Property Outline Table of Contents
I.	Fundamentals	1
A. First Possession	1
Acquisition by Discovery	1
Acquisition by Capture	2
Acquisition by Creation	3
B. Subsequent Possession	5
Acquisition by Find	5
Acquisition by Adverse Possession	6
C. Miscellaneous Basics	10
Causes of action and corresponding remedies	10
Blackstone’s wedge	10
Hohfeld’s Jural Correlatives (relational regimes)	10
Bailments	10
II.	The System of Estates	11
A. Possessory Estates	11
Basics	11
Reading the language	11
Fee Simple Absolute	11
Fee Tail	11
Life Estate	12
Defeasible Estates	12
B. Future Interests	13
Basics	13
Remainders	14
Executory interests	14
Doctrine of Waste	14
C. Trusts	15
Basics	15
Forms	15

D. Rule Against Perpetuities	15
Basics	15
Classic formulation	16
Application	16
Lives in Being	16
Validating/Measuring Lives	16
Unborn-Widow Problem	17
Fertile-Octogenarian Problem	17
Special Cases	17
Reforms	17
E. Rules of Intestate Succession	17
Property passes to heirs and next of kin.	17
F. Co-ownership	18
Joint Tenancy	18
Tenancy by the Entirety	19
Tenancy in Common	19
G. Marital Interests	19
Divorce Revolution of 1970s	19
Equitable Distribution	20
III.	Leaseholds: The Law of Landlord and Tenant	21
A. Basics	21
Differences between Owning and Renting	21
Leases	22
B. Leasehold Estates	22
Forms	22
Delivery of Possession	23
Subleases and Assignments	23
Default of tenants in possession	24
Default of tenants who have abandoned possession	25
C. Landlord’s Duties; Tenant’s Rights and Remedies	26
Basics	26
Revolution of 1970s	26
Express Covenant of Quiet Enjoyment and Constructive Eviction	26
Illegal Leases	28
Implied Warranty of Habitability	28
Landlord Tort Liability	29
D. Housing Discrimination	30
Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §§ 3601–3619, 3631 (1994), (The Fair Housing Act)	30
Integration	31
E. Rent Control	32
Constitutional issues in housing policy	32
Rent Control	32
Relationship between rent control and the housing market	34
Redlining	35
IV.	Land-Use Controls	35
A. Judicial Land-Use Controls: The Law of Nuisances	35
Private nuisances	35
Public nuisances	36
Policy issues	37
Rights incident to land ownership	37
Remedies	37
B. Private Land-Use Controls: The Law of Servitudes	38
Easements	38
Covenants Running with the Land	40
Equitable Servitudes	41
C. Legislative Land-Use Controls: The Law of Zoning	41
Basics	41
Takings issue	41
Euclidean Zoning	41
Nonconforming existing uses	42
Construction regulations	42
Exclusionary Zoning and Growth Controls	42
D. Eminent Domain and the Problem of Regulatory Takings	43
5th Amendment	43
“Public Use”	43
Physical Occupations and Regulatory Takings	43
Bright-line rules	45

Property Outline
I.	Fundamentals
A. First Possession
Acquisition by Discovery
Johnson v. M’Intosh (U.S. 1823) Marshall, C.J.
Property rights are creation of the state; positivism, not natural law.
Discovery and conquest divided fee simple absolute into Indian Title for Indians and remaining rights for whites.
Every title that dates from conquest is valid.
“Indian Title”: Indians have occupation and possession rights only; they can’t convey valid title (1779 VA Act).
Occupancy Theory
Occupation creates ownership.
Dates to Roman Law.
First-in-Time Theory
Labor Theory: John Locke
Indians didn’t perform enough labor to acquire property rights in the land.
Note that this breaks down with things like illegal drugs.
Law and Economics Theory: Demsetz
Property rights are social instruments, relational.
One function is to create incentives to internalize externalities, promoting efficient use.
Communal property: huge externalities, waste.
His claim that people can’t manage communal property is empirically false.
Private property means better care of land and less waste.
This is empirically false.
Utilitarian Theory
Hume and Bentham (especially) provided the transition from natural law theory to positive law theory.
Acquisition by Capture
Houston v. Thomas (5th Cir. 1991).
Rule of the thalweg.
Doctrine of Acquiescence.
Rule of the avulsive shift
Slow change alters boundary; rapid avulsive change does not.
Only applies to state law, not federal law.
Pierson v. Post (NY 1805).
Wounding establishes exclusive possession.
Creates right to exclude and duty to track and kill.
Until killed, the animal is qualified property.
Ghen v. Rich (D.Mass. 1881).
Importance of local custom.
Salvage rule in whaling.
Keeble v. Hickeringill (UK 1707) Holt, C.J.
Competition is okay; malicious interference with trade is not.
Pierson and Keeble
Pierson was on commons; Keeble was on own land.
Real property means ownership of all flora and fauna found on your land.
Everyone has property rights to wild creatures on commons.
Hammonds v. Central Kentucky Natural Gas Co. (KY 1934).
Fugitive-Resource Theory, based on animal analogy.
Reinjecting gas meant it “escaped.”

Black-Letter Law in Hammonds
In or on
Oil actually in a well is the property of the owner of the land and belongs to her when drawn out unless drawn out by her license.
Subject to control
As long as they are in the ground, oil and gas belong to the landowner, but when they escape or come under another’s control, they become unowned or property of that other, respectively.
Presumptive first rights to exploit
The point of this rule is to permit selling these interests, a free enterprise–driven rule.
Acquisition by Creation
Information as property
International News Service v. Associated Press (U.S. 1918) Pitney, J.
Basis for finding “quasi-property” interest in news: value (Locke).
Relevant relationship is between parties, not with the public.
News requires work and investment, and has exchange value.
Special character of news
Only valuable while fresh.
Value is realized through publication.
Property interest cannot be maintained by keeping it secret.
Practice is unfair competition; res ipsa loquitur.
Holmes’s dissent.
“Property, a creation of law, does not arise from value, although exchangeable—a matter of fact.”
No property because not copyrighted (only basis for right to exclude).
Brandeis’s dissent.
There’s clear injustice here but the issue is so big as to properly be in the province of the legislature.
Either way the court goes is too political an act for the judiciary.

Context
Property was becoming dephysicalized and noncorporeal (Horwitz).
Pitney’s view that value = property was being used against the labor movement, hence Brandeis’s passion.
Distinguished by many lower courts, which disliked it.
News, other properties
Editorial choices; not just mere stenography.
Reputation is what sells, not content.
Information and the market.
Granting exclusive rights to information doesn’t necessarily promote a market economy (Baird).
Competition depends on imitation.
Cheney Brothers v. Doris Silk Corp. (2d Cir. 1929) Hand, J.
General rule with regard to copying: Property is limited to chattels which embody invention, absent a common-law or statutory right (such as copyright, patent, trademark).
Smith v. Chanel, Inc. (9th Cir. 1968)
No problem imitating that which isn’t patented.
“Imitation is the lifeblood of competition.”
Moore v. Regents of the University of California (CA 1990).
Real issue is information in cells, not the cells themselves, which the court fails to see.
Court provides UW a subsidy by declining to force it to internalize its externalities.
Tragedy of commons and information
Physical property rule doesn’t apply: no degradation with use or copying.
Property rights to corporeal property ends the race to ravage the commons.
Property rights to intellectual property launches the race to ravage the commons.
Plant Variety Protection Act of 1970.
Permits patenting of plant varieties.
Other countries are following suit.
Solution might be to give researchers a privilege but no right to exclude.
Copyright, trademark, and patent.
Copyright: expressions (production) of original ideas.
Patent: nonobvious inventions.
Trademark: recognizable symbols.
B. Subsequent Possession
Acquisition by Find
Armory v. Delamirie (UK 1722)
Rule
Finder acquires property interest against all except the rightful owner.
Sort of like holding it in trust.
Implications
Prevents creation of class of unowned things.
Encourages finding.
Promotes perfecting, quieting of title in possessor.
Avoids theft-encouragement of finders-keepers rule.
Hannah v. Peel (UK 1945).
Rule
Purchase of real property brings ownership of personal property on the premises that are specified in the deed. Any others must actually be appropriated (occupied).
Peel never took actual possession of the real property.
McAvoy v. Medina (MA 1866).
Rule
Things not lost but mislaid through a voluntary act must be held for the true owner by the owner of the premises, not the finder.
Bad rule because it requires knowledge of true owner’s intent.
Statute of limitations on conversion and trover begins to run at time of find.

Acquisition by Adverse Possession
Basics
Adverse possessor may acquire title at point at which statute of limitations for ejectment runs.
New title is created by operation of law and relates back to entry that began the statute of limitations.
Van Valkenburgh v. Lutz (NY 1952). (4-3)
Decided under procedural, not property law.
No adverse possession
Inadequate occupation/use
Lack of hostile intent
Earlier concession that Van Valkenburgh owned the land and Lutz only had a right of way.
Dissent (most commentators believe dissent was right).
“A claim of title may be made by acts alone, quite as effectively as by the most emphatic assertions.”
Statute of limitations had run when concession was made, so it didn’t matter.
Use must be as a rightful owner would use it.
Purposes
Quieting titles that are openly and consistently asserted.
Providing proof of meritorious titles.
Correcting conveyancing errors.
Letting sleeping dogs lie.
Enforcing expectations that are supported by behavior.
Enforcing how people really treat their land and the relationships they establish with one another.
Recognizing legal rights that correspond to behavior.
Requirements (beyond running of statute of limitations for ejectment)
Actual entry giving exclusive possession that is open and notorious, hostile/adverse and under a claim of right/title/ownership, and continuous for the statutory period.
Some jurisdictions (e.g., the west) require taxes to have been paid.
Details on requirements
Actual entry giving exclusive possession means use of the property in the manner that an average true owner would use it under the circumstances, such that neighbors and other observers would regard the occupant as exercising exclusive dominion. Ewing v. Burnet (U.S. 1837).
True owner must be displaced.
Open and notorious means true owner must have reasonable opportunity to learn of incursion; constructive notice.
Hostile/adverse and under a claim of right/title/ownership means the true owner can defeat the claim by giving permission.
Claim of right/title/ownership is about intention, state of mind.
Three basic formulations
Objective standard
Possessor’s state of mind is irrelevant (because it has no effect on whether true owner has cause of action for ejectment).
The English rule.
May be majority view here.
Good-faith standard
Possessor must think she owned the property.
Unclear if followed anywhere.
Aggressive-trespass/bad-faith standard
Possessor must think she didn’t own the property and must intend to take it.
Favors intentional wrongdoers over accidental wrongdoers.
Continuous for the statutory period
Standard is customary and usual—summer homes need only be occupied for summer months to be continuous. Howard v. Kunto (WA 1970).
Any abandonment or entry by true owner resets the clock.
Tacking usually permitted only if parties are in privity by way of deeds.
English rule: no privity required because it’s irrelevant to owner letting statute of limitations run.
Statutory period extended in case of disabilities that existed when cause of action accrued.
Claims under color of title
Defective document.
Strengthens claim.
Partial possession is enough in such cases for title to full property. “Constructive adverse possession.”
Improvements and Encroachments
Total & innocent
Old rule: no compensation; true owner gets improvements.
Modern rule: market-value compensation or permission to remove.
Partial & innocent
If cost to improver of removal exceeds cost to landowner, damages to landowner. If encroachment is trivial, not even damages.
Willful or intentional
Removal, regardless of costs.
Mannillo v. Gorski (NJ 1969).
Actual knowledge required if area is very small. 
Forced sale may be required even if other elements aren’t fully met where removal or elimination of an improvement on an encroachment would be unduly expensive, impractical, or would impose great hardship.
Doctrine of Agreed Boundaries
Long-accepted oral agreements are enforceable.
Doctrine of Acquiescence
Long acquiescence is evidence of agreed boundaries, even if for less than limitations period.
Doctrine of Estoppel
B changes her position in reliance on A’s representations/conduct about boundary. A is estopped from denying validity of the representations/conduct.
A is silent in face of B’s expenditures which show B’s belief of boundary. A is estopped from challenging B’s belief.

Squatters
Arguments for letting them adversely possess
Maximizes land use.
Turning over their improvements would be unjust enrichment.
Lockean theory of property.
Manifest abandonment sends message to world of waiver of rights.
The land grows on you after a while and you develop a deep attachment to it over time.
Frequently recognized (eventually) in Latin America.
Adverse possession against the government
Generally not permitted. Nullum tempus occurit regis (no time runs against the king).
Where permitted, statute of limitations is much longer.
Doctrine of Estoppel may apply.
Labor Tenants Act of 1996 (South Africa)
Based on ideas of adverse possession and prescription.
Adverse possession of chattels.
O’Keeffe v. Snyder (NJ 1980).
Thieves cannot get good title.
Nobody can pass better title than she has.
“Discovery rule”
Cause of action accrues when injured party discovers or, by exercise of reasonable diligence and intelligence should have discovered, facts which form the basis of a cause of action.
(Rule from equity, not from adverse possession.)
Hiding tolls statute of limitations.
Emphasis and burden is on owner’s conduct, not possessor’s.
Encourages good-faith purchases from legitimate art dealers.
Tacking permitted.
Solomon R. Guggenheim Found. v. Lubell (NY 1991)
Statute of limitations for replevin doesn’t begin to run until demand for return is made and refused.
O’Keeffe rejected for imposing undue burden on owner and encouraging theft.
Native American Graves Protection and Repatriation Act of 1990
Burden on museum to show obtained with consent of earlier Indian owners or possessors.
No adverse possession.
C. Miscellaneous Basics
Causes of action and corresponding remedies
Real Property c/a	Personal Property c/a	Remedy	
Trespass	Trover and Conversion	Damages	
Ejectment	Replevin	Restore owner to possession.	
Rights derive from ability to bring causes of action. Without the latter, the former doesn’t exist.
Blackstone’s wedge
Theory that you own wedge from center of earth into heavens; space on Cartesian grid.
Hohfeld’s Jural Correlatives (relational regimes)
Self is to Others as …
Right is to Duty
Privilege is to No Right
Power is to Liability
Immunity is to Disability
Bailments
Bailor delivers property.
Bailee receives property.
Bailment is the relationship between the two.
Greater duty of care than licenses; specific duty depends on type of bailment.
Strict liability for misdelivery.
II.	The System of Estates
A. Possessory Estates
Basics
Bundle of rights with respect to land.
The bundle can be disaggregated.
Defined in terms of duration.
Except fee simple absolute, the doctrine of waste applies.
Reading the language
First words are words of purchase (e.g., “To A . . .”)
Next words are words of limitation (e.g., “. . . and his heirs.”)
Always read left-to-right and stop at the punctuation.
If estate creates clear future interests that conflict with the language after the punctuation, the language after the punctuation is void.
But today courts will try to harmonize and get to intention.
Fee Simple Absolute
Language
Originally, “To A and his heirs.”
Since XIX century, “To A” suffices.
Fee Tail
Language
“To A and the heirs of his body.”
“To A and the heirs of his body lawfully begotten.”
Future interests
Held by transferor: Reversion
Held by transferee: Remainder (probably Contingent and invalid under rule against perpetuities)
Dynastic.
Transferor holds reversion for the life of the fee tail (unless he grants it to someone else).

Variants
Fee tail male (male descendants only)
Fee tail special (issue from a named (special) wife only)
Never existed in personal property.
Now replaced by life estate (except in DE, ME, MA, & RI)
Life Estate
Language
Originally, “To A.”
Since XIX century, “To A for life,” “To A during his life.”
Future interests
Held by transferor: Reversion
Held by transferee: Remainder, either Vested or Contingent
Variant
Life Estate per autre vie (measured by the life of another).
White v. Brown (TN 1977).
Example of how literal reading of language can conflict with getting at intent.
Baker v. Weedon (MS 1972).
Conflict between possessor of life estate and contingent remaindermen.
Example of why trusts are much better than legal life estates and legal contingent remainders.
Defeasible Estates
Fee Simple Determinable
Language that suggests automatic termination or prevention of some use
“so long as . . .”
“until . . .”
“during . . .”
Reference to it “reverting” also points to fee simple determinable.
Future interest
Possibility of Reverter.
Cannot be waived but can usually be transferred.
Mahrenholz v. County Board of School Trustees (IL 1981).
Transfer of future interest prohibited. (Transfers can prevent reunification of fee simple absolute and can make extortion possible.)
Automatically determines upon occurrence of a specific event.
Main purpose: to prevent a certain use.
Statute of limitations (where it exists) usually begins to run upon determination (continued possession is wrongful).
Allocating an award for a taking before determination. Ink v. City of Canton (OH 1965) Taft, C.J.
Old rule: it goes to holder of fee simple determinable.
Restatement approach, used here: divide only if the event that would result in determination was probable regardless of eminent domain.
Fee Simple Subject to a Condition Subsequent
Language that is conditional
“unless . . .”
“but if . . .”
“upon express condition that . . .”
“provided that . . .”
Sometimes explicit provision of right of entry is required.
Future interest
Right of Entry for Condition Broken
Can be waived in many jurisdictions.
Statute of limitations begins to run when holder of future interest attempts entry and ejectment and possessor resists (possession not wrongful until then).
Defeasible Life Estate
Can terminate upon occurrence of a particular event, esp. marriage.
B. Future Interests
Basics
Definition
Presently held nonpossessory interests that will or may become possessory in the future.
Most are contingent.
Law protects them equally, regardless of likelihood of occurring.
They are in particular possessory estates (e.g., remainder in defeasible life estate).
Future interests held by transferors are reversionary.
Future interests held by transferees are nonreversionary.
Remainders
Vested
Presently ascertained persons and not subject to contingent precedent.
Contingent
Presently unascertained or unborn persons or subject to contingent precedent.
Once these are resolved, they can become vested.
A remainder in life estate following a life estate is always contingent because second person could die first.
Executory interests
They (potentially) divest or cut off a previous interest.
Language indicates conditional nature
“. . . but if . . . then . . . ,” etc.
Shifting executory interests divest interests of transferees.
Springing executory interests divest interests of transferors.
Doctrine of Waste
Purpose: to protect the value of future interests.
Old version: to protect the property itself.
Modern version: to protect the value of the property.
Varieties
Voluntary or affirmative waste: willful.
Permissive waste: negligent.
Ameliorative waste: complete change of property without diminishing value of remainder. Melms v. Pabst Brewing Co. (WI 1899).
C. Trusts
Basics
A set of legal and equitable relationships, not a thing.
A way of dividing fee simple absolute into two titles, legal and equitable.
If a trust names the same person as trustee and beneficiary, the titles merge and fee simple results.
Created by settlor/founder/trustor.
Trustee has legal title and fiduciary responsibilities.
Beneficiary (cestui que trust) has equitable title.
There can also be succeeding beneficiaries.
Content is called the trust res or trust corpus.
Forms
Revocable or irrevocable.
Inter vivos: created while alive.
Inter vivos revocable trust is the bread and butter of modern estate planning.
Transfer of all one’s property into trust with self as beneficiary and with remainders for others.
Often a will will have a residuary clause that pours what’s left into the trust.
Testamentary: created by will.
Spendthrift ( E.g., “Inalienable equitable life estate.”)
Rule: Creditors cannot reach what one cannot alienate.
Dole out benefits in installments to protect beneficiaries from themselves.
Legal and enforceable in most jurisdictions. E.g., Broadway National Bank v. Adams (MA 1882).
Prevent creditors from attaching the trust itself or anticipated benefits.
But creditors often extend credit on basis of anticipated wealth.
D. Rule Against Perpetuities
Basics
Applies to all contingent remainders and executory interests.
Does not apply to reversionary interests or vested remainders.
Abolished in several jurisdictions for trusts because they don’t tie up specific property.
Classic formulation
No interest is good unless it must vest, if at all, in possession or in interest, not later than 21 years after the death of some life in being at the creation of the interest.
Plus period of gestation, where appropriate.
Vesting in interest: beneficiaries are ascertained and conditions precedent are satisfied.
Application
1. Classify all estates and future interests.
2. Apply rule against perpetuities to all contingent remainders and executory interests.
3. Identify all persons alive at the time it was created who can affect vesting (relevant lives; potential validating/measuring lives).
4. Try to find a way, however unlikely, to knock down, not validate, each contingent remainder and executory interest.
5. If step 4 fails and you’re in a wait-and-see jurisdiction, wait out lives in being plus 21 years to see if the interests vest.
Lives in Being
Must be alive at the time the will, deed, or trust was created.
Normally must be actually mentioned.
Too large a pool won’t count.
Savings clause in trusts
Ensures validity.
Names famous person with many descendants and provides for termination and distribution 21 years after last death of member of that family who was alive when perpetuities period started to run.
Validating/Measuring Lives
Drawn from the pool of relevant lives, i.e., those who can affect vesting in interest or possession.
Those who can affect vesting in possession are those who can affect timing.
Those who can affect vesting in interest are those who can affect identity of beneficiaries or satisfaction of any condition precedent.
Unborn-Widow Problem
Comes up when widow is not named.
An unnamed, unborn widow could live more than 21 years and then the decedent’s issue by her would vest or fail more than 21 years after lives in being.
Dickerson v. Union Natl. Bank of Little Rock (AR 1980).
Fertile-Octogenarian Problem
Anyone, regardless of age, may have children.
Jee v. Audley (Eng. 1787) Kenyon, L.
Special Cases
Any executory interest in a human transferee after a fee simple determinable will always fail. Brown v. Independent Baptist Church of Woburn (MA 1950).
But for policy reasons, gift over to a charitable institution after a fee simple determinable in a charitable institution will always be valid.
Reforms
Wait and See
USRAP (90 years)
NY/IL approach: rejection of unborn-widow and fertile-octogenarian rules.
E. Rules of Intestate Succession
Property passes to heirs and next of kin.
1. Surviving spouse or surviving spouse and issue (including adopted issue).
Stepparents tend to adopt to normalize succession.
Gay couples often adopt each other.
2. Surviving issue per stirpes.
Each line gets an equal amount, divided into portions depending on number of heirs in nearest living generation. Issue of issue take “by representation.”
3. Surviving parents (ancestors).
4. Surviving issue of parents.
5. Surviving collaterals.
6. Escheat: to the state.
F. Co-ownership
Joint Tenancy
Single estate, with each owning the whole.
Essentially a fiction to permit rights of survivorship.
Death of one means interest vanishes and probate is unnecessary.
Each may convey interest by will or deed.
Defined by four unities.
Time.
Title (including adverse possession).
Interest (this is breaking down to allow joint tenancy where one has more than the other).
Possession.
Some states no longer require the four unities.
Destruction of any unity transforms joint tenancy into tenancy in common.
Any tenant can do this unilaterally, e.g., by making conveyance to inter vivos trust. Riddle v. Harmon (CA 1980).
Fraud potential of being able to make such conveyances in privacy of own home.
Partition of a joint tenancy
Courts favor partitions in kind. Delfino v. Vealencis (CT 1980).
Partition sales are overwhelmingly more common, however, often because people don’t oppose them.
They are preferable where the land is worth more in one piece than divided (e.g., agricultural land: Johnson v. Hendrickson (SD 1946)).
Those with smaller interests benefit from keeping the property whole.
Those with larger interests benefit from partition.
Unilateral leases. Swartzbaugh v. Sampson (CA 1936).
No cotenant can unilaterally do anything to bind or prejudice her cotenants.
A cotenant can only lease her share of interest, but if she’s in possession of the whole, she can lease the whole.
Only the leasing cotenant has a reversion.

Ouster
Vis-à-vis one another, each co-tenant has a privilege to use the property but no right to exclude the other (cf., Hohfeld).
If one does not allow the other to exercise her privilege, that is an ouster, giving the other a cause of action to half the reasonable rent of the property.
Cotenant can sue for accounting of actual rental income.
Uniform Simultaneous Death Act
Wills are treated as though each survived the other; joint tenancies get divided.
Joint tenancy bank accounts
Payable-on-death accounts are one form (Totten Trusts).
Tenancy by the Entirety
Most common form for married couples.
Tenancy in Common
Often the result of descent of property through intestate succession.
Separate but unpartitioned interests.
Separate estates, identical interests.
G. Marital Interests
Divorce Revolution of 1970s
Pre-1970
Fault
Separate Property
Each got own earnings and property. Huge benefit for men.
Family homes, usually held jointly, would be converted into tenancy in common and sold.
Alimony
Gender specific.
Man’s obligation only ended when she died or remarried.
If she was at fault, though, she’d get no alimony.
Empirically, most women got little or none.

Power
Her only real leverage was that either spouse could prevent divorce.
Post-1970
Began in CA; quickly spread.
No fault
Either party can now walk away.
Equitable distribution of marital property
Title ignored; property treated as community property.
Ameliorates the gender disparity, but not totally.
Some jurisdictions distinguish marital property from individually owned property.
Little or no alimony
Gender neutral.
Assumption is that they will support themselves.
Rehabilitative alimony: enough to get the other on her feet.
Impaired-capacity alimony.
Custodial alimony: to parent with primary custody; separate from child support.
Reimbursement alimony: where one has sacrificed career for the other’s education and training.
Courts have been reluctant.
It’s just an accounting problem (Venable).
Equitable Distribution
Degrees, Professional Partnerships, and Licenses.
Only NYS (after O’Brien v. O’Brien) recognizes them as property capable of distribution.
Elsewhere, they’re counted toward total valuation but not divided.
MBA can’t be divided. In re Marriage of Graham (CO 1978).
Uniform Probate Code
In various versions, in 37 states.

Spouse’s elective share prevents disinheriting.
Usually a percentage pegged to years of marriage.
New York Exception
Marital Property is a fiction, a heuristic device. It can be intangible, such as enhanced earning capacity. Elkus v. Elkus (NY 1991).
Return to lifelong alimony but based on earning capacity of supporting spouse rather than needs of supported spouse?
Unmarried couples.
Contractual agreements to share property acquired during relationship are enforceable. Marvin v. Marvin (CA 1976) Tobriner, J.
Other possible tactics: quantum meruit, constructive and resulting trusts.
III.	Leaseholds: The Law of Landlord and Tenant
A. Basics
Differences between Owning and Renting
Increases in market value
Ownership: You can sell. Taxes go up.
Lease: Benefit of property below market, especially on long-term lease. May be realized through subletting.
Grounds for loss
Ownership: nonpayment of mortgage.
Lease: nonpayment of rent.
Leases and Mortgages
Mortgage
Borrower gets possession.
Lender has title.
Installments to bank.
Equity increases with payments.
Lease
Lessee gets possession.
Landlord has title.
Installments to landlord.
No equity.
Leases
Three attributes:
Conveyance of leasehold estate.
Financing of that leasehold estate.
Contract.
Modern view (in addition to the above):
A bundle of things (e.g., services) landlord must provide.
Delivery of possession.
B. Leasehold Estates
Forms
Term of Years
Not automatically renewable.
Periodic Tenancy
Most common kind of residential lease.
Fixed-term.
Automatic renewal unless one party gives notice.
Tenancy at Sufferance: Holdovers
Mutually exclusive remedies for landlords:
Accept for new periodic tenancy or
Act to evict.
Once you choose, you’re bound. Crechdale & Polles, Inc. v. Smith (MS 1974).
Term of new lease
Typically the same as prior term up to maximum of one year.
In some jurisdictions, a month-to-month creates a new month-to-month.
Some jurisdictions provide for double rent.
Delivery of Possession
English rule: Landlord has implied obligation to oust holdovers and deliver actual possession to new tenants.
American rule: No such obligation. Hannan v. Dusch (VA 1930).
Best argument against American rule: landlords have more experience and skill at evictions than tenants.
Subleases and Assignments
Basics
These divide the estate and contract elements of leases.
Trend is toward permitting them by default.
Absent express agreement by head lessor to the contrary, lessee’s contractual obligations to head lessor are unaffected by any assignment or sublease.
Under contract law, you can assign rights but not duties; you can only delegate duties, and only with consent of the one you owe the duty to (obligor).
Distinguishing them from one another
Old rule
If for the full remaining term of the head lease, it’s an assignment.
Otherwise, it’s a sublease.
Modern approach
Try to find intent. Ernst v. Conditt (TN 1964).
Look to plain language.
Differences
Privity
Sublessor/assignor remains in privity of contract with head lessor.
Sublessor or sublessee is in privity of estate with head lessor, depending on jurisdiction.
Where sublessee is in privity of estate, head lessor can go after her for destruction of property but not for rent.
Assignee is in privity of estate with head lessor.

Payment of rent
Sublessor collects rent from sublessee.
Amount on sublease may be different from amount on head lease.
Landlord doesn’t always know of sublet.
Head lessor collects rent from assignee.
But assignor remains responsible if assignee doesn’t pay.
Approval clauses
Old rule: Consent could be withheld for any or no reason.
Minority modern approach (only in commercial context).
Consent can only be withheld for commercially/economically reasonable reasons. Kendall v. Ernest Pestana, Inc. (CA 1985).
Purpose of approval clauses is to protect the property, not to permit extortion.
Most jurisdictions don’t permit bargaining out of the reasonableness requirement.
This is consistent with good-faith/fair-dealing requirements of contract law.
Public policy interest in permitting reasonable alienation of commercial space.
Default of tenants in possession
Old rule: landlord could use self-help to evict, so long landlord had right to possession and eviction was peaceable. Otherwise, liability for damages.
Modern (probably still minority) rule. Berg v. Wiley (MN 1978).
Self-help is never permitted to dispossess a tenant in possession.
Landlords must resort to judicial process.
Policy reasons
Discourage taking law into own hands.
Availability of a complete statutory remedy: summary procedure of forcible entry and unlawful detainer.
Where modern rule is not followed, strict standard is used in assessing reasonableness of force. Criminal charges and/or civil liability may befall an excessively violent landlord.

Summary Proceedings
Available in every state.
Some states permit affirmative defense of breach of warranty of habitability; others permit no affirmative defenses and confine inquiry to whether rent was due and whether it was paid.
Procedures heavily stacked against tenants.
Eviction is much quicker than foreclosure of a mortgage.
Default of tenants who have abandoned possession
Old rule (still observed in NY and a small minority of states).
No duty to mitigate losses; tenant remains liable for entire term of lease.
Formalistic explanation (from real property law):
Tenant has possession, landlord has no right to relet or reenter.
Realist explanation
Preference for landlords.
Modern (vast majority) rule. Sommer v. Kridel; Riverview Realty Co. v. Perosio (NJ 1977).
Landlord must make reasonable efforts to mitigate where tenant wrongfully abandons possession.
Landlord has burden of proof.
Based in fairness and equity.
Reflects growing presence of contract law.
Also promotes efficiency and avoidance of waste.
Problems
Lost volume.
Effectively defeats any lease clause that permits unlimited withholding of consent to assign or sublet.
Landlord’s options when a tenant surrenders:
Accept—This is typical with small landlords and residential tenants and terminates the lease.
Do nothing—Landlord still has duty to mitigate but can go after tenant for damages for vacant period and for any difference between old and new rent. New tenant gets new lease.
Reenter and relet for tenant’s account—Tenant still responsible for difference in rent. New tenant is under old lease. This is a constructive assignment.
(For the second and third, landlord must take care to not constructively accept.)
C. Landlord’s Duties; Tenant’s Rights and Remedies
Basics
Old regime
No implied covenants that premises would be suitable for intended use or maintained.
Based in old rural ideas where all that mattered was conveyance of the land.
Tenant had duty to maintain, in order to prevent waste of landlord’s reversion.
Imbalance in old real property law: independence of covenants.
Landlord’s conduct did not affect tenant’s obligation to pay rent.
Remedy available to tenants, suing for damages, was prohibitively expensive.
Reforms began in XIX century with urbanization.
Landlords reacted as though these were takings, as though they had “a property interest in an unchanging world.” (Horwitz)
Moral hazard of exploiting allocation of risks
Landlord has incentive to provide no services.
Tenant near end of lease has incentive to let place go to pot.
Revolution of 1970s
Efforts to use law to improve quality of housing.
Growing influence of contract law and developments in consumer protection.
First came breach of express covenant quiet enjoyment and constructive eviction.
Next, illegal leases.
Finally, implied warranty of habitability.
Express Covenant of Quiet Enjoyment and Constructive Eviction
Remedy evolved over time.
Began as protection from ejectment by someone with superior title to lessor.
XIX century: requirements to keep premises tenantable.
Beneficial enjoyment added physical requirements to legal duties in the lease.
Disclosure of known latent defects.
Maintenance of common areas.
Repairs.
Honesty about condition of premises.
At first, breach only meant cause of action for damages.
Finally, tenants got option of leaving and being released from obligations
Modern formulation
Any conduct that renders the premises substantially unsuitable for the purpose for which they were leased or which seriously interferes with beneficial enjoyment is breach of express covenant of quiet enjoyment and constitutes constructive eviction. Reste Realty Corp. v. Cooper (NJ 1969).
Tenant’s options
Stay and pay rent and sue for damages, or
Leave and be released from future obligations.
Failure to vacate in reasonable time would mean waiver of constructive eviction defense.
Standard
Landlord’s conduct must effectively deprive tenant of possession or the purposes thereof.
Shortcomings
Didn’t address problems of cost and quality.
Legal questions about whether covenant could be implied.
Risky strategy because of need to leave premises before knowing how the court will decide.
Makes summary proceedings no longer summary.
No remedies for month-to-month tenants.
Retaliatory eviction.
Illegal in most jurisdictions.
Common approach: rebuttable presumption if eviction occurs within a stated time of tenant’s complaint or exercise of rights.
NY and some other places permit eviction after repairs are made, as long as tenant has time to relocate.
NJ only permits eviction for good cause.
Illegal Leases
Housing Codes, beginning with New York Tenement House Law of 1867
Direct obligations on landlords.
Cover structures, facilities, services, occupancy.
Scant, corrupt enforcement.
Didn’t become widespread until federal aid became available during Great Society.
In 1959, NYC permitted tenants to withhold rent when codes weren’t complied with, providing a private enforcement remedy.
Illegal Lease remedy was that if premises don’t meet code at time of lease, lease is illegal and tenant has no obligation to pay rent.
Code violations must be significant and known to landlord.
Tenant under illegal lease is tenant at sufferance.
Landlord entitled to reasonable value of premises.
Tenants would stay in possession and pay no rent until finally evicted.
Implied Warranty of Habitability
Javins v. First National Realty Corp. (DC 1970)
Housing codes are read into landlord’s lease obligations.
Code violations that arise during term of lease affect obligation to pay rent.
Landlord is provider of package of services.
Old rural model is obsolete; modern housing market dictates its abandonment.
Consumer protection cases are a model.
Hilder v. St. Peter (VT 1984).
Caveat lessee abandoned.
New approach is contract-based.
Warranty of habitability cannot be contracted out of.
Landlord’s duties
Not just housing codes, as in Javins.
Apartment must be safe, clean, fit for human habitation.
Landlord responsible for all patent and latent defects.
No assumption of risk vis-à-vis patent defects.
Evidence of breach
Code violations are prima facie evidence of breach.
Test for breach is whether defects have an impact on tenant’s health and safety.
Tenant’s duties
Bring to landlord’s attention and allow reasonable time to fix.
Tenant’s rights/remedies
Rent abatement without any duty to vacate. This is the big improvement from the tenant’s point of view.
Typical contract remedies are available: rescission, reformation, ordinary damages (both economic and noneconomic).
Punitive damages warranted where breach is willful, wanton, or fraudulent, or where conduct manifests reckless or wanton disregard for tenant’s rights.
Tenant can also use the doctrine as an affirmative cause of action or can terminate and sue for damages.
Notes
Typical pattern: tenant abates and retains possession, landlord sues for possession and back rent, tenant offers affirmative defense of breach of warranty (permitted in almost all jurisdictions).
Damage calculations
Typically lease rent or value as warranted, less fair market value.
Tenant’s own repair costs often reimbursed.
Limits
Not available in all jurisdictions.
Not available in all leasing and subleasing situations.
Mostly hasn’t been extended to nonresidential leases.
Landlord Tort Liability
Old rule: no landlord tort liability to injured third parties because landlord is not in possession and there is no privity of contract between landlord and third party.
Exceptions developed: common areas, latent defects, premises leased for public use, where landlord made negligent repairs.
Putnam v. Stout (NY 1976)
Lessor may be liable to injuries to third parties on premises with lessee’s permission.
Grounds: covenant to repair.
Test (from Restatement (Second) Torts § 357)
1. Covenant to repair,
2. Performance would have prevented unreasonable risk, and
3. Failure to take reasonable care to perform.
Must have actual or constructive knowledge and reasonable time to repair.
Policy concern for protecting people outweighs value of adhering to old, outmoded technical rules such as privity that don’t reflect modern reality.
Lessee may also be liable if due care would have revealed the defect.
Different approaches to the relationship between the implied warranty of habitability and landlord’s tort liability.
Majority position: Liability in tort for breach of implied warranty of habitability if landlord negligently failed to make repairs and had both notice and opportunity.
Some jurisdictions permit strict tort liability for injuries caused by defects landlord failed to repair in violation of implied warranty of habitability or express covenant.
Some jurisdictions do not allow any tort liability for breach of the implied warranty of habitability.
NH permits tort liability for failure to exercise reasonable care (negligence).
CA imposes strict liability for injuries caused by defects that existed at time of leasing. Explicit cost/risk shifting.
LA has had the same rule as CA all along because of its code.
D. Housing Discrimination
Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §§ 3601–3619, 3631 (1994), (The Fair Housing Act)
§3604. Discrimination in the Sale or Rental of Housing and Other Prohibited Practices.
(a) No refusal to rent or sell, after a bona fide offer, on the basis of race, color, religion, sex, familial status, or national origin.
(b) No discrimination in terms, conditions, privileges, or services.
(c) No advertising indicating preference, limitation, or discrimination.
(d) No saying something isn’t available when it is.
(e) No blockbusting.
(f) No discrimination on the basis of disability.
Discrimination on other bases doesn’t violate the FHA. Kramarsky v. Stahl Management (S.Ct. NY 1977).
No matter how many other factors, if race is a significant factor, FHA is violated. Marable v. H. Walker & Associates (5th Cir. 1981).
Integration
United States v. Starrett City Associates (2d Cir. 1988).
Use of quotas to maintain racial integration violates FHA.
Quotas were based on tipping theory.
Conflict between antidiscrimination and integration goals.
Factors in decision
Permanence of policy and no termination point.
This is basis for distinguishing Otero v. New York City Housing Auth. (2d Cir. 1973), which found an initial allocation by quota permissible.
Lack of history of discrimination in the neighborhood.
Disparate impact on the very groups Title VIII was intended to protect.
Analysis limited to those trying to get in, not those already in, who benefited from the integration.
Dissent
FHA not intended to prohibit maintenance of integration, only to prohibit segregation.
Permanence factor has no basis in FHA.
Spirit, at least, of FHA is violated.
Same arguments for school desegregation can be made in terms of housing: if there are no “minority neighborhoods,” there can be no targeted neglect.
One of the strongest preferences of white folk is to live apart from minorities.
Integration leads to white flight.
Segregation means high rents and low quality (Javins), and a tight housing market (e.g., Harlem in the 1950s).
Integration means lower rents for minorities who can get into cheaper neighborhoods and means reduced population in minority neighborhoods.
E. Rent Control
Constitutional issues in housing policy
Substantive economic due process—The Lochner Era.
Theory developed in late XIX century and used by Supreme Court to knock down Progressive regulatory legislation.
Amorphous idea that some statutes are so unreasonable as to deny “persons” due process under the 5th and 14th Amendments.
One of the few areas where it still is used with success is by landlords against rent control statutes they allege preclude a just and reasonable return.
Rational-relationship test
United States v. Carolene Products (1938) Stone, C.J.
Abandonment of use of due process arguments to defend business.
Creation of rational-relationship test.
If a statute bears a rational relationship to a legitimate public/governmental interest, and the means to that end are not absurd, it will be upheld.
An easy strict-scrutiny test.
Footnote 4: due process may be used to protect religious and racial minorities, religion, civil liberties, and voting rights.
Rent Control
Cromwell Associates v. Mayor and Council of the City of Newark (NJ 1985).
Moderate rent-control statute.
Cap on annual rent increases found facially unconstitutional under NJ’s due process clause.
But analysis was an as-applied analysis.
Rent Stabilization Association v. Dinkins (2d Cir. 1993)
Moderate rent-control statute similar to Cromwell statute.
Two different hardship provisions, “comparative” for all landlords, “alternative” for a subset.
Facial theory
Not facially unconstitutional simply because some landlords wouldn’t be able to get both.
Test applied: plaintiff must establish that no set of circumstances exist under which the statute would be constitutionally valid.
As-applied theory
Such a claim would require actual affected party, not representative organization due to particularized inquiry. RSA lacks standing.
New York City
Rent Control
Strict rent control.
Administratively fixed rents.
Increases not pegged to economy or market.
NYC in 1970s
Landlords’ rental income fell below costs
Terrible administration of strict rent control.
Economy in general.
Redlining. NYPIRG: Take the Money and Run, 1979.
Population shift from working poor to destitute poor.
Jonnes sees this as tipping to all-minority.
Gilderbloom & Appelbaum see it as about class.
Moral hazard took over in South Bronx, Ocean Hill, Brownsville, East New York, Bushwick, and parts of Bed-Stuy.
No provision of services.
No tax payments.
Milking buildings.
Arson.
Housing stock plummeted.
Maximum Base Rent and 7.5% increases enacted during Lindsay administration.
All remaining rent-controlled apartments have been in same tenants hands since 1971.
Rent Stabilization
Moderate rent control.
Applies to buildings with more than 6 apartments build during 1947–1973.
As apartments come off rent control, the go on rent stabilization.
Initial rent set by landlord and tenant.
Increases are regulated.
Leases are for 1 or 2 years.
Renewal rights.
In practice, a subsidy for more sedentary middle-income tenants at expense of more transitory lower-income folks, since lease prices assume long-term residence.
Hardship exceptions
Comparative hardship: up to 8.5% return on equity.
Alternative hardship: where operating expenses >95% of gross receipts
Vacancy decontrol (not a part of all moderate rent-control schemes)
Upon vacancy, landlords can raise rents 20%.
Once rent >$2,000/mo., apartment goes off rent stabilization. (1994 change.)
Relationship between rent control and the housing market
Supply and demand curve:
Price is y axis.
Quantity is x axis.
Demand slopes downward.
Supply slopes upward.
High prices correlate with low demand, low prices with high demand.
Problems in rent context
Supply is inelastic with respect to increase but elastic with respect to decrease.
Supply curve is almost vertical.
Demand is fairly inelastic

Effect of strict rent control
Planners assumed supply was inelastic and never considered that it could shrink.
Supply falls and demand rises, since apartments are affordable to tenants but not profitable for landlords.
Instant impression of shortage.
Vouchers would avoid some of the problems of rent control but are harder to enact because less popular with voters than rent control.
Redlining
Taking deposits from a neighborhood but not writing loans there.
Major role in decline of NYC neighborhoods in 1970s.
Destroyed people’s ability to sell or leverage their property, reducing the value of their investments.
Arson.
Exorbitant private lending filled some of the gaps.
Largely eliminated by Community Reinvestment Act and securitization of the mortgage industry with establishment of the Government National Mortgage Association.
Now, instead of redlining, there’s individual discrimination.
Much harder to detect and prevent.
Race- and class-based.
Wealthiest blacks are still discriminated against more than poorest whites.
Because loan rejections are no longer based on neighborhood, gentrification is easier.
IV.	Land-Use Controls
A. Judicial Land-Use Controls: The Law of Nuisances
Private nuisances
Basic definition: Unreasonable interference with an individual’s use or enjoyment of land. Can be trespassory or nontrespassory.
Underlying concept: sic utere tuo ut alienum non laedas (use your property so as not to injure others).
Nuisance is a “field of tort liability,” rather than a single type of tortious act. Morgan v. High Penn Oil Co. (NC 1953).
Unifying feature is the interest invaded, not the particular kind of act, etc. Morgan v. High Penn Oil Co. (NC 1953).
Forms (note that the case law is incredibly contradictory and inconsistent)
Nuisance per se or at law. Morgan v. High Penn Oil Co. (NC 1953).
Acts, occupations, structures that are a nuisance at all times and under any circumstances, regardless of location or surroundings.
They are by definition unlawful.
The one certain thing about these: no need to establish negligence.
Nuisance per accidens or in fact. Morgan v. High Penn Oil Co. (NC 1953).
Nuisances by reason of location or manner of construction, maintenance, or operation.
Intentional
Conduct that is “unreasonable” under the circumstances. Morgan v. High Penn Oil Co. (NC 1953).
Test (disjunctive). Morgan v. High Penn Oil Co. (NC 1953).
1. Act for the purpose of causing invasion or
2. Knowledge that invasion is resulting from conduct or
3. Knowledge that invasion is substantially certain to result from conduct.
Degree of care or skill to avoid injury is irrelevant.
Unintentional
Conduct that is negligent, reckless, or ultrahazardous. Morgan v. High Penn Oil Co. (NC 1953).
Public nuisances
Basic definition: Unreasonable interference with a right common to the general public.
Factors
Public health, safety, peace, comfort, convenience.
Statutes and ordinances.
Permanence of effects.
Anyone can bring suit, provided they can show particular or special injury or damage different from that suffered by the general public.
This requirement is waning, though.
Policy issues
What should be the threshold for liability?
What should be the threshold for injunction?
Is the old rule of balancing damage to plaintiff against usefulness of defendant’s activities fair or efficient?
Does it matter who has presumptive right to stop the activity or continue it?
Why has nuisance law been supplanted by environmental law and zoning? Why did it fail?
Rights incident to land ownership
Freedom from nuisance.
Freedom from trespass.
Water rights.
Right to lateral and subjacent support.
Strict liability for actual subsidence caused by activities like excavation.
No liability absent negligence for actual subsidence caused by withdrawal or release of fluids in excavation.
Remedies
What remedies do is internalize the externalities.
Balancing the Equities: the traditional approach.
Boomer v. Atlantic Cement Co. (NY 1970)
NY had abandoned the old rule in Whalen v. Union Bag & Paper Co.
As long as damages are not “unsubstantial,” expense to defendant is not a good reason for denying injunction.
But Whalen was not followed here because disparity was said to be too great.
Remedy chosen: Injunction granted but suspended if defendant pays plaintiffs’ permanent damages, as calculated by the court.
[Pro-industry result: defendant gets choice; plaintiffs do not.]
Defendant in effect buys a servitude on plaintiffs’ land.
Judgment will preclude future recovery by plaintiffs or grantees.
Dissent
Majority is licensing a continuing wrong.
Air pollution will continue unabated because incentive to abate is gone.
Problems with balancing the equities
What gets included on each side of the balance and how is it priced/valued?
What about affected third parties on both sides of the balance who are not party to the suit?
“Coming to the nuisance”
Spur Industries v. Del E. Webb Development Co. (AZ 1972).
Injunctive relief granted but plaintiff must indemnify defendant.
Land prices near nuisances are lower; purchasers buy cheap property and a cause of action, discounted by the probability of success.
Coase Theorem
It doesn’t matter whose rights liability rules are designed to protect; bargaining will achieve the same outcome.
Tradable pollution credits
The EPA is experimenting with “tradable pollution credits” for situations where a remedy means a defendant essentially buys the right to pollute.
The idea is the defendant can clean up and sell the right to others.
Total-load, incentive-based approach to pollution.
B. Private Land-Use Controls: The Law of Servitudes
Easements
Basics
Interests which people have in land in the possession of others.
Dominant tenement: the benefited parcel.
Servient tenement: the burdened parcel.
If the two tenements come under common ownership, the easement is extinguished.

Sources and forms
Express Grant
Most common form.
Usually created by “reservations” (provisions in deeds).
Almost always access to a road.
Utility cables, water mains, sewage, railroads, etc., all are constructed pursuant to easements, most of which are express.
There can be easements in things like light, view, etc.
Implication or implied reservation.
Based on prior use.
Based on apparent and continuous use of a portion of a tract existing at time of division.
Requirements. Van Sandt v. Royster (KS 1938).
Severance.
Before severance, grantor must have used one part of land for benefit of the other part.
Use must have been continuous prior to severance.
Must be reasonably necessary.
Usage must be apparent.
Underground uses are apparent if person holding servient tenement could, with reasonable inspection, have found the use. Apparent ≠ visible. Van Sandt v. Royster (KS 1938).
Some jurisdictions only imply easement from prior use if grantor sells the dominant tenement.
Based on necessity.
Requirements. Othen v. Rosier (TX 1950).
At one time, both must have been owned by the same person (unity of ownership).
Severance.
Use must have been necessary at the time of severance.
After severance, use must be strictly necessary.
Some jurisdictions now permit a lower degree of necessity.
Extinguishes if use becomes no longer necessary.
Prescription.
Very similar to adverse possession.
Use must be actual, open, notorious, hostile, continuous, and exclusive.
Continuity
Defined as frequency of use that is normal for easements.
Exclusivity
Majority: need not be strictly exclusive, but right to use must not depend on any like right in others.
Minority of jurisdictions hold that owner of the servient tenement must not use the easement.
The better view is that exclusivity requires only that the public not use it.
Lost-grant fiction
Where it applies, you must show that use was not permissive but that owner did acquiesce.
Public prescriptive easements
Available in most states.
Require long continuous use under claim of right such that owner has notice that right is being claimed by the public, not by individuals.
Beach access is usually presumed to be permissive.
Estoppel.
When one makes improvements, incurring expenses, in reliance on license of another, that license becomes irrevocable. Holbrook v. Taylor (KY 1976).
Or where one makes improvements, incurring expenses, and the other party stands by and implicitly acquiesces, that party is estopped from denying the easement.
Relatively uncommon.
Covenants Running with the Land
Restrictive covenants often have the same effect as zoning but because they are private, they don’t come under the same scrutiny.
Enforcement by state courts of racially restrictive covenants is unconstitutional. Shelley v. Kraemer (U.S. 1948) Vinson, C.J.
Equitable Servitudes
Charges or burdens resting upon one estate for the benefit or advantage of another.
Derived from civil law.
They relate to the burden or the estate burdened, while an easement refers to the benefit or advantage to the estate to which it accrues.
C. Legislative Land-Use Controls: The Law of Zoning
Basics
Theory is that segregation of uses is desirable.
Jane Jacobs disagrees, arguing for integrated uses on European model.
An attempt to collectively defeat the market because of the prisoner’s-dilemma nature of resisting buy-outs by industry.
Constitutional basis: police power, nuisance theory (i.e., no taking).
Takings issue
European approach
Value is measured only by present use.
Restrictions against potential but not present uses are not considered takings.
U.S. approach
Value is measured by both present use and potential use.
Zoning out lawful uses before they begin is not a taking. Euclid.
Zoning out lawful uses after they begin is a taking.
Difference seems to be protection of investments, not possibilities.
Euclidean Zoning
Village of Euclid v. Ambler Realty Co. (U.S. 1926) Sutherland, J.
Established the legality of zoning.
Goal there was protection of residential character of neighborhoods marked by home ownership as against rental housing.
Cumulative use categories.
“Highest” uses don’t have the highest prices; residential use is highest but commercial use fetches a higher price for land.
Nonconforming existing uses
Amortization.
Majority rule: Municipalities lack the power to compel a change in the nature of an existing lawful use unless they provide adequate time to amortize.
Minority rule: Amortization is not a valid scheme. PA Northwestern Distributors, Inc. v. Zoning Hearing Board (PA 1991).
Construction regulations
Height restrictions are usually considered not a taking because they protect others from nuisance.
Bulk or density regulations
To prevent urban darkness.
Set-back rules.
Floor-to-area ratio.
Defines permissible volume of structure but leaves shape up to owner.
Exclusionary Zoning and Growth Controls
Southern Burlington County NAACP v. Township of Mount Laurel (NJ 1975)
Claim
Zoning scheme discriminated on the basis of income.
Brought on equal-protection and substantive-due-process grounds, on a police-power theory.
Rational-relationship test applied
Legitimate governmental/public interest?
Rational relationship of statute to such interest?
A municipality must take into account not only its residents but all citizens of the State in enacting a zoning scheme.
Municipality’s police powers derive from the state, a sovereign entity; it is not a sovereign entity itself, only a component of one.
Police power is to promote the general welfare of the people, meaning the citizens of the sovereign entity.

Remedy
Each municipality must bear its fair share of present and prospective regional needs for low- and moderate-income housing.
D. Eminent Domain and the Problem of Regulatory Takings
5th Amendment
“. . . nor shall private property be taken for public use without just compensation.”
Incorporated by 14th Amendment.
“Public Use”
Berman v. Parker (U.S. 1954)
Condemnation of tenements in DC for purposes of building modern housing.
Property was turned over to private developers.
Held to be a legitimate public purpose.
Hawai´i Housing Authority v. Midkiff (U.S. 1984) O’Connor, J.
Standard is public purpose, not public use.
Condemnation power is coextensive with police power.
Police power is one legitimate basis for finding a public purpose.
Government can act directly through the police power, such as on a nuisance theory, or through eminent domain bottomed on the police power.
Rational-relationship test applies for both state and federal takings.
Deference to state legislatures to determine what constitutes a public purpose and how to get there.
Physical Occupations and Regulatory Takings
Pennsylvania Coal Co. v. Mahon (U.S. 1922) Holmes, J.
Property regulation that goes “too far” is a taking for which the state must compensate.
PA statute that prohibited mining that caused surface property owned by others to subside is a taking for which PA must compensate.
Right to support is a component of fee simple (along with right to coal and surface rights).
Statute took 100% of the right to support.
Excavation that causes subsidence of neighbors’ land is traditionally considered a nuisance.
Coal company had reserved the right to dig out the coal at the time it sold the surface rights (divided the fee simple), amounting to an easement or servitude.
Court will not interfere with such a contractual agreement.
Brandeis’s dissent
This was an exercise of police power, not a taking, and didn’t go “too far.”
We should think of the fee simple holistically.
Even if right to support is completely taken, it is only a small fraction of the full fee simple.
Coal can be taken without causing subsidence, it just can’t be completely removed.
Loretto v. Teleprompter Manhattan CATV Corp. (U.S. 1982) Marshall, J.
Any physical incursion is always a trespassory taking.
Use of police power against nuisances is never a taking.
Penn Central Transportation Co. v. City of New York (U.S. 1978)
Development rights are transferable, so legislation that takes them is not a taking.
Lucas v. South Carolina Coastal Council (U.S. 1992) Scalia, J.
[Scalia follows the Holmes approach.]
Beachfront Management Act, which prohibited building on incredibly fragile and crucial barrier islands, was a taking.
Every cost has a reciprocal benefit.
Any regulation to reduce harm can therefore be seen as a regulation to confer a benefit.
A regulation that confers a benefit on one at the expense of another is a taking.
A thinly masked attack on police-power nuisance reductions.
Legislatures cannot define new nuisances.
The only nuisances against which the state may act under the police power are those that were defined at the time of purchase.
Opinion seems to rule out defining any new nuisances, either by legislatures or by judges.
Environmental issues
Opinion ignores the giant externalities Lucas’s construction would have imposed on others, only clear because of recent advances in ecological science.
Flat-earther opinion.
Nuisance law only cognizes easily visible externalities; statistical evidence would help to ameliorate this problem, but Scalia would seem to exclude such evidence.
Blackmun’s dissent
The statute was saving people from their own stupid acts for which the state would ultimately have to bail them out.
Bright-line rules
Any physical incursion is always a trespassory taking.
A regulation under police power to reduce or prohibit a noxious or nuisance-like use is never a taking, even if all the value is eliminated.
A regulation that “goes too far” is a taking.
How far is “too far”? 100% is a taking. What about less? Unclear.
The tough cases are those that don’t take all the value.
“Investment-backed expectations”—This seems to refer to the expectations at the time of purchase and underlying the purchase. Greed-based expectations merit no protection.
“Average reciprocity of advantage”—Is this a statute that simply adjusts the benefits and burdens or one that dumps all the burdens on a small number of parcels?