I. LANDLORD & TENANT a.

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I. LANDLORD & TENANT

a. Definition

i. Usually there’s a leasehold estate

ii. There’s a legal interest that entitles tenant to immediate possession iii. For a FIXED PERIOD

b. Categories of Leaseholds i. Terms of Year:

1. Terminates automatically based upon the agreed period 2. There’s no need to give notice

ii. Periodic Tenancy

1. Can usually be a month to month period 2. Needs the LL or the Tenant to terminate iii. Tenancy @ Will

1. Has no fixed duration

2. Goes on for as long as the both the LL & tenant agree iv. Tenancy @ Sufferance

1. Person in rightfully possession of land wrongfully continues in possession after the right has ended 2. Landlord is free to evict

c. Creation of Tenancy i. SOF

1. Must be in WRITING 2. TERMS must be set forth 3. SIGNED

4. Rule of Construction: The more ambiguous the agreement is the more likely it will be ruled in the Tenant’s favor ii. Selection of Tenants

1. CL: didn’t restrict a landlord’s freedom to choose tenants 2. MODERN

a. Fair Housing Act of 1968 bars discrimination i. Race, sex, familial status or anything in

connection w/ the sale or rental of property iii. Tenant’s Duty to pay Rent

1. Rent Control Ordinance

a. Limits the amount of rent a landlord may charge iv. Landlord’s duty to deliver possession

1. Maj. Rule= Eng. = Requires legal & actual delivery a. If there’s a holdover a remedy is to hold the

LANDLORD LIABLE

2. Min. Rule= Am. = Requires legal delivery

a. If the wrongdoer has wrongfully holdover, the

Tenant’s remedy is against the trespasser & NOT

the Landlord

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d. Condition of Leased Premise i. Constructive Eviction

1. Definition

a. When wrongful conduct of the landlord substantially interferes w/ the Tenant’s use &

enjoyment of the leased premise 2. Elements

a. LL fails to fix the problem w/ in a REASONABLE TIME

b. LL received NOTICE

c. The tenant may VACATE the premise w/out further rent liability OR

d. STAY IN POSSESSION while continuing to pay rent but can SUE FOR DAMAGES

e.

3. Majority Rule

a. Tenant can remain in possession & may sue for damages while continuing to pay rent

ii. Implied Warranty of Habitability 1. Definition- What does it mean

a. Residential lease contains an implied warranty that the LL will deliver the premises in HABITABLE CONDITION and MAINTAIN them in that condition during the lease term

2. Remedy- effectively seeking remedy a. NOTICE- so LL can detect b. Reasonable Time- for him to fix it

i. TENANTS OPTION 1. Sue for damages

2. Repair the defects, then reduce the cost from rent

3. Withhold rent 3. NOTE: only apply to residential property iii. Implied Use & Enjoyment

1. Can’t interfere w/ the Tenant’s right iv. Landlord LIABILITY to personal injury

1. CL- the LL is not generally liable for personal injury 2. MODERN: LL must exercise reasonable care e. Transfer of leasehold Interest

i. Assignment 1. Definition

a. Tenant transfer the right of possession for the ENTIRE remaining term of LEASE

b. Might need a novation to remove all liability from

Assignor

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2. Absent an expressed restriction in lease= freely transferable

3. Non Assignment clause = enforceable 4. Assignee is now liable to the lessor ii. Sublease

1. Definition

a. Tenant transfer the right of possession for only PART of the remaining term

2. Absent an expressed restriction in lease= freely transferable

3. SUBLESSOR remains LIABLE to Lessor iii. Silent Consent Clause

1. Lease required consent but is silent on the standard 2. LL- must act reasonably in his decision

f. Termination of Tenancy i. Doctrine of Surrender

1. Tenant & LL mutually agree to terminate; ending rights and duties

2. Tenant isn’t liable ii. Doctrine of Abandonment

1. Elements

a. Tenant VACATES the premise w/out JUSTIFICATION

b. Lacks the present intent to return c. DEFAULTS on the payment of rent 2. Rights of LL

a. CL -

i. VACATE the premise and SUE for accrued rent

ii. MITIGATE damages by RELETTING the premise then sue for the difference

iii. TERMINATE the lease b. MODERN

i. MITIGATE damages OR ii. TERMINATE the lease iii. LL rights to TERMINATE

1. Can’t terminate for discriminatory reasons AND 2. Retaliatory Eviction

a. Evicting a tenant in retaliation for complaining about housing conditions

iv. Eviction for tenants DEFAULTING

1. Most states allow the LL to exercise self help 2. Few states= Judicial Process

a. Summary Eviction Procedure

i. Very quick, expedient procedure

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ii. Want to encourage peace

II. EASEMENTS

a. Definition: a NONPOSSESSORY right to USE land in the possession of another

i. Affirmative

1. Allows dominant tenant to use servient land ii. Negative

1. Prevents another from doing a particular act on his own land

2. Types that are allowed a. Right to airflow b. Right to light

c. Right to channeled water flow d. Right to lateral support

i. Can’t remove a support from a house on the dominant estate

e. 2 that have lately recognized i. View easement

1. Duty to not block a view 2. Protect access to solar ii. Conservation

1. Given to charity/ gov’t to protect/

maintain historical/ scenic areas b. Easement Terminology

i. Easement Appurtenant

1. Dominant Tenant- the land benefited by the easement 2. Servient Tenant- the land burdened by the easement ii. Easement in Gross

1. Servient Tenant

2. Benefits the holder PERSONALLY, regardless of whether he owns land or not

c. Expressed Easement i. Satisfy the SOF

1. Created in a will or deed ii. Grant or Reservation

1. Grant- upon severance the landowner permits the use of his land

2. Reservation- upon an ENTIRE disposition of land the landowner keeps a right to an easement

iii. Manifest an INTENT to create iv. DESCRIBE the affected land

v. SIGNED by the grantor d. Implication

i. Implied from Prior Existing Use

1. Severance of title to land was held in common ownership

2. Existing, Apparent & Continuous use @ time of severance

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3. Reasonable necessity for the use @ time of severance ii. Necessity

1. Severance of title to land held in common ownership 2. Strict necessity @ the time of severance

a. Landlocked parcel 3. Limitation

a. The easement lasts as along as the necessity exists b. The servient tenant has the opportunity to locate the

easement iii. Prescription

1. Claimant use must be open & notorious 2. Adverse & under claim of right

3. Continuous & uninterrupted for the statutory period 4. NOTE: only affirmative easements can be implied e. Irrevocable License or Easement by Estoppel

i. There needs to be a LICENSE

ii. License must had a SUBSTANTIAL $ OR LABOR iii. Must have good faith RELIANCE

iv. Licensor had knowledge OR a reasonable expectation that the reliance would occur

f. Scope of Easement

i. Usually the easement owner is entitled to do anything that would fulfill the USE & ENJOYMENT of the easement

ii. Can’t UNREASONABLY burden the easement or servient estate holder use or enjoyment of his land

iii. Can make IMPROVEMENTS that are w/in the scope g. Transfer/ Divisibility/ Assignability

i. Appurtenant

1. If there’s no writing prohibiting such 2. Transferable, assignable, divisible ii. In Gross

1. Transferable, assignable, divisible 2. ONLY for Commercial Use

3. UNLESS there was contrary intent by the original parties h. Termination of Easement

i. Abandonment

1. Must have the INTENT coupled w/ NON USE ii. Release

1. Deed can transfer part or all of the easement to the servient estate holder

iii. Forfeiture

1. Not using the easement in the way it was intended or created

iv. Prescription

1. Non- Adverse use is lacking OR any of the elements of

ADVERSE possession is missing

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v. Terms of Grant 1. Terms of Use vi. Necessity has ended

III. REAL COVENANTS

a. Definition

i. A promise CONCERNING the use of land ii. Is ENFORCEABLE in an action for DAMAGES iii. Applies to both negative & affirmative

b. Requirement for BURDEN to run (WITHVN) i. Writing

ii. Intent: to bind iii. Touch & Concern

1. Must relate to the direct use or enjoyment iv. Horizontal Privity

1. There’s a mutual interest in the same land 2. Sometimes a grantor- grantee relationship v. Vertical Privity

1. Exist between an original party & his SUCCESSORS 2. NOTE : succession to the entire estate

vi. Notice

c. Requirement for the BENEFIT to run (WITV) i. Writing

ii. Intent

iii. Touch & Concern iv. Vertical Privity

d. Termination of Real Covenant i. Merger

1. Where there’s ONE COMMON OWNER acquires both the benefited & burdened property

ii. Abandonment iii. Changed Conditions e. Remedies for breach

i. Damages= the difference between the FMV of the benefited property b4 and after the D’s breach

IV. EQUITABLE SERVITUDE

a. Definition

i. A promise concerning the use of land

ii. Benefits and burdens the original parties and successors iii. Enforced by an INJUNCTION

b. Creation Requirement i. Writing

ii. Exception: Common Scheme/ General Plan development

1. Subdivision owners have standing to enforce the benefit of the covenant

2. Common Owner sells 1

^st

set of lot as part of the common

scheme

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3. It’s binding on all parcels in the subdivision (Reciprocal Negative Covenant, Implied Reciprocal Servitude) c. Requirement for Common Scheme

i. At the time of subdivision common owner had the intent that all to be bound by the terms of the negative covenant

ii. If lot sold off previously w/out the expressed covenant Not Bound iii. NOTICE

d. Enforcement

i. Requirement for the BURDEN to run (WITN) 1. Writing

a. Exception : Common Plan or Scheme 2. Intent

a. Evidenced :

i. The purpose of the covenant ii. Surrounding circumstances 3. Touch & Concern

4. Notice

ii. Requirement for the BENEFIT to run (WIT) 1. Writing

a. Exception : Common Plan or Scheme 2. Intent

a. Evidenced

i. The purpose of the covenant ii. Surrounding circumstances 3. Touch & Concern

iii. DEFENSES against Equitable Enforcement 1. Unclean Hands

2. Acquiescence 3. Estoppel

4. Change in Neighborhood Conditions iv. Remedies for Breach

1. Injunction

V. NUISANCE

a. Definition of a Private Nuisance ( NASU) i. Non-trespassory invasion

ii. Can be an act or condition

iii. Substantially & unreasonably interferes iv. w/P’s use & enjoyment of P’s land b. Elements of Private Nuisance

i. Intentional or Unintentional ii. Non-tresspassory invasion iii. Substantial interference

iv. Unreasonable

1. The gravity of the harm must outweigh the social utility c. Defenses to liability of private nuisance

i. Coming into the nuisance

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d. Remedies for Private Nuisance

i. Injunctive- Balancing the Equities

1. Harm must outweigh the social utility of the D’s conduct ii. Damages- Permanent

1. D provides significant social utility AND 2. It can’t prevent the nuisance

3. Rule of Necessity

4. Measured by the difference of the FMV of property B4 and after the nuisance

e. Public Nuisance i. Definition

1. An unreasonable interference w/ a right common to the general public

a. Anything promoting the state’s policing powers ii. B/P = P = must have standing

1. Must have suffered a special injury iii. Must affect a considerable amount of people

iv. DEFENSE to public nuisance 1. The Rule of Necessity

a. Public Necessity of having the nuisance and it substantially outweighs the P’s interest in removing it

VI. ZONING

a. Definition

i. All forms of land use regulation b. Elements

i. Zoning authority are empowered by Zoning Enabling Act ii. Adopts a Comprehensive Plan

iii. Establishing Zoning Ordinance/Regulation

iv. Regulation is based on State’s regulating authority= Policing Powers

c. Constitutionality

i. Usually upheld against a SDP or EP UNLESS

1. Clearly arbitrary and capricious AND having NO Substantial relation to policing powers

d. Euclidean Zoning (Districts are graded or ranked) i. Cumulative

1. Residential are the highest grade 2. Industrial is the lowest grade ii. Non-Cumulative

1. A person couldn’t locate a single family residence in a Retail or Industrial district

e. Non-Conforming Use

i. The use must’ve existed prior to the zoning ordinance ii. The use doesn’t meet the ordinance

iii. Can’t be eliminated right away

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1. Concepts

a. Amortization

i. Extinguishes the non-conforming use ii. There’s a grace period to remove it iii. Just compensation needed

b. Vested Right

i. The violator has made substantial expenditures

ii. Acted in good faith towards the non- conforming use

f. Flexibility in Zoning i. Variances

1. An authorized deviation from the ordinance 2. B/P = Applicant/ Landowner

a. Denial of variance would create AN UNNECESSARY HARDSHIP

b. Variance WON’T BE CONTRARY to the public welfare

c. The problem is UNIQUE

d. There’s a PRACTICAL HARDSHIP 3. Two Types

a. Area -Land Deviation

i. Permitting a deviation in the physical layout of the land

ii. Usually granted b. Use - Use Deviation

i. Permitting the deviation to be in the use of the land

ii. The use is contrary to the zoning ordinance ii. Special Exceptions

1. Requiring a PERMIT for an UNUSUAL ACTIVITY 2. It’s not a deviation BUT rather it is asking for permission 3. B/P = Applicant/ Landowner

a. The ordinance permits the special exception b. The use will meet all the standards set by the

ordinance

c. The granted use will NOT frustrate the purpose of the Comprehensive Zoning Plan

d. The use will NOT detract from the area’s wealth, safety & public convenience

iii. Board of Adjustments

1. Members are appointed

2. Carries out the administrative functions

3. There has to be a complete record for the ct to begin w/ the presumption the B/A decision was correct

4. B/P = P to get a reverse

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a. Ordinance = UNC

b. Board’s finding of facts = Clearly Erroneous c. Board didn’t follow the procedure of guidelines d. Board’s decision= arbitrary, capricious or

discriminatory iv. Amendments

1. Presumption = Valid 2. B/P = P to overcome

a. Clearly arbitrary & unreasonable AND having no substantial relation to the state’s policing powers v. Spot Zoning - Quasi-Judicial action- rigorous standard of review

1. Gov’t must have valid reason for the zoning 2 similar lands differently

a. Usually there’s a deviation from the master plan b. Usually conferring a special benefit on a parcel of

land

2. Test for Spot Zoning (Rezoning)

a. Very different Use - than surrounding areas b. Small Area - one or few parcels are affected c. Benefits a Few - doesn’t benefit the whole

community g. Expanding the Aims

i. Aesthetic Zoning

1. ARCHITECTURAL designs review ordinance a. Is it properly regulated

i. Can’t offend the sensibilities of the average person

ii. Tends to depress property values b. Subject to SS

i. Regulation can’t infringe upon speech ii. Regulation of political advertisement might

violate free speech ii. Contracting (Rezoning)

1. Authorities agree to rezone property BUT landowner agrees to certain conditions

2. K = BINDING on the local zoning authority

3. NOTE: usually invalidated by the ct. BC the zoning authority has attempted to bargain away it’s legislative power

a. Legally Bound iii. Conditioning

1. Landowner places some CONDITION on the use of his property

2. Zoning authority not legally bound to rezone

a. Not Legally Bound

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iv. Floating Zones

1. A zoning ordinance is passed that doesn’t affect any land 2. Zoning authority anticipates having the power to locate the

zones as the need arises

3. NOTE: Look out for spot zoning v. Cluster Zones

1. Applies to RESIDENTIAL

2. The SIZE & WIDTH of individual residential lots in development may be reduced

3. Provided that the overall DENSITY of the whole tract remains CONSTANT

vi. PUD (Planned Unit Development)

1. Applies to commercial & occasionally industrial settings 2. How does it work

a. Developer submits a proposal for a development containing both RESIDENTIAL &

COMMERCIAL uses

b. Designed in such a way that the overall population

& building DENSITY is no higher than under a comparable single use district

VII. EMINENT DOMAIN

a. RULE : Private property shouldn’t be taken for public use w/out just compensation

b. PP : In fairness and justice the public should bear the burden for the gov’t forcing one to give up their property

c. ELEMENTS

i. Private Property

1. Many cases involve the condemnation of property FSA ii. Taking

1. Taking permanent physical possession

2. NOTE: a temporary physical invasion of land authorized by the gov’t = may suffice as a taking

3. ALSO= overly restrictive land use regulation iii. Public Use

1. Defined by the purpose underlying the gov’t action 2. Must be taken for a legitimate purpose w/in the

constitutional powers

3. NOTE: If the gov't takes private property that ends up in private hands = SS applies

iv. Just Compensation

1. FMV of property when taking occurs

a. What a willing buyer would pay in cash to a willing seller

b. NOTE: Sentimental/ Subjective value doesn’t

matter

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d. Procedure

i. Condemnation Suit

1. Gov’t tries to negate a voluntary purchase from the owner 2. Look @ the property being condemned

3. Is there a restrictive covenant

a. There’s 2 rights being affected

i. Landowner & neighborhood enforcement rights

b. Gov’t has to compensate for the rights being abridged

i. The diminish value of lots due to the non- compliance

VIII. REGULATORY TAKING

a. Land Use regulation i. Definition

1. Can be a taking if it really restricts an owner’s rights 2. Just Compensation needed

ii. Balancing Test= determine if it’s a taking

1. Economic impact of the regulation on the claimant

2. The extent to which the regulation has interfere w/ distinct, investment back expectations

3. The character of the gov’t act iii. Types of Taking

1. Permanent Physical Occupation (PPO)

a. If authorized by the gov’t regardless of the public interest it may serve or the economic impact on the owner

b. Reason BC PPO effectively destroys all of the owner’s basic property rights

2. Loss of all Economic beneficial/ Productive Use

a. UNLESS the regulation is justified by background principles of state’s law of the property & nuisance 3. Exaction= can be a taking

a. Definition

i. Gov’t require land developer to provide specified land improvements, payments or benefits to the publics to help offset the impacts of the project

b. Bottomline

i. Land developer has to either pay or provide free service to the public to help offset the impacts of the project