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189 Cards in this Set

  • Front
  • Back
Leasehold Estates
Right to possession of land by the permission of another
4 types of Leasehold Estates
1. Term of Years
2. Periodic Tenancy
3. Tenancy At Will
4. Tenancy at Sufferance/ Holdover Tenancy
Term of Years
-lasts for some fixed period of time
Periodoc tenancy
-continues from one period to the next automatically, unless either party terminates it at the end of a period by notice
-CL 1-year: 6 mnths notice
-CL: notice must be given equal to the length of period, but not to exceed 6 months
Tenancy at will
No stated duration and may be terminated at any time by either party
Tenancy at Sufferance/Holdover Tenancy
-Tenant holds over at the end of a valid lease.

- LL has option to:
1. Evit tenant; or
2. Hold tenant to another term (and periodic tenancy is thus created)
Garner v. Gerrish
F: LL leased house to D-tenant for as long as wanted

R: If a lessee has the option of terminating a lease when he pleases, a determinable life tenancy is created.

EXCEPTION: court can refuse to enforce an unconscionable lease or excise that part
"tenant"; person who leases
"LL"; person with property for lease
Crechale & Polles v. Smith
F: D held over past lease & P treated him as a trespasser! Later, P decided to hold him to another term

R: Once a LL elects either to treat a holdover as a trespasser or to hold him for a new term, he may not change his mind
The Lease
-gives rise to LL-tenant relationship, with rights, duties & liabilities

-Common principles:
1. Are the covenants in leases "mutually dependent?"
2. If the lease premises are destroyed, is teh tenant liable for rent?
3. If the tenant wrongfully abandons the leased premises, must the LL take steps to mitigate damages?
4. Is a warranty of quality - that the leased premises are habitable or fit for their purpose - implied in the lease?
Statute of Frauds
Leases for more than 1 year must be in writing!
Selection of Tenants (Unlawful Discrimination)
Fair Housing Act, 42 USC ss 3604: no can do on race, sex, disability, familial status in the renal of housing; can't advertise specifying a preference
-Defeat discrim by showing LEGITIMATE REASONS for not renting
Delivery of Posession
-English rule: reguires LL to deliver actual possession

-American rule: require only that LL deliver a legal right to possession
Hannan v. Dusch
F: When Ps lease was to being, D failed to evict holdover tenant

R: A LL only has a duty to deliber the right to possession of the premises to a tenant, not actual possesion (LL can assess better)
Subleases & Assignments
-Assignment: lessee transfers entire interest under the lease

-Sublease: lessee transfers anything less than his entire interest
Ernst v. Conditt
F: Rogers, original lessee, transfered interest to D

R: In determining whether an assignment or sub-leasing has occurred, look at parties intent
Kendall v. Ernest Pestana
F: D demanded increased rent in exchange for consent to assign lease

R: Where lease provides for assignment only w/ prior consent of lessor, such consent may be withhold only where the lessor has a commercially reasonable objection to the assignment, even in the absence of a provision in the lease stating that consent to assignment will not be unreasonably withled
Tenant who defaults
Tenant in Possession - if a tenant breaches a term of the lease & remains in possession, LL may evict tenant
Berg v. Wiley
F: D-LL changed locks

R: LL may not use self-help to regain possession of land
Tenant who has abandoned possession
LL's 2 options:

-accept tenant's surrender and terminate lease;
-choose not to accept surrender & leave premise vacant & sue for rent as it becomes due
Somer v. Kridel
F: P failed to make efforts to re-let apt after D abandoned it

R: LL is under a duty to mitigate damages by making reas. efforts to re-let an apt. wrongfully vacated by the tenant
Quiet Enjoyment
If LL interferes w/ tenant's right to quiet enjoymemnt - which constitutes constructive eviction - the tenant may vacate the premises and terminate the lease
Constructive Eviction
Tenant's claim that his use or enjoyment of property has been substantially impaired
Reste Realty Corp v. Cooper
F: Basement flooded when it rained

R: A tenant may vacate premises and terminate the lease if his quiet enjoyment is interefered w/ by the LL. Where there is such a covenant of quiet enjoyment, whether express of implied, and it is breached substantially by the LL, the courts have applied the doctrine of constructive eviction as a remedy
Implied Warranty of Habitability
-Implied warranty that the premises are in at least good enough condition to be lived in
Hilder v. St. Peter
F: D leased an apt. unfit

R: implied warranty of habitability in every residential lease. Punies available.

-When a LL breaches the implied warranty, the tenant may withhild future rent and may also seek damages in the amount of rent previously paid
Law of Waste
Tenant's duty not to commit waste is breached if tenant makes "such a change as to affect vital and substantial portion of the premises; as would change its characteristic appearance; the fundamental purpose of the erection; or the uses contemplated or a change of such a nature, as would affect the very reality itself."
Chicago Board Realtors v. Chicago
F: D enacted a rent control ordinance which made minor re-allocations of rights btw LL & tenants

R: A rent control ordinacne that makes minor re- allocations of rights btw LLS and tenants is reas. related to legitimate public good
7 Steps to Buying Real Estate
1. Buyer consults RE agent
2. Buyer should employ an atty, but likely that will sign form given by agent
3. Buyer expexts to pay certain amount of purcahse price as down pay. Remainder is obtained by giving a mortgage
4. Buyer must obtain financing thru loan
5. Investigation of title:
-inspection of reg. pub records
-examination of abstracts
-local title assurance
6. Closing:deliver docs & settle costs
7. After closing: deed & mortgage recorded and fees paid
Broker's Duty
-owe principals certain fiduciary duties of loyalty & good faith

-expected to adhere to high ethical/prof. standards & work entirely on behalf of principles

-follow principal's directives
Broker's payment
1. Open Listing: commission earned only if 1st to procure an offer

2. Exclusive right to sell listing: most protective for broker - paid if any buyer purchases the property, no matter who found them
Hickey v. Green
F: P sold house in reliance on oral agmt w/ owner-D. D rescinded

R: Where there is a clear oral promise, partial payment, plus an act made in reliance (land transfer) is sufficient to overcome SOF requirement that Ks for sale of land must be in writing
Walker v. Ireton
R: Delivery of a check was insufficient part performance to remove defense of SOF

- Sale of famr did not constitued sufficient reliance on oral K b/c it was not w/in the contemplation & understanding of the parties and not foreseeable by the seller
"A signature, contract or other record . . . may not be denied legal effect, validity, or enforcability solely b/c it is in electronic form"
Marketable Title
-Seller's conveyence of "marketable title" to the buyer is an implied condition of K of sale of land & buyer can rescing id no title

-Marketable title to RE is title that does not expose buyer to litigation

-For specific performance by seller or recission of a K by buyer, if title doesn't expose to litigation, court will find title to be marketable even if at trial is the first time
Lohmeyer v. Bowen
F: Prior to transfer of proprety, a title search showed that the prop in question had 2 encumberances on it

R: Marketable title to RE is title that does not expose buyer to litigation. Buyer may not rescind K to purchase land where the encumberance of the tiele is the result of a munie ordinance
Stambovksy v. Ackley
F: haunted house case

R: Where a seller has created a condition that materially alters the value of the K for sale of real property, and the condition is uniquely within the K of the seller, and unlikely to be discovered by the buyer, the failure to disclose that condition creates a basis for rescission as a matter of equity.

The impact of the reputation goes to the very essence of the bargain.
Johnson v. Davis
F: D lied about leaky roof

R: Sellers of real property have a duty to disclose to prospective buyers, material facts affecting property value when those facts are not known or readily obsevable to teh buyer
Materiality Test
1. Objective test of whethr a reas. person would attach importanct to it in deciding to buy; or
2. Subjective test of whether the defect "affects the value or desirability of the property to the buyer"
When a buyer accepts a deed, the buyer is deemed to be satisfied that all contractual obligations have been met. Consequently, the contract MERGES into the deed, and the deed is deemed the final act of the parties expressing the terms of their agmt
Implied Warranty of Quality
Privity of K is not nec. to maintain a cause of action for the implied warranty of workmmanship & good quality against a builder for latent defects

[similar to implied warranty of habitability]
Lempke v. Dagenais
F: P purchased a house where recently fixed garage roof was defective

R: Privity of K is not nec. to maintian a cause of action for the implied warranty of workmmanship & good quality against a builder for latent defects

-Implied warranty is a public policy doctrine that exists to protect purchasers from latent defects
Implied Warranty of Quality Policy
1. Builder in better position to prevent damage from ocurring

2. Latent defects don't manifest for a long time

3. Peeps less likely to stay in one place for a long time

4. Purchasers have little knowledge about construction

5. No unfairness to builder b/c of duty of workmanship

6. Insulating only the 1st buyer might encourage "sham" 1st sales
RE Seller's Implied Warranties
1. Warranty of suitability: used & new buildings

2. Warranty of quality: applies only to new construction & runs with the land [broader]
Remedies for Breach of Sales K
1. Damages
2. Retention of deposit (sellers) or Restitution of the deposit (buyers)
3. Specific Performance
3 types of Warranties of Title in a Deed
1. General Warranty: covers against all defects in title & covers defects which arose b/f & after grantor took title

2. Special Warranty: covers against specified acts of grantor & acts of others

3. Quitclaim Deed: no warranties at all, conveys only whatever title grantor may have
Types of Covenants included in a General Warranty
1. Covenant of Seisin: grantor warrant that he owns the estate that he purports to convey

2. Convenat of right to convey: grantor warrants he has the right to convey property

3. Covenant against encumberaces: no morts, liens, easements & cov's on property

4. Cov of general warranty: grantor warrants he will defend against lawful claims and will compensate the grantee for any loss that the grantee may sustain by assertion of superior title

5. Quiet enjoyment: no distubrance in possession & enjoyment of prop by superior title

6. Further assurances: promises to execute any other docs required to perfect the title conveyed
Brown v. Lober
F: D sold land to P, but only 1/3 interest in mineral rights

R: COvenant of quiet enjoyment can be breached by constructive eviction, but unless the covantees rights of possession is interfered w/, there is no contructive eviction, and therefore no breach of covenant.
- here, no breach b/c other party never tried to assert adverse title or tried to remove the minerals from the ground.
Frimberger v. Anzellotti
F: after purchasing property, P discoerd home violated enviro protection statutes

R: A latent violation of a restrictive land use statute does not constitute a violation of the warranty against encumberances.
- D didn't know about defects. They were only discoverable by consulting DEP, so no misreprentation.
- Ps atty could've protected P
Customary Methods of Description, include references to:
1. Natural or artifical monuments & from the starting point reference to directions & distances

2. Gov, survey, recorded plat, or some other record

3. street & # or the name of the proeprty
Forged Deeds

Loss is placed on the person who could've prevented the loss to the other
Rockafellor v. Gray
F: P purchases land & agrees to assume mortgage to D. D forecloses the mortgage.

R: Covenant of seisin doesn't run w/ th eland & is broken the moment the conveyence is delivered, becoming a chose in action held by the covantee
Sweeney v. Sweeney
F: prop deed to bro & deed was recorded. Bro deeded prop back, but it wasn't recorded

R: Where a deed is handed to grantee, but evi shows it is to take effect only upon the death of the grantor, the deed is considered properly delivered
Rosengrant v. Rosengrant
F: elderly couple attempted to deliver deed to nephew, but they state that the deed would be effective only upon their deaths. After their deaths, an interested relative challenged the "delivery" b/c it was not a valid present transfer.

R: Where a grantor delivers a deed but retains a right of retrieval and states that the deed is operative only after the grantor's death, the delivery is NOT legally sufficient
Revocable Trusts
-valid in all states

-signed declaration of trust providing that land is held in trust, retaining the right to possession and to all rents an dprofits for their joint lives and right to revoke the trust and reclaim legal title for themselves
Financing arrangement, in which the person buying/owning property receives a loan, and the property is pledged as security to guarantee repayment of loan
- Judicial Foreclosure: foreclosing party must institute a lawsuit, and the actual foreclosure sale is judicially supervised

- Private foreclosure: deed of trust allows lender or 3d person to hold the prop as "trustee" and to sell in a private sale if default
Anti-Deficiency Statutes:
legislation designed to protect some borrowes from deficiency judgment
Murphy v. Financial Dev. Corp.
F: D foreclosed on Ps mortgage, but concluded the foreclosure sale after only 1 $27K bid was made on the $54K house

R: A mortgagee executing power of sale has a duty to protect the interests of the moretagor & exercise GF & DD in obtaning a fair price for a mortgagor's property.

- Mortgagor's duty should be considered that of fiduciary

-Bad Faith: an Intentional disregard of duty or purpose to injure
Home Ownership and Equity Protection Act
Regulates certain "high cost" home mortgage loans.

Certain procesures are triggered whn a home loan has particulalry high interest rates or fees.
Mortgagor v. Mortgagee
lending institution v. buyer
Bean v. Walker
F: D defaulted on an installment land sale K after paying P nearly half the purchase price, & P sued to for re-possession

R: The buyer under an installment land sale K, acquires equitible title which must be extinguished b/f the seller can re-take possession, and so the buyer's payments cannot be forfeited where there would be inequtibale dispositon of property & exorbitant $ loss by the buyer.

- no reason why P & D should be treated differently than mortgagee & mortgagor at CL
Arises from neg. or otherwise wrongful activity where a LO should not have to put up w/ another's intereference w/ the use and enjoyment of their own land.

Sic utere tuo ut alienum non laedas: One should use one's own property in such a way as not to injure the prop of another
Morgan v. High Penn Oil
F: P-trailer park owner sued for injunction against D, which produce nauseating fumes

R: A private nuisance occurs when there is a substantial intereference w/ the use & enjoyment of land, and that intereference is either intentional & unreasonable, or unintentional & the result of neg, recklessness, or abnormally dangerous activity.
- refinery is a lawful enterprise, and is not a nuisance per se, but D intentionally & unreas caused harmful gases & odors to escape, impairing Ps use
"Unreasonable" as defined in Nuisance law
-interference w/ use & enjoyment of land, in order to give rise to liability

-must be substantial

-must be either intentional & unreasonable; OR the unintentional result of neg, reckless, or abnormally dangerous activity

-Does the gravity of the harm outweigh the actor's conduct?
Trespass vs. Nuisance
treated like other intentional torts vs. subjected to inquiries re: reasonableness and amount of harm
Martin v. Reynolds
Herds poisoned by fumes.

H: D liable under trespass theory - "any intrusion which invades the possessor's protected interest in exclusive possesion, whether that inrusion is by visible or invisible pieces of matter or by energy which can be measured only by mathematical language of the physicist."
Adkins v. Thomas Solvent
toxic waste dump nuisance case.

R: Negative publicity resulting from unfounded fears did not constitute a significant intereference w/ the use & enjoyment of Ps land
Amphitheatres v. Portland Meadows
Lights interfered w/ drive-in.

H: No nuisance b/c Ds conduct was not unreas. to the abnormally sensitive nature of Ps use
Spite & Spam
If a LO builds a useless strutucre only to spite their neighbor, it's a nuisance
Estancias Dallas Corp v. Schultz
F: D sued P to permanently enjoin them from operating excessively loud equipment on a neighboring bldg

R: An injunction will be denied as a remedy for nuisance ONLY IF the necessity of others compels an injured party to seek damages in an action at law, and not b/c the party causing the nuisance has the right to work a hurt or injury to neighbor.
-Here, no evi of shortage of apt complexes, nor any evi that public would suffer/have no place to live
Spur Industries v. Del E. Webb Dev
F: P owned a cattle feedlot. When ds dev grew to that area, D wanted feedlot removed

R: An otherwise lawful activity can become a nuisance b/c others have entered the area of activity, and thus be enjoined. If the party requesting the injunction however, is the one that creates the need for the injunction, that party can be required to provide compensation for the cost of moving or shutting down the activity. A public nuisance affects the rights enjoyed by citizens as members of the general public, and here it is clear that feedlots were public & private nuisance.
Circs bearing on the issue of unreasonableness intereference w/ a right common to the public:
1. whether the conduct in question significantly interferes w/ public health, safety, peace, comfort, or convenience

2. whether the conduct is proscribed by the statute or ordinance

3. whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect
privilege to use the land of another
Affirmative easement


Negative easement
entitled holder to do a physical act on another's land


enables its holder to prevent the owner of land from making certain uses of that land
Dominant Tenement
-the land whose benfeit the appurtenant easement is created for
Servient Tenement
-the land that is burdened or used
Appurtenant Easement
-one which benefits its holder int the use of a certain piece of land

-MUST be intimately tied to a particular piece of land (dominant tenement)
Easement in Gross
- one whose benefit is not tied to any particular parcel
Profit a Prendre
-right to go onto the land of another & remove the soil or a product of it (i.e. minerals, drill oil, capture animals are all profits)
4 Ways to Create an Easement
1. Express Grant: deed or will

2. Implication: [doesn't have to satisfy SOF] land must be divided/severed to sell; the use claimed for must have existed prior to the severance; & the easement must be >reas. necessary

3. Necessity: easement over 1 parcel is necessary to use the other

4. Prescription: gained by adverse possession
Willard v. First Church of Christ
F: McGuigan sold Petersen a lot with an easement allowing, nearby churchgoers to park on t, but Petersen sold it to P w/o mentioning the easement

R: A grantor can reserve an easement in property for a person other than the grantee. Property grants are treated like Ks.
- Here, interests of grantors outweigh interests of grantee.
Holbrook v. Taylor
F: P tried to block his road after D over-used it to build a tenant house

R: License cannot be revoked after the licensee has erected improvements on the land at considerable expense while relying on the license. Ps license to use the road may not be revoked b/c it has been established by estoppel
Shepard v. Purvine
F: 2 friends orally agreed upon transfer of property rights and did not revord it in a deed

R: An oral license, if carried out promptly, can be just as binding, valid, and irrevocable as a written one
Henry v. Dalton
R: An oral license to do an act on the land of the licensor can be revoked by the licensor, even if the licensee has spent money as a result of faith in the license and the license was originally intended to be continuous
Van Sandt v. Royster
F: P claimed he never granted an easement for a sewer drain which connected his house to 2 others and flooded his basement

R: The implication of an easement will depend on circs under which the conveyence of land was made, including the extent to which the manner of prior use was or might have been known by the parties; each party will be assumed to know about reas. necessary uses which are apparent upon reas. prudent investigation; an easement may be implied for a grantor or grantee on teh basis of necessity alone
Othen v. Rosier
F: P used a roadway on Ds prop to access a public highway, but D built a levee which he made the road impassable for P

R: An easement can be created by implied reservation only when it is shown that there was unity of ownership between the alleged dominant & servient estate, that the easement is a necssity and not a convenience, and that the necessity existed at the time the 2 estates were severed, an easmenet by prescription can only be acquired if the use was adverse.
-road wasn't a necessity!
Easements by Necessity: Western States
statutes give a landlocked LO the right to condemn an easement across neighboring land upon showing requisite necessity
Warsaw v. Chicago Metallic Ceilings
any change in the no compensation rule must come from the legislature
Page v. Bloom
Exclusivity doesn't require a showing that only the claimant made use of the way, but that the claimant's right to use the land does not depend upon a like right in other

- In most states, user can acquire prescriptive easement despite that a land is being used
Public Prescriptive Easements
Can be obtained in most states by long continuous use by the public under a claim of right.

LO must be put on notice, by the kind & extent of use, that an adverse right is being claimed.

Same req. generally apply as are applied to a private prescriptive easement.
Theory of Implied Dedication
May be used where the LO evidences an intent to dedicate, and the state accepts by maintaing the land used by the public.
Public Trust Doctrine
State holds it in a public trust: beach from the water to the mean high-tide line.

Dry portion of the beach btw mean high tide line & vegetation is subject to private ownership.

ALso applies to all lands covered by the ebb & flow of the tide, and all inland, navigable lakes & rivers
Beach Access - Public Access
Public access requires both a way of access from inland to the coast & a lateral easement up and down the beach
HI Beach Access Rule
right to use up to vegetation line or line of debris
Matthews v. Bay Head Improv. Association
F: P claimed that D denied the public its rights of access to and use of the public beaches during summer

R: Public's right to use tidal lands & waters under public trust doctrine also includes the right to gain access thru & to use privately owned dry sand areas as reas. nec.
Important Factors in Matthews
1. Location of the dry sand area in rrelation to the foreshore

2. Extent and availability of publicly owned upland dry sand area

3. Nature and extent of the public demand

4. Usage of the upland sand area by the owner
Assignability of Easements
Appurtenant Easements: passes w/ the transfer of the dominant estate

Easements in Gross: not transferable
Miller v. Lutheran Conf. & Camp Assoc.
F: Ps executors licensed D to use the lake w/o referring to the bro, who owned 3/4 interests in the lake

R: When 2 or more persons own an easement in gross, the easement must be used as "1 stock" - meaning that any actions involving the easement must be made w/ common consent of all owners.
- Bro intended to use the rights together as a biz, NOT to subdivide and sublicense
Limitations of Easements
Appurtenant: burden on the servient tenement is limited by the needs of the dominant tenement

In Gross: no limitation - attempt to prevent the burden on the servient tenement from increasing beyond what was intended by the original parties
Recreational Easements - Limitations
Restricting assignability rests on court's conclusion that they are intended to be personal and on teh fear of burdening the servient land b/y the original contemplation of the parties
Division of Easements
In Gross: dividable when creating an instrument that indicates the easement is exclusive

- Exclusive: owner has sole right to engage in the activity the easement permits
Scope of Easements: Prescriptive
- determined by looking at the use that took palce during the statutory period

- a use that is substantially broader than existed during SOL will not be allowed

-Use not confined to actual uses made during the precriptive period, but the uses must be consistent w/ the general kind of use by which the easement was created, and w/ what servient owner might reas. expect to lose by failing to interrupt the adverse use
Scope of Easements: Dominant estate
-Regardless of how the easement was created, thecourt will allow a use that increases due to the normal, foreseeable dev of the dominant estate, so long as this does not impose an unreasonable burden on the servient estate

-Generally not allowed to exted use of easement to addt'l prop that benefits the dominant estate
Brown v. Voss
F: D blocked off a private road easement for parcel after P started bldg a house that would sit on both parcels

R: If an easement benefits its owner in teh use of a particular parcel of land, any extension of the easement to the other parcels is a misuse of the easmsent.

-Scope of this right is acquired thru the easement is TBD from the terms of the grant & the way they give effect to the intention of the parties
Above and Underground Utilities
Private easement doesn't generally permit this (i.e. elsectical lines or sewer pipes) b/c most courts do not think this is reasonably foreseeably by the parties
Change of Location of Easement
General Rule: location, once fixed, can't be changed by servient owner w/o permission of dominant owner
Rest. 3d - Changing Location of Easement [not quite the law yet]
Servient owner can right to change the location of an easement at his expense, if the change does not "significantly lessen the utility of the easement, increase the burdens on the owner of the easement in its use and enjoyment, or frustrate the purpose for which the easement was created"
Termination of Easements
-May be terminated by precription

-May be terminated by abandonment in some circs
- words alone insufficient
- intent + conduct sufficient
- non-use sufficient depending on circs
Preseault v. US
F: P sued gov for an unauthorized taking after the gov authorized the conversion of an abandoned RR easement into a nature trail across the owner's prop

R: An easement is terminated by abandonment when nonuse is couples w/ an act manifesting either a present intent to relinquish the easement or a purpose inconsistent w/ its future existence. Scope of an easement may be adjusted over time only if the change is consistent w/ the terms of the orifinal grant.
- Here a change to public rec trail is not consistent w/ the orig RR easement terms
4 Types of Neg. Easements (historically)
1. Blocking windows
2. Interefering w/ air flow to land in a defined channel
3. Removing the support of bldg
4. Interefering w/ water flow in artificial stream

-Little pressur on courts to expand trad list of neg easements b/c are usually treated as equitible servitudes
Conservation Easements
LO can give a public body or private charitable org (land trust) a conservation easement that prevents the servient owner from bldg on the land except as specified in the grant

-Term: perpetual in duration, transferable & can be in gross
Uniform Conservation Easement Act
Enables "durable restrictions & affirmative obligations to be attached to real property to protect natural resources" and to ensure that these restrictions are "immune from certain CL impediments which might otherwise be raised"
Uniform Environmental Covenants Act of 2003
-Helps remeidation and dev of brownfields
1. Impose activity & use restrictions on contaminated land
2. Permit the contaminated land to be developed within limits imposed by these restrictions
3. Deisgned to elimiate potential obstacles to enforcement of enviro covenants under CL
Real Covenant
Promise respecting the use of land that runs with the land at law that can be a negative promise (not to act) or an affirmative promise (to act)
- Not enforceable against an assignee who has no notice
Covenants Running with the Land
Contract btw 2 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 enforcable against one who later buys the promised land

-MUST be in writing
Relief for Breach of Covenant
Legal relief (damages) only!
When Covenants Run with the Land
1. Touch & Concern the promisor's land for burden

2. Privty of estate: land transfer btw promisor and promisee + a succession of estate from promisor to promisor's assignee for burden

3. Often horizontal privity required for benefit to run
Horizontal Privity
-Land transfer btw the original promisor & the original promisee for the burden to run
Horizontal privity: Burden & Benefit
Burden: promisor's assignee is bound

Benefit: promisee's assignee can sue for damagaes if breached
Vertical Privity
Refers to the relationship btw the promisor and the successor in his interest, or the relation btw the promisee and his successor
Vertical Privity: Burden & benefit
Burden: party against whom it is enforce must succeed the entire state to the original promisor

Benefit: may be enforced by anyone who has take possession of the promisee's prop w/ their permission
Burden In Gross
If the benefit touches and concerns the promisee's land, the benefit will run even though the burden does not.
-the benefit can run even if the burden is in gross (personal to promisor)
Equitable Servitudes
- Promise may be enforced at equity, by the award of an injunction (specific perform.)

- When a court not only gives equitible relief, but applies it against the assignee of the original promisor, the prmise is referred to as an "equitible servitude" against the burdened land
Assignor v. Assignee
one who transfers property rights to another


one to whom property rights are transferred to
Requirements of Equitible Servitudes
1. Less rigid than covenant

2. Privity not required - arises from promise

3. Touch & Concern required
Tulk v. Moxhay:
F: P had a covenant that required maintenance of a garden on some land, but D later tried to put bldgs on after buying it

R: A covenant will be enforceable in equity against a person who purchases land w/ notice of the covenant. If a covenant is attached to property by its original owner, no one w/ notice of that covenant can purcahse the prop & not be bound by the covenant
Sanborn v. McLean
F: D tried to build a gas station in residential area & was enjoined by P

R: An equitible servitude can be implied on a lot, even when the servitude is not created by a written instrument, IF there is a scheme for dev of a res. subdivision & the purchaser of the lot has notice of it
Validity & Enforcement of Covenants: 3 requirements
1. intent that the benefit and/or burden of the covenant run to successors of the original parties

2. notice on the part of purchasers of the orig promisor

3. touches & concerns the land
Neponsit Prop Owners Assoc v. Emigrant Industrial Savings Bank
F: D took title to land previously deeded by P & P tried to foreclose a lien contained in the earlier deed

R: an affirmative covenant to pay $ for improvements or mainteance done in connection with, but not upon the land which is to be subject to the burden of the covenant does not touch & concern the land, and a homeowners assoc, as the agent of the actual owners prop, can rightfully enforce the covenant
Servitude is VALID unless:
Illegal or unconstitutional or violates public policy, i.e.:
1. Arbitrary, spiteful, capricious
2. unreas. burdens a fund. const. right
3. imposes an unreas. restraint on alienation
4. imposes an unreas. restraint on trade or competition
5. unconscionable
Caulleet v. Stanlye Stilwell & Sons
F: D-developer deeded a lot to P for $4k & the deed included a covenant giving the developer the right to build 1st structure

R: A restrictive covenant does not run with the land at law, or in equity when the benefit it creates would not touch and concern the land. For a covenant to touch & concern the subject land, it must directly influence occupation, use, or enjoyment of land.
-Strong public policy against hindering alienability
Defeasible Fees
-may be used to control land use

- remedy for breach: forefeiture

-can be used to create a right of enforcement in a 3d party or in a person who owns no land
Hill v. Community of Damien of Molokai
F: P sued D to enjoin AIDS group home from occupying one of the houses, based on a "single family residence" clause in restrictive covenant

R: Ambiguous restrictive covenants should be construed in favor of the free use & enjoyment of property & against restriction. Restrictive covenants w/ discriminatory effect, intent or constitute failure to make reas acc., violates FHA
Shelley v. Kraemer
F: black couple buying a house is unaware of racially based restrictive covenant

R: Judicial enforcement of a restrictive covenant based on race constitutes discriminatory state action, and thus is not forbidden by the EPC
Termination of Covenants
1. expiration
2. release
3. abandonment
4. merger
5. estoppel
6. prescription
7. condemnation
- may be modified or terminated w/o unanimous consent
Western Land Co. v. Truskolaski
F: Ds want to prevent mall in subdivision, even though area is crowded anc commercialized+

R: Restrictive covenant est a res subdivision cannot be terminated as long as the res character of the subdivision has not been adversely affected by surrounding area, and it is of real & substantial value to the LOs in the subdivision
Rick v. West
F: D bough land from P under a restrictive covenant, and refused to release the covenant when P attempted to sell similar land to a hospital

R: LO in a subdivision under a restrictive covenant has the right to insist upon adherence to the covenant even when other owners consent to its release
Pocono Springs Civic Assoc v. MacKenzie
F: Owners of vacant lots in a housing dev attempted to abandon the lot in order to avoid paying fees

R: covenant running w/ the land can't be termianted by abandonement when the owner still holds title in fee simple absolure
-2 req. for abandonment apply:
- knoweldge that you owned the prop; and
- intent to abandon
Common Interest Communitites
1. Subdivision: ind lots

2. Condos: each owner has fee simple in the unit, while the land, exterior walls & common areas are owned by all the unit owners as tenants in common (statutory)

3. Co-ops: long-term renewable leases & owns shares in the corporation that actually holds title to the land & improvements
Nahrstedt v. Lakeside Village Condo Assoc
F: P wants to live w/ 3 cats in condo, despite CC& R violation

R: The enforceability of restrictions on the ownership and possession of pets should be decided in a trial court after evi is heard as to whether the restriction was reasonable as applied to the facts of the case
- Public land-use regulation

-State's poloce power to act for the general welfare of public
Legal limits on zoning
- Takings Clause: 5th Am.

- Procedural DP: 14th imposes certain procedura req's on the zoning process. It is an admin, rather than leg. action

- Substantive DP: if zoning fails to bear a rational relation to a permissible state objective, it may violate SDP
Village of Euclid v. Amber Realty
F: Realty co. challenged a munie ordinance est. a zoning plan restricting the use & size of bldgs in various districts

R: Zoning ord's are valid exercise of the police power and thus don't violate the constitutional protection of property rights. W/o a specific complaint of actual injury, LO can't challenge the constitutionality of such an ord.
Structure of Zoning: Enabling Legislation
- ex. of police power to protect health, safety, welfare & morals

- Standard Act: empowers munies to "regulate & restrict the height, # of stories, size of bldgs, % of lot occupied, etc. A city must create a planning or zoning commission and board of adjusment/zoning of appeals to enact a zoning ordiancne
Structure of Zoning: Comprehensive Plan
- Stmt of local gov's obj & standards for dev (maps, chart, descrip text)

- Plan based on surves & studies of the city's present situation & future needs
PA NW Distrib. v. Zoning Hearing Board
F: Adult books opened & zoning board enacted an ord. that gave them 90 days to comply

R: If a zoning law or reg has the effect of depriving a prop owner of the lawful pre-existing nonconforming use of the prop, it amounts to a taking & owner must be justly compensated.
- Basically, any use could then be amoritized out of existence w/o just compensation & no prop owner would be safe!
Factors of reasonableness when looking at zoning ordinances:
1. nature of the use in qu

2. amnt invested

3. # of improvements

4. public detriment cause by use

4. character of surrounding neighborhood

5. amnt of time needed to amoritze investment
Parkview Assoc v. NYC
After dev applied for variance after bldg permit was revoked, the variance was denied.

H: Prop owner's reliance on an erroneously issued bldg permit doesn't constitute a hardship entitled the owner to a variance
Commons v. Westwood
F: Builder tried to construct home on a lot that was below the local zoning ord's min site requirements was denied a variance

R: A zoning brd shall have the power to grant a variance where b/c of some exceptional sit of prop, the strict app of a soning ord would result in undue hardship upon the dev of the prop, and the variance wouldn't substantially impair the pub good & the intent & purpose of the zone plan & ordinance. Undue hardship is based on the idea that the owner can make no effecive use of prop if variance is denied
Aronson v. Brd of Appeals of Stoneham
harsdhip doesn't inc. personal infrimity
Cope v. Brunswick
F: 2 apt blders appealed zoning brd's decision to deny them a zoning exception to build a multi-unit apt

R: Power to regulate priv prop can't be delegated from the leg to a munie or from a munie to a local admin body w/o sufficiently detailed stmt of policy to provide a guide to reas. det. an owner's rights and prevent arbitrariness.
- power of town & power of zoning brd, comes from the st
Admin-authorized departure from the terms of the zoning ord, granted in cases of unique and ind. hardship, in which a strict app of the terms of the ord would be unconstitutional

-grant of variance is meant to avoid an unfavorable holding
State v. City of Rochester
F: City decided to re-zone land. P claimed this was invalid, & if not, arbitrary & capricious

R: When a munie adopts or amends a zoning ord, it acts in a leg capacity under its delegated police powers. As a leg act, the zoning & re-zoning classification must be upheld unless opponents prove that the classification is unsupported by any rational basis related to promoting publig health, safety, moreal, or general welfare OR that the classification amnts to a taking w/o just compensation

-Not arbitrary & capricious & shown not to be w/o reasonable relation to the promotion for the good of the public; city needed more high-density housing
Spot Zoning
Improper permission to use an "island" of land for a more intensive use than permitted on adjacent properties

-small parcel of land is signameld out for special/priv treatment
-singling out is not in the public interest, but only for benefit of LO
-action is not in accordance w/ a comprehensive plan
Cluster Zones:
-Flexibility device where a developer is permitted to construct a dwelling in a pattern not in literla compliace w/ the area restrictions of a zoning ord
- i.e. yard setbacks, etc.
Expanding Aims of Zoning
-Height, spacing, location of bldgs were controlled & justifiably as a means to provide light & air, avoid/help control fire, prevent overcrowding, etc.
State ex. Rel Stoyanoff v. Berkeley
F: D wanted to build a pyramind shaped house, but P refused to allow
R: Architectual review board may deny a permit for a structure if it would be unsuitable in appearance w/ ref to the character of the surrounding neighborhood & thus adversely affect general welfare & property values
Anderson v. City of Issaquah
F: architect appealed denial of permit, arguing the subj. aesthetic stdrds were unconst. vague

R: Local bldg ord's that impose aesthetic cond. must provide sufficiently clear guidance to all interested parties. Aesthetic stdrds are an appropriate and important component of land use governance
City of Ladue v. Gilleo
F: A resident challenges a city ordinance that prohibits the displaying of signs such as anti-war, on front lawn

R: A city may not constitutionally adopt ord's that prohibit nearly all signs on the res prop. The measure may restrict too little speech b/c exemptions discrim on the basis of the signs' messages or too must protected speech.
RFRA & Rel. Land Use & Inst. Persons Act
Prohibits land use regs that impose substantial burdens on religious exercise UNLESS gov demonstrates that the reg is in furtherance of a compelling gov interest, and is the least restrictive means to further that interest
Village of Belle Terre v. Boraas
F: D & 5 others challenged Ps ord which restricted land use to 1-family dwellings & excluded HH w/ over 2 unrelated persons

R: Leg may define what counts as a "family" for zoning purposes if the def is rationally related to leg. obj., such as creating zones where family values & quiet seclusion & clean air are preserved.
- concept of public welfare (zoning goal) is broad & inclusive
City of Edmonds v. Oxford House
F: City sued to enforce sing-fam zoning rest. against group home

R: Single-fam zoning reg is not automatically exempt from FHA scrutiny, even if it indirectly limits the max # of occupants in a house. Any genetically rel. inds could live in a house & be in conformity w/ the single-fam restrict.
Exclsuionary Zoning
Central purpose is to min or eliminated unwanted effects & externalities in a given district, whether the effects be caused by typical nuisances, by apts, group homes, etc.
Sthrn Burlington NAACP v. Mount Laurel
F: D enacted a general zoning ord which effectively prevented low & middle income persons from acquiring affordable homes w/in the township

R: A developing munie, must, but its land use regs, make realistically possible the opp for an appropriate variety and choice of housing for all catergories of peeps who desire to live there, incl. low & mod. income peeps.
- This oblig must be met unless the munie can sustain the heavy burden of showing that particular circs prevent if from fulfilling the oblig
Exclusionary Zoning techniques
1. Min housing costs: invalid
2. Min floor-area
3. Min lot size
4. Min setback req
5. Barring mobile/manu. homes
Fair Housing Act
Provides for regional contrib agmts whereby suburbs may, w/ council approval, compensate citites for agreeing to absorb up to 1/2 of the burbs' fair-share oblig
Eminent Domain: Takings Clause
Gov can take private prop for public use under the 5th am/ power of eminent domain.

Just compensation must be paid
Land-Use Control as a taking
Normally, not considered a taking where gov has to pay money
Implicit Taking:
When a reg so drastically interefere's with private owners use of property/value of prop
Remedies: Takings Cases
1. Strike down reg (enjoin); and/or

2. award damages
Kelo v. City of New London
F: Economically depressed city. Council created non-profit to rejuvenate the city, proposing a mall where old naval base is

R: Once the question of "public purpose" has been decided, the amount & character of the land to be takned for the project, & the need for a particular tract to complete the integrated plan, rests in teh discretion of the leg. branch.
- here, ends test used in a defential manner, "affording leg. broad latitutde in determining what public policy needs justify the use of the takings power"
Just Compensation under the Takings Clause
- Satisfied by fair market value
Substitute Facilitites Doctrine
State or city was entitled not merely to market value, but to the cost of obtaining or constructing the equivalent of what had been taken
Physical Occupation & Regulatory Takings
If gov wishes to condemn private prop for public use, it must comply w/ procedures designed to ensure due process.
1. File petition in court
2. Notice to all involved peeps
3. Trial
4. Ct can give permission to gov to enter & inspect prop
Loretto v. Teleprompter Manhattan CATV Corp
F: new bldg owner sued D b/c of cable installed by statute

R: A permamnent physical occupation of an owner's prop authorized by the gov constitutes a taking of prop which requires just compensation, regardless of the public interests it may serve. The St. can regulate an owner's use of property, but it cannot authtorize a permanent physical occupation of the prop.
- If gove action is seen to work a permanently physical occupation, then a taking always follows
Hadacheck v. Sebastian
F: P built brickyard outside city limites, but after city grew, P said it violated an ordinance

R: A reg that deprives an owner of prop for purpose of prohbiting a nuisance is an exercise of police power, and does not result in a taking that requires just compensation.
- nuisance control regs are never takings
Nuisance ("public bad") Test of Takings
(Hadachek) Is the gov curbing a public bad rather than expropriating a public good - nuisance control measure?
PA Coal Co. v. Mahon
F: P sold surface rights to some land to D, but retained the right to mine underneath, and such mining was prohibited by statute.

Kohler Act: forbids mining of coal in such a way tht would cause the sinking, of among other things, any structure used for human habitation

R: While prop may be regulated to a certain extent, if that reg goes to far in diminishing the econom value of the prop, it will be recognized as a taking. It has long been recognized that some prop rights are enjoyed under an implied limitation must also be limited, however by the K & DP clauses. It's a qu of degree - by eliminating any right by th epart of the co., you are taking away it's essential prop rights
Penn Central v. NYC
F: P made plans to construc an office over GCS, but i was blocked by Landmarks Preservation Law

R: A law which does not interfere w/ an owner's primary expectation concerning the use of prop, & allows owners to receive a reas return on their invesmtnet, doesn't effect a taking which demands just compensation. Rights in prop, as a whole, not just ind estates, must be considered
Transferable Rights (TDRs)
Severs dev rights from other rights in land & treats them as a separate item. Right to dev is restricted at particular sites, or in so-called conservation areas, but owners of the restricted land are given TDRs that can be used for dev, beyond that which would otherwise be permitted on receiving lots in so-called transfer areas.
Lucas v. SC Coastal Council
F: P claimed that a SC statute barred him from building on his barrier island prop resulted in a taking w/o just compensation

R: Land-use reg that deprives an owner of al econm. valuable use of prop by prohibiting uses that are permitted under background principles of prop & nuisance law results in a taking & thus require just compensation. A st. should only be allowed to deprive a prop owner of all economically beneficial use of prop w/o needing to pay compensation, when the interest in regulated use was not part of the title to begin with.
- ct's narrowly interpret this case
Palazzo v. RI
F: prop designated as coastal wetlands under RI law. Ps dev proposals were rejected by council

R: While prop may be regulated by a certain extent, if the reg goes too far it will be recognized as a taking. A taking which denies all econ. beneficial or productive use of land requires just compensation. Where a reg places limitation on land that fall short of eliminating all econom beneficial use, a takin nonetheless may have occurred, depending on a complex of factors, incl. a regs econ effect on LO.
Tahoe-Sierra Preservation Council v. Tahoe Reg. Planning
R: A categorical rule that any deprivation of economic use requires compensation would mean temp delays for bldg permits, changes in zoning ords, & temp prohibited access to prop for hlth code violations, would require compensation

Facts & Circs test for takings:
1. Unreas?
2. Can't test it on basis of timeline
3. Evaluate on its overall effect
4. When an agency adopts a moratorium, determ. if it's reas.
First English
Reg action can destroy use & enjoyment of prop just as effectively as physical occupation or destruction. Logic then, requires that overzealous reg also can be compensable, esp b/c invalidation of iteslf fails to compensate for losses that were wrongfull imposed
Problem of Exactions
Local gov measures that req. dev. to provide goods & services or pay fees as a cond. to getting project approval
Nollan v. CA Coastal Commission
F: D granted P a bldg permit on the condition that P allowed the public to pass across his prop to access the beach

R: If a reg condition is imposed on a dev permit, that condition must substantially advance the same gov purpose that refusing the permit would serve or else the action will constitute a taking and req. just compensation. Prop rights should only be abridged thru the police power when such action results in a "substantial advancing of a leg st. interest"
- must be some logical connection/ "nexus" btw an exation & the reg excepted in exhchange for it
Dolan v. City of Tigard
F: In exchange for the approval of a bldg permit, a city attempted to force the biz owner to dedicate a portion of their prop to the city for floodplain & rec easements

R: Exactions are constitutional provided the benefits achieved are related and roughly proportional, both in nature & extent, to the impact of the proposed dev.
If there is no "rough proprotionality" then the conditioning of a permit on a forced dedication violates the Takings Clause
- ct went futher: even when nexus exists, must be some "rough proportionality" btw the thing exacted & dev permitted