing Test elements - When determining whether a
state regulation constitutes a taking of private property for public
use with the requirement of just compensation
a. economic impact of the regulation on the owner;
b. the extent to which the regulation has interfered with the
owner’s reasonable investment-backed expectations; and
c. the character of the government action involved in the
regulation.
3. Dissent: any substantial interference with property rights
constitutes a taking unless:
a. The use being prohibited is a nuisance; or
b. The prohibition applies over a broad cross section of land
and secures an average reciprocity of advantage (each
owner whose use is restricted gains substantial advantages
in return).

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 Plaintiff Defendant Reasoning
Landmarks law did not Landmarks law was a
Landmark Reservation interfere in any way with part of a
imposes upon land owners’ the present uses of the “comprehensive plan” P
significant costs and Terminal – no evidence has the ability to
restrictions, without that all development of transfer their
affording them many the air space would be development rights
benefits beyond the honor prohibited. above the terminal to
of the designation. The cost other parcels of land in
of preserving historical the vicinity.
landmarks should be borne
by the entirety of New York
City taxpayers, and not by
the four hundred
designated businesses
alone.
ii. Lucas v. South Carolina Coastal Council (
1. Rule: A state regulation that completely deprives private
property of all its economic value constitutes a taking under the
Fifth and Fourteenth Amendments that requires the payment of
just compensation to the property owner, unless the economic
activity prevented by the regulation is not part of the owner’s
initial title or property rights when acquiring the property.
2. Particular use eliminated of the property (not enough to
constitute a taking) v. total and permanent ban on the building of
structure on the property (more likely to be a taking).

Plaintiff Defendant Reasoning

Regulation deprives him of
all economic use of his
property, and thus is a
taking.
The fact that the Anything which the
particular use made by common law would
the Plaintiff has been recognize as a public or
completely foreclosed is private nuisance may be
not enough for barred by regulation,
compensation – state without the need for
may regulate to preserve compensation bc the
its citizen’s health and legislature cannot
safety – not a taking. suddenly decide that a
particular use is harmful
that it should be
immediately banned, if
the ban would deprive
the owner of all
economical viable use of
his land.
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iii. Tahoe-Sierra Preservation Council, Inc. v. Tahoe
Regional Planning Agency (2002) (temporary
regulation is not a taking).
1. What happens if the government imposes a temporary delay on
all economically viable use of the property, as where a planning
board institutes a “moratorium” on development – is the
government required to pay just compensation?
a. Not necessarily. The answer to the question whether a
temporary [development] moratorium effects a taking is
neither ‘yes, always’ or ‘no, never’; the answer depends
upon the particular circumstances of the case.”
2. The Court will consider all the surrounding circumstances to
determine whether the delay of all economically viable use was
so severe as to require that compensation be paid.
3. Marginalized the Lucas decision: the categorical rule in Lucas was
carved out for the ‘extraordinary case’ in which a regulation
permanently deprives property of all value; the default rule
remains that, in the regulatory taking context, we require more
fact specific inquiry.”
iv. Murr v. Wisconsin.
 No single consideration can supply the exclusive test for
determining the denominator. Instead, courts must consider a
number of factors.
o treatment of the land under state and local law;
o the physical characteristics of the land; and
o the prospective value of the land regulated.”
 A valid takings claim will not evaporate just because a purchaser
took title after the law was enacted.

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