Prop Flashcards
Policies
a. Alienability – prop should be transferable & promote economic efficiency b. Social welfare c. Efficient use of resources d. Fairness e. Individual rights f. Distributive justice
locke (social k)
w/o gov, prop is not secure. People form a social k w/ gov to protect prop. Protection is in the form of laws. Law must regulate prop, partly through police power, to protect prop.
blackstone (prop is freedom)
Gov imposes unnecessary restrictions on rights. People guard against this through absolute rights. Prop rights thus protect people from government tyranny
police power
gov has power to regulate & impose limitations in interest of general welfare of community so long as it’s reasonable & constitutional. doesn’t require compensation to prop owners.
Policy:
Sic Utere Tuo- use yours so as not to injure others
Salus Populi Suprema Lex Est - people’s welfare is the supreme law
trespass (tort)
unprivileged intentional intrusion
conquest: right of discovery
Gives a nation the power to exclude other nations in any territory claimed by that nation in newly discovered regions. Courts may not question the U.S. claim to title when obtained this way.
discovery gives:
imperium: power to set jdx boundaries & exclude others from exercising jdx
dominuim: power to grant & convey land, & extinguish the title of indigenous peoples
type of prop under conquest
- fee simple absolute
- recognized: congress has enacted a statute specifically recognizing prop rights (i.e. hunting, fishing). reservation is highest form. has to be compensated.
- original indian title: right of occupancy w/ power to convey. essentially a license that can be revoked by US w/o comp
eminent domain
5th amend: “nor shall private prop be taken for public use w/o just compensation”
- taking
- public use: used by state/public, or public purpose (public benefit must predominate over private)
- just compensation: fair market value standard. prop must be valued at its highest & best use. if only a portion of land is taken, severance damages apply if remaining land is devalued. if remaining land value increases, damages can be offset.
Problem with Eminent Domain
i. Ideological - How much power should the gov have
re eminent domain?
ii. “Cahoots” - developers & local gov working
together to take prop from private citizens for their
own benefit
iii. Emo - forced to sell property that one has emo
attachment to
iv. Holdout - w/o eminent domain, certain prop owners
can hold out for more money, or can even refuse to leave
Responses to Eminent Domain
i. Restriction on types of projects
ii. Restrictive definitions of “public use” iii.Restrictive definitions of “blight”
iv. Strengthened procedural protections
v. Use of moratoria to stop/ delay eminent domain
gift/will elements
- inent
- delivery
- acceptance
first possession
- first in time
- actual corporeal possession: pursuit along not sufficient.
- intent to possess
gray’s rule
when actor undertakes significant but incomplete steps to achieve possession he has a pre-possessory interest in prop, which constitutes a qualifies right to possession that’ll support a cause of action for conversion.
pre-possesory interest may lead to equitable division. remedy, cannot be split, sold, profits are split.
priority of ownership
- TO (trumps all)
- owner locus in quo (may trump all below)
- finder #1
- finder #2, etc.
types of found prop
- lost- owner accidentally misplaced. owner>finder 1
- mislaid- owner intentionally left prop, but forgets where.
owner>owner locus in quo>finder 1 - abandoned- owner intentionally relinquishes all prop rights. finder wins.
- treasure trove- prop that’s been buried or hidden for an extended period of time. if finder trespassing, owner locus in quo wins. if finder not trespassing, finder wins.
adverse possessor elements
- actual possession
- exclusive possession
- open & notorious
- hostile
- continuous
- for the statutory period
AP: actual possession
phys use or occupation of land (using land as owner would). only land actually occupied can be claimed (unless color of title).
CA: substantial enclosure + paying prop taxes for 5 years
AP: exclusive possession
exclusive from:
- TO. If TO takes control the clock stops and it start at 0 when you take possession again
- third parties
AP: Open & Notorious
purpose: put TO on notice that prop is being possessed by non-owner. must be sufficiently open it’s visible to reasonably diligent owner & notorious to suggest to onlooker that AP is TO. (testimony of neighbors)
type of notice:
1. actual- TO knows someone is on their prop. statutory period begins when the owner actually knows the adverse possessor is on prop.
2. constructive- a reasonably diligent owner would’ve known that someone was on their prop. most commonly used. period begins when AP possesses prop.
AP: Hostility
lack of permission to be on prop. there’s usually a presumption.
types:
1. subjective
a. bad faith- AP knew AP didn’t own the prop
b. good faith- AP thought he owned it
- objective (courts prefer)- whether TO granted premission or not. if they haven’t this meets hostility element.
AP: Continuous
must use & possess prop w/o interruption for statutory period
AP: Statutory Period
- tolling- beginning of period is tolled to a later date. used if TO has disability at time of entry. period stops when TO commences litigation.
- tacking- periods of various APs “tacked” onto one another to meet requirement so that last AP can sue to quiet title. requires privity- AP must convey to AP, cannot simply pick up when one leaves.
color of title
AP of part of the land, plus defective written instrument giving title to the whole parcel, gives constructive possession to all that the deed describes.
Attempt at legal conveyance, but some defect. Good faith validity required in some jdx.
may reduce SOL & satisfy hostility element.
policy justifications for AP
i. clarification of title/ economic efficiency
ii. promotion of socially beneficial use of land
iii. protection of expectations/ psychological considerations
iv. moral/ personhood
warranties of title: present covenants
- of seisin – grantor promises he actually owns prop being conveyed
- of right to convey title – grantor promises he has the power to transfer interest to the grantee
- against encumberances – grantor promises that there are no mortgages, leases, liens, taxes, or easements on the property
warranties of title: future covenants
- of warranty (deeds)
a) quitclaim- transfers only the interest the grantor possesses at time of conveyance. b) special warranty- limited to covenant defects caused by grantor’s own acts c) gen warranty- covenant against all defects in title - of quiet enjoyment- no other person can come along & claim a superior title, also covered by warranty.
- of future assurance- rarely used. requires seller to take further steps to cure defects in grantor’s title (like paying AP to leave)
recording statutes
- race – person who records first prevails.
- notice – subsequent purchaser prevails over an earlier purchaser only if the subsequent purchaser didn’t have notice of the earlier conveyance.
- race-notice – subsequent purchaser prevails over prior unrecorded interests only if she:
a) had no notice of prior conveyance at time she acquired her interest & b) records before the prior instrument is recorded
types of notice (recording system)
- actual
- constructive
- inquiry (there was some facts the subsequent purchaser was are of/should’ve been aware of)
can be any of the 3
wild deed
Was either recorded too early (before grantor obtained title to the property) or too late (after a deed from the grantor was recorded). Doesn’t provide constructive notice.
shelter doctrine
Allows a bona fide purchaser to convey property to a third party even if the third party is on notice of an earlier conveyance.
Estoppel by Deed (aka After-Acquired Title Theory)
If O conveys property that he does not own to A, and O later gains title to the property, title passes to A. However, A can choose to sue for damages, rather than accept property.
terminology - future interests
- words of purchase- “to A…” identifies transferee
- words of limitation- “& his heirs” identifies the type of estate
- words of time- “so long as” “during” “while” “until”
- words of condition- “provided that” “on condition that” “but if”
Interpreting Ambiguous Conveyances
courts prefer to interpret a deed so that it has the weakest future interest possible in order to promote the free use of land
present interests
- fee simple absolute- highest for of prop ownership
- fee simple determinable- estate will automatically end if condition occurs
- fee simple subject to condition subsequent- estate will end if condition occurs and transferor requests
- fee simple subject to executory limitation- estate automatically ends when a specific condition is met & then transfers to 3rd party
- fee tail- estate is held for life of a bloodline
- life estate- estate ends at end of one’s life
- LE por autre vie- estate ends at end of another’s life
- estate for years - ends after specific period of time
future interests: reverter, right of entry, reversion
- possibility of reverter- estate automatically return to grantor if condition is violated
- right of entry- grantor has power of termination when an estate may return to grantor if condition is violated and grantor decided to reclaim estate. may reclaim through ejectment or quiet title
- reversion- once lessor estate comes to an end, prop automatically reverts to grantor
future interests: vested remainders
vested: remainder is created when prop is transferred to both a direct transferor & a named 3rd party, & isn’t subject to a condition precedent to 3rd party taking possession.
1. vested remainder absolute- remainder that’s certain to become possessory in future & cannot be divested
2. VRSTD- remainder that’s certain to become possessory in future unless a condition is met
3. vested remainder subject to partial divestment- remainder that’s certain to become possessory, with at least 1 member of a class that’s ascertainable. estate can become partially divested if further members of class become known.
future interests: CR
contingent- remainder cannot be fully vested at time of granting
- unascertained person- prop cannot be vested bc beneficiary is unknown
- condition precedent- prop cannot be vested bc beneficiary is subject to a condition precedent which has not yet occurred
future interests: executory interest
a future interest, held by a 3rd party transferee, which either cuts off another’s interest or begins some time after the natural termination of a preceding estate
all or nothing rule & rule of convenience
- All or Nothing Rule – If not ALL the members of the group have met the condition when the future interest becomes possessory, NONE of the members of the class are entitled to possession (traditional)
- rule of convenience- closes class when remainder becomes possessory. members of class who are vested at time of closing take their share w/o threat of further partial divestment (modern)
destructibility doctrines
- The Rule of Destructibility
- Doctrine of Merger
- Rule in Shelly’s Case
- Doctrine of Worthier Title
- Rule Against Perpetuities
rule of destructability
if a CR doesn’t vest at expiration of a LE (or preceding estate) the CR is destroyed
doctrine of merger
if a LE holder conveys his estate back to owner, the owner’s reversion merges w/ the LE (giving fee simple absolute)
doctrine of worthier title
applies to inter vivos conveyances that purport to create a CR or executory interest in O’s heirs. destroys the future interests in O’s heirs & instead creates a reversion in O.
the rule in shelley’s case
if in one instrument O creates a LE in A, and purports to create a CR described as A’s heirs, then then remainder becomes a vested remainder absolute in A.
RAP - measuring & validating life
measuring life – anyone alive at the creation of the interest who can be used to measure the perpetuities
validating life – measuring life w/in whose lifetime + 21 yrs the future interest is certain to vest, thus satisfying the RAP
steps to apply RAP
- determine whether future interest is subject to the rule (CR, EI, VRSPD)
- identify the measuring life
a. holder of the interest
b. person who created interest
c. any person who can affect a condition precedent
d. any person who can affect the identity of the person - will the future interest vest or forever fail to vest w/in the perpetuities period? If yes, rule is satisfied. If no, FI violates rule.
- strike out language w/ the FI
- reconstrue conveyance w/ remaining language
voluntary waste
result of deliberate affirmative acts of the possessory tenant that changes the condition of the land.
SOL doesn’t run until tenancy expires b/c harm thought to be continuous.
permissive waste
failure of possessory tenant to perform an affirmative duty imposed upon him for the benefit of the owners of future interests in the land that changes the land. e.g. failure to perform necessary repairs, failure to pay prop taxes, failure to eject AP
ameliorative waste
a life tenant’s actions increase the value/utility of the prop. although the remainder holder is entitled to take possession of the land in substantially the same condition as when first transferred to the life tenant, if there is a complete & permanent change of surrounding conditions, that has deprived the prop of its value & usefulness, the life tenant can make fundamental changes
hierarchy of protection against waste
- indefeasibly vested remainderman- damages: yes, injunction to prevent future waste: yes.
- CR- damages: no, injunction: yes
- executory interest holder- damages: no, injunction: yes IF reasonable possibility the interest will become possessory AND a prudent fee simple owner would not have performed the act(s)
what if the property is no longer economically viable or personally useful in its prior form?
In some cases, the life tenant can petition the court to force the remainderman to agree to a sale of the property. Must be in the interest of both parties, incl the remainder holders. purchaser of prop gets fee simple absolute. a portion of sale will go to the left tenant & to the remainders.
servitude
creates a right or an obligation that “runs w/ the land” or w/ an interest in the land. a right or obligation RWL if it automatically passes to successive owners or occupiers of the land or the interest in land w/ which the right or obligation runs.
Easement by Estoppel
A license made irremovable, and thus becomes an easement, when the licensee invests time in improving the property (either SE or other land of the investor) he has permission to use or when he is induced to act in reasonable reliance on the license.
Easement by Estoppel (rest)
expectations that create the servitude will also define its scope/terms. relevant expectations are those that reasonable people in the position of the landowner & the person who relied on the grant of permission or representation would’ve had under the circumstances.
Easement by Estoppel - how long should an irrevocable license last?
- extent necessary to realize upon the expenditure
- same as any other easement, except 1) only so long as reasonably necessary to recover expenditures 2) the parties intended or reasonably expected that it would remain irrevocable
Prescriptive Easements - Elements
- use
- open & notorious
- hostile
- continuous
5, for the statutory period - exclusive (some jdx)
Prescriptive Easements - Use standards
- determined by extent of actual occupation & use
- general outlines rather than the minute details of interest
- definite & certain line of travel, slight deviations will not defeat an easement
Prescriptive Easements - hostility
objective: use of prop is not permissive
subjective: what was the AP’s intent?
doctrine of ancient lights not recognized in US. negative easement cannot be acquired by prescription bc doesn’t meet elements & interferes too much w/ free development of land
Prescriptive Easements - Hostility: problem of acquiensence
1) continuous use of an easement over a long period of time w/o landowner’s interference is presumptive evidence of its existence & in the absence of evidence of mere permissive use it will be sufficient to sustain a judgement.
2) gen rule: open & notorious use will be presumed to be adverse
Public Prescriptive Easements
traditional rule: no
modern: ok, but permissive use is presumed absent clear evidence to the contrary. if a trial court finds the public has used land w/o objection or interference for more than 5 years, it need not make a separate finding of “adversity” to support a decision of implied dedication. social benefit justifies this.
Prescriptive Easements for Creating Nuisance
Yes. Nuisance was a violation of rights, but failure to sue to abate the nuisance within the statutory period constitutes a waiver or admission that the harm is not substantial. Would be unfair to the factory to bring it now.
Counterarguments:
1. Harms the interests of the
community, not just the neighboring the neighboring owners.
2. Significantly reduces usability and marketability of affected properties
Prescriptive Easements: for the statutory period
can tack across a properly conveyed deed, but cannot tack via another DE
Easements Implied by Prior Use - Elements
seller of a parcel of land retains an easement in the land implied by seller’s prior use of the land.
Elements:
1. 2 parcels owned by common grantor (“unity of ownership”)
2. one part of parcel previously used for benefit of the other part in way apparent/visible, continuous (some), permanent (some).
3. conveyance of one part w/o mention of use
4. necessary, beneficial or convenient for enjoyment of DE (“necessity”)
Easements Implied by Prior Use - apparent/visible
- things discoverable w/ reasonable inspection
- whether a reasonable person would expect to continue use no matter who owned the prop
Easements Implied by Prior Use - necessity
important to determine whether grantor & grantee intended an easement to continue.
reasonable v strict:
1. implied grant (grantee is claiming easement) - reasonable
2. implied reservation (grantor claiming) - strict
trend 1- towards reasonable
trend 2- totality of the facts
more open/obvious the use, less necessary & beneficial has to be. less open & obvious, more we will require strict necessity.
Easements Implied by Necessity - Elements
may be granted to the owner of a landlocked parcel over remaining lands of the grantor
to obtain access to the parcel.
Elements:
1. unity of ownership
2. severance creates a landlocked parcel
3. necessity for ingress & egress existed at time of severance
Easements Implied by Necessity - necessity element
- strict necessity for effective use of prop
- doesn’t require SE to accommodate DE’s desire to profit from a potential subdivision
affirmative - express easement.
burden v. benefit test
- Does burden RWL?
a) writing
b) grantor intended RWL
c) subsequent SE owners had notice at time of purchase - Does benefit RWL?
a) what’s the intent (based on deed language)
b) if easement would be useful separate from ownership of neighboring land = prob intended to be in gross.
c) policy: neighborly arrangement shouldn’t extend to future generations. appurtenant is great encumbrance, should only be granted when parties clearly intended.
appurtenant easement
- RWL
- lease: PoE
- benefits land, therefore, DE & SE next to each other
in gross easement
- personal to holder
- lease: PoK
- benefits owner of easement only therefore props don’t need to be adjacent (no DE)
in gross easement: licensing
Can holder of in gross easement apportion/license his use to others?
a) exclusive - SE permission required
b) non exclusive - no
doesn’t RWL
real convenant
non-possessory interest that RWL. either compels landowner to do something or not do something
real covenant elements
- writing
- intent
- notice
- touches and concerns the land
- privity
real covenant - writing
traditionally needed a legal instrument (deed or lease), but can invoke estoppel to enforce representations made in sales lit or made orally to buyers
real covenant - intent
- often implied
- grantor intended restriction to RWL on both sides
real covenant - notice
- owner of burdened estate is put on notice of the restriction at time of purchase
real covenant - touches & concerns the land
- both DE & SE Burden: 1. does it burden the use of the land? 2. does it limit the quality of the land? 3. does it limit the value of the land? 4. does it limit the mode of enjoyment of the land? Benefit: does it enhance the 1. use of the land 2. quality of the land 3. value of the land 4. mode of enjoyment of the land
horizontal privity
one piece of prop is burdened for the benefit of another.
creation: one party conveys right of possession to another party (lease, license, easement)
mutual privity: both parties have a mutual interest in same prop. (LL has FI & lessee has a conveyed interest)
instantaneous privity: benefit & burden of covenant can be attached to both parcels if covenant is created at moment of sale/conveyance/subdivision
vertical privity
benefits & burdens run to succeeding owners of both parcels.
creation (standards):
1. relaxed (modern): benefit & burden of covenant is placed on future possessors of the land. benefit stays w/ original benefited land. burden stays with original burdened land.
2. strict (traditional): when either of the original benefited/burdened owners sell to another party the covenant is destroyed.
Third Restatement
replaces “touch & concern” & “privity” elements w/ a reasonableness standard:
a real covenant exists (RWL) unless it’s unconscionable, w/o rational justification or violates public policy.
factors:
1. whether covenant has an impact on the considerations exchanged
2. whether it’s reasonable concerning area & duration
3. whether it violates public policy bc it constitutes unreasonable restraint on trade or otherwise interferes w/ public interest
Third Restatement - public policy
court would want to retain elements & not go to reasonableness for:
a. stability
b. efficiency
c. want a high bar (covenants restrict use of prop; want to make sure covenant is fully legit)
court would want reasonableness bc:
a. gives court flexibility
b. more equitable
real covenant remedy
damages
real covenant termination
- changed conditions (DE)
- relative hardship (SE)
- acquiescence (SE)
- abandonment (neighborhood)
- prescription (SE; statutory period)
- unclean hands (SE)
- estoppel (SE reliance)
- laches (DE knowledge)
- marketable title acts
- merger (holder of SE becomes owner of DE)
- release by DE
equitable servitude
non-possessory interest that RWL. either compels landowner to do something or not do something.
equitable servitude - elements
- writing
- intent
- notice
- touches & concerns the land
equitable servitude - privity
injunction
Third Rest - remedy
damage or injunction
broker agreements
- exclusive right to sell- broker gets commission even if seller finds own buyer
- exclusive agency- broker gets commission if prop is sold by him or another broker
- open, non-exclusive- broker gets commission only if he first produces fit buyer
real estate process
- offer (by buyer)
- sales k
- executory period (inspection, financing, seller’s ability to convey title)
- closing (delivery of deed)
- post closing (deed replaces k)
mortgages - lein & title theory
- lein- mortgage creates a lein upon the title, but mortgager still hold legal & equitable title
- title- mortgage transfers legal title to person giving the $, whereas mortgager still retain equitable title
mortgages - redlining & subprime
- redlining: lender discrimination. giving loans they can’t afford to people who don’t know any better.
- subprime: not discriminatory, but giving loans to people who can’t afford them.
types of tenancy
- tenancy in common
- JT
- tenancy by the entirety
tenancy in common
- each tenant holds a separate, undivided interest
- each has right to possess the whole
- freely convey & devise
- no right of survivorship
joint tenancy
- each JT has own interest w/ right of survivorship
4 unities:
1. time (must be at same time)
2. title (must acquire in same instrument. in some jdx, instrument must actually say w/ right of survivorship)
3. interest (must be the same)
4. possession (right to posses whole)
modern trend: drop 4 unities & focus on intent of grantor
JT - right of survivorship
when JT dies, her prop interest is immediately transferred to remaining JTs in equal shares.
JT - severance
- creates a TiC
- conveyance breaks it
protection through alternative CR: “to A & B as life tenants, then to A if A survives B or B if B survives A”
creating a JT through a straw man
A conveys Blackacre to X (straw man) in fee simple absolute. X then conveys Blackacre to A and B as JTs
tenancy by the entirerty
4 unities + marriage
- divorce terminates
- right of survivorship cannot be defeated by conveyance to a 3rd party
co-ownership: policy
- promote alienability of land
- presumption of TiC (some states, tenancy by entirety is presumption for married couples)
co-ownership: rights & duties
- duty to share expenses.
exception: co-owner in full possession must bear expenses if value of occupancy exceeds payments. major improvements must be agreed to. - right to collect rent from 3rd parties who are in possession of prop
- right to possess the whole. (no duty to pay rent to co-owner not in possession when not possessing by choice)
- right to lease prop w/o permission of other co-owners
ouster
an explicit act by which one co-owner wrongfully excludes others from their right to possession of jointly-owned property
ouster (can sue for…)
- damages (reasonable rental value) OR
- injunction (but ct will not force ppl to live together); so…
- partition
- types (judicial, voluntary)
- kinds:
a) physical
b) by sale (proceeds divided according to share) courts favor this. done when phys attributes of land are such that partition in kind is impractical/inequitable. done when interests of owner would be promoted by partition by sale.
constructive ouster
- denial of right to occupy premises jointly
- joint occupancy must be impossible or impracticable
- requires that party make demand for rent as an affirmative act
leasehold: term of years
- advance agreement that lease will continue for a designated
- needs to be in writing
- termination: automatic, no notice required. LL cannot evict unless breach of material term. may be terminated earlier bc of some event/condition stated in lease. death doesn’t terminate.
- commercial: 99 years
leasehold: periodic
initial fixed period, then automatically continues for additional equal periods.
- needs to be in writing.
- termination: by notice (based on period)
- can be implied through conduct (giving/receiving checks for rent)
leasehold: at will
no fixed duration; continues as long as LL & tenant desire.
- creation needs to be in writing & w/o end date or entry under a void lease
- termination:
a) CL- abandonment or notice
b) statute- advance notice (usually/CA 30 days)
c) others- advance, conduct, death of either party but notice still required
leasehold: at sufferance (holdover)
tenant remains in possession after termination/exp of lease for fixed term.
If tenant fails to pay, LL can eject as a trespasser. traditionally may be lawful to use self-help.
If tenant continues to pay & LL accepts payment, there’s an implicit acceptance & a periodic tenancy is created.
rent (basic rights & duties)
- LL right to receive agreed upon rent
- tenant’s duty not to commit waste
- LL reversion
LL remedies (when tenant doesn’t pay rent)
- possession & back rent
- renewal of tenancy
- self-help (disfavored)
- summary procedure
LL remedies for tenant’s surrencer
- accept (LL may sue for back rent; damages for breach of lease- agreed upon rental price minus fair market; circumstantial damages- reasonable cost for finding replacement plus rent while place is vacant)
- re-let on tenants account (refuses to accept surrender & re-lets prop. may sue for difference between old&new price. new price must be reasonable)
- wait & sue for rent at end of lease
LL duty to mitigate
LL has affirmative duty to make a reasonable effort to mitigate damages = find replacement tenant.
reasonable diligence: LL must act the way
a) he normally does when seeking a tenant (if experienced)
b) a reasonable LL would (when new LL)
implied warranty of habitability - definition & defenses
requires LL to keep their leased prop habitable = comply w/ housing & safety codes AND maintain premises as suitable for habitation.
defenses:
a) notice- tenant must notify LL & LL is allowed reasonable amount of time to cure issue
b) waste- ∆ has duty not to commit waste
tort liability- LL liable only if he acted negligently
- no implied warranty of habitability w/ commercial leases
tenant’s remedies (habitability)
- recession (right to move out w/o being liable for rent)
- rent abatement
- repair & deduct
- report LL to house authority
- withhold rent
- injunction/specific performance
- criminal prosecution (dangerous/unlawful conditions)
- compensatory damages (personal injury/prop damage)
quiet enjoyment
right to the undisturbed use & enjoyment of real prop by tenant or landowner
quiet enjoyment (constructive eviction)
LL’s substantial interference w/ tenants quiet enjoyment of prop.
traditional: a) tenant must move out b) intent of LL necessary c) substantial interference necessary
rest: a) tenant doesn’t have to move out; must only stop using affected part b) intent of LL is irrelevant c) more than insignificant interference is necessary
Retaliatory Eviction
act of a LL in ejecting or attempting to eject a tenant from a rented premises, or in refusing to renew a lease, bc of tenant’s complaints or participation in a tenant’s union or in similar activities with which the LL is not in accord
Retaliatory Eviction (tenancy)
- incidental to tenancy
2. reasonable time (presumption: if tenant is evicted w/in 1 yr of tenant’s act, eviction is retaliatory)
LL’s defenses
- decision was reasonable exercise of business judgement
- good faith desire to dispose of entire leased prop
- good faith desire to make different use of leased prop
- lacks fin ability to repair leased prop
- unaware of tenant’s activities which were protected by statute
- didn’t act at first opportunity after learning of tenant’s conduct
- act not discriminatory
nuisance
substantial and unreasonable interference w/ use or enjoyment of land (noise, odor, smoke, dust, insects, vibrations, killing of vegetation, land depreciation)
nuisance elements
- intentional
- unreasonable
- substantial (reasonable person standard)
- non-trespassory interference w/ (non-phys)
- use & enjoyment of another’s prop
nuisance - unreasonable (rights analysis)
does π right to use & enjoy land outweigh ∆’s right to freedom
nuisance - unreasonable (gravity of harm test)
does the gravity of harm outweigh the social utility of harm constituting the nuisance.
factors:
1. extent of harm
2. character of harm (health/safety v. aesthetic)
3. type of harm socially valued?
4. is the particular enjoyment encroached upon suitable to the locality
5. burden on π to avoid the harm
Social Utility:
1. social value attached to ∆’s conduct
2. suitability of ∆’s activities to locality
partial defense - nuisance
coming to the nuisance- when nuisance is already present before π is subjected to it
π can get an injunction, but must compensate ∆ for costs of relocating & shutting down.
nuisance - legal approaches
- first in time (coming to nuisance)
- coase theorem - econ efficiency
- balancing the equities - combining 2 legal approached
racial discrimination: McDonnel Douglas Test
- π has burden to prove prima facie case of discrimination
- member of racial minority
- applied/qualified to rent
- denied opportunity to rent/inspect/negotiate
- housing opportunity remained available - burden shifts to ∆ produce evidence re legit, non-discriminatory considerations
- then switch back to π to prove pretext
- cannot get punitive damages
racial discrimination - FHA 3604
prohibits false dissemination of false information re availability of housing because of person’s race. failure to provide a minority applicant with the same information re availability or terms/conditions for rental as provided to white ‘testers’ = false information
Sex Discrimination - types
- quid pro quo: submission to or rejection of such (sexual advances), requests or conduct is made explicitly or implicitly a term or condition of employment or as a basis employment decisions
- hostile environment: such advances, requests or conduct have the purpose or effect of unreasonably interfering with a individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment
Sex Discrimination - 3604(c)
unlawful to make, print, publish any notice statement, or advertisement with respect to rental of a dwelling that indicated any preference based on race or sex, or an intention to make any such preference, limitation, or discrimination
Sex Discrimination - π has burden to prove prima facie case of discrimination
- member of protected class
- subject to unwelcome sexual conduct
- tangible terms/conditions of situation adversely change
- change casually connected to rejection
zoning - prior non-conforming use doctrine
where a prop that was used in a manner allowed is now prohibited under new zoning ordinance. ultimate goal of PNCU is to ultimately abate use. we need to ask:
- does the change substantially change the prior use?
- does the change adversely affect the neighborhood or the zoning ordinance?
zoning - PNCU “use” factors
- different use?
- phys expansion of use? reasonable repair v. structural alteration. moving backwards is fine.
- expansion of intensity of use? (ex: increase in employees)
- discontinuance/abandonment
zoning - “change” tests
Bellevile: the quality, character & intensity of the use, viewed in their totality & w/ regard to their overall effect on the neighborhood & zoning plan
Conforti: susbtantially different in character, nature, kind than the PCNU
usually come to same conclusion. belleville asks more.
types of variances
- Use- allows a use that would normally be prohibited in the zone. (ex: permits commercial use in a residential zone)
- UH test - Area- allows modification of height, location, setback, size or similar requirements for a use that is permitted in the zone.
- PD test
variances
when zoning ordinance operates so harshly on particular property that to enforce it against that particular prop would be unfair to owner. prop owner can go to board of zoning appeals to get an a variance from the zoning ordinance. role of court is to determine if there is a practical difficulty &/or undue hardship.
CA Variance law
granted only when special circumstances applicable to the prop (factors: size, shape, topography, location or surroundings). Strict application of the zoning ordinance deprives such prop of privileges enjoyed by other prop in vicinity & under zoning classification.
“unusual circumstance” - provide significant public benefit, not substantially impair intent/purpose of ZO
variance - “practical difficulties” test
lower standard.
significant economic injury resulting from enforcement of ZO
variance - “undue hardship” test
topographic conditions, extraordinary situation/condition of prop, effectively prohibits/unreasonably restrict utilization of prop., interferes w/ all beneficial uses of prop as a whole, no economically viable use (no econ return)
problem: municipality changes zoning ordinance when a prop owner has begin but not yet finished developing his prop
If owner has acted in accordance/in good faith w/ reliance upon existing ordinance & made substantial expenditures towards that development, then municipality may be estopped from enforcing new ordinance against that particular prop.
Q: when the right to build becomes vested so that municipality is estopped from enforcing.
A: some jdx substantial expenditures are sufficient. CA: no right vests until owner receives building permit.
3rd Rest (covenants)
abolishes distinction between real covenants & equitable servitudes. likely to be enforced either by injunction & damages as long as they are:
- in writing
- intended to RWL
- owner of burdened estate was on notice of restriction
- covenant is one that’s appropriate to impose on subsequent possessors of SE for benefit of future owners of DE
implied reciprocal negative easements - triggering fact
subdivision triggers.
invented to deal w/ intent, notice, & PoE issues that arise when a developer imposes grantee covenants on all lots in a residential subdivision & when the developer intentionally or inadvertently leaves those restrictions off some of the lots
implied reciprocal negative easements - outline
is there a general plan? (takes care of notice but can also be inquiry notice)
implied reciprocal negative easements - factors to show general plan
covenants restricting land in a subdivision are mutually enforceable by & against all owners if the properties were all intended to be part of a general plan. factors:
- presence of restrictions in all or most deeds to prop in area
- recorded plat (map) showing restrictions
- presence of restrictions in last deed
- observations by owners of similar development of their land & conformity to the written restrictions
- language stating that the covenants are intended to RWL
- recording of a declaration stating that the covenants are be mutually enforceable
