Property Outline – Professor Upham, Spring 2000



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Property Outline – Professor Upham, Spring 2000


  1. Introduction: Acquiring Property

  1. From Nature: The Meaning of Labor and Possession in Title in Wild Animals

  1. Pierson

  1. Blackletter: Property in wild animals is acquired by occupancy only, and pursuit alone (without wounding or capturing) does not constitute occupancy or vest any right in the pursuer.

Definitions of occupancy of wild animals:

Puffendorf: corporal possession or mortal wounding

Barbeyrac: bodily seizure not necessary; all you need is mortal wounding + continued pursuit, or deprivation of liberty. Either gives notice of intention to appropriate. Majority says Barbeyrac’s definition not satisfied here.


  1. Livingston’s Dissent: Custom of sportsmen should rule, but since it doesn’t, go with Barbeyrac, applied differently ( was “within reach”) and Justinian’s middle ground rule (if the hunter uses sword/rifle or large dogs, he gets it, but if small dogs, the captor gets it).

  2. Post’s Lawyer’s Fatal Error:

i. Trespass: Intentional interference with right of possession.

ii. Trespass on the Case: Unintentional/negligent violation of nonpossesory rights, interference with occupation, and other things (catch-all).

iii. Posts lawyer originally filed in case, but then stipulated the issue was whether Post had possessory right to the fox. After verdict, appealed with a “so-what” defense and won.

  1. Sources of Law

i. Statute

  1. Precedent

  2. Persuasive Authority, e.g. ancient writers

  3. Custom & practice

  1. Ephemeral nature of ownership (hypo #2 – Post grabs fox then it escapes)

  2. Notice (hypo #1 Post leaves dead fox on beach & #3 leaves fish in inlet)

  3. Role of the Court: Policy vs. Fairness

i. Goal of Certainty, to promote peace & order (fewer lawsuits)

  1. Goal of Economic Efficiency (kill the most foxes)

  2. Goal of Justice in this Particular Case (this is what the parties want)

  1. Keeble (p 38)

  1. Blackletter: In trespass on the case, is liable if he maliciously violated possessory rights and hindered plaintiff in enjoyment of a private franchise.

  2. Why result is different from Pierson:

i. Plaintiff had possession by ownership of land (ratione soli)

  1. Defendant was malicious

iii. Keeble was in case; Pierson was in trespass.

3. Ghen



  1. Blackletter: When all that is practicable in order to secure a wild animal is done, it becomes the property of the securer who has thus exercised sufficient personal control over the wild animal.

  2. Custom rules here because unlike Pierson, this case involves industry (Whaling)

  1. From Each Other: The Meaning of Labor, Possession, Ownership, and Title in Land

  1. Brumajim

  1. Blackletter: In cases where enclosures consist wholly or partially of natural barriers, the jury decides whether the acts of dominion relied upon were sufficient to give public notice of possession, in light of the particular situation of the land (e.g. a peninsula).

  2. Ejectment Action. Elements to be proved:

i. No need to show perfect title, just superior to .

  1. Prior possessor beats ruthless usurper; issue is whether Dyson had actual possession (possessio pedis) at the time when defendant entered.

  1. What happens next?

i. New trial on jury question of possessio pedis/sufficient notice.

ii. If jury finds sufficient notice, Brumajim wins and he owns the land.



  1. Tapscott

  1. Blackletter: The party in possession of real property has superior rights to the land except as to the rightful titleholder.

  2. Chronology:

1800 T. Anderson dies.

1802 Patent to Harris, Rives, & N. Anderson



    1. Auction. Tract A sold to Rives, one of the executors

before 1825 Sale of Tract A to Mrs. Lewis

9/1825 K btw Rives & Mrs. Lewis for sale of dower interest in Tract B, in exchange for which Rives would pay part ($217.50) of sale price of Tract A



Mrs. L moves on to Tract A, makes improvements.

  1. Harris dies

  2. Rives assumes liability for balance of purchase price of A

1831 N. Anderson dies.

  1. Mrs. L dies.

  1. Tapscott took possession of Tract A, no pretense of title

1844 Tapscott enters with county surveyor to obtain patent for A

  1. Demurrer to the Evidence: objection that the evidence is legally insufficient to make a case. Effect: discharge of jury and decision by court. Why did Tapscott’s lawyer demur?

Probably because both he and the judge believed had to show clean title. Wrong; for ejectment must only show prior peaceable possession interrupted by . Also, Tapscott may have wanted to avoid the jury for some reason.

  1. In the end, Mrs. Cobbs owns the land. Only T. Anderson’s heirs could show superior title, but SOL probably bars them.

  1. Ewing

  1. Blackletter: Adverse possession does not require one to actually live on, fence, or improve real property as long as claim to it is open, notorious, and hostile.

  2. Adverse Possession (4+1)

  1. actual possession for statutory period

  2. regular and uninterrupted

  3. “open and notorious” (notice)

  4. “hostile,” a.k.a. adverse, exclusive

(+1) claim of right

  1. Marengo Cave

  1. Blackletter: For an AP to satisfy the requirements of “open, notorious, & exclusive,” there has to be notice to True Owner that AP is in possession of TO’s land.

  2. Why wrong: Marengo Cave Co’s possession was open & notorious. However, they could have made it more so by writing to Ross and notifying him directly.

  1. Wallis’s Cayton Bay Holiday Camp

  1. Blackletter: AP must establish possession adverse to TO’s use of the land. (Here, TO was “using” land to wait for a road project.) Also, “hostility” is negated by implicit permission granted when TO indicates awareness of AP’s use of TO’s land.

  2. Why wrong: “Adverse Use” rationale doesn’t jive with underlying policy reasons for AP.

  1. Fallon

  1. Blackletter: AP must establish possession adverse to , not just adverse to ’s tenant in common.

  2. (Here, ’s husband sold his TIC interest but she still had right to occupy so AP’s possession was not adverse to her.)

c. Why wrong: Sheriff bought the land from the husband fair & square.

  1. Ennis

  1. Blackletter: “Hostility” requires intentional taking of TO’s land; mistake as to ownership is not enough.

  2. Why wrong: This rule rewards the ruthless usurper. This is not the usual rule; normally mistaken AP is enough.

  1. Nisbet

  1. Blackletter: A covenant not to build stays with the land; it is not interrupted by AP.

  2. Why wrong: The neighbors (or heirs of original neighbors) have no covenant with Potts or Nisbet.

  1. Taxes: Slatin’s Properties

Blackletter: When AP pays taxes on the land, this can constitute Notice (for purposes of “open & notorious” requirement), at least where TO is knowledgeable about real estate matters.

  1. Tacking

Blackletter: To establish continuous possession for the statutory period, AP can combine his period of possession with predecessor’s, as long as there is privity of estate between them.

  1. Disability

Blackletter: If at the beginning of adverse possession, the TO is constrained by infancy, incarceration, or insanity, he may challenge AP within the statutory period or within 10 years after the disability is removed, whichever is longer.

  1. Spratly Islands Dispute

  1. Economic Perspectives on the Role of Rights

  1. Parker & Edgarton

  1. Blackletter: Since in the case of sunlight there is no adverse user, nor any use of another’s property, to support a presumption against the TO, an easement for light c Blackletter; Prior Appropriation Rule: Whoever uses it first gets to keep it as long as using it for a useful purpose. There is no right of prior appropriation in groundwater.

  2. Dissent: Prior Appropriation Rule does apply to percolating water under the Desert Land Act of 1877.

  1. annot be acquired by prescription (adverse use).

  2. Easements by Prescription

  1. Adverse Use

  2. Rebuttable/Irrebuttable Presumption Lost Grant

  1. Property Rights in Sunlight (p 91)

  1. Prah

  1. Blackletter: A landowner has an enforceable property right in the free flow of sunlight onto his land. (Right to Light/Natural Flow)

  2. Economic rationale: solar power.

  3. Dissent: As long as a landowner conforms to statutes and regulations, he is allowed to use his land however he wants. (Reasonable Use Rule) ’s use conformed with statute, therefore he can’t be enjoined from building.

  1. Acton

  1. Blackletter: Absolute Ownership Rule (like Tough Luck Rule for Sunlight). If a party, through the proper use of his own property, injures the quantity or quality of the underground water flowing to a well on another’s property, it is tough luck for the injured party.

  2. The court qualifies the rule as only applicable to underground flow. If above ground, the Natural Flow Rule would apply.

  1. Evans

  1. Blackletter: A landowner cannot divert all of the water which runs through his land for manufacturing purposes so as to deny to a lower riparian owner water for carrying on his manufacturing.

  2. Natural, necessary use takes priority, but between riparian manufacturers, neither has a right to use up all the water.

  1. Bristor v. Cheetham

  1. Blackletter: Prior Appropriation Rule: Whoever uses it first gets to keep it as long as using it for a useful purpose. There is no right of prior appropriation in groundwater.

  2. Dissent: Prior Appropriation Rule does apply to percolating water under the Desert Land Act of 1877.

  1. Law & Economics

  1. Demetz assumptions

Five conditions:

  • All property rights are assigned (never true)

  • Transaction costs are zero (never true)

  • Enforcement costs are zero (never true)

  • Owners of property rights are utility maximizers (meaningless)

  • Changes in wealth distribution don’t affect demand patterns (never true)

Implications of the five always wrong conditions:

  • Value of harmful and beneficial effects will be born by owners

  • Property rights will be used efficiently

  • You get the same mix of output regardless of distribution of property rights (Coase Theorem.)

  1. Posner: Illustrates Coase Theorem with farmer & railroad hypo; then explains that since transactions are not costless, efficiency is promoted by assigning the right to the party whose use is more valuable.

  2. Calabresi and Melamed:

  • Property rights: can be bought for a price agreed to by seller

  • Tort rights can be bought for an objectively determined value

  • Inalienable rights: cannot be bought

  1. Polinsky: Transaction costs mean the market may not work properly. Solution: Law should minimize transaction costs, and if market still doesn’t work, law should mimic the (competitive equilibrium) market.

  2. Kennedy & Michelman: Two alternatives to the private property/free contract order (PPFC):

  • State of Nature (SON): dog-eat-dog; no rules.

  • World Owned in Common: nothing can be done/used w/o community consent.

  • A real legal system includes mix of SON zones and WOC zones.

  1. Shihata & The World Bank

Basic requirements for economic development:

  1. pre-existing rules

  2. rules actually in effect

  3. enforcement mechanisms/allow departure where needed

  4. independent judicial body

  5. procedure to change the rules

  • Rules mean predictability which encourages investment.

  • Stable property rights are necessary for economic development.

  1. Sanderson

  1. Blackletter: Natural Use Rule: “Every man has the right to the natural use and enjoyment of his own property; and if, without malice or negligence on his part, an unavoidable loss occurs to his neighbor, it is damnum absque injuria (damage w/o wrongful act)”

  2. Why it’s wrongly decided: Calls coal mining natural use just because the chemicals in the drainage water are of the earth
  1. Common Law Estates


  1. Estates in Land

  1. Johnson v. Whitton

  1. Blackletter: If not previously recognized, limitations on fee simples are void, leaving the party with a fee simple absolute.

  2. Words of Purchase vs. Words of Limitation (“and her heirs” are words of limitation acting like a magic formula which creates a fee simple.)

  1. Van Rensselear

  1. Blackletter: A reservation of rent and right to distrain for it in a fee simple conveyance is valid.

  2. Is this feudalism? Court says no because of difference between:

i. “Rent Service” is determined by common right/set obligations in the relationships of the society.

ii. “Rent Charge” is determined by contract entered into by choice.



  1. Melms

  1. Blackletter: A change in the feature of a building, which enhances the property value, but changes the identity of the estate, would normally constitute waste. However, if a change in surroundings rendered the land useless for its former purpose, a change in the identity of the estate may not constitute wast.

  2. Gasacre and Tinacre Hypos: As long as the property has some value as it stands, a life tenant may not reduce its value or change its identity, except that he may take whatever resources from it necessary to maintain it and pay taxes on it (estovers).

  1. Types of fees (p 253-53)

  1. fee simple absolute

  2. life estate

  3. fee simple determinable (e.g. Charlotte Park)

  4. fee simple subject to a condition subsequent (e.g. White)

  5. fee simple with an executory limitation

  6. fee simple subject to an executory limitation

  1. Future Interests

  1. Remainders (examples pp 496-98): Follows the extinguishment of all other estates (usually follows a LE)

  1. Vested: An ascertained person, ready to take.

  2. Contingent: Unascertained person or subject to a condition precedent.

  1. Executory Interests (examples pp 498 & 503): Cuts short and divests the current estate.

  1. Shifting: Cuts short interest of transferee

  2. Springing: Cuts short interest of grantor.

  1. Rule Against Perpetuities

  1. Blackletter: Contingent remainders and executory interests are void for remoteness unless they must vest, if at all, within a life in being plus 21 years plus a period of gestation.

  2. First Universalist Revisited: We don’t know how long the Universalists will use the land for the designated purpose.

  3. Red Flags: inter vivos conveyances; unnamed parties.

  4. Problems p 621

  1. Trusts

  1. Statute of Uses: Makes possible springing interests as in examples on p 504.

  2. Farkas

  1. Blackletter: Where the grantor of a trust retains certain powers but subjects himself to the standards applicable to a trustee, the trust declarations constitute valid inter vivos trusts and not testamentary conveyances.

  2. Role and Fiduciary Duty: Just because the beneficiary has no real practical power to prevent the trustee from violating his fiduciary duty doesn’t mean it’s not a valid trust.

  3. Wills vs. Trusts: An Alternative Rationale For The Decision (p 528 ¶1) -- Formalism

3. Blankenship

  1. Blackletter: A trustee must act strictly and exclusively in the best interests of the trust beneficiaries. He must not serve any other interests.

  2. Why it’s wrongly decided: The remedy here is Draconian. Some of the activities were actually to the benefit of the beneficiaries.

4. Wesley United

  1. Blackletter: If enforcement of a grantor’s specific charitable intent becomes impractical, the court may enforce the grantor’s general intent.

  2. Doctrine of cy pres (= “as near as”): equitable doctrine under which a court reforms a written instrument with a gift to charity as closely to the donor’s intention as possible, so the gift does not fail.

5. Pulitzer

  1. Blackletter: Even if a trust expressly prohibits the sale of certain property, a court may authorize the sale of that trust asset in order to prevent its destruction or substantial devaluation.

  2. Grantor’s Intent, Pigeon holes, & “common sense”:

  • The “unanticipated” event wasn’t; Pulitzer was trying to prevent Hearst from buying the “World” as a matter of honor & principles of journalism (court calls this “mere vanity”)

  1. Concurrent Estates

  1. Basilides

  1. Blackletter: One TIC can’t have AP to other TICs because they all had equal right to be there so there’s no adversity.

  2. Why it’s wrongly decided: Since they charge him rent, his possession must have been adverse. (dissent)

  1. Fallon revisited: In theory Fallon, Mrs. James and the little Jameses all had equal right to be there.
  1. Sovereignty


  1. Johnson

  1. Blackletter: When a country is conquered, the territory is ceded to the sovereign of the conqueror to distribute as he chooses.

  2. Natural Law arguments:

: King can’t just take away rights to the soil from the people who live there.

: Native Americans don’t “deserve” the land because they are “less civilized,” not Christian, etc.



: Land use priorities: Cultivators come first.

  1. Positive Law arguments:

: Proclamation of 1763; idea that only the sovereign can extinguish native inhabitants’ right to their land.

  1. Upham’s favorite part: p 12, last paragraph: “Conquest gives a title which the Courts of the conqueror cannot deny…”

  1. Passamaquoddy

  1. Under the Nonintercourse Act of 1790, the U.S. gov’t owes an obligation/trust to protect the lands of all Native American tribes from improvident sale or disposition.

  2. Laches doesn’t work because of the trust relationship. By the 1790 Act, Native Americans were basically declared incompetent to protect their rights. Hence the duty of the trustee.

  1. Mabo

  2. Palmas revisited



Property: Material Covered After the Midterm


  1. Private Land Use Controls

  1. Easements

  1. Unlike other private land use restrictions, an easement is a real property interest.

  1. This means if the government takes an easement on your land it has to compensate you for it.

  2. They are “pigeon holed” so they can be easily bought and sold (like fees in Johnson v. Whitton)

  3. Remedy in trespass means you can get specific performance. (e.g., if Stebbins had purchased an easement for light and air, that would have been recognized as a real property interest)

  1. How they are created

  1. Express grant

  2. Reservation

  3. Prescription

  4. Implication (e.g. court grant by necessity)

  5. Eminent domain

  1. Positive vs. Negative Easements

  1. Positive easements give dominant owner the right to do something on another’s land.

  2. Negative easements restrict servient owner’s land use rights.

  3. At early Common Law you could only have “right of way” easements.

  1. No negative easements, e.g. agreement not to build

  1. OTOH, easements for positive acts were also disfavored.

  2. Now you can get a negative easement, such as an easement for light, air, view, etc.

  1. Early easements had to be for a necessary purpose.

  1. e.g. no easement to swim in neighbor’s lake.

  1. Otherwise, court would treat it as a license, which can be revoked.

  2. Reason: An easement lasts forever, like a fee simple absolute.

  1. Appurtenant vs. Gross

  1. Easement in gross

  1. Benefits the owner personally and is retained by him even after the land is sold.

  2. There is no dominant tenement but there is always a servient tenement.

  3. Gives the owner a right to use the servient tenement for a particular purpose (e.g. billboard)

  1. Easement appurtenant

  1. Benefits the owner’s use of his land, where the owner possesses the land abutting the burdened land.

  2. Goes with the land when it is sold.

  3. When a dominant tenement is subdivided, each subdivided lot has the right to use easements appurtenant to the dominant tenement. BUT, the servient tenement is not to be burdened to a great extent than was contemplated when the easement was created. (Cushman)

  1. Ways to terminate an easement:

  1. Abandonment: must be shown by evidence such as a fence crossing a path; you can’t lose an easement by mere disuse. (Cushman)

  2. Estoppel: when servient owner in reasonable reliance on termination of easement makes changes to his land or does things inconsistent with the easement.

  3. Release: formal writing by dominant owner saying he won’t use it anymore.

  4. On its own terms: when you create an easement for a specified time period.

  5. Unity of title: when servient owner becomes owner of the easement.

  1. Other issues:

  1. To see if an easement survives conveyance:

  1. Is there evidence of abandonment? (Cushman)

ii. Appurtenant easements pass with the land automatically. (Cushman)

  1. Size of the easement: look to intent of the parties (Cushman)

  2. Use of the easement: If use is not expressly limited, it may be used for any reasonable (not necessarily foreseeable at time created) purpose, provided no additional burden upon servient estate (increased degree of burden is okay, just no new burden). (Cushman; also Gordon v. Hoy – no installation of gas & water pipes under the easement b/c it imposes add’l burden; Upham disagrees, says no add’l burden.)

  3. No Overloading. Subdividing the dominant estate doesn’t count as additional burden unless unreasonable burden.

  1. Covenants

  1. Unlike an easement, a covenant is a contract right.

  2. How to tell if a covenant runs with the land:

  1. First ask, Does the covenant “need” to run?

  1. Identify the original promise. Were and present? If wasn’t there, the benefit has to run. If wasn’t there, the burden has to run.

  1. Also, make sure the original agreement was enforceable.

b. Then, do the 3-step test:

i. Intent (not necessarily explicit)

  1. Touch and concern (often answered by 1) i.e.,

a. Does it lessen the promisor’s legal interest as owner?

b. Does it affect an essential property right, such as the right to exclude others from one’s land?

c. Is it the kind of promise the promisee would want the next owner of promisor’s land to have to perform?

d. Wheeler (agreement to build a dam and split costs): the person in whose favor a covenant is made must have an interest in the land charged with it. Since Schad has no interest in Wheeler’s land, court concludes there is no T&C; dam isn’t even on their land.

e. Morse (permission to use pond on grantor’s land w/ agreement by grantor to drain the pond): T&C can be satisfied when the covenant was made in reference to ’s easement interest.

f. Substantive approach (Neponsit -- $4 dues go toward maintenance of common areas)

g. Does it affect legal relations of parties as owners of the land? In Nicholson, this loose approach is used to find T&C and enforce agreement because the court didn’t like how the servient owner tried to use a straw to avoid his obligation.

  1. Privity: You always need vertical privity. If the burden has to run, you also need horizontal privity. (Reason: because it’s not fair to make someone perform a promise she never made. So the courts developed an additional formal requirement.)

a. Vertical privity means contractual privity and privity of estate, which means the assignee succeeded to the same estate as the original covenantor or covenantee.

  • Can be fudged, as in Neponsit, where a homeowners’ assn. not in privity acted on behalf of the property owners. (Property owners probably didn’t have right of enforcement under their deed.)

b. Horizontal privity: Usually anything beyond “mere neighbors.” Three tests:

  • Majority rule: Either there is a continuing tenurial relationship between the parties, or the covenant was created when the land passed in a land transaction. This explains why you need a straw (e.g. Ames in Columbia Deeds) and why the Wheeler court found no privity.

  • Massachusetts “simultaneous interest” rule: Covenantor and covenantee must have a continuous and simultaneous interest in the same property, such as in a tenurial relationship or when A conveys to B an easement or reserves an easement in conveyance to B. (e.g. the easement in Morse.)

  • English rule: Continuing tenurial relationship, such as landlord-tenant or reversioner-life tenant.

  1. Equitable Servitudes

  1. Courts use equitable servitudes to enforce agreements in the interest of equity/fairness, when the legal requirements of easement or covenant are not met.

  1. Notice how courts blur distinctions between the three types of land use restrictions.

  2. Example: Waldrop v. Town of Brevard (dump case): Conveyance says it gives the right to use as a dumping ground, but it’s actually legally meaningless since seller didn’t own that right; the language that follows, the release from c of a, is the effective language. Waldrop says not bound b/c no deed in ’s chain of title refers to the covenant. But the court says covenant can operate as an easement if necessary to carry out intent of parties. The waiver of right to sue is enforced as an easement not as a covenant. If it were a covenant it would be unenforceable. (Policy issue: Cheap conveying vs. being able to enforce more agreements.)

  1. For an equitable servitude, there is no privity requirement; all you need is Notice, Intent, and T&C.

  2. Notice Doctrine of Tulk v. Moxhay (case of conveyance of garden in exchange for promise to maintain it for the use of the tenants of surrounding houses): Where an owner of land enters into a contract that he will use or abstain from using his land in a particular way or manner, equity will enforce the agreement against any purchaser or possessor with notice who attempts to use the land in violation of its terms, regardless of whether the agreement creates a valid covenant running with the land. (Privity of estate not an issue.)

  3. What kind of notice?

  1. Formal Approach: Under equitable servitude doctrine you need record notice in the deed itself (“within the 4 corners of the deed”) – Bear Creek (snow tunnels; court can’t imply a covenant based on subsequent covenants.

  2. Alternative Rule found in FN4 of Bear Creek: if the covenant is documented in servient owner’s chain of title then it’s enforceable. This benefits the neighbors who are relying on the mutual covenant.

  3. Tobriner’s dissent in Bear Creek: look at outside evidence to reach an equitable result. Actual notice is enough; you don’t need record notice.

  4. Some courts only require inquiry notice or foreseeability. (Rhue)

D. Planned Communities: Private Residential Government

  1. Restrictions are treated like contracts but they take on a governmental nature.

  2. Various standards of enforceability:

  1. Formal approach (Rules are rules)

  1. Holliday: restrictions on use of property should be given the effect which the expressed language of the instrument authorizes. Oral representation or advertisements are not operative. No promise in deed to use for residential purposes only; just promise to set houses back 25 ft, so owner gets to build a gas station against the true intent of the original parties.

  2. Buffalo Academy: no express “heirs and assigns” language means the agreement doesn’t run. (Note: Upham thinks this opinion is intellectually dishonest; it would have been easy to imply intent to run b/c agreement would be worthless otherwise. However, the court wanted to make sure Boehm Brothers lost.)

  3. Nahrstedt: Like in Pierson, court takes the role of reducing conflict. Best to make rules clear and predictable.

iv. Loeb: Literal reading, like Nahrstedt – Rule are rules, cost/benefit not an issue.

  1. Enforceable as long as there is a benefit to the covenantee. (Nahrstedt, O’Brien’s concurrence in Loeb)

  2. Benefit to community has to outweigh the burden on the individual property owner. (Balancing test in Cohen’s dissent in Loeb: benefit to covenantee vs. cost of enforcement.)

  3. Universality

  1. The plan doesn’t really have to be uniform but has to be universal; all lots included and coordinated. (Buffalo Academy – court does not enforce on grounds of uniform building plan b/c not universally applied; enforces on other grounds.)

  2. Can’t enforce after many other violations (Hecht – mobile home allowed in violation of covenant because the neighborhood has deteriorated; many other violations including other trailer houses.)

  3. Reciprocity/uniform burden: one lot can’t bear all the burden.

  1. Surrounding circumstances haven’t changed.

  1. Loeb – Cohen’s dissent: change in surroundings make covenant useless. O’Brien’s concurrence: possibility of change shown by patterns in surrounding area not enough)

  2. Downs (residential only till 1960, wants to build store)change is no excuse unless complete change; have to protect neighbors who rely on the covenants.)

  1. Notice – Rhue (spanish style home) & Davis (set-back requirement/gas station). How to reconcile:

  1. In Davis, the committee tries to impose additional architectural restrictions than those explicitly listed in sec 7. The “general plan” evolved after the Davises bought their lot. (See testimony on p 1057; Upham thinks it’s legitimate.)

  2. In Rhue, the court thinks the aesthetic decision was foreseeable because when the Rhues bought their lot the whole neighborhood was mock-Tudor.

g. Enforceable as long as doesn’t violate law or public policy (Loeb)

  1. Waivers & Flexibility: Enforcement of private controls takes on governmental quality:

  1. Van Sweringen – In order to waive restrictions, the trustees (mayors of the 3 towns) need to show:

  1. that the waiver benefits the covenantees, not the community at large (like fiduciary duty) and

ii. that it’s impossible to go ahead w/ plan as originally conceived.

iii. Major restriction can be waived “in their discretion.”

b. Kenney – Court recognizes developer’s right to retain power to waive restrictions; standard for review is “arbitrary & capricious.” (Quasi gov’t.) To determine whether a waiver is arbitrary & capricious, consider:

  1. Degree of impact on other properties

  2. Notice

  3. Environmental Impact

  4. Quality of Life

  5. Increased tax revenue

  6. Scope of waiver

  7. Change in neighborhood: if complete change, the covenant is worthless; it would be inequitable to enforce it. Any unforeseen change would help defend a waiver.

  8. Impossibility of completing the original plan (maybe b/c of mistake in plan.)

  1. Public Land Use Controls
  1. Issues in Zoning:


  1. Evolved out of nuisance law Zoning allows the municipality to reduce conflict by organizing society and grouping like activities together.

  2. To what extent can the majority impose its will on the minority? Zoning is supposed to benefit the majority; it restricts individual freedom by regulating what you can do, how you can express yourself, and who you can live with.

  • Euclid test: zoning laws are enforceable unless “clearly arbitrary and unreasonable, having no relation to the public health, safety, morals, or general welfare.”

  1. Flexibility – When can you get a waiver? What should allow a municipality to change zoning? Landowners, especially developers, request changes; often the municipality wants to change zoning or allow a waiver in order to increase the tax base (and sometimes because of corruption). (See Fasano, Harbison, and Village 2 at Newhope)

  2. Motives and choices underlying zoning issue: In a taking by eminent domain the taxpayers have to pay for the land. In a zoning restriction, the majority allocates the cost of the restriction on fewer people.

  • See Appellee’s brief in Euclid: The zoning restriction deprives landowners of the natural value of their land (expectation of value due to superior availability for industrial development) and artificially enhances value of other land left available.
  1. The Process of Zoning


  1. Source and allocation of authority

  1. Only a sovereign has the power to zone. Municipalities are not sovereign. States confer police power on municipalities. Through zoning enabling acts, the state delegates the authority to zone to promote morals, safety, and health for the good of the majority.

  2. Allocation of authority:

  1. Comprehensive Plan: a legislative document which includes a zoning map.

  2. Comprehensive Plan is approved by the Planning Commission (administrative body) or a County Board or City Council (legislative bodies).

  3. Zoning administrator enforces the regulations; zoning board of adjustment or appeals decides on deviations from the regulations (variances & special exceptions)

  4. Alternative approach seen in Village 2: Density zoning (a.k.a. cluster zoning) achieves a more efficient and aesthetic result. A cluster zoned district is called a planned unit development (PUD).

  1. Mechanisms for change:

  1. Built in mechanisms:

  1. special permit: permission to use land a certain way. To get one, you must show:

  • nature and purpose not inconsistent w/ general welfare/purpose of zoning ordinance.

  • Typical uses include schools, hospitals, churches, etc, which serve a large number of people.

  1. variance: permanent excuse from zoning requirements for a particular parcel. Hard to get; must show:

a. denial of variance would impose unnecessary hardship (can’t be self-inflicted)

b. notice of restriction at time of purchase might mean hardship is self-inflicted.

c. need for variance is caused by a problem unique to owner’s lot, depriving him of privileges enjoyed by other owners.

d. mere loss of property value isn’t enough (Euclid)

e. not inconsistent with overall purpose of the zoning ordinance.

f. Court may also consider:

  • if the zoning approaches a taking

  • degree of deviation from the plan

  • whether variance will increase the tax base

  • did the price paid for the land anticipate the restriction

  1. Amendments: Zoning change requires:

  1. mistake in comprehensive plan

  2. change since the plan (MacDonald court says the changes can’t be created by the developer requesting the change)

  3. Other factors (Euclid goals): Fasano: show the change conforms to the comprehensive plan by showing:

a. there is a public need for a change of the kind in question and

b. that need is best served by changing the classification of the particular piece of property (i.e. not spot zoning)

  1. Standards of Review:

  1. Legislative action usually reviewed on “arbitrary & capricious” standard. Any showing that the decision was based on Euclid goals is enough to show it was not arbitrary & capricious. Exceptions:

  1. MacDonald: The trial court and the dissent applied the “arbitrary & capricious” standard. The Md. Supreme Court says since there’s a strong presumption of the correctness of the original zoning plan, use a higher standard for justification for change. This means scrutinizing the (legislative) decision to change zoning more closely & overturning it in the absence of strong evidence of mistake or substantial change in conditions. (large piece of land – apartment building) (Also, the court weighs impact on the general plan against the value lost by individual property owner. Since the tract would still be usable without the rezoning, the court denies the application, reversing the local council.)

  2. Fasano court does not use the “arbitrary & capricious” standard because local gov’ts are not equivalent to state and nat’l legislatures. Also, decisions re specific pieces of property are usually judicial, not legislative, and subject to a different test. Reviews as if it’s an administrative decision. (small piece of land – trailer park)

  1. Administrative action reviewed on “preponderance of evidence” standard: party seeking the change has to show by preponderance of evidence that the change is justified by public need.

  1. Non-conforming Uses: How to treat them when the zoning law changes

  1. Harbison court holds that the nonconforming use is protected, but not forever; it may be terminated after a reasonable period. Balance social harm w/ private injury.

  2. Upham likes Van Voorhis dissent in Harbison: Traditional constitutional protections should be upheld. The court’s holding unsettles everyone’s property rights and discourages maintenance of property, resulting in slums. Compensation should be paid to owners whose property rights are taken away.

  1. Spot Zoning

  1. Spot zoning is bad because it doesn’t seem to be for the public good (Euclid standard).

  2. Village 2 shows that rezoning a small piece of land is not always “spot zoning” if it is done with the interests of the whole community in mind, in accordance with the comprehensive plan.

  3. City of Eastlake shows what is really meant by “spot zoning.” Ohio Sup Ct said referendum requirement permitted police power to be used in an arbitrary & capricious manner. US Sup Ct holds this is not a delegation of legislative power but a reservation of power by the people of Ohio. All power derives from the people. However, the court upholds the spot zoning because it considers it a legislative decision (voter referendum).

  1. Floating zones (Fasano): where a zoning ordinance permits a certain type of use, but doesn’t include it in any actual zoning districts. The zone “floats” until, upon application by a property owner, it is fastened to some particular parcel to be rezoned.

  2. Exclusionary Zoning

  1. Human rights cases test the constitutionality of certain types of exclusionary zoning.

  1. Belle Terre is borderline; the court says the ordinance restricting land use to single family dwellings does not violate any constitutional rights; it is not discriminatory because it allows for a family of two unrelated people. Marshall’s dissent says it violates the students’ rights of association and privacy.
  2. Moore: Ordinance prevents grandson from moving in with grandmother. Belle Terre does not govern; gov’t cannot regulate the family unless there is an important gov’t interest. Overcrowding and traffic concerns do not justify the ordinance because it doesn’t restrict number of people & cars as long as inhabitants share “nuclear” family relationships.


  1. Schad: Upham thinks it’s ironic that porn is favored over low income housing (Mount Laurel) or freedom of architectural self-expression (Reid—modular home case). (Compare to Bilbar, National)

  2. Class exclusions

Bilbar: Court says minimum lot areas may not be ordained so large as to be exclusionary in effect, and thereby serve private rather than public interest. But a one acre minimum is reasonable in rural area; is not “zoning for exclusiveness.” Ask what is being protected. Supposedly greenspace, but you aren’t really getting greenspace; just larger lawns. Pay attention to Bell’s dissent, which says this is private not public interest. Local residents are using regulation to impose costs on landowners. Bell says you can’t do that (deprive owners of value of being able to sell their lots in pieces.)

National Land: Similar issues as in Bilbar; here, ct says 4 acre min is unconstitutional zoning for exclusiveness.


iii. Mount Laurel illustrates tension between courts and legislature.

Court uses a fair share standard; says each community has to provide its fair share of low-income housing. Looks to effect, not intent, of local legislative action when reviewing it for constitutionality.



  1. What happens when there is no zoning: Colonias

  1. Houston is used to show success of free market system; however, there are still some gov’t controls in Houston. Larson thinks Colonias show what really happens in a true free market.

  2. Possible solution: impose minimal requirements that developers lay some kind of infrastructure (at least clean water and sewage) before building. Note even minimal requirements will raise land prices enough to exclude the poorest residents. (“Crappy housing is better than no housing” argument.)
  1. C. Takings: Tests for whether the regulation is a taking:


1. Is the use noxious? (in other words, does it benefit the public to prevent it?) See Euclid and PA Coal.

Also Mugler (brewery) and Hadecheck (brickyard): even 100% taking is okay if done in proper exercise of police power, e.g. to ban a public harm.


  1. Prohibitor/Proprietor: ask whether the regulation is prohibiting a harm or conferring a benefit. In Lucas, Scalia points out the problem with the test: it’s not possible to distinguish between the two; the difference is only syntactical (like not having to plead a negative or rephrasing any contractual offer as a threat.)

  2. Is the state regulation just a way to arbitrate between two mutually exclusive uses? If so, then it’s not a taking. Miller v. Schoene – As in Sanderson, ct favors industry over individual. But, big difference: this was a democratically arrived at decision. Problem in Sanderson was one of institutional capacity.

Ways to decide between two uses:

  1. Who was there first

  2. Which one is more valuable

  3. Which one spills over borders of property

  1. Magnitude of loss to the individual property owner. (PA Coal, Penn Central)

Lucas
Scalia: Where regulation does not substantially advance legitimate state interests or denies an owner economically viable use of his land, that’s a taking; Lucas should be compensated.

Blackmun’s dissent says ct shouldn’t use this little case that shouldn’t even be before the court to overturn all past precedent.

Stevens talks about the arbitrariness of compensating for 100% loss where the person who loses 95% gets nothing.

Souter says cert never should have been granted because of the unreviewable assumption that total deprivation had occurred.

  1. Does the control restrict the expectations of the individual property owner?

  2. Is there a permanent physical intrusion? (Loretto) Also, look at the nature of the gov’t action. (Can argue physical intrusion even when it’s not; e.g. Causby – airplanes passing through airspace is a physical intrusion; in Penn Central they argued that it was as if the gov’t was occupying the airspace above by not letting them build higher (court didn’t buy that argument).

  3. Reciprocity of advantage: Can’t place all the burden on one person or a small group of people. Penn Central. This is a continuum – if there are other historic landmarks, Penn Central shares some benefit. If there are many historic landmarks then they there is more reciprocity. In Miller, the cedar tree owner benefits from the apple orchards because they benefit the whole community.

D. South Street


      1. The VNA sought to use the property at 920 South St. as a hospice for the care of up to 18 terminally ill cancer patients. This use was opposed by neighbors concerned about the impact on traffic and the prospect of AIDS patients moving into the neighborhood. They claimed that the Needham by-laws prevented more than 5 unrelated persons from living together. Issues:

        1. The property had an existing driveway which ran through property owned by an absent adjoining land owner. VNA sought to continue using the driveway. Denial of access to property constitutes a taking. This is the perfect case for a variance.

        2. The VNA sought to build a new driveway, but doing so required demolishing a stone wall that had been deemed historic.

        3. The VNA sought a building permit to make the changes needed to renovate the house. Armand Levigne, building inspector, determined that the proposed house was a “Nursing or Convalescent home,” and as such required a special permit in order to be allowed.

      2. The board granted the VNA the right to build a new driveway based on their “takings” arguments. The neighbor agreed to allow the VNA to use the old driveway until a new one could be built. However, the board rejected the VNA’s application for a special permit, agreeing with neighbors on traffic and property value concerns.

      3. The VNA responded with two courses of action:

        1. They filed suit in MA Land Court challenging the broad zoning ordinance and the application of the ordinance to the VNA. Specifically, they allege that the Needham by-laws violate MA State Constitution and the Federal Fair Housing Act, and that the denial of the special permit was unconstitutional, as the decision was “arbitrary and capricious,” and has no reasonable relation to public health, safety or welfare

i. Remember that the decision to grant a special permit would not have been considered spot zoning.

ii. Such a suit could have resulted in striking the law, granting the variance, or finding that the standards were misapplied and remanding the case to the town board.



        1. They also sought an amendment of the existing by-laws. Under Tippett’s advice the VNA proposed an amendment that would restrict hospice use to 2 acre lots, rather than allow it in the town as a whole, to play on town resentment of the affluent South St. residents.

      1. The town meeting passed the zoning ordinance. However, concerns remained over attorney general approval, as the law could be viewed as exclusionary zoning, as it changed the zoning for an area of the town without a clear relationship to health, safety and welfare, for the purpose of keeping hospices out of areas of town where they are not wanted.

        1. Upham thinks this was very skillful lawyering by Margolin. No one has a motive to challenge the constitutionality of the zoning, except other hospice providers. The VNA would be happy if such a zoning change was made, as it would allow hospices in all of Needham.

        2. Was it ethical to propose a law that was probably unconstitutional? Perhaps, but Margolin’s primary obligations were to the VNA.

        3. Ultimately the AG did give approval of the amendment, albeit with the warning that it was not meant to sanction zoning which excluded hospice houses serving the disabled, who were protected under both state and federal acts.

      2. However, Levigne had the opportunity to raise one more stumbling block against the VNA, place the hospice in a use group with stricter building restrictions to make the renovations prohibitively expensive. Accordingly, Levigne placed the VNA in the I-2 institutional use group despite pleas by the VNA and a letter from Brian Gore, technical director of the State Board of Building Regulations and Standards, that the hospice be classified in R-2, doubtful residential use. The 920 building, with a wood frame, would not meet the I-2 requirements.

        1. The VNA appealed to the SBBRS, noting that the R-2 use group more closely fit their proposed uses, classification in the I-2 use group would violate the FFHA by making the hospice prohibitively expensive, and that the South St. neighbors had no standing to influence the board, as the difference b/w I-2 and R-2 would not affect the neighbors’ interests.

        2. After taking testimony from the VNA, Levigne, and the neighbors, the board found that the R-2 classification was the most appropriate.


Exam note: Professor Upham told us he “probably” would not have a South Street question on the exam. South Street was very, very important on our exam. You will need to be much more detailed about it than I was when I did this outline.

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