This web site provides updated information about the course
and assignments. It also contains links to the handouts and materials used in
the course, as well as links to sites on the web. Feel free to contact me if you have any
questions.
Please note: All materials on this web site are protected by copyright
and intended for use only by students enrolled in Property II at California
Western School of Law. Students enrolled in the class may copy these materials
to their own computers. However, these materials may not be transferred to
others or posted on publicly accessible web sites.
We will be using two resources: (1) Ehrlich, Photocopied Assignments & Supplement; and, (2) Dukeminier, Property. All of the Assignments for the course are contained in the photocopied materials or on-line via this link: Assignments for the entire Semester. Assignments the next two or three classes will always be posted below. As time passes, you can find earlier assignments at the following link: Past Assignments
1.
For Thursday, January
17:
a.
Review the Model
Answer to the Covenants & Servitudes Hypothetical. Copies were handed out in class or can be
found on-line in the Links section below.
b.
Scope &
Interpretation: Read the “Family Guy” HOA letter. Why did the tenant get to keep his Family Guy
cutout in the window?
c. Part B(6). Read Hill v. Community of Damien of Molokai in the Supplement at pages 24-32. Note 5 on page 881 of Dukeminier.
i. Suppose that the covenant in Hill stated the following:
1.
No home may be
occupied except by a single family related by blood, adoption or marriage, or
2.
No home may be
occupied except by Christians?
3. No home may be occupied except by members of the Buddhist
faith?
4. No home may be occupied except by members of the National
Rifle Association?
ii. Would these covenants “touch & concern” land and be
enforced against successors in New Mexico?
Should they be enforceable against successors?
d. Read “Methods of Terminating Easements & Covenants” in the Supplement at pages 33-34.
2.
For Tuesday, January 22:
a. Western Land v. Truskolaski at pages 882-887. When reading Western Land keep in mind that it is a termination case. In class we will focus on the touch and concern element and divide our inquiry into two questions:
i.
Did the
covenant/servitude touch and concern when it was created?
ii. Does the covenant/servitude continue to touch and concern at the time of the case, if circumstances have changed?
b. Read Rick v. West on pages 887-888 with a critical eye. Although this is a short case in your casebook, we will spend considerable time on Rick v. West and the notes following the case.
i. Did the trial judge reach the correct result? Does the covenant made by Rick to use the retained land “touch & concern” by enhancing the objective value of the land of the party seeking to enforce the covenant? Keep in mind the following:
ii. Suppose that Mrs. West’s land is worth $50,000 if the surrounding vacant land is restricted to residential use but Mrs. West’s land is worth $75,000 if the restriction is not enforceable by or against her.
iii. Does it make sense to enforce the covenant against successors to Mr. Rick? Does it “touch and concern” by enhancing the objective value of land and stabilizing land use so as to allow for real estate investment and development?
iv.
If the covenant is not enforced against Rick’s
successors, can Mrs. West still get damages from Rick for breach of
covenant? What would be the amount of
her damages if her land increases in value as a result of the
non-enforcement of the restriction on surrounding land?
c.
Read
the New York statute on page 889 and the Massachusetts statute on page 990 with
great care and identify the purpose of each statutory provision.
3.
For Thursday, January 24:
a. Waiver & Estoppel: Review the last few slides of the slide show from last class. What is the doctrine of waiver? How is the doctrine of estoppel different from the doctrine of waiver?
i. Hypo #1: Assume the same facts as the “four-corners” hypo in the slide show: Beautiful residential neighborhood in wooded & spacious suburban area. 1,000 lots all restricted to residential uses. In 2004 at a major intersection, Corner Lot A is purchased by a Christian congregation which builds a church. None of the 999 other owners objects. In 2006 Corner Lot B is purchased by a Jewish congregation which builds a synagogue. None of the 999 other owners objects. In 2008 Corner Lot C is purchased by a Buddhist congregation which builds a temple. None of the 999 other owners objects. In 2010 Corner Lot D is purchased by a Muslim congregation which begins to build a mosque. Many owners bring an action for an injunction to enforce the residential covenant. The court holds that the doctrine of waiver applies and the covenant cannot be enforced to prevent construction of a Mosque on Lot D. Now, another religious group wants to build a temple on a cul-de-sac at the end of a small dead end lane. Can the surrounding landowners succeed in an injunctive action to stop construction, or does the doctrine of waiver apply?
ii. Hypo #2: Same subdivision. About 20 homes have doctor’s offices. Is waiver applicable if:
1. A lawyer wants to use his/her home as an office?
2. A businesswoman wants to build a 7/11 convenience store?
iii. Estoppel Hypo: Mrs. Dogood resides in a large residential subdivision outside of San Diego. All homes currently used for residential purposes. Many children live in the subdivision. Dogood proposes to the Homeowner’s Association that she be allowed to modify her home for use as a day-care center for children. The Homeowner’s Association agrees that her proposal is a great idea and grants oral permission. Mrs. Dogood spends $40,000 in preparation. After that, a new Homeowner’s Association board is elected. The new board of the Homeowner’s Association serves a “Notice of Non-Compliance” (or some homeowners bring an action seeking injunction & damages). Do the doctrines of waiver or estoppel apply?
b. Condominiums and Other Common Interest Communities: Part B(8). Pages 896-899 and Nahrstedt v. Lakeside Village Condominium Association, Inc. at pages 900-910 and the notes following the case
c. Wrap Up & Review Easements & Covenants: The essay exam from Spring 2002 (covering covenants & servitudes) and a model answer are available on line in the Links section below. This weekend would be a good time to organize the material and then take the exam under normal, exam-style conditions. You can then use the model answer to double check whether or not you have mastered the material covered on that exam.
4.
For Tuesday, January 29th
a.
Introduction to
Public Land Use Control: Read the
introductory materials on Public Land Use Control in Part I (C)(1).
i.
Review Supplement pages
4-9.
ii.
Read Supplement pages
35-36 and "The Zoning Process" at Supplement pages 37-44. These materials cover substantial portions of
the subject matter of zoning that we will examine in far greater detail over the
next few weeks. Read this material carefully
now. Review it from time to time and use
it as a resource throughout our discussions of zoning.
1.
Read D&K pages
925-929 and 941-945. Review the chart at page 41 of the Supplement to
Class. We will use the chart as a road
map throughout our discussions of zoning.
iii.
Read Village
of Euclid v. Ambler Realty Co. at pages 930-938
and the notes 1-5 following the case.
1.
In Village of Euclid v. Ambler Realty Co.,
the U.S. Supreme Court focuses on the “due process” clause of the 5th and 14th
Amendments to the U.S. Constitution. The
Court faces the question of whether or not a comprehensive
zoning scheme that allocates land within a town to different uses (single
residential v. two-family residential) is a deprivation of property without due
process of law. The Due Process
clause of the 5th and 14th Amendments provides that “No person shall … be
deprived of life, liberty, or property, without due process of law.” In Civil Procedure class you studied the procedural aspects of the Due Process
Clause, requiring that parties in civil and criminal litigation be granted
notice, right to be heard, public forum etc.
In the context of land use regulation, the Due Process clause has a
different meaning. The enactment of regulations is done legislatively, not
in courtrooms. Therefore, there are no procedural protections for individual citizens such as notice,
right to be heard, confrontation of witnesses, etc. On the other hand, the Due Process clause
imposes substantive requirements on
legislation – the legislation must be in furtherance of the public health
safety and welfare. This is the aspect
of the Due Process Clause being discussed in Euclid.
2.
What
legal test(s) does the Court apply in answering the question: Is a
comprehensive zoning scheme that allocates land within a town to different uses
(single residential v. two-family residential) a deprivation of property
without due process of law?
1. Covenant & Servitudes Hypotheticals and Model Answer.
2. Judicial Council Forms: This link can be used to access standard
forms for Unlawful Detainer proceedings and other common pleadings.
3. California Codes. This link connects you to the official site of the State of California and allows you to search any of the California Codes. For instance, to find out about tenant security deposits, click “Civil Code” and insert “tenant security deposit” in the search block.
4. Link to California Tenant Rights
Website
This section contains a link to questions posed by students - and answers posted by Prof. Ehrlich. If you have a question that you would like answered, e-mail Prof. Ehrlich at: sbe@cwsl.edu. Your name will not be posted, just the question & answer. Click here to view Questions & Answers.
E-mail: sbe@cwsl.edu
Tel: 619-525-1416
Office: Room 313, Administration Building (225 Cedar St.)
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Office Hours |
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Tuesday,
Wednesday & Thursday |
1:30-3:15 |
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Other Times: |
I’m often available, please knock. |